The Issue This is a bifurcated proceeding in which the sole issue before the hearing officer at this present stage of the proceeding concerns whether the construction of a radiation therapy center and the institution of Radiation Therapy Medical Services by Sacred Heart Hospital should be considered a "new institutional health service" pursuant to Section 381.706(1)(h), Florida Statutes, as that relates to the right of Baptist Hospital to intervene in this proceeding. If the project is deemed to be merely a capital expenditure of a million dollars or more and reviewable only for that reason pursuant to Section 381.706(1)(c), Florida Statutes, then the Intervenor would have no standing as stated in Section 381.709(5)(b), Florida Statutes.
Findings Of Fact Radiation oncology is a therapeutic process in which external radiation beams are utilized to treat cancerous tumors to effect a cure or a palliation. Radiation therapy is provided by board certified radiation oncologists in specialized facilities which house radioactive materials and specialized equipment, such as linear accelerators. The provision of radiation therapy requires specialized medical personnel such as technicians certified to operate linear accelerators to provide radiation treatments, as well as physicians and dosimetrists to calibrate machines and insure that radiation treatments are properly delivered. Radiation therapy is a medical specialty which deals with the utilization of radiation for the treatment of cancerous tumors and sometimes benign diseases. Radiation oncology or radiation therapy involves the use of consultative services, the knowledge of clinical, biological and pathological characteristics of the disease process, the evaluation of patients, the localization of tumors, the planning of radiation, the delivery of radiation treatments, and subsequent evaluation of the effects of treatment on the tumor and the patient. Sacred Heart provides cancer therapy through surgery and medical oncology. The various aspects of those cancer treatment services do not include the provision of radiation therapy, although in the past, in several isolated instances, radiation oncology trained physicians have provided brachytherapy involving the implanting of radioactive materials in the tissues or body cavities of the patients involved. These instances did not involve a regular program of radiation therapy provided by Sacred Heart, however, and in the typical instance, any cancer patients needing radiation therapy, including brachytherapy, are and have been referred out to facilities offering such services, including the Intervenor. The present cancer therapy services offered by Sacred Heart are delineated on pages 55-60 of the transcript of this proceeding. Sacred Heart filed an application for a certificate of need (CON) for a radiation therapy center on its campus to serve inpatients and outpatients. The total project costs for constructing the building and equipping as a radiation therapy center is estimated to be approximately 3.7 million dollars. The applicant proposes that the radiation therapy center would be an adjunct or extension of the hospital's existing oncology program and would not constitute a "new service" as defined in Chapter 10-5, Florida Administrative Code. The Department also takes the position that the initiation of radiation oncology or therapy services is not the establishment of a "new institutional health service" or a "substantial change" in health services. The Department takes the position that the project and application is reviewable only for the construction costs portion of the project as a capital expenditure in excess of one million dollars. HRS maintained at hearing that it has consistently taken the position that radiation therapy is not considered to be a new inpatient institutional health service pursuant to subsections 381.702(8)(13), Florida Statutes (1989). The Department's representative who testified was unable to explicate the reason for the alleged determination by the Department that radiation therapy is not a new institutional health service. She was unable to relate when such a supposed policy of treating radiation therapy only as a capital expenditure was adopted by the Department. It is noteworthy when reviewing her testimony, appearing at page 88 through 126 of the transcript of this proceeding, that repeated references are made by the HRS witness, the overall tenor or theme of which is that the purchase of linear accelerators is not regarded as the effectuation of a new institutional health service according to her view of the Department's policy regarding radiation therapy. Thus it may be that the Department views the addition of radiation therapy as involving simply the purchase of capital equipment, i.e., a linear accelerator. The evidence reflects otherwise however. The institution of radiation therapy at a hospital involves much more than the mere purchase of a linear accelerator device. It involves the purchase of the accelerator, the construction of a shielded space or building in which to house it and operate it, the employment of physicists, dosemetrists, qualified radiation therapy oncologists, and even the institution of a machine shop to make repairs and repair parts. The institution of radiation therapy at a hospital involves much more than the mere purchase and installation of a linear accelerator and the instant application seeks to institute such a comprehensive therapy service and not merely the capital expenditure required to purchase a linear accelerator solely. Thus, the Department's purported policy of viewing the institution of radiation therapy service as merely a capital expenditure (if, indeed, a policy, which was not proven in this case) is misplaced because the evidence in this record reveals that institution of radiation therapy at a hospital involves much more in the way of equipment and services than the mere purchase and capital expenditure related to acquisition of a linear accelerator. The Department has reserved Rule 10-5.011(1)(g), Florida Administrative Code, for a radiation therapy methodology. The remainder of that rule contains methodologies reserved for other services which HRS regulates as new institutional health services as well. These include such services as medicare, certified home health agencies, cardiac catheterization programs, and open heart surgery services. The reservation of a radiation therapy methodology in the rules is significant because of its indication of what the Department's intent with regard to the regulation of this service is or might be, because the Department has deleted references in its rules to reservations for services it has since chosen to deregulate, such as computerized tomography and chronic renal dialysis (see former Rules 10-5.011(1)(c) and (1)(h). The elimination of these rule reservations was published in the Florida Administrative Weekly, Vol. 15, No. 27, July 7, 1989. The Department in the past has had a rule governing need methodology for radiation therapy services. That rule was in effect until late in 1985 when it was invalidated in a 120.56 Florida Statutes rule challenge proceeding in South Miami Hospital v. Department of Health and Rehabilitative Services, 7 FALR 5491 (DOAH Nov. 1985). After that rule methodology for radiation therapy services was invalidated, the Department's witness in this proceeding, in her supervisory capacity, signed a memorandum regarding reconsideration of certificate of need #2682 involved in the South Miami Hospital case wherein South Miami Hospital sought to initiate radiation therapy services. That memo stated: The Department does not currently have a rule in place to determine the need for radiation therapy, as such the reconsideration of CON #2682, utilizing statutory criteria, will consider an applicant's specific justification for the purchase of major medical equipment and the initiation of a new service (emphasis added). The Department subsequently reiterated that the establishment of a radiation therapy service would be reviewed as a new institutional health service in the case of Bayfront Medical Center v. Department of Health and Rehabilitative Services, DOAH Case No. 87-2029 (Final Order entered September 1988). In adopting the hearing officer's conclusions of law from the recommended order in that case concerning the need for review of St. Anthony's Hospital's CON application for a radiation therapy service the Department determined that, as did the hearing officer: A certificate of need is required when a hospital proposes a capital expenditure over a threshold amount to provide inpatient health services or proposes a substantial change of inpatient institutional health services. Section 381.706(1)(c) and (h), Florida Statutes, (1987). Since the application under consider- ation in this proceeding proposes radiation therapy services to inpatients, as well as outpatients for a total project cost of almost 4.2 million dollars, a CON is required. The Department failed to explain any reasonable basis for any proposed change in the policy explicated in the May 22, 1986 policy memorandum, quoted above, and in the final order in Bayfront Medical Center supra. The Department's position may be summed up to the effect that its policy has changed from one of considering radiation therapy to be a new institutional health service to the current alleged policy of considering it to be a capital expenditure. It did not explicate why that policy had changed or a rational, factual or legal basis for it however and in view of the totality of Ms. Dudek's testimony it seems that the Department witness was emphasizing the policy of referring to the addition of radiation therapy as reviewable as merely a capital expenditure because of the Department's view, apparent from her testimony, that it in essence involves purchase of a linear accelerator. In the face of the unrefuted evidence to the effect that much more in the way of equipment, services and staff is involved in adding radiation therapy to the range of services offered by a hospital, it is apparent that the Department has failed to explicate a rational basis for the putative policy of regarding the institution of such a health service as merely a capital expenditure. Baptist Hospital operates a radiation therapy center of its own of approximately 10,000 square foot space. This area contains shielded space for linear accelerators, examination rooms, physicians offices, as well as a machine shop for repair and maintenance of the linear accelerators and space for dosimetry computers. This department at Baptist is organized and operated separated from other oncology services. Radiation therapy is primarily used to treat cancer patients and the patients are seen, evaluated, and treated within the confines of the radiation therapy facility. Policies and procedures unique to the radiation therapy department are utilized. Staff members include, physicians, technicians, physicists, and dosimetrists who are dedicated only to the provision of the radiation therapy service at the hospital. Thus from a clinical perspective, therapy is not merely an extension or an adjunct of the existing oncology program but rather is a separate therapeutic service in and of itself to which oncology patients may be referred when the services are deemed needed. Indeed, oncology involves different forms of curative and palliative treatment, including surgery and chemotherapy, with much different protocols, differently trained specialized staff members, differently trained and/or certified physicians with different methods, therapies and protocols for treating cancer. The commonality between the two types of service is that they have the ultimate goal of treating cancer patients, but the evidence shows that they are clearly two different medical specialties and institutional health services. There is little relationship between radiation oncology and the field of diagnostic radiology. Diagnostic radiology services are utilized almost exclusively to diagnose illnesses, conditions, while radiation oncology or radiation therapy is used to therapeutically treat patients with radiation to effect a cure or palliation. Radiation oncologists consult with and exchange patients with general surgeons, ear, nose and throat specialists, and other specialists as they do with medical oncologists. Therefore medical oncology and radiology are separate and distinct services. Although there is a relationship between radiation oncology and other cancer services such as chemotherapy and surgical therapy, the relationship is different in terms of the unique services, equipment and specially trained personnel required to provide radiation therapy as opposed to differently trained personnel, different equipment, therapy and procedure protocols required for other types of cancer services. Thus from a health planning perspective it does not logically follow that because a hospital provides medical or surgical oncology services, that it should also provide radiation therapy. The issue of the need for the service in terms of patient demand, availability of the specially trained personnel, the costs of providing the service, including the financial feasibility of constructing the facilities and buying the equipment needed, as well as the impact on other providers in terms of diversion of available patient days must be considered. It is noteworthy, as a corroborative aside concerning the evidence that establishes that radiation therapy is a separate and distinct institutional health service, that 29 of the 33 states which have certificate of need programs for the regulation of acute care facilities require a separate certificate of need in order to establish a radiation therapy service program. Sacred Heart does not currently have a radiation therapy service. It does have oncology services and surgical services that includes surgical therapy for cancer patients. Patients who need radiation therapy currently are referred out to other facilities including Baptist Hospital. Sacred Heart attempted, in its case in support of the HRS position treating this as merely a capital expenditure situation, to analogize the provision of radiation therapy services to the acquisition of a lithotripter. Sacred Heart contends that lithotripsy which is a form of treating kidney stones is an extension of the urology program of a hospital and that radiation therapy, a form of treating cancer tumors is merely an extension of an overall integrated cancer treatment program. However, whereas the residency requirement for radiation therapy or oncology is four years, after at least one year of post-doctoral work, the specialized training necessary to perform lithotripsy is a specialty training course of only several weeks duration. Further, hospitals requiring lithotripters typically have urologists treating kidney stones on the hospital staff. Sacred Heart in this instance has no radiation oncologist on its staff acting with admitting privileges who could provide radiation therapy services at the present time. Although it may have medical oncologists and surgeons on staff who treat cancer patients, Sacred Heart lacks the specialized policies and protocols, equipment, shielded physical space, specially trained medical personnel such as radiation oncologists, dosemetrists and physicists necessary to provide radiation therapy absent to the establishment of a new service. The list of institutional health services for which there is a specific need methodology includes, among others, inpatient cardiac catheterization, open heart surgery, neonatal intensive care units and transplant programs. The Department's attempt to distinguish between the establishment of an inpatient cardiac cath service and an inpatient radiation therapy service by stating that HRS had a rule methodology for the establishment of inpatient cardiac cath services whereas it didn't for inpatient radiation therapy services is a distinction without any logical basis. This is because the establishment of a service such as radiation therapy as a distinct and separate institutional health service depends upon the factual uniqueness or differences in the equipment, staff, protocols and policies required to institute such a service, as compared to other existing services at such a hospital, rather than the mere fact that the Department in the past has chosen to have a rule methodology for one type of service and not for another one. This distinction cannot serve as the basis for establishment of HRS's intent or policy in this regard in any event, however, because HRS has at least reserved Rule 10-5.011(1)(g), Florida Administrative Code for a radiation therapy methodology in any event, it simply has not enacted one yet, thus belying any distinction in terms of its body of rules, regarding different institutional health services based upon the mere fact that it has enacted a rule methodology for determining need for one type of institutional health service and not for another as yet. In summary, although the Department and Sacred Heart attempt to distinguish between radiation therapy and other institutional inpatient health services such as open heart surgery and cardiac catheterization by contending that radiation therapy is not a specialized service, in reality it has been established that radiation therapy requires a separate facility with specialized equipment, specially trained medical personnel with different training from personnel devoted to other types of cancer services, different protocols and procedures. It thus cannot be found to merely be an adjunct or extension of other cancer services, but rather is a separate and distinct institutional inpatient health service, just as open heart surgery, cardiac catheterization, diagnostic radiology or medical oncology for instance.