Findings Of Fact Testimony was received from the claimant and Dr. Lever, his psychiatrist. The deposition of his orthopedic surgeon, Dr. Terheyden, was received together with the records of his various hospitalizations. The deposition of Donald Jones, Personnel Director, was also received. Generally, the evidence showed that prior to 1967, the claimant had injured his back. The claimant testified that this injury occurred in 1963 on the job. Dr. Lever testified that he first began to treat the claimant in 1967 for a condition he later diagnosed as schizophrenia paranoid type reaction and that he had treated him off and on since 1967 for this condition. Dr. Lever testified and his records state that the claimant's mental condition was caused by the childhood deprivation of affection but that the pain from the 1963 back injury had interfered with the claimant's personal relationships with co-workers and his sexual relations with his wife causing the schizophrenic reaction to manifest itself. The claimant was hospitalized for nine days in 1967 and eighteen days in 1970 for psychiatric treatment. The claimant was able to return to work between hospitalizations under drug therapy prescribed by the doctor. This enabled the claimant to function although with occasional episodes of psychotic reactions caused by personal crises which had resulted in his hospitalizations as indicated. Dr. Lever testified that he had last seen the claimant several days before the hearing. Dr. Terheyden's deposition and records of his hospitalization indicated that the claimant first was treated in 1964 for back problems. This treatment continued until 1967 when surgery was performed on the claimant's back. There was no indication from Dr. Terheyden's records or deposition what caused the initial injury. Dr. Terheyden also treated the claimant for injuries to his back in 1970 and 1971, performing a second operation in 1972 on his back. Dr. Terheyden's deposition indicated that the claimant could not physically perform the duties he had performed for the school board after his last operation. The claimant testified that he had first injured his back in 1963 but that it was not reported to his employer although he had told the tile setter for whom he worked directly. Several days after the initial injury, he went to the doctor and had remained under his treatment until his 1967 operation. The claimant indicated that no report of injury had been filed with the employer because the tile setter for whom he worked had discouraged reporting the injury. However, upon examination on this point, he could not offer any satisfactory reason why the report was not filed or why the tile setter would have discouraged filing the report. The records and deposition of Donald Jones, together with Exhibit 3, which lists the reports of on-the-job injuries indicate that the claimant filed reports of on-the-job injuries in 1961, 1964, 1968, 1969, 1970, and 1971. These records and testimony do not indicate any report filed in 1963. These records indicate that the claimant missed substantial periods of work after the 1970 injury not related to the psychiatric treatment listed above. Based upon the foregoing, the Hearing Officer makes the following findings of fact: The claimant had a back injury prior to 1967 which required surgery in June of 1967. Said injury caused a schizophrenia paranoid type reaction to manifest itself but did not cause the claimant's mental disease. Although the claimant testified that said injury occurred on the job in 1963 but was not reported, this testimony was inconsistent with the reports of injuries on the job in 1961, 1962, and 1964 contained in Exhibit 3. The claimant's failure to report the 1963 injury was not adequately explained by the claimant. Considering the interest of the claimant in the outcome of the case, the lack of any separate evidence to support his testimony, the reports of injury for the years preceding and following, and the inability of the claimant to explain this apparent discrepancy, there is insufficient believable evidence to support a finding that the 1963 injury was job related. Subsequent to the 1967 operation and the treatment for schizophrenia, the claimant returned to work and worked until 1972 rendering useful and efficient service and receiving incremental raises during these years. During the period of 1967 to 1972, the claimant injured his back in January 1970, July 1970, and January 1971, all of which occurred or arose out of the performance of regularly- assigned duties on the job. These injuries necessitated a 1972 operation to claimant's back. Although the claimant had pre-existing physical and mental ailments, it was the 1970 and 1971 injuries and 1972 operation to the claimant which prevented him from performing the duties which he had performed for the school board.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the claimant, Donald M. Hines, receive in- line-of-duty benefits. DONE and ENTERED this 18th day of December, 1975, at Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of December, 1975. COPIES FURNISHED: L. Keith Pafford, Esquire Division Attorney Division of Retirement 530 Carlton Building Tallahassee, FL 32304 Donald Feldman, Esquire FELDMAN & ABRAMSON, P.A. 402 Ainsley Building Miami, FL 33132
