Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.
The Issue The Administrative Complaint in DOAH Case No. 99-4377, charged Respondent with violating Section 458.331(1)(t), Florida Statutes (failure to practice medicine with care, skill and treatment); Section 458.331(1)(m), Florida Statutes (failure to keep written records justifying treatment); Section 452.331(1)(x), Florida Statutes (violation of a rule of the Board or Department) by violating Rule 64B8-9.003(2), Florida Administrative Code, relating to legibility of medical records, in connection with Respondent's emergency room treatment of Patient B.W. on July 21, 1995. The Administrative Complaint in DOAH Case No. 99-4378, charges Respondent with violation of Section 458.331(1)(s), Florida Statutes (being unable to practice medicine with reasonable skill and safety to patients by reason of illness, use of any material, or as the result of any mental or physical condition).
Findings Of Fact At all times material to the incidents alleged in the Administrative Complaints, Respondent was a licensed medical physician in the State of Florida, having been issued License No. ME 0016828. Respondent specialized in internal medicine and emergency medicine but has never been board certified in any specialty. Respondent's license has been delinquent since January 31, 2000, but because delinquent licenses may be subject to renewal, the Petitioner has persisted in prosecuting these cases. DOAH Case No. 99-4377 On July 21, 1995, B.W., a 56-year-old female, presented to Respondent in the emergency room of Florida Hospital Waterman, with complaints of chest, epigastric, and left shoulder pain. B.W. had a history of dermatomyositis, for which she had been taking 100 mg of Prednisone for a month, along with other medications. Prednisone in such large doses can cause gastrointestinal irritation, ulceration, and bleeding. The day before, B.W. had been prescribed Imuran by her rheumatologist for immunologic problems. Dermatomyositis is a degenerative disease of skeletal muscle that can lead to a multitude of complications, including rheumatologic problems evidenced by abnormal laboratory results. The standard of care in the examination and treatment of a patient with chest pain requires an emergency physician to obtain a history including a complete medical history, family history, and social history. Additionally, in order to meet the standard of care, the emergency physician must perform a complete physical examination, including a review of systems. The emergency room records for Respondent's treatment of B.W. show the information contained above in Finding of Fact No. 4. The emergency room records do not show that Respondent obtained or documented a complete medical history, family history, or social history of B.W. Respondent violated the standard of care in that he failed to obtain or document a complete medical history, family history, or social history of B.W. Respondent also violated the standard of care in that he failed to perform or document a complete physical examination, including a review of systems. Respondent ordered an electrocardiogram (EKG), a chest X-ray, a complete blood count (CBC), complete cardiac enzymes testing (CPK and CKMB), and a metabolic profile or chemistry panel (MPC). He also did a rectal exam which was negative for blood. He did all appropriate tests. He did not fail to order any appropriate tests. The EKG and the chest X-ray yielded normal results, but B.W.'s blood count revealed several abnormal values, including a decreased platelet of 21,000 and a markedly elevated white count of 24,000. A platelet count of 21,000 is extremely low and grounds for major concern, as is the elevated 24,000 white count. Together, in the presence of the other symptoms and abnormal blood values present, which included low RBC, anemic hemoglobin, and low hemocrit, the standard of care requires that an emergency physician obtain a consultation with a specialist, such as a rheumatologist or a hematologist. In light of all the foregoing results and normal corpuscular volume, which B.W. also had, the emergency physician should have recognized that B.W. did not have simple iron deficiency anemia. Under some circumstances, the emergency room physician's consultation with B.W.'s primary care physician, who in this case was also a rheumatologist, would have been sufficient. Respondent maintained that he had obtained a history from B.W. as set forth in Finding of Fact No. 4, and an oral report from the hospital lab technician to the effect that a blood test ordered by B.W.'s treating rheumatologist the preceding day, July 20, 1995, had shown a platelet count of 18,000, and that because Respondent presumed B.W.'s platelets were increasing with the use of Imuran plus other factors, Respondent did not admit B.W. to the hospital, but, instead, discharged her without even consultation. Despite Respondent's foregoing explanation, it is clear that Respondent did not record or document on B.W.'s chart his oral conversation with the lab technician, if, in fact, such a conversation occurred. This was below the acceptable