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties it is therefore recommended that the motion to dismiss the petition to intervene filed by Baptist Hospital be denied, that Baptist Hospital be accorded standing in this proceeding and that the case proceed to hearing on the substantive merits of the application. RECOMMENDED this 3rd day of April, 1991, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-3576 Petitioner's proposed findings of fact: Accepted. Accepted, but subordinate to the Hearing Officer's findings of fact on the subject matter. 3-6 Accepted. Rejected as subordinate to the Hearing Officer's findings of fact on this subject matter. Accepted. Rejected as immaterial in this de novo proceeding. 10-20 Accepted. 21-22 Accepted, but not itself dispositive of material issues. 23-24 Accepted. 25-26 Accepted, but not materially dispositive. Accepted, but subordinate to the Hearing Officer's findings of fact. Accepted, but not materially dispositive. Accepted, but not material. Rejected as subordinate to the Hearing Officer's findings of fact. Rejected as irrelevant. Rejected as immaterial. Rejected as subordinate to the Hearing Officer's findings of fact and as immaterial. Rejected as subordinate to the Hearing Officer's findings of fact on the subject matter. Accepted, but not materially dispositive. Rejected as subordinate to the Hearing Officer's 'findings of fact and as contrary to the preponderant weight of the evidence. 37-41 Rejected as a discussion and recitation of testimony and not fact finding and as subordinate to the Hearing Officer's findings of fact. Intervenor's proposed findings of fact: 1-18 Accepted. COPIES FURNISHED: Stephen Ecenia, Esquire Katz, Kutter, Haigler, Alderman, Davis, Marks & Rutledge, P.A. 215 S. Monroe Street Suite 400 First Florida Bank Building Tallahassee, FL 32301 Karen O. Emmanuel, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Post Office Drawer 1271 Pensacola, FL 32596 Richard A. Patterson, Esquire Department of Health and Rehabilitative Services 2727 Mahan Drive, Suite 103 Fort Knox Executive Center Tallahassee, FL 32308 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Linda Harris, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether the Respondent committed the violations alleged in the Amended Administrative Complaint issued September 29, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for investigating and prosecuting complaints against persons holding licenses in the health professions and occupations, including chiropractic physicians. See § 456.073, Fla. Stat. The Board of Chiropractic Medicine ("Board") is the entity responsible for imposing penalties against chiropractic physicians for violations of Section 460.413(1), Florida Statutes. See § 460.413(2), Fla. Stat. At the times material to this proceeding, Dr. Falowski was a chiropractic physician licensed to practice chiropractic medicine in Florida, having been issued license number CH 5108. Dr. Falowski was first certified in Florida to practice chiropractic medicine in 1986. Dr. Falowski also is certified to administer propriety, or non-prescription, drugs. At the times material to this proceeding, Dr. Falowski did business as Rainbow Rehabilitation, and his address of record was 4201 North State Road 7, Lauderdale Lakes, Florida 33319. On August 17, 2003, Dr. Falowski sent to the office of John Campos, D.C., via facsimile transmittal, a document which stated FINALLY DOCTORS OF CHIROPRACTIC CAN INJECT Refresh your skills with "THE ESSENCE OF INTERVENOUS [sic]AND INJECTABLE THERAPIES" Hands-on experience covering TO INCLUDE CHELATION THERAPY OXIDATIVE THERAPY PROLOTHERAPY NEUROTHERAPY FOR THE FIRST TIME NUTRIENTS FORMULARY FOR CHIROPRACTIC (Emphasis in original.) Dr. Falowski was among the five instructors for the course listed on the document, and the cost, date, time and location of the course was also included. Finally, the document stated that the course was "Presented by the FLORIDA ASSOCIATION OF CHIROPRACTIC MEDICINE." (Emphasis in original.) On August 19, 2003, Dr. Falowski sent to the office of John Campos, D.C., via facsimile transmittal, a document in which he offered injections "available to the shoulders, elbows, knees and spine" and offered to perform all your injectable needs including Prolotherapy-neurotherapy-chelation therapy and oxidative therapy (Our office or yours) Well [sic] see your patients, treat your patients and return them to you to continue treatment in your office (Emphasis in original). Dr. Falowski included his name, identified himself as a chiropractic physician, and gave his location as Rainforest Rehabilitation, Inc., at 4201 North State Road 7, Lauderdale Lakes, Florida 33319. Chelation therapy involves the injection of a chemical into the body. Prolotherapy involves the injection of a glucose-based substance to the joints of the body. The documents sent by Dr. Falowski to Dr. Campos were sent from one chiropractic physician to another and were not disseminated to the public. The first document sent to Dr. Campos solicited his attendance at a seminar clearly intended for chiropractic physicians. The second document solicited Dr. Campos to utilize Dr. Falowski's services by referring patients to him injections and for the various therapies listed in the document.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order dismissing both counts of the Amended Administrative Complaint against Francis J. Falowski, D.C. DONE AND ENTERED this 20th day of March, 2008, in Tallahassee, Leon County, Florida. PATRICIA M. HART Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of March, 2008.
Findings Of Fact South Miami Hospital's proposed findings of fact: The following proposed findings where adopted and found as fact in the body of this recommended order, or if not explicitly found therein, are hereby adopted as findings of fact: 1, 2, 3, 4, 6 (except the first and last sentences), 7(A) through (E), 8(A) through (J)(except sentences 4 and 5 of (B) and sentence 3 of (F)), 10(except the first sentence), and 11 (except the first sentence). The following proposed findings have been rejected because the Hearing Officer has concluded as a matter of law that the rules exceed statutory authority because they preclude balanced consideration of statutory criteria, and thus the Hearing Officer has not reached the question of whether the rules are reasonably related to the purposes of the statute or appropriate to the ends specified in the statute. These proposed findings are also rejected because they are conclusions of law: 5, 6 (first and last sentences), 10 (first sentence), and 11 (first sentence). The following proposed finding has been rejected because the state agency action report for certificate of need 1244 is not in evidence, and the testimony is not adequate or not adequately supported on the point: 8(B)(sentences 4 and 5). The third sentence of proposed finding of fact 8(F) is rejected because the state agency action report was in error when it stated that seven of eleven units in Dade County were performing 6,000 procedures per year. Proposed finding of fact 9 is rejected as legally irrelevant pursuant to conclusion of law 19. The Department of Health and Rehabilitative Services's proposed findings of fact: The following proposed findings of fact were adopted and found as fact in the body of this recommended order, or if not explicitly found therein, are hereby adopted as findings of fact: 1,2,3(except the second sentence), 4, 5, 6, 8, 9, 10, 11, and 12. The following proposed finding of fact is rejected because in those instances where the 6,000 treatments threshold is not met, the existing and proposed rules preclude consideration of any other rule criteria: 7. The following proposed finding of fact is rejected because the order of consolidation only permits the record in the section 120.57 hearing to be considered in the rule challenge cases, and not vice versa: 3(second sentence). Baptist Hospital of Miami, Inc.'s proposed findings of fact: The following proposed findings of fact were adopted and found as fact in the body of this recommended order, or it not explicitly found therein, are hereby adopted as findings of fact: 1, 2 (except the last sentence), 4, 5, 6, 7(except sentences 2 and 3), 8, 9, 10, 12, 17, 18, and 19. The last sentence of proposed finding 2 is rejected. There is only perhaps one (1) free standing outpatient radiation unit in District XI, and 15 hospital-based units. TR. 72. Thus, the 90 percent of outpatient treatments must in fact be occurring in the 15 hospital based units rather than in outpatient units. Consequently, although there is no evidence of fraudulent or improper suppression of treatments in this record, the hospitals in District XI which have radiation units certainly are in a position to suppress the number of treatments if they choose to do so. Proposed finding of fact 3 is rejected. Evidence Which was presented contrary to this finding has been found in findings of fact 49, 51, 52 and 53. The second and third sentence of proposed findings of fact 7 are rejected. The Hearing Officer needed only 10 to 15 minutes to read through a state agency action report to discover to what extent HRS mentioned or considered the rule, and all of the findings herein pertaining to specific state agency action reports were compiled in that length of time per report. Further, the few mistakes made by Mr. Cushman have been discussed in findings of fact 85- 101, and the totality of those mistakes, hopefully not compounded by mistakes of the Hearing Officer, did not change the conclusions that are inescapable when from finding of fact 101. The decisional history by HRS under the rule has been arbitrary given the fact that the rule is absolute and has no exceptions. Proposed finding of fact 11 is irrelevant since the state agency action reports themselves are in evidence, and is rejected on that basis. Proposed findings of fact 13, 15, and 16 are true but misleading since the analysis in each case by HRS was not based upon consideration of the entire District, but was a finding based solely upon a subarea in the district. The essentials of these proposed findings of fact have been dealt with in findings of fact 95B and 97B, C, and D. Proposed finding of fact 14 is rejected because lacking a basis of fact in the record to make it relevant. The record contains no evidence as to any local health systems agency having subdivided a district, except for District XI, and it further contains no evidence as to why that might be relevant in evaluation of certificate of need decisions in districts other than District XI. Mercy Hospital, Inc.'s proposed findings of fact: Proposed finding of fact 1 is rejected as a proposed finding of fact because it is a conclusions of law and has been discussed in that section, to the extent relevant. The following proposed findings of fact were adopted and found as fact in the body of his recommended order, or if not explicitly found therein, are hereby adopted as findings of fact: 2(except the last sentence), 3, 5, and 6. The last sentence of proposed finding of fact 2 is rejected. The fact that the state agency action reports in some cases, as noted in finding of fact 100, mentioned that utilization rates of some or all of the units in the district does not compel the conclusion proposed that "it was in fact one of the criteria that had to be met." The Hearing Officer has read each state agency action report, and although a utilization rate may have been mentioned in the state agency action report in some cases, HRS did not state in the report that the 6,000 treatments threshold "had to be met" or that the rule was satisfied, unless mentioned in the findings above. Proposed finding of fact 4 has been dealt with in conclusions of law 18 and 19. A number of the facts contained in this proposed finding have in fact been found. But the arguments of law contained in this proposed finding of fact are either contained in the conclusions of law or are irrelevant in view of those conclusions of law. COPIES FURNISHED: John Gilroy, Esquire Dept. of Health and Rehabilitative Services Building 1, Suite 407 1323 Winewood Boulevard Tallahassee, Florida 32301 Jean Laramore, Esquire G. Steven Pfeiffer, Esquire LARAMORE & CLARK, P.A. 325 North Calhoun Street Tallahassee, Florida 32301 Lewis W. Fishman, Esquire 9400 South Dadeland Blvd. Suite 420, Dadeland Towers South Miami, Florida 33156 Kyle R. Saxon, Esquire Catlin, Saxon, Tuttle & Evans 800 Alfred I. duPont Building Miami, Florida 33131 Steven Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Liz Cloud, Chief Bureau of Administrative Code 1802 The Capitol Tallahassee, Florida 32301 Carroll Webb, Executive Director Administrative Procedure Committee 120 Holland Building Tallahassee, Florida 32301
Findings Of Fact The Petitioner premised the prosecution of its case upon certain oral testimony presented in the course of the hearing and certain tangible items of evidence presented in the course of the hearing. The Respondent presented a case in the form of oral testimony, to include testimony by the Respondent, and certain tangible evidence offered in the course of the hearing. The Respondent's presentation was conditioned on the possible rejection by the hearing officer and/or the Florida State Board of Podiatry Examiners, of the Respondent's motion to dismiss or in the alternative motion for more definite statement directed to count (2) of the administrative complaint, and the Respondent's motion which was in the form of a request for directed verdict addressing both counts in the administrative complaint, such motion being made at the close of the Petitioner's presentation. The first witness for the Petitioner was Irma Chanter, who is a dietary supervisor in a local hospital in Palm Beach County. The witness testified that she had been a patient of the Respondent for 3 or 4 years and during that time had received palliative care for her feet. One of the particular areas which was treated by Dr. Perry was the toenails of the patient, Irma Chanter. In connection with that foot problem the witness stated that Dr. Perry indicated that an operation was needed to remove the ingrown toenails and that Dr. Perry suggested that if this operation was not performed the patient would be crippled. The witness was not certain when in time the subject of the operation was discussed with the Respondent; however, it was developed in the course of her testimony that she had bean seeing Dr. Perry since June, 1969. This date was suggested to the witness as being the date of the initial visit to the Respondent and the witness did not take issue with the date. She also indicated that she had checked her income tax records and they showed that she had been Dr. Perry's patient for 4 or 5 years. By way of response to Dr. Perry's suggestion that surgery was necessary, the witness indicated that she wanted time to think about it, and it was also solicited from her that she could not afford such an operation at the beginning of her treatment by the Respondent. The witness did not know if the condition got progressively worse or better during the palliative care stages, but a decision was made by the witness to have an operation performed to remove the toenails and portions of the toenails that were providing problems for her. This operation was eventually performed on July 22 and July 23, 1974, in the office of the Respondent. Mrs. Chanter wasn't particularly satisfied with the Respondent's care, but she said he was never rude, or otherwise objectional before the operation in July of 1974. After that date complaints against the doctor were made, complaints about matters arising