Findings Of Fact Petitioners are the parents and legal guardians of Emberlyn. On January 19, 2019, Ms. Davis gave birth to Emberlyn, a single gestation of 38 weeks, at the Hospital. Emberlyn was delivered by spontaneous vaginal birth and weighed 2,530 grams. Samir Mohammad Shakfeh, M.D., provided obstetrical services and delivered Emberlyn. The undisputed evidence in the record consists of affidavits and reports of two physicians—Dr. Donald Willis, a board-certified obstetrician, and Dr. Luis Bello-Espinosa, a board-certified pediatric neurologist who conducted an independent medical examination (“IME”) of Emberlyn. Dr. Willis reviewed the medical records and summarized his opinions about Emberlyn’s delivery and the attendant complications in a report, dated February 23, 2020. According to Dr. Willis, Ms. Davis’s pregnancy was uncomplicated until just before her delivery when an ultrasound suggested fetal growth delay. At that point, Ms. Davis was admitted to the Hospital for induction of labor. The labor was complicated by recurrent episodes of variable fetal heart rate decelerations with the development of rebound tachycardia prior to delivery and a maternal fever of 102.3 degrees. Emberlyn’s low birth weight was consistent with fetal growth delay or small-for-gestational age. Emberlyn was depressed at birth, limp, and without respiratory effort. The Hospital administered bag and mask ventilation for about 30 seconds, after which Emberlyn began spontaneous respiratory effort. Her APGAR scores were four at one minute, five at five minutes, and eight at ten minutes. About 30 minutes after birth, Emberlyn showed decreased perfusion and tone with grunting. She began suffering seizures that day and her arterial blood gas showed metabolic acidosis. On day four, an MRI showed restricted diffusion consistent with a hypoxic brain injury. Based on the medical records, Dr. Willis opined to a degree of medical probability that an obstetrical event resulting in oxygen deprivation to the brain occurred during labor, delivery, and continuing into the immediate post-delivery period. Dr. Willis further opined that the oxygen deprivation event caused brain injury, though he could not comment on the severity. Dr. Bello-Espinosa reviewed the medical records, conducted an IME on Emberlyn, and summarized his opinions in a report, dated July 10, 2020, as to whether Emberlyn suffers from permanent and substantial mental and physical impairment caused by an oxygen deprivation event. After being diagnosed with small-for-gestational age, perinatal depression, respiratory distress, and metabolic acidosis, Emberlyn was transferred to Johns Hopkins Children’s Hospital. On day one, she suffered episodes of apneas and developed hyponatremia, hypocalcemia, and hypomagnesemia. On day two, Emberlyn exhibited left-sided rhythmic jerking of her arm and leg with simultaneous twitching of her left face, which lasted about five minutes. Dr. Bello-Espinosa confirmed that the MRI taken on day four showed restricted diffusion in the brain most likely secondary to ischemic injury. Thereafter, Emberlyn remained stable until her discharge on January 30, 2019. A developmental evaluation performed the day after her discharge found that Emberlyn was at high risk for developmental delay due to hypoxic ischemic encephalopathy and seizures. Since her discharge, she has not suffered any seizure activity and has not been on anti-seizure medication since she was seven months old. On February 6, 2019, a follow-up MRI found that the previous areas of restricted diffusion were no longer visualized. Though subtle changes in right frontal and left temporal occipital regions existed, the diffusion changes noted in the first MRI spared the basal ganglia, posterior limbs of the internal capsule, and the cerebellum. Dr. Bello-Espinosa conducted an IME on July 10, 2020. Emberlyn was small for her age, but she appeared well-developed and well-nourished. She was alert, tracked, had very good attention, and was able to follow simple directions. Her neurological, motor, and sensory examinations were normal. Based on the medical records and his IME, Dr. Bello-Espinosa opined to a degree of medical probability that Emberlyn does not suffer from permanent and substantial mental or physical impairment.
The Issue Was Petitioner properly graded and given appropriate credit for his answers on the July, 1990 Florida Podiatric Medicine Licensure Examination (Florida Podiatry Examination).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times pertinent to the issues herein, Petitioner, Paul L. Sheehy, Jr., candidate No. 20017, was a candidate for licensure by examination as a Podiatrist, and the Board of Podiatry, (Board), was and is the state agency in Florida responsible for the licensing of Podiatrists and the regulation of the Practice of podiatric medicine in this state. Petitioner sat for the July, 1990 Florida Podiatry Examination on July 27, 1991. Petitioner obtained a score of 70.0 percent, representing 210 correct answers. A passing grade requires a score of 72 percent, representing 216 correct answers. Shortly before the beginning of the hearing, Respondent agreed to give Petitioner credit for questions 16 and 180 of Clinical I of the examination thereby raising his total score to 70.666 percent. At the beginning of the hearing, Petitioner withdrew his challenge to questions 22, 37, 87, 89, 104, 149, 176 and 178 of Clinical I of the examination and questions 3, 16, 22, 50, 67 and 53 of Clinical II of the examination. During the hearing Petitioner withdrew his challenge to question 27 of Clinical I and question 12 of Clinical II of the examination, leaving only his challenge to questions 103, 114, 138, 144 of Clinical I of the examination. The parties stipulated that the Petitioner was qualified and met all the requirements to sit for the July, 1990 Florida Podiatry Examination, and that Petitioner timely received a copy of the July 1990, Podiatric Medicine Licensure Examination Candidate Information Booklet (booklet). There is a lack of competent substantial evidence in the record to establish that the Florida Podiatry Examination given on July 27, 1990 was misleading in that it tested subjects or disciplines not covered or contained in the booklet, or that it was prejudicial as applied to Petitioner. The first question at issue is question 103 of Clinical I which stated: CASE HISTORY 44 In the exhibit book are photographs for this examination. Identify the photograph in the respective exhibit. 