standard of medical care and record-keeping for an emergency room physician. Respondent stated that he felt that because the treating rheumatologist had not admitted B.W. to the hospital or transfused B.W. the previous day, she should not be admitted or transfused on July 21, 1995. He stated that he also relied on a medical text (Merck's Manual) which allegedly states that platelet transfusions should not be given until the count falls to 10,000. Respondent stated that he ruled out a myocardial infarction on the basis that both the CKMB on B.W. and the CKMB Index were not elevated and B.W.'s EKG was normal. However, Dr. Tober, who is certified in emergency medicine, testified more credibly that he had never seen a CPK test so high; that interpretation of CPK and CKMB in such a patient as B.W. would be confounded by the co-existence of the dermatomyositis, grossly throwing off these tests in an acute cardiac setting, sometimes causing several EKGs to come back normal in the course of a myocardial infarction; that B.W.'s extremely low platelet count should cause great concern about the hemologic system and clotting response if B.W. started to hemorrhage; and that the suspiciously low lymphocytes and all blood parameters should have caused Respondent not to discharge B.W. prior to a consultation with a specialist. Respondent failed to meet the standard of care by the treatment he rendered to B.W., in that he did not obtain a consultation from either the primary care physician, another rheumatologist, or a hematologist, before discharging her. That standard of care requires an emergency physician to determine an appropriate diagnosis and treatment as related to the patient's complaint and results of examinations. Respondent violated the standard of care in that he merely wrote into B.W.'s chart a portion of her medical history, "dermatomyositis," instead of a current diagnosis which addressed her current abnormalities when she presented in the emergency room. Thus, Respondent did not discern an appropriate diagnosis while appropriately treating B.W.6 Respondent's chart on B.W. is illegible to the extent that Dr. Tober was unable to read most of 23 lines of it. Because proper care of patients requires that medical records be sufficiently legible for successive professionals to discern what the writer has done and analyzed, I find that Respondent is guilty of keeping written medical records that are illegible and difficult to decipher. I do not consider Hospital Waterman's failure to provide dictation or transcription equipment and/or personnel to excuse this flaw. DOAH Case No. 99-4378 On or about July 14, 1995, Respondent was convicted of driving under the influence and placed on probation for 12 months, and his driver's license was revoked for 12 months. About two years later, on July 12, 1997, Respondent's vehicle collided with another vehicle. Respondent and the driver of the other car were injured. Blood was drawn from Respondent at the hospital. Laboratory studies performed by the Florida Department of Law Enforcement revealed that Respondent's blood alcohol level was 0.10 grams of ethyl alcohol per 100 ml. Under Florida law, a driver is legally intoxicated when his blood alcohol level is 0.08 grams of ethyl alcohol per 100 ml or higher. On August 12, 1997, Respondent was arrested and charged with one count of serious bodily injury while driving under the influence, and two counts of property damage while driving under the influence. On July 2, 1998, Respondent entered a plea of guilty7 to one count of serious bodily injury while driving under the influence and was sentenced to imprisonment for a period of seven years, one month, and eight days. On or about January 13, 1998, Walter J. Muller, M.D., a board-certified psychiatrist, performed a psychiatric evaluation of Respondent. Dr. Muller diagnosed Respondent with major depression, dysthymic disorder, and alcohol abuse, pursuant to The Diagnostic and Statistical Manual-IV. At that time, these conditions were active and not in remission. The diagnosis of major depression correlates with impaired social and occupational functioning. A diagnosis of dysthymic disorder is an indication of impairment and the inability to practice medicine with skill and safety to patients. A diagnosis of alcohol abuse can be an indication of inability to practice medicine with skill and safety to patients, but would depend upon when the abuse is occurring and how long it has been since the abuse occurred. In the expert opinion of Dr. Raymond Pomm, who is board certified in adult psychiatry and general psychiatry, with added qualifications in addiction psychiatry, and who relied on Dr. Muller's evaluation, the combined three diagnoses of major depression, dysthymic disorder, and alcohol abuse revealed that, to a degree of reasonable medical certainty, Respondent was unable to practice medicine with skill and safety to patients on the date of Dr. Muller's report. Respondent was evaluated at Menninger Clinic in Kansas, on or about May 26, 1998, and diagnosed with alcohol dependence. After six weeks of treatment at the Menninger