in the course of the operation and the post operative treatment, as alleged by the witness in her affidavit attached to the administrative complaint which is Exhibit "A" in that complaint. The witness also seemed to indicate that there were other areas of dissatisfaction. One of the areas was an assertion by the witness that the respondent had over charged for certain X-ray procedures, in that the charge was $250.00 and the witness thought that this was excessive. Additionally the witness complained that the Respondent had charged $75.00 for certain appliances (arch supports) which were allegedly tailored for her purposes and in fact could have been purchased at any retail drug store. The witness brought the above items with her to the hearing and showed them to the hearing examiner. The items were two metal apparatus which appear to be arch supports with the trade name, Dr. Scholls, affixed. In alluding to the complaints which the witness had about the operation, the initial area of consideration is the cost of the operation. The witness seemed to state that she was told the price of certain procedures to be performed was in the amount of $1,275.00 which is the amount stated in her deposition before the hearing. The witness, however, seemed concerned that the Respondent had not indicated the specific cost of the process of the operation which was performed on July 22 and July 23, 1974, as opposed to giving a quotation which would include certain procedures involving bunions and callouses on her feet, as well as the toenail treatment. It was noted later in the course of the hearing, that charges for the procedures effected on July 22 and July 23, 1974, were in the amount of around $580.00, which was in compliance with the insurance rates of Blue Cross Blue Shield's analysis of proper payment by an insurance carrier for such procedures. Of that quoted amount of $580.00, the witness testified that $243.00 was paid by the Blue Cross - Blue Shield and that $219.00 which was tendered under a separate section of the policy was spent by the witness for matters other than payment of the Respondent. In further testimony about the cost of the operation, the witness indicated that she had been unduly put upon about the payment of her bill to the extent of threats directed from the Respondent about her bill. She said she had not paid the bill because she had contracted staph infection following the operation and consequently did not pay anything out of her pocket for the cost of the operation. The operation itself was a radical matricetomy, in which the toenails on the three lesser toes of both feet were completely removed and portions of the toenails of the great toe and the toe adjacent to the great toe were removed from both feet. The process utilized by the Respondent in the operation was a phenol alcohol technique, by the application of carbolic acid. The witness indicated that something was injected into her toes as an anesthetic and that anesthetic was later identified as being xylocaine with epinephrine, 1-200,000. The witness testified that when the toenails were being removed, she said, "it hurt like sam hill when he started digging in." Nevertheless, she never told him to stop the process during the first day's operation * * NOTE: Page 5 is missing from the Original Recommended Order on file with DOAH and is therefore not available in this ACCESS document. any odor at that time. She doesn't know how many days after the operation it was, that she saw the doctor in the office but she does remember going to work the same day she saw Dr. Perry for the visit. She said she made no further follow ups with the Respondent because she contracted staph infection, as diagnosed by Dr. Donald R. Alkema, a local podiatrist. On the Thursday before her initial examination by Dr. Alkema, the witness said that there was a certain excretion which she characterized as being puss, emanating from the area of the feet where the operation had been performed. On Sunday morning the witness notified Dr. Alkema of her problem and the doctor saw her in the office. At the time she went to see Dr. Alkema on Sunday morning there was an excretion from the area where the operation had been performed and her feet were extremely odoriferous, and the odor was nauseating. The witness testified that Dr. Alkema cleaned her feet and prescribed medicine for her. Since that time Dr. Alkema has been her attending physician as it relates to her foot problem. The witness says that she still has pain in her toes and that she can't perform her work as well as before the operation, and that she takes two aspirin for discomfort associated with her present problem. She said that her right large toe in the nail area aches and throbs. Furthermore, she said that on the toe which is immediately adjacent to the left small toe, the toenail has come back and that the right small toenail has come back, when it was her understanding that none of the last three toenails on the toes of her feet would come back. The Petitioner called Dr. Joseph Castronuovo, a specialist in internal medicine. Dr. Castronuovo has been Mrs. Chanter's treating physician and has treated her for high blood pressure and cardiac problems. The cardiac problems mentioned by the doctor were not identified as major problems. The doctor indicated that his contact with Mrs. Chanter around the time of the operations, as performed by the Respondent in July, 1974, was to the extent of seeing the patient on July 29, 1974 after such operation had been performed. This office visit was after being called by Dr. Alkema. At the time of the office visits the blood pressure was 180/102, when the norm in that time sequence had been 140/80. The feet of the patient, Chanter, appeared inflamed but not particularly infected and the witness testified that he did not treat her feet, although Mrs. Chanter had indicated that he did treat the alleged infection. The doctor further stated that he was not aware of the procedure involved in a radical matricetomy, nor was he aware of the normal post operative appearance of a patient's feet. The Petitioner attempted to solicit testimony from the witness to the effect that the failure of the Respondent to notify the witness at a time when the operation was contemplated was unprofessional conduct on the part of the Respondent, because of the patient's high blood pressure and minor cardiac problem. This testimony was objected to and not allowed as acceptable evidence for deliberation by the hearing officer because the hearing officer was of the opinion that the Respondent was not duly noticed of such a claim by the Petitioner to allow the Respondent to adequately defend against it. It should also be noted that the witness indicated that these standards of notification apply to the medical profession of which the witness is a practitioner and not specifically to the canons prescribed for practicing podiatrists. One comment was made by the witness that he felt that application of anesthetic which had as a part the substance known as ephinephrine was not advisable in the case of Mrs. Chanter. However, later testimony by the Respondent indicated that the percentage of ephinephrine in the xylocaine applied to the patient was one half the normal strength. Further, development of the testimony offered by the doctor concerning the question of the alleged unprofessional conduct for failing to notify the witness of the proposed operation will be developed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Petitioner next tried to produce testimony through a witness Ayn Dupay. Ayn Dupay had been a patient of Dr. Perry in the Spring of 1974, and had had heavy callouses and ingrown toenails. Additionally, she was operated on by the Respondent in July, 1974. This witness' testimony was objected to since it was the contention of the Respondent, that the Respondent had not been duly apprised of any allegations pertaining to this witness, notwithstanding the fact that the Petitioner had subpoened the records of this patient to be produced at the hearing. This objection by the Respondent was sustained because the requirement for notice was felt to be lacking as it relates to testimony by Ayn Dupay and because there appeared to be no other basis for allowing that testimony. A more complete examination of the objections and the reasons for sustaining the objections will be addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Nathan Johnson, a representative of Blue Cross - Blue Shield was called to the stand. He had with him a report rendered by G. M. Perry about the patient, Irma Chanter. This report referred to the procedures which were performed on Mrs. Chanter as being a radical matricetomy. The witness further identified himself as a person who has had a long standing association with people in the field of podiatry, as it relates to the processing of certain insurance claims in this field. Moreover, the witness though not a medical practitioner, has studied the literature on the procedures in the field of podiatry. Based upon the witness' ability and expertise in the field of insurance, the Petitioner tried to establish the witness' opinion on whether or not the toenail should have come back on toes where a total matricetomy had been performed. This testimony was objected to by the Respondent and the objection was sustained on the question of the witness' expertise to determine the reasonable result of a total radical matricetomy. A more complete discussion of the objection and ruling will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Rosemary Colvin, Director of Medical Records, Palm Beach Gardens Hospital, Palm Beach Gardens, Florida, was called to the stand. She produced the records of the patient identified as Albert Frankel, deceased. This patient had been admitted in the Palm Beach Gardens Hospital in the past. Albert Frankel had been a patient of the Respondent, and the purpose of introducing the facts pertaining to Albert Frankel was identified by the Petitioner's counsel as a showing of impropriety on the part of the Respondent pertaining to matters about Albert Frankel. This testimony was objected to because of the lack of notice to defend against matters pertaining to Albert Frankel. Because of such problems with the notice and an insufficient showing of any other reason to justify the introduction of such evidence, the evidence was deemed improper for consideration by the hearing officer in the deliberation of the matters in this case. A more complete discussion of the reasons will be set forth in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Donald Alkema took the stand. Dr. Alkema is a practicing podiatrist who has been in the profession for five years and is licensed in the State of Florida to practice. A stipulation was entered into concerning the expertise of the witness to testify about matters relating to the treatment of Irma Chanter's foot problems. The witness testified that he first saw Irma Chanter on July 28, 1974, at which time he debrided certain necrotic tissue associated with the operation performed by Dr. Perry, and that he drained the puss and applied a cleansing agent. The witness provided certain slides of photographs taken of the condition, the first two slides showing the right and left foot on Sunday morning, July 28, 1974, was depicting, according to the witness, infection and an abscess on the left great toe. Slides three and four were taken on August 1, 1974, which the witness indicated showed an improvement because of an antibiotic which had been prescribed. Slides five and six were taken August 19, 1974, which showed further improvement of the condition. The witness testified that in his opinion the procedure which had been utilized in the treatment of Irma Chanter was a phenol technique involving carbolic acid, which is an application of that substance to the matrix of the nail. The witness further stated that the procedure involved was a total matricetomy of the three smallest nails of the left and right foot, and a partial matricetomy of the remaining toenails on both feet. The diagnosis by Dr. Alkema of the infection was acute infection of the left foot, first and second toes; and right foot, first and third toes, with the remainder of the toes showing subacute infection. The appearance of Mrs. Chanter's feet at the time of examination revealed that the feet were clean in terms of the overall condition; however, there was a certain purulent discharge with associated odor, which the witness deemed to be some form of staphylococcus bacteria. Based upon the visual observation of the patient and the fact that the witness' mind time was of the essence, the witness said that he did not request laboratory analysis of the excretion from Mrs. Chanter's feet, in the way of a culture workup, but prescribed a broad spectrum antibiotic known as tetracycline hydrochloride. The witness felt that the antibiotic, as prescribed helped to defeat the infection. At present Mrs. Chanter is still under the treatment of Dr. Alkema and the patient still has problems with ingrown toenails. To the witness' recollection, Mrs. Chanter still has some pain associated with the great toe of the left foot and the fifth toe of the right foot, but not with the great toe of the right foot, as testified by Mrs. Chanter. In discussing the technique utilized by Dr. Perry in performing the operation on Mrs. Chanter, the witness testified that he does not utilize the process, but uses another process called SNT-1 which is a method of extraction by surgical instrument. His direct knowledge of the phenol process is to the extent of involvement four times as a student and two dozen observations. Nevertheless, the witness testified that in his estimation the phenol technique was relatively simple, although he agreed that that technique would be more effective if the practitioner had done it more. The witness said that he was unable to comment on the effectiveness of the operation since he was not in attendance at that operation. In response to questions about the outcome of the operation, the witness stated that Mrs. Chanter came to him and was complaining of pain in her toes radiating into her foot, and as related before, that in his estimation there was infection present in all ten toes. Based upon this observation, it was felt by the witness that the prescription of aspirin for treatment of the pain was insufficient. In support of this position the witness indicated that xylocaine is a prescribed anesthetic for the phenol technique and that when the effects of the xylocaine wear off that 10 percent of the patients experience pain and 1 to 2 percent experience excruciating pain, and that percentage may rise according to the number of toes involved in the operation. These statistics were based upon a certain medical text referred to by the witness, which was not authored by the witness. In the witness' opinion there is a certain risk of infection in any surgery and he agreed that the staphylococcus infection is common in many places to include the soil. In discussing the history of the situation with Mr. Chanter on July 29, 1974, the witness indicated the history only involved the history of the surgery and not the history of the patient's activities following the surgery. Although the witness felt that discussion of the technique involved in the performance of the phenol process was better stated by a person who had administered this technique on more numerous occasions, the witness felt that he was qualified, certainly as qualified as the practitioner utilizing the phenol technique in discussing the post operative procedures. In the witness' mind the post operative techniques employed by the Respondent were not acceptable in that, to his knowledge, the Respondent had prescribed the use of garamycin antibiotic ointment and this ointment was felt to be improper because it tended to cap the infection. The witness indicated that he has an office that is located essentially 100 yards away from the office of the Respondent, but that the Respondent and he are in no respect in competition for business, and the witness expressed his resentment to the characterization of his profession in those terms. In a related area an effort was made by the Petitioner's counsel to introduce through the witness, certain matters pertaining to surgery performed on Albert Frankel and Ayn Dupay, who have been previously mentioned in the course of the Findings of Facts, and this testimony was objected to based upon the lack of notice of such claims against the Respondent. The objection was sustained and will be more fully addressed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Finally, the witness indicated that the podiatrist's ethics call for consulting