103. Which of the following answer choices is the best description of exhibit #11? Ganglion Cyst Verruca Melanoma Kaposi's Sarcoma Petitioner answered, C, Melanoma and the Respondent's answer was, B, Verruca. Petitioner admitted that his answer was incorrect. However, Petitioner contends that the question comes within the area of histology, an area not specifically mentioned in the booklet to be covered by the examination. Therefore, he was mislead by the booklet into not studying the area of histology. While the booklet does not specifically mention histology as an area of study to be covered in the examination, there were several other areas of study listed in the booklet which conceivably would have covered this question. Therefore, there has been no showing that the Respondent's failure to specifically list histology as an area of study mislead or prejudiced the Petitioner. The second question at issue is question 114 which stated: CASE HISTORY 45 An elderly obese male presents with an acutely inflamed first metatarsophalangeal joint. The pain began late last night and he awoke in severe pain. His past medical history reveals two previous such occurrences which resolved and went un- treated. He reports a history of chronic renal disease and mild hypertension. He presently takes no medication and has no known allergies. He denies use of alcohol and tobacco. Physical exam reveals an acutely inflamed, edematous 1st MPJ. A 3mm ulceration is present dorsally with white, chalky material exiting the wound. Laboratory studies reveal a CBC within normal limits and an elevated uric acid of 9.0mg/100ml. 114. Which of the following would you expect to find on microscopy of the synovial fluid? trapezoidal-shaped violet crystals absence of leukocytes needle-like birefringent crystals reflective hexagonal crystals and many leukocytes Petitioner answered D, reflective hexagonal crystals and many leukocytes. The Respondent's answer was C, needle-like birefringent crystals. Petitioner contends that none of the answers offered were entirely correct but that answer D was the most correct, while answer C was incorrect. Case History 45 would describe gout and pseudogout, but the key is the description of the fluid removed from the joint which is a white, chalky material found only with gout. Additionally, gout produces needle-like crystals (urate) that are negatively birefringent when view under crossed polarizing filters attached to a microscope. Leukocytes would be present in this case history but it would not produce reflective hexagonal crystals or trapezoidal-shaped violet crystals. Answers A and B are entirely incorrect, and although the presence of leukocytes is correct, it is not relevant because leukocytes are a normally found in any infection. Therefore, answer C is the correct answer, notwithstanding the absence of the word negative proceeding the word birefringent. The third question at issue is question 138 which stated: CASE HISTORY 49 A 27 year old athletic individual presents with a severely painful and swollen right ankle following a basketball injury the day before. There is severe ecchymosis and blister formation about the ankle. X-rays reveal (1) a displaced oblique spiral fracture of the lateral malleolus which runs anterior-inferior to posterior-superior at the level of the syndesmosis (2) transverse fracture of medical malleolus. There is gross dislocation and mal position of the talus. 138. If the initial treatment above were to fail, then treatment should consist of: immediate open reduction. wait 4-6 days, then perform open reduction and internal fixation. open reduction contraindicated at any time with this type of fracture. fusion of ankle joint. Petitioner answered A, immediate open reduction and the Respondent's answer was B, wait 4-6 days, then perform open reduction and internal fixation. The correct initial treatment for the patient would have been attempted close reduction as indicated by the correct answer to question 137 which Petitioner answered correctly. An attempted close reduction is an attempt to correctly align the fractured bone by manipulation as opposed to surgically opening the area and aligning the bone visually by touch which is the open reduction and internal fixation procedure. After an attempted alignment of the bone, an x-ray will determine if there is proper alignment. If there is proper alignment, then the area is immobilized with a cast or some other device until the fracture heals. If the x-ray shows that proper alignment of the bone has not been obtained (the initial treatment has failed) then open reduction and internal fixation would be proper provided the swelling, ecchymosis and blistering are not present. Otherwise, as in this case, the proper method would be to wait a period of time, 4-6 days, for the swelling, ecchymosis and blistering to go away. Petitioner's contention that the swelling had gone down since there had been immobilization of the area with a cast, posterior splint or unna boot and a waiting period is without merit since those devices would not have been used before determining by x-rays that the initial treatment (closed reduction) had failed. The fourth and last question at issue in question 144 which stated: CASE HISTORY 50 A patient presents with a painful left ankle. The pain occurs following ambulation and is relieved by rest. There is minimal periartic- ular atrophy and the joint is slightly warm. X-rays reveal non-uniform joint narrowing, subchondral sclerosis and marginal osteophytes. 144. It can be expected that the patient will favorably respond to treatment but may experience flareups. significant cartilage damage will occur. total joint replacement will be required. total remission can be expected following treatment. Petitioner answered B, significant cartilage damage will occur and Respondent's answer was A, that the patient will favorably respond to treatment but may experience flareups. There were a series of questions preceding this question concerning the patient in Case History 50. The first question asked for a diagnosis which the Petitioner correctly answered as osteoarthritis. The second question concerned advising the patient on treatment which the Petitioner answered correctly by giving instructions on protecting the joint and taking simple analgesics. The third question concerned activity levels such as jogging and climbing steps which Petitioner answered correctly by advising to avoid