Clinic, Respondent was released as being "in early remission." The treating physician made a number of recommendations for rehabilitation of Respondent, including treating his alcohol dependence by entering into a monitoring contract with the Physician's Resource Network in Florida and requiring a further evaluation by a neurologist of Respondent's apparently diminished cognitive skills. Dr. Pomm did not have the opportunity to read the entire evaluation by the Menninger Clinic, and did not rely upon it in forming his opinion of Respondent's inability to practice medicine with skill and safety to patients. However, according to Dr. Pomm, there is no cure for alcohol dependence. It is a life-long illness, which is incurable, and which at best, can only be "in remission." In Dr. Pomm's opinion, one who is alcohol-dependent cannot practice with skill and safety to patients without undergoing a monitoring program. While I accept Respondent's testimony that he has remained sober since approximately May 27, 1998, because he has been in prison, I also note that Respondent has not entered into a monitoring contract or been monitored in a recovery program because he has been in prison. Accordingly, there is no evidence that Respondent's circumstances have changed sufficiently since January 13, 1998, so as to demonstrate that he is able to practice medicine with skill and safety to patients in the real world.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of all violations charged, and as a penalty therefore, suspending Respondent's license to practice medicine in Florida until such time as Respondent presents to the Board and proves that he can practice with skill and safety. DONE AND ENTERED this 15th day of June, 2000, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 2000.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Dr. Julius A. Okuboye, was a medical doctor licensed by and in the State of Florida. In the first of six cases upon which Petitioner bases its case, the patient was receiving medical treatment for a fracture of the right femur, (thigh bone), at Gateway Community Hospital in St. Petersburg, Florida during the period November 21, 1982 and January 13, 1983. Petitioner contends Respondent failed to properly perform the surgical procedure; failed to properly consider alternative courses of treatment; and failed to keep adequate medical records justifying the course of treatment taken. Respondent reduced the bone fracture here by using a metal plate running lengthwise along the bone in an attempt to brace the fracture by securing it to the bone with, initially, screws. The plate used by the Respondent was too short for the procedure in that it did not extend beyond the upper limits of the fracture by that distance considered by some to be appropriate. Petitioner's first expert felt the use of the plate which was too short and the screws used to affix it, which were too short, was improper practice. In his opinion, the procedure followed by the Respondent herein required the patient to undergo three separate operations rather than one, which unnecessarily exposed this elderly patient to infection and the risk of anesthesia on three separate occasions. Petitioner's other expert believes that because the Respondent used a plate which was too short for the fracture involved, it was necessary for him to go back in and fix the plate with Parham bands considered by many in the field to be an old-fashioned practice. These bands, when used, tend to devitalize the tissue. He believes that once having used them, however, Respondent should have used more screws to affix the plate and the bands. In addition, the plate did not fix the smaller bone fragments at the bottom of the fracture. Both experts state Respondent should have considered reducing the fracture by the use of traction and bed rest as an alternative to surgery. On the other hand, Respondent's experts disagreed with Petitioner's experts. One, Dr. Weiss, indicated that Respondent had two choices: (1) a prolonged traction and immobilization which, itself, poses a great risk for an elderly patient, or (2) the surgical fixation which was chosen. Here, the reduction was good but the plate was too short. Dr. Weiss contends, as was urged by Respondent, that this was beyond his control and while it would have been better to use a longer plate, the Respondent used the correct procedure and the fact that a second and third operation was necessary, was beyond his control. His choice to do them was appropriate. The other expert, Dr. Bodden, pointed out that even though the smaller plate was used, there is no assurance a larger plate would have precluded the second and third operations. He believes that in light of all of the medical problems presented in this case and since the ideal plate was not available, Respondent's choice was prudent. The length of the plate was improper but in the opinion of Dr. Bodden, the patient's bone structure contributed to the breakage after the plate was installed. Further, the use of Parham bands was not inappropriate. They have been used for many years and are still