a treating physician who is a medical doctor when appropriate since the podiatrist may only treat a situation for which he has expertise, and the witness seemed to indicate that this should have been done by the Respondent in treating Mrs. Chanter. Furthermore, the witness did notify Dr. Castronuovo of the condition which he observed upon examining Mrs. Chanter on July 28, 1974. Dr. James Vance, who is a specialist in internal medicine, was called to the stand. Dr. Vance indicated the treatment of Albert Frankel, deceased, while in the Palm Beach Gardens Hospital. The witness indicated that there were some entries on the chart of Albert Frankel which he did not make, nor the urological service that was treating the patient and that were later discovered to have been made by the Respondent, who was not authorized to practice in the Palm Beach Gardens Hospital. An objection was made to the offering of such testimony on the basis of lack of notice on the part of the Respondent to contentions of this sort, concerning the treatment of Albert Frankel and that objection was sustained. A more complete examination of the objection will be considered in the section of this Recommended Order entitled CONCLUSIONS OF LAW. Dr. Vance was the last witness on behalf of the Petitioner and at the close of the Petitioner's case a motion for directed verdict was made by the Respondent, in that the Respondent contended that insufficient proof had been established to show violations of either Count 1 or 2 of the Administrative Complaint, whether the standard be one of preponderance of evidence or a standard of clear and convincing evidence. Ruling on that motion was reserved until such time as the facts in this matter were considered by way of deliberation and the Respondent elected to present a case based upon the hearing officer's desire to reserve ruling and upon the possibility that the Petitioner would overturn a decision adverse to its position when it examined the Recommended Order entered by Hearing Officer. After hearing the testimony offered by the Petitioner, the Motion for Directed Verdict against Count 2 of the Administrative Complaint would seem well taken, for reasons more completely discussed in the section of this Recommended Order entitled CONCLUSIONS OF LAW. The Respondent, in the presentation of its case first called Dr. Arthur Binkowitz, D.P.N. Dr. Binkowitz has been a podiatrist for five years and it was stipulated to between the parties that the witness was qualified to give testimony in the area of podiatry. The witness testified that a matricetomy is an excision at the matrix cells which produce nail plates. The witness also testified that the method he utilizes to accomplish this is the phenol technique and that he utilizes that technique 99 percent of the time. These excisions are accomplished under local anesthesia. In addressing the terms total or partial matricetomy the witness said that these procedures are the same in that they are both radical procedures, one designed to excise the total nail and the other designed to excise part of the nail. The witness said he has done hundreds of these excisions under the phenol technique, and that this technique is not a learning situation. The witness was shown the slides as produced by Dr. Alkema in his testimony, and stated that this is the first viewing of those slides by the witness. After establishing the underlying facts by way of a hypothetical depiction of the slides, the witness offered testimony. Looking at slides 1 and 2 he felt that the depiction was normal and that inflammation present was as in phenol operations but that there was no indication of infection. In looking at the slides, he said he did not see any unusual redness. He said the item in number 2 which had been described as an abscess by Dr. Alkema, in his mind was a condition caused by a drop phenol, perhaps. Slides 3 and 4 looked normal to him, with slight inflammation and the alleged abscess as shown on 4 looked like a phenol burn. Slides 5 and 6 looked normal to him. Describing the pain associated with the process he felt that the process was relatively painless and that he usually prescribes aspirin for his patients. He said that he feels that garamycin, the antibiotic, or HCB cream among others are acceptable antibiotics to utilize in the post operative treatment where the phenol process had been utilized. He also indicated that utilization of the phenol technique is a technique in which infection is less likely. When shown the appliances which were brought by Mrs. Chanter he said that these appliances might have been utilized but they don't do anything to assist, and that they are not normally prescribed. Furthermore, these appliances could be bought at any drug store. Finally he indicated to prescribe such appliances would be a disservice to the patient. The witness indicated that he is a friend of Dr. Perry, but indicated that he could be objective. Under questioning about the regrowth of a nail which had been totally excised by a radical matricetomy, he felt that this nail should not return but that because of certain permeability problems associated with certain patients that the procedure is not always 100 percent effective and that this effectiveness percentage cannot be predetermined. He further elaborated on the use of analgesic, stating that he prescribed a heavier analgesic as necessary. The post operative condition of the normal patient according to the witness was one that would allow the patient to stand on their feet as long as they continued to apply soaks. In addressing the high blood pressure problem associated with Mrs. Chanter he said that this was not of itself sufficient in his mind to consult a medical doctor before operating. In the matter related to the pain associated with the process of the operation he indicated that the pain is relatively free after the phenol compound goes to work in the prescribed area. When shown the patient's feet in the course of the hearing he felt that the process was most likely a phenol technique that the first two toes on both feet including the largest toe were partial matricetomies and that the third, fourth, and fifth toes of both feet were total matricetomies and that there appeared to be no problem with the outcome of the operation. Under examination of the hearing officer the witness felt that the improvement shown in slides 3, 4, 5, and 6 was not due to the application of the antibiotic tetracycline hydrochloride. He also stated to the hearing officer's questions, that there is a certain odor associated with the post operative condition when the phenol process is used. The Respondent next called Dr. Bruce Neal Kramer, D.P.N., licensed since 1967 and licensed in the State of Florida since 1971. A stipulation was entered into concerning this witness' ability to offer testimony in the field of podiatry. Dr. Kramer testified much in the same way as Dr. Binkowitz with several additional observations. One of the observations was to the effect that the appearance of Mrs. Chanter's feet upon his examination during the course of the hearing showed a growth on the lesser toe of the left foot which could have been a callous or possibly a regrowth of a toenail. He also indicated that if there was odor associated with the feet that the odor could mean some infection, but not staphlococcus infection. Finally the doctor indicated that if there was some purulent discharge associated with the post operative condition of the feet, that he would have ordered a culture (laboratory culture) made of the substance to determine the nature of the bacteria. The witness' overall description of the slides, prepared by Dr. Alkema, was to the effect that the condition was a normal post operative appearance. The Respondent took the stand and testified that he had been licensed to practice podiatry in the State of Florida. He first saw the patient Irma Chanter on June 27, 1969 and treated her for callouses, bunions, corns and ingrown toenails. The initial treatment was palliative in nature, but from the beginning he recommended more than palliative care after viewing the x-rays which showed a problem, that in his mind could be alleviated by operations. The charge for those x rays was $20.00. The Respondent indicated that Mrs. Chanter did not want the surgery performed because she could not afford it and he continued to treat her on a monthly basis and to remove the corners of the toenails that were presenting problems. In response to the appliances which were produced by Mrs. Chanter, the witness stated that these appliances were not in fact the appliances that he had prescribed for her. He had prescribed a leather device because metal was not the technique used on adult patients. Moreover, he indicated that the metal apparatus had been shown to him on the initial visit. The charge for the appliances prescribed by the witness was $75.00 for examination, molding and the device itself. The witness recommended the phenol technique for the problem that Mrs. Chanter was having with her ingrown toenails and also some surgical procedure to be applied for the bunion problem. He quoted a fee for hospital work to include the bunions, toenails and other procedures. The fee quoted was $1,125.00 for all work. He explained all surgery, to include the surgery for removing the toenails which was performed on July 22 and July 23, 1974. The reasons for splitting the days of the surgery was as an accommodation for Mrs. Chanter because of her nervousness about the operation. At the end of the first day's operation on July 22, 1974, he sent Mrs. Chanter back to work without a day off for the procedures. In describing the technique employed in the removal of the toenails he indicated the preparation of scrubbing of the patient's feet and the application of the phenol until the tissue turned gray and then he flushed the surface with alcohol. There was no indication of pain by the patient except on the injection of the xylocaine, although his office assistant did hold Mrs. Chanter's hand because of her nervousness. He prescribed nothing for pain except to say to take an aspirin but he told the patient to call if she experienced any pain. There was no call or complaints the night of the 22nd, nor any complaints on the 23rd of July, at which time the procedure was completed. On the second day of the surgical procedure, again Mrs. Chanter was nervous and the office assistant held her hand, although there was no pain beyond the moment of the injection of the xylocaine. The instructions given to the patient at the close of both days was to soak the feet in domboro solution; to apply garamycin cream; and to bandage the toes with a particular bandaid which was shown to the patient, Mrs. Chanter. Mrs. Chanter was also provided with a list of instructions which is similar to Respondent's Exhibit 1 (that Exhibit being a part of the record) When the patient came back to the doctor's office on July 25th, she had the wrong bandaids and plastic wedge closed shoes, and her feet were not clean. The doctor made corrections in these matters and noted that although there was a dirty appearance of the feet, that there was not any infection. After leaving on the 25th the patient called the doctor's office and said that she would not be coming back and in response to the efforts of the Respondent to contact Mrs. Chanter by phone, the phone was hung up by Mrs. Chanter. The doctor feels that the reason for the disagreement concerned a fee dispute in which he had indicated that he would be willing to work with her on some basis to pay for the operation but his office personnel had asked for some token payment and Mrs. Chanter had become offended by this matter. The doctor said he saw Mrs. Chanter's feet at the time of her deposition in this matter which was October 9, 1975, and again at the hearing, and felt that the appearance of the feet was acceptable. He knew of the high blood pressure condition but did not contact Dr. Castronuovo because he felt that the condition was within his ability to control. In that pursuit he used the xylocaine with 1/200,000 parts epinephrine, as opposed to the normal 1/100,000 parts epinephrine. An effort was attempted on the part of the counsel for the Petitioner to consider the matters involving Albert Frankel and Ayn Dupay in certain law suits in the interest of those parties. These attempts were objected to and the objection was sustained on the basis that the Respondent was not duly noticed of these potential allegations prior to the hearing. A more complete description of the reason for disallowing that testimony will be set forth in the section entitled CONCLUSIONS OF LAW. Based upon the facts as presented in the course of the testimony at the hearing, the hearing officer is convinced that the Respondent did not overcharge Mrs. Chanter for the performance of the operation. The infection, if any, was not caused by any procedures involved with the operation or post operative treatment afforded by the Respondent. It is established that as of July 25, 1974, according to the Respondent and Mrs. Chanter, the infection was not present. It has also been established that the opportunity existed for infection to set in beyond the control of the Respondent and Mrs. Chanter removed herself from the Respondent's treatment after July 25, 1974, such that he would not have been aware if such infection had set in. Dr. Alkema testified that in his opinion, infection was present on July 28, 1974, but his analysis was not followed up by any laboratory confirmation and was contradicted by Dr. Binkowitz and Dr. Kramer. The contradiction by the latter was on the basis of their statement that a visual observation of the purulent discharge would not, and in their estimation could not, label the infection as staphylococcus. Moreover, the only reasonable way they felt to effect an identification was by laboratory analysis. Again such a staphylococcus infection according to Dr. Kramer was not best treated by tetracycline hydrochloride. Dr. Binkowitz and Dr. Kramer also felt that from the examination of the slides as prepared by Dr. Alkema, that infection probably was not present and that the appearance of the slides indicated a normal recovery for the phenol process, a process that they were more familiar with than Dr. Alkema. In considering the possible contention that the operation was not successful as it relates to the lesser toe of the left foot, there is some dispute as to whether or not the recurrence is one of a toenail or some callous, which appears in the area of the toenail. Nevertheless, assuming that the substance is a toenail, accepting the statement of Dr. Binkowitz as to the possibility that a toenail will reappear even with the best efforts of the physician, because of a problem with permeability of a patient's toe, it would not appear that the operation was unsuccessful because of any willful negligence or incompetence on the part of the Respondent, nor any unprofessional conduct in performing the treatment. The contention was made that the Respondent was unprofessional in failing to notify Dr. Castronuovo of the impending operation on Mrs. Chanter, knowing that Mrs. Chanter was a patient of Dr. Castronuovo. Accepting the fact that Mrs. Chanter was a patient of Dr. Castronuovo, and keeping in mind the ruling that the Respondent was not duly noticed of such a charge of unprofessional conduct, nevertheless, it would appear that under the circumstances of the testimony set forth In the course of the Findings of Fact, it was not unprofessional on the part of the Respondent to fail to notify Dr. Castronuovo. It was suggested in the course of the hearing that there was a failure on the part of the Respondent to prescribe adequate analgesic for pain. From the testimony offered by doctors Perry, Binkowitz and Kramer, it would appear that the prescription of aspirin as a beginning analgesic was appropriate and the Respondent did not act in a willfully negligent or incompetent manner or unprofessional manner in failing to prescribe any stronger analgesic. Dr. Alkema's testimony on the question of the proper analgesic did not seem to contradict this position, in that he only suggested that he would prescribe a stronger analgesic if the condition warranted, and in this instance Mrs. Chanter did not sufficiently indicate to the Respondent that she desired a stronger analgesic. It was also brought out in the course of the hearing that the Respondent utilized the wrong anesthetic, in prescribing xylocaine with epinephrine. However, he did utilize a solution in which the epinephrine had been reduced and the testimony did not show any ill effects from the use of any anesthetic which had as a part of the solution the substance epinephrine.