squatting. However, in selecting B as the answer to question 144 the Petitioner did not consider the suggested treatment and advise given in the previous answers. His reasoning was that he could not assume that the patient would follow his suggested treatment or advise on prevention and activity. Additionally, the Petitioner felt that other factors such as the patient's age, weight, general health, level of activity and occupation that were missing from the case history were necessary to make a proper evaluation of whether the patient would respond favorably to treatment. Respondent admitted that either answer A or B would be correct but he picked B because he knew the disease was progressive and in time would get worse causing significant cartilage damage. Osteoarthritis is a degenerative joint disease that is not uniformly progressive that responds to treatment but cannot be cured. There will be recurring episodes of pain (flareups) triggered by factors such as the weather or a person's activity. Based on the factors in the above case history, there is sufficient evidence to show that the patient will favorably respond to treatment but may experience flareups. It was reasonable and logical for the Respondent to assume that the Petitioner in answering question 14 would consider his preceding answers and assume that the patient would follow the suggested treatment and advice. There is a lack of competent substantial evidence in the record to establish that significant cartilage damage would occur based on the facts given in Case History 50. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1990 Florida Podiatry Examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grade he received on the July 1990, Florida Podiatry Examination. RECOMMENDED this 18th day of September, 1991, in Tallahassee, Florida. WILLIAM R. CAVE 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 18th day of September, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-2118 The following contributes my specific rulings pursuant to Section 120- 59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner Adopted in substance in Findings of Fact 1 and 4. Adopted in substance in Finding of Fact 4. Rejected as not supported by competent substantial evidence in the record. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in substance in Findings of Fact 1 and 2. Adopted in substance in Finding of Fact 2. Adopted in substance in Finding of Fact 3. 4.-6. Adopted in substance in Findings of Fact 6, 7, and 8, respectively. 7. Adopted in substance in Findings of Fact 9 and 10. COPIES FURNISHED: Hewitt E. Smith, Esquire P.O. Box 76081 Tampa, FL 33675 Vytas J. Urba, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Jetty was born on June 19, 2015, at Halifax Health Medical Center, d/b/a Halifax Medical Center, located in Volusia County, Florida. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jetty. In a medical report dated August 6, 2021, Dr. Willis summarized his findings and opined, in pertinent part, as follows: In summary, spontaneous labor occurred at term and ended with a spontaneous vaginal delivery. Apgar scores were 5/9. Bag and mask ventilation was given for about 4-minutes due to respiratory distress at birth. Oxygen was weaned with spontaneous respirations. The baby was considered stable and remained in the room with the mother. Twenty minutes after birth the baby was noted to be floppy and cyanotic. Laboratory evaluation identified severe hypoglycemia and DIC. MRI showed brain hemorrhage with follow up MRI showing evolving brain injury related to the previously identified hemorrhage. Genetic evaluation was negative. The baby suffered brain injury as indicated by MRI. Although the baby was initially depressed at birth, stabilization occurred shortly after birth with the baby remaining in the room with the mother and not requiring nursery care. This would suggest the baby did not have significant oxygen deprivation at birth. The brain injury likely occurred at some time around delivery, but it does not appear the brain injury was caused by oxygen deprivation or trauma during labor and delivery. I do not have any opinions about issues related to the hypoglycemia or DIC as a cause for the brain injury. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a medical expert specializing in pediatric neurology, to examine Jetty and to review his medical records. Dr. Duchowny examined Jetty on June 7, 2021. In a medical report dated August 8, 2021, Dr. Duchowny summarized his examination of Jetty and opined, in pertinent part, as follows: In summary, Jetty’s examination reveals substantial cognitive and motor deficits consistent with global developmental delay. Jetty is non- fluent, non-ambulatory with spastic quadriparesis and primitive reflex responses. He has asymmetrically greater right-sided involvement, a non-fixed right elbow contracture, and shortening of his right leg. He lacks consistent visual fixation and following, and a history suggestive of bilateral optic atrophy. There is a longstanding pharmaco- resistant epilepsy. Jetty’s neurodevelopmental delays have been present since infancy and he has shown little developmental progress. A review of Jetty’s medical records reveals that he was born at Halifax Medical Center and was the product of a 40 week gestation with a birth weight of 3742 grams. The pregnancy was complicated by maternal maintenance buprenorphine for management of substance abuse. Rupture of membranes occurred 4 hours prior to delivery and revealed thickly meconium-stained fluid. Apgar scores were 5 and 9 at 1 and 5 minutes; cord blood gases were therefore not ordered. Jetty was placed with his mother in the newborn nursery but suddenly became cyanotic and ashen, received supplemental blow-by oxygen, and was transferred to the NICU. An Accucheck was unrecordable and serum glucose determination was recorded as 1. Arterial blood gases revealed respiratory acidosis with a pH of 7.24 and base excess of -1.8. Laboratory examination revealed a leukocytosis (WBC=36.3) with elevated mononuclear cells and bandemia. Jetty was