widely accepted and used. In fact, he uses them himself. Prior to the surgery, Respondent contacted the operating room charge nurse to determine if the proper plates were available, and was assured by her that a full set of plates was available for the surgery. It was only after entering the operating arena, opening the incision into the patient's leg, and thereafter opening the sterilized and sealed package containing the plates that it was determined the proper plate was not present. Absent a showing to the contrary, it is found it would have been improper to open the plate package in advance of surgery to check since such a procedure would have destroyed the sterile nature of the package. In light of the above, Respondent's actions were appropriate. As to the issue of the adequacy of Respondent's medical records on other patients, an analysis of the records showed that no discharge summary was prepared by the Respondent nor were progress notes kept by him on December 22, 23, 25, and thereafter for several weeks on an irregular basis. It may be that Respondent was not the primary physician and only the consultant, but the records fail to show who was the responsible physician and who was ultimately responsible for the patient. A consultant should always reflect in the patient records who he is and in what capacity he has seen the patient as well as his area of expertise and the actions he has taken. Here, the Respondent's failure to do so, notwithstanding some expert evidence to the contrary, renders the records kept by him inadequate. In the case of the patient who was treated by the Respondent as a consultant on a fracture of the left hip at Gateway Community Hospital between October 27, and November 10, 1983, Petitioner's experts have no quarrel with the orthopedic treatment rendered the patient by Respondent. However, Respondent failed to make proper entries in the patient's medical records and the notes therein were made by an internist. Respondent saw the patient on only four of the nine days the patient was hospitalized and in the opinion of the expert, proper practice requires a doctor, or his substitute in the absence of the doctor, to see the patient each day. It may be that this practice, which is generally accepted as appropriate throughout the medical community, is somewhat less significant in the field of orthopedic surgery. Respondent's expert indicated he did not feel constrained to see his patients each day subsequent to surgery so long as he was kept aware of the patients' conditions. While he makes progress notes, he does not dictate discharge summaries or any of the other records since these are prepared by residents based on the notes he has put in the file. The medical records for this patient show no progress notes by the Respondent on November 1, 3, 4, and 5, 1983, during which time the patient was in the hospital under the Respondent's care. In one expert's opinion, the missing of three consecutive day's progress notes renders the records below standard. Respondent indicates he saw the patient frequently right after the surgery, but once he was satisfied that her orthopedic problems were progressing satisfactorily, did not see her during the time she was being treated for medical problems unrelated to the orthopedic surgery by an internist. He did write medical notes on the first five postoperative days at the conclusion of which his postoperative care for the orthopedic surgery was completed. Were it not for her unrelated medical problems, the patient would have been released and he did see her once, (Nov.2) prior to her discharge after her medical problem had been resolved. On the basis of all the testimony, it is found that in this case, Dr. Okuboye did not fail to keep proper medical records. Respondent also saw a patient for a fracture of the left lateral malleolus, (the protuberance on both sides of the ankle joint), and is alleged to have failed to timely perform an examination of the patient; failed to have timely provided treatment; and failed to have performed a complete examination. In this case, Petitioner's expert pointed out that the chart kept by the Respondent failed to show any reference to a knee injury which was disclosed on post-treatment X-rays evaluated by him. Respondent is also alleged to have failed to have cleaned and irrigated the wound which was a part of the injury, and that he administered only an intramuscular injection of antibiotics. In the opinion of the witness, it makes no difference if there was an infection or not. It is, in his opinion; a bad practice to not debride and clean the wound. Further, he was concerned that the patient records kept by the Respondent did not reflect whether the Respondent responded to the emergency room at the time he prescribed the treatment or not. From the review of the records, he could not tell. Review of the case records by Respondent's expert showed there was no open fracture which required debridement or specific cleaning. The wound was a small abrasion. As a general rule, an injury should be more than 1/2 inch in size or have some bone showing in order to