Recommendation It is therefore recommended that the Respondent, Gerson M. Perry, be released from all charges brought under this Administrative Complaint. DONE and ENTERED this 28th day of January, 1976, In Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The Carlton Building 2009 Apalachee Parkway Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Lawrence M. Kukey, Esquire 507 North Olive Avenue P. O. Box 3466 West Palm Beach, Florida, 33402 John S. Miller, Jr., Esquire P. O. Box 10137 Tallahassee, Florida 32301 For the Board
Findings Of Fact The Respondent, Joseph A. Buttacavoli, is a licensed chiropractor, having been issued license number 00335. The Respondent practices chiropractic at 7162 Beneva Road, Sarasota, Florida 33583. (See Prehearing Stipulation.) On July 6, 1981, Jeffrey Goldman responded to the Respondent's newspaper advertisement offering a free examination. (See Prehearing Stipulation; Tr. 15.) On July 6, 1981, Goldman was complaining of pain in the neck radiating into the left shoulder. The pain was recent in origin, having started a few weeks prior to July 6, 1981. Goldman had suffered similar problems during the past 10 or 12 years on an intermittent basis, but this instance was more intense than previously experienced. (Tr. 12, 13.) The Respondent performed a free examination consisting of certain orthopedic and neurological tests. (Tr. 73, 77.) The Respondent did not record in writing the results of this examination. (Tr. 117.) Two of the tests were positive on Goldman's left side. (Tr. 73-77.) After completion of the examination, the Respondent tentatively diagnosed a pinched nerve in the neck and recommended to Goldman that x-rays be taken. (Tr. 78.) Goldman consented to the x-rays and was charged $80 for four x-rays which were taken. (See Prehearing Stipulation.) After the x-ray examination, the Respondent concluded that Goldman had a straightening of the normal cervical spine, some arthritic spurring and disc degeneration at the C4/C5 and C5/C6 level, and several vertebral misalignments. (See Prehearing Stipulation; Tr. 87.) The Respondent advised Goldman that his condition was serious and recommended treatment for 90 days. (See Prehearing Stipulation.) The Respondent told Goldman what the 90 days' treatment would cost and advised Goldman that the cost would be less if paid in advance. The Respondent practices a chiropractic technique known as Grostic or orthospinology. (Tr. 53, 55.) A diagnosis cannot be reached without x-rays using the Grostic technique, and the Respondent takes x-rays in every case except those in which the problem is muscular or x-rays are refused by the patient. (Tr. 115, 116.) The preliminary or free examination is the basis for the Respondent's recommending that x-rays be taken. (Tr. 117.) In the Grostic technique, a complex analysis of x-rays is the basis for a final diagnosis. This requires that x-rays be taken of the patient to apply the technique. (Tr. 59-63, 117-118.) In addition to the x-rays, which were kept by the Respondent as part of the record, Goldman's history/interview form was also maintained. (Tr. 48.) The x-rays on file and the medical history form constitute sufficient justification for the recommendation made by the Respondent to Goldman. The diagnosis of Goldman's problem was based upon his history, a physical examination and x-ray findings. These findings were reviewed by Dr. George Stanford Pierce, who verified the Respondent's suggested course of treatment based upon the records the Respondent maintained. (Tr. 150.) Goldman refused further treatment by the Respondent. (Tr. 26.) No evidence was received that the Respondent practiced chiropractic with less than the required level of care, skill and treatment recognized by reasonably prudent chiropractic physicians as being acceptable under similar conditions and circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Administrative Complaint filed by the Petitioner against the Respondent, Joseph A. Buttacavoli, be dismissed. DONE and RECOMMENDED this 12th day of July, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1983. COPIES FURNISHED: Diane K. Kiesling, Esquire 517 East College Avenue Tallahassee, Florida 32301 Michael R. N. McDonnell, Esquire 600 Fifth Avenue, South, Suite 301 Post Office Box 8659 Naples, Florida 33941 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jane Raker, Executive Director Board of Chiropractic 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER =================================================================
The Issue The issue in this case is whether disciplinary action should be taken against Gerald Greenwald, M.D., based upon the alleged violations of Chapter 458, Florida Statutes, as contained in the two Administrative Complaints filed against the Respondent on June 3, 1985.
Findings Of Fact Based upon the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence at the hearing, the following facts are found. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida having been issued license number ME 0015097. Respondent's last known address is Dadeland Medical Building, 7400 North Kendall Drive, Miami, Florida 33156. In the yellow pages effective as of May 10, 1984, in Miami, Florida, Respondent placed an advertisement wherein Respondent advertised the "Dadeland Dermatology Center," which is located at 7400 Kendall Drive, in Miami, Florida. Despite the fact that Respondent practices medicine at the Dadeland Dermatology Center, the advertisement placed by Respondent in the Miami, Florida, yellow pages and in effect on May 10, 1984, does not anywhere list Respondent's name. In December of 1978, Respondent applied pursuant to the fictitious name statute with the Secretary of State of the State of Florida to do business under the name of "Dadeland Dermatology Center." In the yellow pages for the City of Miami, Florida, effective as of May 10, 1984, Respondent also placed an advertisement under the heading "Physicians & Surgeons - M.D. - Dermatology (Skin)" under the name Gerald Greenwald, M.D., P.A. In the advertisement, Respondent advertised that Respondent provided Silicone and Collagen implants. The Silicone and Collagen implant therapy was advertised among a list of several other conditions/treatments which Respondent dealt with in his practice. The specific phrase "Silicone & Collagen implants" was italicized and set forth in larger type and in capital letters. The above-described advertisements for "Gerald Greenwald, M.D., P.A." and for "Dadeland Dermatology Center" were contained on the same page of the City of Miami, Florida, yellow pages, in effect on May 10, 1984. Pursuant to Respondent's instructions, any member of the public who called his office, pursuant to either advertisement, was immediately informed that they were calling the office of Gerald Greenwald, M.D. Despite the fact that Respondent advertises that he provides Silicone and Collagen implants in his practice, Respondent has never purchased Collagen, has never used Collagen in his practice, and has never participated in the training program sponsored by the manufacturer and distributor of Collagen. Further, despite his statements to patients that he can obtain Collagen, Respondent has never had any intention of using Collagen because he is convinced that it is an inferior product when compared to medical grade Silicone. Collagen is a purified form of cow skin that is used to stimulate the formation of scar tissue, which then raises the surface underneath which it is injected. It is used for removing and softening wrinkles and lines. Collagen is a foreign substance and as such can cause allergic reactions, as well as exacerbation of certain diseases. Because it can cause allergic reactions, Collagen may be used only after appropriate allergy reaction skin testing has been performed. Silicone is a chemical that is commonly present in the form of sand. Medical grade Silicone has been used in injectable form to correct lines, wrinkles, and depressions in the body. The primary problems which occur with administration of Silicone are the problems of lumps and bumps caused by improper administration of the substance, which should only be injected in very small or "pin head" amounts. Before providing Collagen therapy, allergy testing is necessary, as previously described above. A small amount of Collagen is injected under the skin and examined closely for a period of three days and then re-examined after one month. If no reaction occurs, Collagen may be injected in the patient for purposes of removal of facial wrinkles and lines. It is, of course, necessary to have Collagen available in order to provide the allergy testing because the substance is used in the allergy tests. Zyderm Corporation is the only corporation that manufactures Collagen for distribution in the United States. Respondent has never ordered Collagen from Zyderm Corporation and has never participated in the training program for Collagen provided by Zyderm Corporation. Furthermore, Respondent has never had in his office the Collagen necessary to perform allergy testing on those patients seeking Collagen treatments. If a Miami, Florida, physician were to place an order for Collagen with Zyderm Corporation, it would take between four to seven days to obtain the substance. Collagen therapy is not a permanent treatment. Repeated injections will be required as the Collagen is absorbed by the body. Silicone, on the other hand, is more permanent. Because Collagen is not a permanent treatment, for the most part permanent problems will not result from improper administration of the substance. If Silicone is improperly administered, lumps and bumps and sagging may occur. Respondent is of the opinion that Collagen is much inferior to Silicone and that intelligent people, when informed about the merits of Silicone and the deficiencies of Collagen, will invariably choose Silicone. It is false, deceptive, and misleading for a physician to advertise that he provides both Collagen and Silicone implants when he does not have Collagen readily available but would have to order the substance, resulting in a delay of between four to seven days, and the physician does have Silicone readily available. It is also false, deceptive, and misleading for a physician to advertise that he provides both Collagen and Silicone implants when he has never had any intention of using Collagen because he has never taken any training in the use of Collagen and thinks it is an inferior product. During the summer of 1984, DPR investigator Diane Robie, pursuant to Respondent's advertisement, telephoned the Respondent to discuss the possibility of having Collagen treatment for the lines around her eyes. Investigator Robie was informed on the telephone, prior to her visit to Respondent's office, that Respondent preferred the use of Silicone to Collagen because it was more effective and less expensive. When investigator Robie visited Respondent's office, the Respondent discussed the relative advantages and disadvantages of both Silicone and Collagen. While the Respondent did not exert any undue pressure on investigator Robie to make a decision about whether or not she would decide to be treated, Respondent made it clear that he thought that if she chose to be treated, the treatment should be Silicone. During investigator Robie's visit, the Respondent also told her that if she still wished to have Collagen treatments, Respondent could obtain Collagen for her. Investigator Robie left the Respondent's office and did not arrange for any further appointments. Investigator Robie did not pursue what the Respondent's course of conduct would have been if she had persisted in her request for Collagen treatment. At all times material hereto, Respondent was the owner of an insurance policy taken out on Paula Greenwald, Respondent's ex-wife, which would pay $1.09 million in proceeds in the event of Paula Greenwald's death. Respondent also had a $3.5 million insurance policy on himself for the