subsequently transferred to Shands Jacksonville where he evidenced an elevated CRP, a PDA, acute adrenal insufficiency, hematuria, acute renal failure and DIC with thrombocytopenia and abnormal clotting parameters. MR imaging performed on July 7th revealed multifocal diffusion-weighted abnormalities, ventriculomegaly and periventricular signal abnormality; the report also noted intracranial hemorrhage. Subsequent MR imaging on July 20th revealed the development of multi-cystic white matter lesions, PVL and further ventricular enlargement. The clinical and imaging findings and brain injury are most likely caused by the fetal inflammatory response syndrome, and did not result from either mechanical injury or oxygen deprivation in the course of labor or delivery. The hemorrhage reported on brain imaging did not contribute to the brain injury. I am therefore not recommending that Jetty be considered for inclusion in the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that it is unlikely that any significant oxygen deprivation occurred prior to the birth of Jetty. Dr. Willis’s opinion is credited. There have been no expert opinions filed that are contrary to Dr. Duchowny’s opinion that Jetty should not be considered for inclusion in the NICA Plan. Dr. Duchowny’s opinion is credited. Petitioners have failed to respond to the Motion or the undersigned’s Order to Show Cause.
Other Judicial Opinions Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).
The Issue The issue is whether Respondent, Department of Health, Board of Medicine (“Department”), was “substantially justified” under section 57.111(3)(e), Florida Statutes, in initiating the underlying action against the electrolysis license of Petitioner, Claudia Patricia Orozco-Fandino, E.O. (“Petitioner” or “Ms. Orozco”).
Findings Of Fact Case No. 18-3899PL was initiated by the Department, a “state agency” for purposes of section 57.111(3)(f). Ms. Orozco qualifies as a “small business party” as defined in section 57.111(3)(d). Because the Final Order in Case No. 18-3899PL was entered in her favor, Ms. Orozco is a “prevailing small business party” under section 57.111(3)(c)1. The Department has stipulated that the $55,185.50 in attorneys’ fees and $2,226.53 in costs claimed by Ms. Orozco are reasonable. The only issue remaining at hearing was whether the Department was substantially justified in bringing the initial action against Petitioner’s electrolysis license. Section 57.111(3)(e) states that a proceeding is “substantially justified” if “it had a reasonable basis in law and fact at the time it was initiated by a state agency.” Starting in or around 2003, Ms. Orozco owned and operated Orozco Medical Center (“OMC”), a facility that is no longer in operation. OMC provided a range of cosmetic surgical procedures, including liposuction, Brazilian butt lifts, fat transfers or fat grafting, and vampire facials. Since 2013, Ms. Orozco has been the president of Orozco Surgical Center (“OSC”), which remained in operation as of the hearing date. OSC currently provides only facials and acupuncture services.1 The Board of Medicine’s probable cause panel decides whether there is a sufficient legal and factual basis for the Department to move forward with formal charges in license discipline cases. In Ms. Orozco’s case, Department Case No. 2017-13921, the information presented to the probable cause panel included an investigative report prepared by the Department’s investigator, 1 Ms. Orozco is a licensed electrologist, acupuncturist, facial specialist, and body wrapper. Cynthia Demetrovich. This 743-page report served as the basis for the probable cause determination made by the probable cause panel on April 20, 2018. As described in the investigative report, the investigation in Department Case No. 2017-13921 began on August 9, 2017, and was triggered by Ms. Orozco’s arrest by officers of the Hillsborough County Sheriff’s Office. She had been charged with four felony counts of aggravated battery, four felony counts of practicing medicine without a license, and four felony counts of fraud.2 Between August 24, 2017, and October 16, 2017, Ms. Demetrovich and Christopher Heuerman, another Department investigator, interviewed 15 OMC patients. Patients K.H., S.H., L.H., C.W., A.M., D.A., C.P., and M.A. underwent a surgical procedure known as a “Brazilian butt lift” (“BBL”) at OMC. A BBL is a specialized fat transfer procedure that augments the size and shape of the buttocks without implants. Excess fat is removed from the hips, abdomen, lower back, or thighs with liposuction, and a portion of this fat is then strategically injected into the buttocks. All eight of the patients stated that they witnessed Ms. Orozco perform their BBL procedures. Patients K.H., S.H., L.H., C.W., and A.M. expressed their willingness to testify in court about their experiences at OMC. Patients K.H., S.H., W.P., C.W., O.H., A.M., and C.P. stated that Ms. Orozco represented herself as a doctor when they met with her at OMC. Patient P.J. stated that Ms. Orozco treated her for weight loss by injecting her with HCG and vitamin B12 at OMC. HCG, or human chorionic 2 The criminal case against Ms. Orozco was resolved by a Pre-trial Intervention Agreement. gonadotropin, is a hormone produced during pregnancy that is sometimes used as a weight loss medication. Patients T.M. and L.H. stated that Ms. Orozco gave them phentermine as an appetite suppressant at OMC. Phentermine is a prescription drug. Patient K.O. stated that she was treated by Ms. Orozco at OMC for weight loss. Ms. Orozco administered HCG injections and personally gave an appetite suppressant to Patient K.O., who could not recall the name of the suppressant. Patient O.H. stated that Ms. Orozco injected dermal fillers into her face at OMC. Patients N.M. and K.B. stated that Ms. Orozco administered vampire facials to them at OMC. A “vampire facial,” or “platelet-rich plasma facial,” is a procedure in which blood is drawn from a patient’s arm and placed in a centrifuge. The resulting platelet-rich plasma is then injected into the patient’s face. “Electrolysis