require debridement, (removal of foreign material and dead or damaged tissue). If those conditions are present, proper procedure is to clean the wound and to provide antibiotics, which the Respondent did, and the treatment recommended by him met appropriate standards. This is the better point of view. As to the records kept by the Respondent, a note regarding the action taken here was dictated by Respondent two days after the patient was discharged. The patient records show a postoperative X-ray was taken by Respondent but there is no indication in the record showing that surgery was done. The patient was admitted through the emergency room and was sent to the floor even before the Respondent was contacted. As a result, Respondent did not see the patient in the emergency room. The ER notes prepared by someone else refer to an abrasion and an approximately 1/4 inch tear in the skin. The injury was cleaned in the ER and the patient was sent to the floor after which the Respondent was advised by telephone there was a "questionable" fracture of the ankle. In response, Respondent gave orders for immobilization of the wound and administration of antibiotics. The following day, when Respondent saw the patient, he could see no open wound nor could he find evidence of a fracture. As a result, he discontinued the prescription for antibiotics and discharged the patient who, it should be noted, did not sustain an infection and who did well in his recuperation. Respondent indicates he had been told by the family physician who admitted the patient and the nurses on the floor, with whom he discussed the patient, that there was no open wound sustained by this patient. On the basis of this information, Respondent prescribed the questioned course of treatment and it would appear it was appropriate and well within standards. Between November 12, and November 22, 1983, Respondent acted as surgical consultant regarding a patient being treated at Gateway Community Hospital for a metatarsal fracture. Respondent performed an open reduction and internal fixation of the fracture and Petitioner now claims that Respondent failed to keep adequate medical records justifying the course of that patient's treatment. In that case, Petitioner does not claim improper treatment by the Respondent. However, one expert for Petitioner could not determine with any degree of certainty whether or not the procedure was required because of the absence of pre- operative X-rays and because of the inadequacy of the records for him to look at. The other Petitioner expert agreed that the Respondent took adequate care of the patient but because of the absence of postoperative film, the taking of which is a general practice within the medical community, he was not able to determine, nor would the Respondent be able to determine, whether the surgeon missed anything in performing the surgery. Respondent's evidence unequivocally contradicted the testimony of both Petitioner's experts. There were X-rays taken prior to the procedure by Respondent which showed a fracture of the outside metatarsus, (long foot bone). He proposed outpatient surgery of one day and reduced the fracture, inserting two pins as security. The postoperative X-rays show proper reduction. In fact, there are several sets of postoperative films and those taken after the holding pins placed in the fracture were removed show good reduction and full healing. Respondent discharged the patient from orthopedic care after surgery for release the next day if approved by the referring, physician, Dr. Lew. However, Dr. Lew kept the patient in the hospital one or two days after that for a reason not related to the orthopedic surgery done by Respondent. This would tend to explain the reason for there being no follow-up progress notes on the two days following the operative report done by Respondent on November 23. The failure to keep adequate notes adversely affects the entire care team not just the attending physician, as without adequate notes, the team cannot tell what is going on with the patient. The entire care is summarized in the progress notes and the failure to make notes on time leaves a hole. That cannot be said to have been the case here, however, since the orthopedic treatment of the patient was completed with the dictation of the operative report and the patient was discharged by Respondent. The patient's retention in the hospital for several days more was by another physician on a matter totally unrelated to the Respondent's treatment and Respondent had no responsibility to keep records on that portion of the patient's hospitalization. It cannot be said, then, that Respondent's records were inappropriate in this case. Respondent is also alleged to have improperly failed to perform a procedure of open reduction and internal fixation of an ankle fracture on a patient treated by him at Gateway Hospital between January 20, and January 25, 1983. In this case, Petitioner's expert questions whether the inner bone was properly reduced. X-rays taken subsequent to the procedure, show the reduction left a big gap and an irregular joint and the doctor