care of his children in the event of Respondent's death. In 1983, Respondent went through divorce proceedings terminating his marriage to Paula Greenwald. At the time of the divorce, there were six children ranging from seven to seventeen years of age. The divorce proceedings brought out a great deal of acrimony on both sides. After the divorce, Mrs. Greenwald was to have custody of the children and Respondent perceived that Mrs. Greenwald was, on a number of occasions, denying Respondent's visitation rights. Due to those disputes and disputes about other matters, the relationship between Respondent and Mrs. Greenwald became severely deteriorated after the divorce, continually worsening until about September of 1984. In approximately September of 1984, Mrs. Greenwald sent Respondent a card which contained an anonymous death threat. There was no evidence presented to establish that this death threat was acted upon. At a time prior to September 15, 1984, the Metro-Dade County Organized Crime Bureau received information from an Eastern Airlines employee named Mr. Armstrong, indicating that Respondent was trying to put out a contract for the death of Mrs. Greenwald. Mr. Armstrong obtained the information which he provided to the Metro-Dade County Organized Crime Bureau from another Eastern Airlines employee, Thomas Young. No one from the Metro-Dade County Organized Crime Bureau ever discussed the information directly with Mr. Young until after the arrest of the Respondent. Acting on the information received from Mr. Armstrong, Detective Paul Ohanesian went to the Respondent's office undercover posing as a patient, Paul DeSantis, on or about September 15, 1984. Ohanesian had sun spots on his back and used this as the reason for visiting Respondent's office. On the same day as Ohanesian's first visit, the Respondent became engaged to be married. When the Respondent's first wife heard about the engagement, she threatened to hurt Respondent like he had never been hurt before, and also threatened to break up his relationship with his fiancée. During the course of the office visit which occurred on or about September 15, 1984, Respondent examined Ohanesian's (DeSantis') back, diagnosed his condition, prescribed medication for the condition, and suggested that Ohanesian (DeSantis) return in one week. At the outset of the office visit which occurred on or about September 15, 1984, Ohanesian told Dr. Greenwald that "(a) couple of guys down at the Union down at Eastern Airlines sent me (Ohanesian) here." During the course of the first office visit, Ohanesian said, "they said that ah, you had some expensive marital problems." This initiated a conversation between Respondent and Ohanesian about Respondent's marital problems. After some discussions, Ohanesian made the statement "(s)ounds to me like it's time to get rid of her." Respondent responded as follows: Greenwald - You can't deal with it Ohanesian - Yeah Greenwald - It's a. . . She 's nuts Ohanesian - Yeah Greenwald - She's nuts Greenwald - And I like, ya know, if I had the ability Ohanesian - Ya Greenwald - To commit the perfect crime I'd kill her. She deserves to be dead Ohanesian - Well Greenwald - She's a one of the few truly evil. . . Ohanesian - Ya Greenwald - People I know. But what the hell Ohanesian - Hey, sometimes there's people That will do it for you though Greenwald - Yeah but the first one they're gonna come in on look to is me. Respondent then proceeded to tell Ohanesian that if someone would kill Respondent's ex-wife and then come to Respondent a month or two later, Respondent would give the person $50,000. Respondent told Ohanesian that he (Respondent) could not make a contract because the police and the FBI would look to Respondent. Respondent informed Ohanesian that he had told Mrs. Greenwald that if Respondent thought he could get away with it, Respondent would have his wife killed. Then Respondent again told Ohanesian that if someone killed his wife and came to him afterwards, it would be worth a lot of money to Respondent. Nothing further of significance occurred during the first office visit dated September 15, 1984, which is described above. No contract was entered into. However, Ohanesian, still known to Respondent as Paul DeSantis, was directed to return to Respondent's office and an appointment was scheduled for September 22, 1984. On or about September 22, 1984, Ohanesian returned to Respondent's office still using the name Paul DeSantis. Respondent examined Ohanesian and again prescribed medication. During the course of the office visit which occurred on or about September 22, 1984, Respondent initiated a conversation about his marital problems and informed Ohanesian that he (Respondent) had received a death threat from Mrs. Greenwald. In response, Ohanesian asked Respondent if he was still serious about having Mrs. Greenwald killed. The conversation continued as follows: Greenwald - Ya know, I can't tell you that I'm serious . . . Ohanesian - Ya - Greenwald - . . . because that would be conspiracy. I don't know if you're a cop or private, ya know, I don't know that stuff. Ohanesian - Ya, ya Greenwald - Ah, but it would certainly ah, behoove the world and be of great financial benefit to me if she were gone. Then Respondent proceeded to tell Ohanesian that his wife and her friend liked to jog at Coral Reef Park at six in the morning. Respondent described the location of the park. Respondent gave Ohanesian a description of Mrs. Greenwald's vehicle. Respondent provided Ohanesian with his wife's address and a description of Respondent's wife and her friend. During the course of the above-described conversation, the method of payment came up as follows: Ohanesian - Yeah. Well, that's all right Okay, ahm. If I give a, you a post office box, ya know, if something should happen. Greenwald - Uh hum Ohanesian - Just send it in the post office box, if you can just jot it down for yourself. Okay, it's gonna go to J and M Greenwald - Uh hum Ohanesian - Box 523816. That's in Miami, 33152. Okay, well ah, I'll guess you know anyways. So, you won't need much proof. Greenwald - Whataya mean? Ohanesian - Ahm, if she dies you won't need much proof. Greenwald - No, no, I certainly won't. Ahm, Respondent, in the course of the same conversation also stated: Greenwald - So I'm not in a conspiracy. Ahm, I'm telling you like I've probably told fifty people . . . Ohanesian - Uh hum Greenwald - . . . that the world would be better better off without her. And I would be grateful. Ohanesian - Right Greenwald - And it's as simple as that. Nothing occurred during the second office visit to establish a clear-cut contract. At the conclusion of the office visit, Respondent told Ohanesian that in ten days his (Ohanesian's) spots would be gone and the treatment would be finished. Respondent did not direct Ohanesian to return to his office for another visit after September 22, 1984. On or about September 26, 1984, Ohanesian returned to Respondent's office still using the undercover name Paul DeSantis. Ohanesian told Respondent that people were always getting run over by stolen cars. Then Ohanesian asked for expense money to run over Mrs. Greenwald. The conversation was as follows: Ohanesian - Like kids that steal cars then run over joggers all the time. I can't put out any of my own money, you know? So, we need some expense money. Is there going to be any way we can do, work something out here? Greenwald - How much expense money do you need? Ohanesian - Uh! Greenwald - And how do I know you're not a cop? Ohanesian - I'm not, Doc. You know this isn't the movies, you know? What am I going to do? I mean, well? Greenwald - All right, How much expense money? Ohanesian - I'm talking about eight hundred dollars. Greenwald - Eight hundred bucks. You got a look at her? Ohanesian - I got a good look at her, she looked at me. Greenwald - All right, how do you make sure that, uh, that uh, she's run over? Ohanesian - Well, she's going to get run over real good, I mean, you know? She's going to be jogging. She didn't jog Monday and uh, I'm just going to run her over. Run the shit off of her, and that's going to be the end of it. * * * Ohanesian - When can you get me some money? Greenwald - Uhm! Greenwald - You got no recorders or microphones? Ohanesian - No, shit no, shit the only thing is the gun Greenwald - Take it, there. At that time, Respondent gave Ohanesian $800 cash out of Respondent's wallet. After discussing expenses, Respondent and Ohanesian talked about payment of the fifty thousand dollars as follows: Ohanesian - Uhm, when I'm gone, okay, I know you're scared, just send it in this envelope, okay? Greenwald - How much money do I send in? Ohanesian - After it's over? Greenwald - Yeah Ohanesian - Fifty thousand we talked about, less whatever you're going to pay me now Greenwald - All right now. Fifty thousand Ohanesian - Uh huh Greenwald - It's fine. It's a lot of money, but it's fine. I want you to know that it is from insurance that I have Ohanesian - Okay Greenwald - I don't have fifty grand that I could give you now Ohanesian - No, I don't want, we made an agreement when I first came in here. You send it after it's over with. Did you say a month? Greenwald - Whenever I get... Ohanesian - Okay Greenwald - ... the insurance check. Ohanesian and Respondent then talked about Mrs. Greenwald's schedule for the week in question. On his patient records for DeSantis, dated September 26, 1984, Respondent wrote "Improving. Finish above. . ." At the time Respondent paid the $800 cash to Ohanesian (DeSantis) it was Respondent's intent to hire Ohanesian to kill Respondent's ex-wife, Paula Greenwald, and Respondent believed that he had hired someone to accomplish that purpose. This action of hiring someone with the motive of and for the purpose of causing the death of another person demonstrates that Respondent is a person who is extremely cruel, callous, and unfeeling. Those characteristics can affect clinical judgments and therefore relate to the ability to practice medicine. Further, the act of soliciting a patient to commit murder is poor medical judgment. On or about September 27, 1984, Respondent was arrested for solicitation to commit first degree murder. John Collins, a sergeant with the Metro-Dade Organized Crime Bureau, was one of the arresting officers. Sergeant Collins, upon arresting Respondent, advised Respondent only that he was under arrest for solicitation to commit murder. No further information was provided. Respondent was not advised of his Miranda rights because no questioning was to be pursued at that time. Respondent then asked Sergeant Collins if "she" was dead. On or about October 16, 1984, under case number 84- 22607, an information was filed against Respondent in the Eleventh Judicial Circuit Court in and for Dade County, Florida, alleging that Respondent between September 14 and 28, 1984, did unlawfully and feloniously solicit Paul Ohanesian to commit murder in the first degree, and in the course of such solicitation did command, encourage, hire or request Paul Ohanesian to kill Paula Greenwald, and to effect her death with premeditated design. On or about January 23, 1985, Respondent pleaded nolo contendere to charges of solicitation to commit murder in the Circuit Court for Dade County. On or about January 23, 1985, the court accepted Respondent's plea of nolo contendere to charges of solicitation to commit murder. On or about January 23, 1985, a sentencing hearing was held in Case Number 84-22607, before the Circuit Court in Dade County, Florida. As a result of the sentencing hearing, Respondent was placed on probation for a period of ten (10) years. As a special condition of probation, Respondent was to perform 5,000 hours of community service over a ten-year period, by performing 500 hours of community service per year for specified organizations. Additionally, as a special condition of probation, Respondent was to obtain a psychiatric evaluation from one of three specified physicians.