or electrology” is defined by section 478.42(5) as “the permanent removal of hair by destroying the hair-producing cells of the skin and vascular system” using equipment and protocols approved by the Board of Medicine. An electrologist is not competent to perform surgical procedures such as BBLs; to treat a patient for weight loss; to prescribe or administer weight loss drugs; to inject dermal fillers; or to perform vampire facials. On August 10, 2017, the Department mailed a letter to Ms. Orozco advising her that a case had been opened against her and that she had 20 days from receipt of the letter to submit a response or schedule an interview. Ms. Orozco’s counsel responded by letter dated August 28, 2017, addressed to Ms. Demetrovich. The letter enclosed a copy of Ms. Orozco’s curriculum vitae and stated that she intended to “vigorously defend the criminal allegations which were the subject of her arrest.” Counsel noted that formal charges had yet to be filed against Ms. Orozco and concluded by requesting the Department “to refer to my correspondence in the related Department of Health Investigation No. 2016-16104.” The referenced correspondence included two letters from Ms. Orozco’s attorneys. Both letters were addressed to Ms. Demetrovich and addressed an earlier Department investigation of Ms. Orozco. The first letter, dated July 7, 2016, included a three-page chart identifying the names of patients, their dates of surgery, and the names of the physicians who performed the surgeries. The chart listed 46 patients whose procedures were stated to have been performed by Mark Kantzler, D.O., and 12 patients whose procedures were stated to have been performed by Amina Edathodu, M.D. The second letter, dated August 26, 2016, asserted that Ms. Orozco was a “certified Surgical First Assistant,” and set forth the job description and duties of a surgical assistant as defined by the American Board of Surgical Assistants and the Association of Surgical Assistants. The letter stated that all surgical procedures at OMC were performed by licensed physicians with assistance from certified surgical assistants, including Ms. Orozco. The August 28, 2017, letter from Ms. Orozco’s counsel was included in Ms. Demetrovich’s investigative report. However, the referenced letters of July 7, 2016, and August 26, 2016, were not included in the investigative report and therefore were not placed before the probable cause panel. Ms. Demetrovich testified that she is not allowed to “share cases,” i.e., to mix materials from separate investigations into a single file. Because the letters dated July 7, 2016, and August 26, 2016, were in reference to Department Case No. 2016-16104, Ms. Demetrovich did not include them in her investigative report for Department Case No 2017-13921. The investigative report included the complete medical records, including before and after photographs, received from OMC for Patients K.H., S.H., C.W., O.H., N.M., K.B., T.M., A.M., D.A., A.B., K.O., P.J., C.P., and M.A. The investigative report also included the Hillsborough County Sheriff’s Office criminal report affidavit and arrest report for Ms. Orozco. The criminal report affidavit named four additional patients who told detectives that Ms. Orozco performed their BBL or liposuction procedures at OMC. All four patients named in the criminal report affidavit stated that Ms. Orozco led them to believe she was a medical doctor who could perform the surgical procedures offered by OMC. The patients variously stated that Ms. Orozco referred to herself as “doctor,” conducted the preoperative consultations, or showed them pictures of previous surgeries she had performed. Patient N.M. stated that another non-physician, Marlon Barcelo, performed the fat removal in her procedure. Mr. Barcelo was a surgical assistant employed by Ms. Orozco. Patient N.M. stated that Ms. Orozco performed the fat injection portion of the procedure. Patients U.L., A.B., and H.P. stated that their liposuction procedures were performed entirely by Ms. Orozco. The criminal report affidavit stated that on April 22, 2016, a Hillsborough County Sheriff’s detective interviewed Dr. Edathodu, who stated that she had worked at OMC. Dr. Edathodu referred to Ms. Orozco as a “doctor” and stated that Ms. Orozco had performed fat removal and injection procedures at OMC. Dr. Edathodu reviewed the medical records for Patient N.M., which indicated that Dr. Edathodu performed her procedure. Dr. Edathodu denied to the detective that the signatures and handwriting on N.M.’s medical records were hers. The criminal report affidavit stated that on May 5, 2017, a Hillsborough County Sheriff’s detective interviewed Dr. Kantzler, who stated that he would be present in the OMC facility while liposuction procedures were performed, but that the surgical assistants performed them. The criminal report affidavit stated that Patient A.B. reported that about two weeks before she met with the detective, she received a text message from Ms. Orozco. The text message stated that if Patient A.B. got a phone call from anyone, she should tell them that Dr. Kantzler had performed her surgery. On December 27, 2017, counsel for the Department provided Ms. Orozco’s counsel with a CD copy of the Department’s complete investigative file for Department Case No. 2017-13921. In the accompanying letter, counsel for the Department reminded Ms. Orozco’s counsel that he had 20 days in which to file a written response to the information contained in the investigative file, pursuant to section 456.073(10). On April 20, 2018, the Department’s probable cause panel met to review and discuss the investigative report. The panel found probable cause for both counts of the Administrative Complaint. At the hearing in the instant fee case, Ms. Orozco contended that the probable cause panel’s determination was based on an incomplete record. She argued that the Department’s investigative report omitted exculpatory material and that Ms. Demetrovich failed to make inquiries that might have led the probable cause panel to a different decision. Ms. Orozco noted