feels the procedure, as it was done, was below standards. The other Petitioner expert concurs. There were two fractures. The smaller, did not need to be fixed since it was less than 1/3 of the ankle area and medical opinion indicates that fractures of less than 1/3 of the area should not be fixed. The other was fixed improperly in that Respondent should have used a tension band instead of a screw. If he had done so, there would have been a better fixation. Respondent's expert disagrees, pointing out that the postoperative X- rays show the position of the bones as placed by the Respondent, was quite acceptable. The failure to get an anatomic, (as developed by nature), reduction is not indicative of substandard care. It is sometimes not possible to put bones back the way they were prior to the fracture. In the instant case, when the operation and casting were done, the results were acceptable. The doctor concludes this was a very difficult operation to do and under the circumstances, the Respondent's performance met the standards within the community. Respondent's other expert agrees. This was an extremely difficult fracture of three sections of an ankle. Admittedly, Respondent's work resulted in a slight bone irregularity. A smooth reduction would be ideal, but it is unlikely that an anatomic reduction could be had in this case. No matter how skilled the work, a fracture of this kind is likely to result in some arthritis, and the failure to use a tension band, as suggested by one of Petitioner's experts, as opposed to a screw as chosen by the Respondent is a matter of choice. Neither gives better results and the Respondent's choice here, in these circumstances, was reasonable. Between December 18 and December 27, 1984, Respondent performed an open reduction and internal fixation of a fractured right hip. Petitioner alleges that Respondent performed a surgical procedure which was unnecessary, failed to properly perform the surgical procedure done, and failed to keep adequate medical records justifying the patient's treatment. In this case, Respondent inserted a Jewett nail, a non-collapsing nail, into the bone. The bone collapsed and drove the nail up into the end of the bone in an inappropriate manner. One of Petitioner's experts took issue with Respondent's use of the Jewett nail calling it an outdated device. In his opinion, the Respondent did not plan properly to have the appropriate device on hand when it was needed. His opinion is supported by that of the other Petitioner expert who pointed out that the procedure resulted in an inadequate fixation. He contends the Respondent should have used a collapsible nail and that Respondent's technique of cutting the bone after the collapse was inappropriate and resulted in a shortening of the leg. He believes this procedure was improper and falls below medical standards in the community. He was also of the opinion that Respondent's record keeping in this case was inadequate. Petitioner's expert in medical records found several problems with Respondent's records on this patient. The initial note was dictated after surgery instead of when the consult was first done. No progress notes were in the file for those days when the patient was not seen by the Respondent. There was no showing that the patient was seen by someone left in charge by Respondent in his absence. Since medical records provide a history of the case and allow the follow-on staff to provide continuation of care, the evidence showed Respondent's records in this case were below standard. Respondent's witness, Dr. Weiss, does not believe that the use of the Jewett nail is necessarily inappropriate. The fact that the Jewett nail did not work out for the Respondent in this case and required follow-up surgery, is not necessarily indicative of improper treatment. Studies of similar fractures in elderly patients show that 70% had some deviation and many similar cases show penetration of the head of the bone by the nail such as was the case here. While there are newer nails used by many orthopedic surgeons, the Jewett nail is still appropriate. The physician can avoid penetration at the time of the insertion and Respondent did so, but penetration cannot always be avoided after surgery when weight is placed on the limb. Respondent's other expert who reviewed this case stated that the fixed nail used by Respondent, if properly used, gives equally good results as the newer collapsible nail. Cutting of the bone is a well known and appropriate procedure in cases where necessary, as here. In evaluating the testimony of the experts, it should be noted that neither of the Board's experts interviewed Respondent or in any way discussed with him his professional reasons for doing what he did. Their opinions given here as expert testimony were based on evaluation of records and X-rays only whereas the opinions of Respondent's experts were based on review of the same documentation and also on interviews with Respondent who was questioned and who expounded on his medical rationale. Having analyzed the procedure done by the Respondent here and having evaluated the testimony