Conclusions Based on the foregoing findings of fact and on the applicable legal principles, the following conclusions of law are made. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. See Section 120.57(1), Florida Statutes, and Section 455.225(4), Florida Statutes. The Board of Medical Examiners is empowered to revoke or suspend the license of, or otherwise discipline, any physician who violates any of the following provisions of Section 458.331(1), Florida statutes: Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter; False, deceptive or misleading advertising; Advertising, practicing or attempting to practice under a name other than one's own; Failing to perform any statutory or legal obligation placed upon a licensed physician; and Making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. Petitioner has the burden of proof in this license discipline case and must prove clearly and convincingly that the alleged violations of the above-cited statutory provisions occurred. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984); and Sneij v. Department of Professional Regulation, 454 So.2d 795 (Fla. 3d DCA 1984). Conclusions regarding charges in DPR Case No. 0048232 Count One of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(e), Florida Statutes, by "[a]dvertising, practicing, or attempting to practice under a name other than his own." There is sufficient competent substantial evidence to establish that Respondent violated Section 458.331(1)(e), Florida Statutes, by advertising under the name Dadeland Dermatology Center, a name other than his own. Respondent in mitigation offered evidence that the Dade County Medical Association did not find unethical behavior in Respondent's advertising. This evidence does not negate, but only mitigates the violation of Section 458.331(1)(e), Florida Statutes. Count Two of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(d), Florida Statutes, which prohibits false, deceptive, or misleading advertising. There is sufficient competent substantial evidence to establish that the Respondent violated Section 458.331(1)(d), Florida Statutes, by advertising in a false, deceptive, or misleading manner that Respondent provided Collagen and Silicone treatments, when in fact the Respondent has never used Collagen in his practice, has never been trained in the use of Collagen, has never ordered Collagen, has never had any Collagen at his office, believes Collagen is an inferior product, and has no present intention of using Collagen. It is clearly false, deceptive, and misleading for the Respondent to advertise the availability of both Collagen and Silicone treatments when in fact the Collagen treatments are not available at Respondent's office and he has no intention of making them available. Count Three of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(u), Florida Statutes, by Performing any procedure or prescribing any therapy which, by the prevailing standards of medical practice in the community, would constitute experimentation on a human subject, without first obtaining full, informed, and written consent. Counsel for the Department voluntarily dismissed the charges in this count at the commencement of the hearing. Accordingly, Count Three of the Administrative Complaint in DPR Case No. 0048232 should be dismissed. Count Four of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(t), Florida Statutes, by Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Counsel for the Department voluntarily dismissed the charges in this count at the commencement of the hearing. Accordingly, Count Four of the Administrative Complaint in DPR Case No. 0048232 should be dismissed. Count Five of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(1), Florida Statutes, by Making deceptive, untrue, or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. There is sufficient competent substantial evidence to establish that Respondent violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue, or fraudulent representations that Respondent provided Collagen implants in his practice. Essentially, Respondent is advertising that he provides both Collagen and Silicone treatments, when this is not true, and in fact is deceptive in nature. Conclusions regarding charges in DPR Case No. 0052038 Count One of the Administrative Complaint in DPR Case No. 0052038 charges the Respondent with a violation of Section 458.311(1)(c), Florida Statutes, by Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter. The manner in which the last sentence of the above-quoted statutory provision is to be construed and applied was addressed as follows in Ayala v. Department of Professional Regulation, 478 50.2d 1116 (Fla. 1st DCA 1985): We find that Section 458.331(1)(c) is clearly constitutional by construing the word "shall" in the last sentence of that subsection as permissive rather than mandatory in meaning. Rich v. Ryals, 212 So.2d 641, 643. As so construed, the Board of Medical Examiners may presumptively consider the nolo contendere plea as evidence of a conviction for purposes of chapter 458; however, in accordance with the Supreme Court's opinion in The Florida Bar v. Lancaster, 448 So.2d 1019, the Board must allow appellant the opportunity to rebut this presumption and assert his innocence of the underlying criminal charges by explaining the reasons and circumstances surrounding his plea of nolo contendere, and thereby attempt to convince the Board that he is not guilty of a crime in violation of the provisions of section 458.331(1)(c). The Board must consider this evidence in deciding appellant's guilt or innocence for purposes of the disciplinary charges. Such explanation may, of course, always be considered in mitigation of punishment if appellant should be adjudicated guilty by the Board. At the hearing in this case, the Respondent was allowed an opportunity to rebut the presumption which arises from his nolo contendere plea. Respondent availed himself of the opportunity and attempted to explain the reasons and circumstances surrounding his plea of nolo contendere and attempted to convince the Hearing Officer that he is not guilty of a crime in violation of the provisions of Section 458.331(1)(c), Florida Statutes. As is obvious from the findings of fact earlier in this Recommended Order, the Respondent's efforts in this regard were unsuccessful. After careful consideration of the Respondent's explanations, I have found them to be lacking in persuasiveness when considered in light of the other evidence of the Respondent's guilt of the criminal charge of solicitation of the first degree murder of his ex-wife. Section 777.04(2), Florida Statutes, reads as follows in pertinent part: Whoever solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation . . . Upon consideration of the totality of the evidence in this case, there is an abundance of competent substantial evidence that the Respondent encouraged and hired Paul Ohanesian to murder Respondent's ex-wife and that Respondent did so with the motive of and for the purpose of causing the death of his ex-wife. Respondent's explanations with regard to his having had some other motive or purpose are simply unconvincing. Count Two of the Administrative Complaint in DPR Case No. 0052038 charges the Respondent with a violation of Section 458.331(1)(h), Florida Statutes, by "[f]ailing to perform any statutory or legal obligation placed upon a licensed physician." In this regard, the Respondent is alleged to have failed to comply with or to have violated the provisions of Section 455.227(1)(a), Florida Statutes, which provides for disciplinary action where "[t]he licensee has been convicted of a felony which relates to the practice of his profession." For the following reasons this charge must be dismissed. First, while Section 455.227(1)(a), Florida Statutes, authorizes disciplinary action upon conviction of certain felonies, Section 455.227(1)(a) does not impose any statutory or legal obligation upon a licensed physician (or upon any other licensee). Section 455.227(1)(a) may provide a separate basis for discipline against a licensed physician (or other licensee), but because it does not impose any duty or obligation on licensed physicians, there can be no failure to perform anything required by Section 455.227(1)(a) which could constitute the basis of a violation of Section 458.331(1)(h), Florida Statutes. Second, even if the Respondent had been charged directly with a violation of Section 455.227(1)(a) [which he was not], such a charge would fail on the facts in this case because Section 455.227(1)(a), Florida Statutes, is limited by its terms to licensees who have been "convicted," and does not contain the broadening language of Section 458.331(1)(c), Florida Statutes, which encompasses situations in which adjudication has been withheld or in which a plea of nolo contendere has been made. Therefore, no violation of Section 458.331(1)(h), Florida Statutes, can be found, and Count Two of the Administrative Complaint in DPR Case No. 0052038 must be dismissed. Conclusions regarding the appropriate penalty With regard to the violation of Section 458.331(1)(e), Florida Statutes, by advertising under a name other than his own, even though the Dade County Medical Association found nothing wrong with the Respondent 'a advertising, the fact remains that the language of the statutory prohibition is simple and clear and the Respondent should have been aware of it. Respondent did mitigate the harm caused by the improper advertising by advising all who called that they had called Respondent's office. Accordingly, for the violation of Section 458.331(1)(e), Florida Statutes, I recommend issuance of a reprimand and an administrative fine in the amount of $250. With regard to the violation of Section 458.331(1)(d) and (1), Florida Statutes, by false, deceptive, or misleading advertising and by deceptive, untrue, or fraudulent misrepresentations, I recommend an administrative fine of $1,000. With regard to the violation of Section 458.331(1)(c), Florida Statutes, by being found guilty of a crime which directly relates to the ability to practice medicine, due to the particularly heinous nature of the Respondent's crime, I recommend that Respondent's license to practice medicine be revoked.
Recommendation Consistent with all of the foregoing, it is recommended that the Board of Medical Examiners issue a Final Order in this case to the following effect: Finding the Respondent guilty of the violations charged in Counts, One, Two, and Five of the Administrative Complaint in DPR Case No. 0048232; Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint in DPR Case No. 0052038; Reprimanding the Respondent for the violation of advertising under a name other than his own; Imposing a total of $1,250 in administrative fines against the Respondent; Revoking the Respondent's license to practice medicine; and Dismissing Counts Three and Four of the Administrative Complaint in DPR Case No. 0048232 and dismissing Count Two of the Administrative Complaint in DPR Case No. 0052038. DONE AND ORDERED this 10th of April, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esq. Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lawrence E. Besser, Esq. SAMEK AND BESSER 1925 Brickell Suite #D-207 Miami, Florida 33129 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the findings of fact proposed by each of the parties. Rulings on findings proposed by the Petitioner The paragraphs referred to below are to the numbered paragraphs of the proposed findings of fact which appear at pages 3 through 13 of the Petitioner's Proposed Recommended Order. The substance of all of the findings proposed in the following paragraphs has been accepted. Some editorial modifications have been made in the interests of clarity and accuracy, as well as when integrating similar proposals by the Respondent: 1, 2, 3, 4, 5, 6. 7. 8, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32. Paragraph 11: The findings in this paragraph are accepted with the exception of the language in parentheses, which is rejected as not supported by competent substantial evidence. Paragraph 18: Accepted in substance with unnecessary details deleted. Paragraph 29: The last sentence of this paragraph is rejected as irrelevant. The remainder of this paragraph is accepted. Rulings on findings proposed by the Respondent The paragraphs referred to below are to the numbered paragraphs of the proposed findings of fact which appeared at the following pages of the Respondent's Proposed Recommended Order: 1, 2, 3, 4, 5, 6, 16 and 17, 19 and 20. Inasmuch as the paragraphs of Respondent's proposed findings are numbered in three series of numbers in which many numbers are repeated, I have also included page reference below in the interest of clarity (Findings proposed at pages 1 through 6) Paragraph 1: Accepted in substance, with deletion of some irrelevant details. Paragraph 2: Accepted in substance, with deletion of some irrelevant details. Paragraph 3: Rejected because not supported by competent substantial evidence. Paragraphs 4, 5, and 6: T he substance of these paragraphs has been accepted with the deletion of certain editorial material. Paragraph 7: Rejected as constituting either a cumulative rehash of previous findings or as argument about the significance of the findings. Paragraphs 8 and 9: The substance of these paragraphs has been accepted with the deletion of certain editorial material. Paragraph 10: Rejected as constituting an irrelevant opinion or a conclusion of law rather than a finding of fact. Paragraph 11: Accepted in substance. Paragraphs 12, 13, 14, and 15: Accepted in substance. Paragraph 16: Rejected as contrary to the greater weight of the persuasive evidence. (See other findings regarding the guilt of the Respondent. In making my findings of fact regarding Respondent's intent, motive, and purpose, I have specifically rejected as unpersuasive and unworthy of belief Respondent's testimony that he knew that Ohanesian was not a "hit man," that he believed that Ohanesian was a private detective sent by Respondent's ex-wife, that he had no intention of causing his wife's death, and that his sole reason for paying $800 to Ohanesian was to "send a message" to his ex-wife so she would believe he was serious about having her killed even though he was not.) Paragraphs 17 and 18: Accepted in substance. Paragraph 19: Rejected as contrary to the greater weight of the persuasive evidence. (See other findings regarding the guilt of the Respondent.) Paragraph 20: Accepted in substance. Paragraph 21: Rejected in part as irrelevant and in part as contrary to the greater weight of the persuasive evidence. Paragraph 22: Rejected as contrary to the greater weight of the persuasive evidence. (See other findings regarding the guilt of the Respondent.) Paragraph 23: Rejected because it constitutes a summary of testimony and argument about the testimony and does not constitute a proposed finding of fact. Paragraph 24: Rejected in part because it constitutes a summary of the testimony and opinion rather than a proposed finding of fact. Rejected primarily because it is inconsistent with the greater weight of the persuasive evidence, including some of Dr. Jacobson's testimony on cross-examination. Paragraph 25: Rejected in part because it is irrelevant. Rejected primarily because the opinions of the Board of Directors of the Dade County Medical Association are not warranted on the basis of the persuasive evidence in this record. Paragraph 26: Rejected as contrary to the greater weight of the persuasive evidence. (Findings proposed at pages 16 and 17) Paragraphs 1, 2, 3, and 5: Accepted in substance. Paragraphs 4, 6, and 7: Although essentially correct statements, these paragraphs are rejected as findings because they are irrelevant to the issues in this case. (Findings proposed at pages 19 and 20) Paragraph 1: The substance of the first sentence is accepted. The second sentence is rejected as contrary to the greater weight of the persuasive evidence or as not supported by persuasive competent substantial evidence. Paragraph 2: Accepted in substance. Paragraph 3: The first sentence of this paragraph is accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence and not supported by competent substantial evidence. Paragraphs 4, 5, 6, and 7: Accepted in substance. Paragraph 8: Accepted in substance with some additional clarification regarding the emphasis placed on the benefits of silicone. Paragraph 9: Accepted in substance. Paragraph 10: Rejected as not supported by persuasive competent substantial evidence. (See other findings on this subject.)