that Ms. Demetrovich began investigating OMC in 2016, well before the investigative report in Department Case No. 2017- 13921 was prepared. Ms. Orozco testified that Ms. Demetrovich visited the offices of OMC on August 11, 2016, in the guise of accompanying a Department dispensing practitioner inspector. While at OMC, Ms. Demetrovich interviewed Ms. Orozco directly and took photographs of every room in the building. She photographed the surgical suite and the equipment therein. Ms. Demetrovich testified that she did not interview Ms. Orozco on August 11, 2016. She testified that if any photographs were taken during the visit, they were taken by the other inspector. Ms. Orozco contended that at the time she submitted her investigative report, Ms. Demetrovich was aware that the OMC surgical suite contained a drape between the patient’s head and the surgical field that wholly obstructed the patient’s view of who was performing their surgery. Ms. Orozco contended that if this information had been provided to the probable cause panel, the panel would have discounted the numerous patient statements attesting that Ms. Orozco performed their surgeries. Ms. Orozco also questioned why Ms. Demetrovich did not ask the patients how they could possibly know Ms. Orozco was performing their procedures when they could not see the surgical field. Ms. Orozco noted that the 2016 investigation prompted her counsel to submit the July 7, 2016, and August 26, 2016, letters referenced above. Ms. Orozco questioned why the contents of those letters were not included in the investigative report. Ms. Orozco pointed out that the medical records that were included in the investigative report were replete with indications that the surgeries were performed by Dr. Edathodu and Dr. Kantzler, including the consent forms in which the patients expressly acknowledged the name of the physician who would perform the procedure. Ms. Orozco contends that Ms. Demetrovich was obliged to confront the patients with this evidence and ask them to reconcile it with their statements that Ms. Orozco performed their procedures. Ms. Orozco argued that Ms. Demetrovich should have interviewed Dr. Edathodu, Dr. Kantzler, and other members of the OMC staff before completing her investigative report. Ms. Demetrovich testified that Dr. Edathodu evaded several attempts to interview her. Ms. Demetrovich stated that she interviewed Dr. Kantzler in another case, but did not include a summary of that interview in the investigative report of this case. Ms. Demetrovich testified that neither Dr. Edathodu nor Dr. Kantzler submitted affidavits in relation to this case. Ms. Demetrovich testified that her role in the investigation of Ms. Orozco and OMC did not include evaluating records obtained from the subjects of the investigation, or their attorneys, apart from checking for completeness. She testified that the determination as to whether to pursue disciplinary action based on the investigation rested with the Department’s attorneys. Ms. Demetrovich’s testimony as to the limits of her job responsibilities is credited. The investigative report included an identification key with the full names of the patients. Ms. Demetrovich acknowledged that she neglected to include the full names of Patients W.P. and L.H. in the identification key. It is found that the information before the probable cause panel was sufficient to support the panel’s decision to pursue an Administrative Complaint against Ms. Orozco. The investigative report included interviews with eight OMC patients who stated to the Department’s investigators that Ms. Orozco had performed BBLs on them. All eight patients stated that they witnessed Ms. Orozco perform the procedure. Five of the eight stated their willingness to testify against Ms. Orozco in any future court proceeding. Seven patients stated that Ms. Orozco had presented herself to them as a physician. Four other patients interviewed by the Department’s investigators stated that Ms. Orozco had provided them with injections of medications. Two patients stated that Ms. Orozco had performed vampire facials on them. One patient stated that Ms. Orozco administered dermal fillers to her. Four patients interviewed by detectives from the Hillsborough County Sheriff’s Office stated that Ms. Orozco presented herself as a medical doctor. Three of the four stated that Ms. Orozco performed their liposuction procedures. The patient statements alone justified a finding of probable cause. Ms. Orozco pointed to contrary evidence in the investigative report, such as the patient consent forms that clearly indicated the surgeries were performed by Dr. Edathodu and Dr. Kantzler. Such documentation might weigh against the patient statements, but is insufficient to support a finding that the probable cause panel should have disregarded the word of 19 patients that Ms. Orozco performed procedures on them that exceeded the scope of her professional licensure. Further, the probable cause panel would have been justified in discounting the patient consent forms in light of the statements the two physicians gave to the Hillsborough County Sheriff’s detectives that surgical procedures were in fact performed by Ms. Orozco and/or Mr. Barcelo. None of the items that Ms. Orozco claims were omitted from the investigative report would change this finding. The July 7, 2016, letter from her counsel naming the patients and their respective physicians was of no more significance than the signed consent forms that were included in the report. The August 26, 2017, letter setting forth the definitions of “surgical assistant” and stating that licensed physicians performed all surgeries at OMC merely contradicted the patients’ statements. It did not disprove or invalidate the patients’ statements in such a way as to justify their disregard by the probable cause panel. Finally, it was a matter of dispute whether Ms. Demetrovich had in her possession photos of the OMC surgical suite that she declined to include in the investigative report. Nothing prevented Ms. Orozco from submitting such photos on her own if she believed they would help her case. Such photos might raise questions, but again would not disprove or invalidate the statements of 19 patients to the degree that the probable cause panel could reasonably disregard the patients’ statements to the investigators and detectives.3