of all witnesses, it is found that the procedure as followed by Respondent did not fall below the appropriate medical standards within the community. However, the allegation regarding Respondent's failure to keep proper medical records has been established. Respondent is a native of Nigeria, who took his medical training in England, graduating from Kings College Medical school in 1961. He interned in the United States at Bridgeport Hospital, served his residency and as a research fellow in Canada, and returned to the United States for a two year general surgery and three year orthopedic surgery residency at Albert Einstein Medical Center in New York. Respondent came to Florida in 1973 and has been in private practice as a sole practitioner since that time. He is Board eligible in orthopedic surgery and certified in neurological and orthopedic surgery by the American College of Neurological and Orthopedic surgery, not to be confused with the American Board of Orthopedic Surgery. He is also a member of the Royal College of Surgeons. At one time, Respondent practiced at Gateway Hospital in St. Petersburg where all the cases involved in the proceeding came up and where he was involved in legal action involving a matter he had handled. Respondent won that case but nonetheless, had to sue the hospital to recover his expenses. When Gateway Hospital was sold to Humana, he was again involved in litigation with the hospital to retain his privilege to practice there. Thereafter, he was called before the hospital committee regarding the instant cases in a staff privilege matter and as a result, the hospital referred them to the Department of Professional Regulation. Respondent believes two factions in the medical community seek his dismissal and the revocation of his license. He presented a detailed litany of grievances against various members of the hospital staff and others who, he contends, are engaged in a program to destroy him professionally and remove him from the practice of medicine. Since his medical privileges at the hospital have been rescinded, he can no longer accept referrals in orthopedic surgery from other members of the staff at Gateway and as a result, referrals that would ordinarily go to him, are now going to other, more favored members of the staff who retain surgical privileges. He contends his troubles, which culminated in this hearing, are both economically and racially motivated, and also involve an effort to rid the hospital of foreign trained physicians. There is no evidence to corroborate Respondent's charges and , therefore, the decision regarding his standard of practice and his record keeping must be based on the professional evidence presented at this hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Julius A. Okuboye, be reprimanded. RECOMMENDED this 23rd day of February, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearings Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1988. Appendix to Recommended Order In Case No. 86-1048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. For the Petitioner Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. Accepted to the extent that Respondent's reduction was not anatomic but rejected to the extent "it possibly could have been better treated in a cast." Rejected as contra to the weight of the evidence. Rejected as to all but last sentence which is irrelevant since the latter portion of the hospitalization discussed here was after patient had been discharged by Respondent and did not relate to orthopedic treatment. Accepted and incorporated herein. 14-16. Rejected as contra to the weight of the evidence. 17&18. Accepted and incorporated herein. 19. Rejected as contra to the weight of the evidence. 20-21. Rejected as contra to the weight of the evidence. 22. Accepted as to certain records and rejected as to others as discussed in the body of the Recommended Order. For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. First sentence rejected as a restatement of Petitioner's position. Remainder accepted and incorporated. First sentence rejected as above. Last sentence accepted and incorporated. Remainder rejected as a restatement of the evidence. First sentence rejected as above. Second sentence rejected as a restatement of evidence. Third through Sixth sentences accepted and incorporated. seventh rejected as a restatement of Petitioner's position. Eighth and Ninth sentences accepted and incorporated. First sentence rejected as above. second sentence accepted. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. Accepted and incorporated. Rejected as to some cases, accepted as to others as defined in the Findings of Fact herein. COPIES FURNISHED: David E. Bryant, Esquire Suite 2000, Ashley Tower 100 South Ashley Drive Tampa, Florida 33602 Glenn M. Woodworth, Esquire Woodworth and Dugan, Chartered Wittner Centre West 5999 Central Avenue Suite 103 St. Petersburg, Florida 33710 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
The Issue Whether Respondent violated section 409.913, Florida Statutes, by failing to comply with certain Medicaid record keeping requirements, thereby incurring an $11,000 fine according to Florida Administrative Code Rule 59G-9.070.