The Issue Whether Respondent committed the violations alleged in the Administrative Complaints? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Parties The Department is a state government licensing and regulatory agency. Respondent is now, and has been at all times material to the instant cases, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0037235. Facts Relating to Case No. 93-5861 On December 29, 1983, at Indian River Memorial Hospital, Dr. Phil Morgan performed a partial mastectomy and an axillary lymph node dissection on G.K., a female patient who was then 57 years of age. The mastectomy was performed on G.K.'s left breast. Approximately a quarter of the breast volume was removed, including a malignant tumor that was no more than two centimeters in diameter. The procedures performed by Dr. Morgan revealed no evidence of any further malignancy. In early 1984, G.K. went to the Lawnwood Oncology Center in Fort Pierce, Florida to consult with Respondent, a radiation oncologist, regarding her receiving postoperative radiation therapy. From January 17, 1984, to February 27, 1984, Respondent administered doses of external beam radiation therapy to what remained of G.K.'s left breast and the lymphatic drainage regions. The total nominal dosage administered was 5040 cGy or rads. On or about March 13, 1984, Respondent supplemented the external beam therapy treatment G.K. had received with an Iridium-192 radioisotope interstitial implant in G.K.'s left breast. The implant consisted of two layers of radioactive needles, with one layer one centimeter deeper than the other. There were ten needles, spaced one centimeter apart, in each of the two layers. In 1984, the prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing multi-layer interstitial implants required that the oncologist design and structure the implant in such a manner that the radioactive sources in each of the layers were spaced at least 1.2 centimeters apart and that the oncologist use less than half the number of radioactive sources that Respondent used. The implant remained in position for 52 hours. A volume of 253 cubic centimeters of breast tissue received a dosage of 60 cGy or rads per hour. In 1984, the prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing interstitial implants required that the oncologist regulate the radiation dosage rate so that it did not exceed 50 cGy or rads per hour. An additional 72 cubic centimeters of breast tissue received a dosage of 100 cGy or rads per hour, twice the maximum dosage rate. Inasmuch as these 72 cubic centimeters of breast tissue received a total dosage of 5200 cGy or rads during the time the implant remained in position, compared to the total dosage of 3120 cGy or rads that the other 253 cubic centimeters of targeted breast tissue received, the inhomogeneity of dosage distribution well exceeded 20 percent, contrary to the then prevailing standard of care recognized as acceptable and appropriate by reasonably prudent radiation oncologists performing interstitial implants, which required that the physical design of the implant be such that there was no more than 20 percent of dosage distribution inhomogeneity. Furthermore, in designing the implant, Respondent targeted a greater volume of breast tissue than was acceptable and appropriate under the prevailing standard of care. The implant and the external beam therapy combined delivered a total nominal dosage of 8160 cGy or rads, with some areas within the central region of the implanted tissue receiving in excess of 10,000 cGy or rads. Given the relatively small size of the malignant tumor that had been removed from G.K.'s breast and the absence of any apparent residual malignancy, a reasonably prudent radiation oncologist, governed by standards in effect in 1984, would have administered, in toto, a nominal dosage of no more than 6000 to 7000 cGy or rads. In or about December of 1985, G.K. presented to Respondent with breast fibrosis and skin retraction on the side that Respondent had treated in 1984. Respondent recommended conservative measures only. G.K. went to Dr. Everrett Sugarbaker, a surgical oncologist, for a second opinion. Dr. Sugarbaker initially examined G.K. and evaluated her situation in August of 1986. He noted that G.K.'s left breast was totally contracted back against the chest wall with extensive telangiectatic and fibrotic change in the area where Respondent had inserted the Iridium-192 implant. There was also a scab over a one and a half centimeter ulcer. It was apparent to Dr. Sugarbaker that G.K. was suffering from radionecrosis as a result of the radiation therapy she had received from Respondent. Dr. Sugarbaker recommended daily peroxide application to the ulcer, but added that, if the ulcer increased in size or became infected, he would consider surgical correction of the problem. G.K. visited Respondent again in October of 1986. The area of her left breast where the implant had been inserted had experienced further tissue destruction and had become infected. Respondent prescribed antibiotic therapy, which ultimately proved to be unsuccessful. In or about February of 1987, Respondent recommended that G.K. try hyperbaric oxygen therapy, but G.K. refused to follow Respondent's recommendation. On February 13, 1987, G.K. returned to Dr. Sugarbaker for reassessment. G.K. told Dr. Sugarbaker of her recurring infection. Upon his examination of G.K., he noticed that the necrotic area of her left breast was larger than when he had seen her in August of the previous year. Dr. Sugarbaker recommended surgical correction. On February 18, 1987, Dr. Sugarbaker surgically removed the remainder of G.K.'s left breast and, in connection therewith, performed other procedures to reconstruct the chest wall and improve blood supply and promote healing in the area. The necrosis from which G.K. was suffering that made these procedures necessary was caused by Respondent having overradiated her during the course of the radiation therapy he administered to her in 1984. Facts Relating to Case No. 93-5861 In September of 1982, Dr. Khalil Cassimally performed a modified radical mastectomy on V.H.'s cancerous left breast. V.H. was approximately 34 years of age at the time. Postoperatively, from approximately October 10, 1982, to November 22, 1982, V.H. received radiation therapy from Dr. Victoria Cividino at the Lawnwood Oncology Center, of which Respondent was the director. The therapy included a total nominal dosage of 5000 cGy or rads (with a 1000 cGy or rads "boost") to the left axilla. Following the therapy, V.H. was in constant pain. At some point in time, a knot or nodule developed in the area where she had had her mastectomy. V.H. told Respondent, who had assumed responsibility for V.H.'s care and treatment from Dr. Cividino, about the nodule. The nodule was biopsied on September 15, 1983, by Dr. Cassimally. No malignancy was found. The area that was biopsied did not heal properly. V.H. continued to have problems. On March 16, 1984, Respondent visited Dr. James Grossnickle, a general surgeon. She presented with a large ulcer on her left chest wall surrounded by thick elevated tissue. On April 20, 1984, Dr. Grossnickle biopsied a portion of the ulcer and surrounding tissue. The pathological diagnosis was fat necrosis and fibrosis. There was no evidence of any malignancy. V.H. eventually returned to see Respondent. From approximately April 16, 1985, to June 11, 1985, Respondent treated V.H. with further radiation therapy. The therapy included a total nominal dosage of 5000 cGy or rads to the left axilla, which was administered in 20 fractions. The dosage, when considered in light of the dosage previously administered by Dr. Cividino in 1982, exceeded the limits of normal tissue tolerance. As a result, it caused considerable tissue damage. There was no medical justification for administering additional radiation therapy to V.H., particularly in light of the results of the post- mastectomy biopsies that had been performed by Drs. Cassimally and Grossnickle. A reasonably prudent radiation oncologist, governed by standards in effect in 1985, would not have followed such a course of treatment. After receiving this additional radiation therapy, Respondent developed a large mass of scar tissue in the treated area, in the center of which was an oozing ulcer. Her condition was the result of having been overradiated. In or about October of 1986, V.H. went to Juan Carlos Giachino, a plastic and reconstructive surgeon, who performed surgery on V.H. in an effort to remedy the situation. The surgery was unsuccessful. Oozing ulcers reappeared. One such ulcer, near her left underarm, had to be irrigated and cleaned three to four times a day. Furthermore, V.H.'s left arm became unusable as it accumulated undrained lymphatic fluid and resultingly increased in size. The excessive radiation treatment that V.H. had received had resulted in the obstruction of the lymphatic drainage pathways in the arm. The problem with her left arm became so severe that amputation of the arm was required. Other corrective surgical procedures, including chest reconstruction, were performed on V.H. to improve her condition.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board enter a final order finding Respondent guilty of the violations of subsection (1)(t) of Section 458.331, Florida Statutes, alleged in the Administrative Complaints and disciplining him for having committed these violations by imposing the penalties described in Conclusion of Law 78 of this Recommended Order. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of May, 1994. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of May, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 93-5739 and 93-5861 The following are the Hearing Officer's specific rulings on the "findings of facts" proposed by the Department in its proposed recommended order: 1-9. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. To the extent that this proposed finding addresses the standard of care for single layer implants, it has not been incorporated in this Recommended Order because, even if true, it would have no bearing on the outcome of the instant case. To the extent that it addresses the standard of care for multi- layer implants, it has been accepted and incorporated in substance. Accepted and incorporated in substance. 12-13. Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 14-36. Accepted and incorporated in substance. First and second sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. To the extent that this proposed finding states that V.H. was 25 years of age at the time of the mastectomy, it has been rejected because it is contrary to the greater weight of the evidence. Otherwise, it has been accepted and incorporated in substance. 40-56. Accepted and incorporated in substance. First and second sentences: Not incorporated in this Recommended Order because they would add only unnecessary detail to the factual findings made by the Hearing Officer; Third sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. First sentence: Accepted and incorporated in substance; Second sentence: Rejected as a finding of fact because it is more in the nature of argument regarding the weight to be given certain evidence adduced at hearing. Rejected as a finding of fact because it is more in the nature of a summary of testimony than a finding of fact based upon such testimony First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it has no bearing on the outcome of the instant case. First sentence: Accepted and incorporated in substance; Second sentence: Not incorporated in this Recommended Order because it has no bearing on the outcome of the instant case. COPIES FURNISHED: Francesca Plendl, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Charles H. Kent, M.D. 3605 Juan Ortiz Circle Ft. Pierce, Florida 34947-6110 Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the violations alleged in the Amended Administrative Complaint? If so, what disciplinary action should be taken against him?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Agency is a state government licensing and regulatory agency. Respondent is now, and has been since approximately 1968 or 1969, a physician licensed to practice medicine in the State of Florida. He holds license number ME 0014162. 3/ Since the completion of his residency in December of 1971, Respondent has specialized in orthopedics. He currently is chief of orthopedics at Broward General Hospital. Respondent has not had any training in psychotherapy other than that which he received in a psychiatry class that he was required to take in medical school. His training in biofeedback is limited to that which he received during his residency over a period of three or four years as a result of his involvement in the treatment, with biofeedback, of approximately 15 or 20 patients. Deborah F. Cowart has a M.S. degree in counseling/guidance that she received from Nova University in 1981 and a Ph.D. degree in clinical psychology that she received from Kensington University in California in 1985. Although she is now, and has been since January 31, 1991, licensed as a mental health counselor in the State of Florida, at no time material to the instant case did Dr. Cowart hold a license to engage in mental health counseling or any profession regulated by the state. In 1986, Dr. Cowart opened the Center for Psychological and Diagnostic Services (hereinafter referred to as the "Center") in Fort Lauderdale. The Center provided pain management counseling and biofeedback services to those suffering from chronic pain. (Biofeedback is recognized in the medical community as an acceptable therapeutic modality for the treatment of chronic pain.) Dr. Cowart was the operator and sole owner, through a professional association, of the Center. In addition to her administrative duties, she worked at the Center as a therapist directly providing pain management counseling and biofeedback services to patients. At all times material to the instant case, Respondent was the Center's medical director. Initially, he served in this capacity pursuant to an oral agreement that he had with Dr. Cowart. In or around the latter part of 1990, the agreement was reduced to writing. As medical director, Respondent was a member of the Center's pain management team. He did orthopedic consultations. In addition, he conferred with the Center's two therapists, Dr. Cowart and Philip Schmidt, concerning the progress of their patients and, based upon the information they furnished him, determined, with regard to each patient discussed, whether the course of treatment and therapy the patient was receiving was medically appropriate and necessary and should continue. In this respect, Respondent "supervised" Dr. Cowart and Schmidt. At no time, however, did Respondent ever advise Dr. Cowart or Schmidt as to how they should perform the pain management counseling and biofeedback services they provided their patients, nor was he physically present when these services were rendered. Respondent himself never provided such services to any of the Center's patients. In his role as the Center's medical director, Respondent was not required to, nor did he, perform any task he was not qualified to perform. When Dr. Cowart first approached Respondent about becoming the Center's medical director, she offered to pay him a "stipend" of $1,000.00 a month for his services. Dr. Cowart, however, subsequently determined that she was not able to pay Respondent that large a stipend. She and Respondent thereafter agreed that she would pay him whatever she deemed to be appropriate, given the number of hours Respondent devoted to his medical director duties and her ability to pay him. 4/ In 1988 and 1989, Dr. Cowart paid Respondent $2,970.00 and $7,475.00, respectively, for serving as the Center's medical director. During the time that he was the Center's medical director, Respondent referred orthopedic patients of his to the Center. He did not receive a kickback from Dr. Cowart for making these referrals. While Dr. Cowart made payments to Respondent, these payments were made to compensate Respondent for performing his duties as the Center's medical director, not for referring patients to the Center. One of the patients that Respondent referred to the Center was W.K., a thirty-year old man suffering from arm, neck and back pain as a result of an on- the-job injury. W.K. had been referred to Respondent by his employer's workers' compensation insurance carrier "for a second opinion." Respondent first saw W.K. on April 8, 1986. On this initial visit, he took a history from W.K. and examined him. Respondent's impression was that W.K. had an "acute cervical sprain resolving" and "acute lumbar sprain resolving." Respondent referred W.K. to the Center on May 20, 1986, after determining that W.K.'s problem was more of a "psychological" one and that there was little, if anything, that he was able to do orthopedically to help W.K. Respondent made the referral, not for his own or Dr. Cowart's personal gain, but because he reasonably believed that it was in W.K.'s best interest to receive the services that the Center provided. At the time he made the referral, as well as at all other times material to the instant case, Respondent did not know, nor did he have reason to believe, that Dr. Cowart was not qualified, by training, experience or licensure, to perform these services. 5/ Pursuant to Respondent's authorization, Dr. Cowart held a total of approximately 111 or 116 pain management counseling and biofeedback therapy sessions with W.K., for which she sought and received payment from Cigna Insurance Company. With Respondent's permission, Dr. Cowart put Respondent's Florida medical license number on the insurance claim forms she submitted to Cigna. In filling out the claim forms, Dr. Cowart used the procedure code for "psychotherapy," 90844, to bill for the pain management counseling services provided W.K. She believed that, in so doing, she was using the correct procedure code to describe these services. 6/ Respondent did not have any reason to believe that any of the information on the forms Dr. Cowart filled out was false. Throughout the period that W.K. received treatment at the Center, Dr. Cowart and Respondent conferred on a regular basis to discuss W.K.'s case. Based upon what Dr. Cowart told him about the progress W.K. was making and what he knew about W.K. as a result of his contact with the patient, Respondent authorized the continuation of the pain management counseling and biofeedback therapy W.K. was receiving at the Center.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint issued against Respondent in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of May, 1995. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1995.