The Issue The issue in this case is whether Koda Fisher-Douglas (Koda) suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Koda was born a live infant on November 17, 2016, at a hospital, Halifax Medical Center. Koda was a single gestation, weighing over 2,500 grams at birth. With respect to Koda’s birth, obstetrical services were delivered by Dr. Meyers, a NICA participating physician, in the course of labor, delivery or resuscitation in the immediate post- delivery period. NICA retained Donald Willis, M.D., an obstetrician specializing in maternal-fetal medicine, to review Koda’s medical records and opine as to whether there was an injury to his brain or spinal cord that occurred in the course of labor, delivery, or resuscitation in the immediate post-delivery period due to oxygen deprivation or mechanical injury. In his March 13, 2018, report, Dr. Willis set forth his findings and opinions which have been admitted in this matter, without objection. Said findings and opinions are set forth below in pertinent part: In summary, pregnancy was complicated by poorly controlled Maternal Diabetes. Fetal distress was noted on BPP at 37 weeks, requiring delivery. Delivery was further complicated by hydramnios and maternal obesity. Vacuum extraction and an extended “T” incision in the uterus was required. The baby was depressed at birth with Apgar Scores of 1/2/5. Cord blood gas was consistent with acidosis with a pH of 6.9. The newborn hospital course was complicated by multi- system organ failures. Seizure activity was noted on EEG and MRI was consistent with HIE. Although the mother was not in labor prior to delivery, there was an apparent obstetrical event that resulted in loss of oxygen to the baby’s brain during delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted in a brain injury. NICA also retained Laufey Y. Sigurdardottir, M.D., a pediatric neurologist, to review Koda’s medical records, conduct an Independent Medical Examination (IME), and opine as to whether he suffers from a permanent and substantial mental and physical impairment as a result of a birth-related neurological injury. Dr. Sigurdardottir reviewed the available medical records, obtained a full historical account from Petitioners, and conducted an IME of Koda on May 31, 2018. In her IME report, Dr. Sigurdardottir set forth her findings and opinions which have been admitted in this matter, without objection. Said findings are set forth below in pertinent part: Pregnancy and Birth Summary: Koda was born at 13:37 on 11/17/2016 at Halifax hospital at 37 weeks gestation to a 33 yr old G5P1 female with insulin dependent diabetes after a high- risk pregnancy via emergent cesarean section for non-reassuring fetal heart rate tracing. There was meconium stained amniotic fluid. There was difficulty delivering fetal head and multiple attempts with vacuum was needed along with needing to extend incision in T. Infant was floppy and non-reactive at birth. The infant was born with Apgar scores of 1 after one minute, 2 after 5 minutes and 5 at 10 minutes. Patient had respiratory distress and required intubation and positive pressure ventilation and cardiac compressions was admitted in critical condition to NICU. Birth weight 3960 gm (LGA), HC 35.5 cm (>75th percentile). Cord gas pH 6.9 and BE -9, lactic acid 9.7. He had a complex NICU course requiring cooling for HIE. He had seizures on rewarming, a congential heart defect (bicuspid ao valve and VSD). MRI on 11/28/2016 was abnormal: “findings consistent with hypoxic ischemic encephalopathy, with acute lesions within the posterior parietal and posterior parietooccipital watershed areas.” There was also increased signal attenuation within the bilaterial lentiform nuclei. Prominent extraaxial spaces were also noted over the bifrontal and bitemporal areas. The magnetic resonance spectroscopy showed “mild reversal of the NAA choline and NAA creatine as well as elevation of lactate peaks.” He had respiratory issues and was intubated for approximately one month. He had G tube placed for aspirations. He was discharged from hospital around age 2 months. * * * Developmental history: Initially he had significant stiffness around the hip and shoulder girdles and mom describes fisting of both hand requiring hand and thumb splints. Koda has no major delays in motor milestones, was walking at 13 months. He knows 15 words and does not use any 2-word phrases. He is social engaged and is always on the go. He is in no therapy. Mom feels he is right sided dominant, both with arm and with leg. He was seen by rehabilitation at UF. He was receiving PT at Speech Works in Daytona for an evaluation, which noted some tightness of shoulders and hips, and that was flatfooted. PT feels he is up to date with gross motor milestones, but problems with hand eye coordination. He has not been evaluated for OT/SLP. Past medical history: He has a known cardiac defect with VSD and a bicuspid aortic valve. This is stable at this time. There was concern for shuddering spells at age one year but EEG was normal. Dr. Sigurdardottir, after conducting her evaluation, provided the following opinions: 1) there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation or mechanical injury; 2) Koda is not found to have substantial delays in motor or mental abilities; and 3) that his prognosis for full motor and mental recovery is good and his life expectancy is full. In summary, Dr. Sigurdardottir opined that, “[i]n light of evidence presented I believe Koda does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Koda should be included in the NICA program due to his near age appropriate motor and language development.” No contrary evidence has been submitted to refute the findings and opinion of Drs. Willis and Sigurdardottir. Their unrefuted findings and opinions are credited.