Findings Of Fact Amwil is an assisted living facility that provides assistive care services, and was enrolled as a provider in the Florida Medicaid program at all times pertinent to the instant case. Amwil's provider number is 142583800. AHCA is the state agency charged with the administration of the Medicaid program in Florida. Within AHCA is the Bureau of Medicaid Program Integrity (MPI), whose duty is to ensure the integrity of the Medicaid program by conducting audits of claims and by investigating providers to ensure compliance with all requirements of the Medicaid program. At all relevant times, Amwil has been subject to a Medicaid Provider Agreement. Pursuant to the agreement, Amwil agreed to comply with all federal, state, and local laws, including rules, regulations, and statements of policy applicable to the Medicaid program. Amwil also agreed to comply with AHCA's Medicaid handbooks. The Medicaid Provider Agreement includes the requirement that providers keep, maintain, and make available in a systemic and orderly manner all medical and Medicaid-related records as AHCA requires. A compliance site visit was conducted by AHCA at Amwil's facility on December 5, 2011. Ms. Magdalena Olsson, an AHCA Investigator, was a member of the team performing the site inspection. The three-member team requested records from January 2011 to October 2011. On the day of the site visit, the team noticed that there were some service authorizations missing from the files, and there were some problems with background screenings and communicable disease statements. The team made no formal findings; instead, the team issued a demand letter, requesting specific documentation for the audit time period to be forwarded to AHCA within 15 days. Amwil verbally requested an extension of the deadline for submitting the requested documentation, which Ms. Olsson agreed to. The parties agreed that Amwil would have until December 30, 2011, to produce the records. Antoinetta Llanes, the owner of Amwil, and Gail Peters, an Amwil employee, gathered all the records requested by AHCA. Ms. Peters also signed and submitted a Certificate of Completeness of Records, certifying that "these are all of the Medicaid-related records requested by the Agency for Health Care Administration, Office of the Inspector General, Bureau of Medicaid Program Integrity." The records and Certificate were submitted timely. Investigator Olsson performed a desk review of the documentation provided, to ensure compliance with the documentation requirements contained within applicable Medicaid statutes, rules, and provider handbooks. A review of the recipient files revealed that service plans were missing in nine files. Service plans are required for each recipient, and they must be signed or provided within 15 days of the annual assessment, or within 15 days of an assessment that causes a significant change in the recipient's condition. The documentation provided on December 30, 2011, also did not contain a Level II Background Screening for one Amwil employee, M.E., which must be conducted every five years. The documentation provided on December 30, 2012, also did not contain a statement of freedom from communicable disease for R.C., an Amwil employee. The statements are required for all employees, and must be dated within 30 days of the date of hire. On March 21, 2012, after the sanction letter was sent to Amwil by AHCA, Amwil submitted more documentation, which included service plans for the nine recipients. The service plans, however, were not dated within 15 days of the health assessments. Also included in the March 2012 submission was a Level II background screening for Amwil employee M.E., which was conducted in 2011. M.E. had been hired in 2004, and there was no documentation of a Level II screening having been conducted in 2004. Lastly, the March 2012 submission included a statement of freedom from communicable disease for Amwil employee R.C., dated May 22, 2011. This statement did not comply with the requirement that the statement be completed within 30 days of hire, because R.C. had been hired in 2005. The Agency properly imposed sanctions for each of the eleven violations of Medicaid policy; that is: nine recipient files that did not contain service plans, one employee file that did not contain a Level II background screening and therefore was not maintained properly for inspection, and one employee file that did not contain a statement of freedom from communicable diseases dated within 30 days of hire. There is no evidence establishing that Amwil has been previously charged with, or been determined to have committed, any violation of Medicaid law.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that pursuant to Florida Administrative Code Rule 59G-9.070(7)(e), Respondent should be fined a total of $11,000 for 11 violations of Florida's Medicaid laws. DONE AND ENTERED this 14th day of September, 2012, in Tallahassee, Leon County, Florida. S JESSICA E. VARN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2012.
