The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 26th day of June, 2006.
The Issue The issues in this case are whether Respondent, a physician specializing in obstetrics and gynecology, committed medical malpractice in delivering a baby and/or failed to maintain medical records justifying the course of the mother's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Mark N. Scheinberg, M.D., was licensed to practice medicine in the state of Florida. He is board-certified in obstetrics and gynecology. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Scheinberg. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Scheinberg committed two such offenses——namely, medical malpractice and failure to keep records justifying the course of treatment——in connection with the vacuum-assisted vaginal delivery of an infant born to Patient L.G. on February 2, 2005, at West Boca Medical Center. The crux of this case (though not the sole issue) is whether, as the Department contends, the standard of care required Dr. Scheinberg to perform a Caesarean section ("C- section") on L.G. due to the passage of time, instead of allowing her to continue to labor for approximately 13 hours and, ultimately, deliver vaginally. The events giving rise to this dispute began on February 1, 2005, at around 11:00 a.m., when L.G., whose pregnancy was at term, checked into the hospital after having experienced ruptured membranes. At 12:30 p.m. that day, L.G. signed a form bearing the title "Authorization for Medical and/or Surgical Treatment," which manifested her consent to a vaginal delivery or C-section together with, among other things, "such additional operations or procedures as [her physicians might] deem necessary." Immediately above L.G.'s signature on the form is an affirmation: "The above procedures, with their attendant risks, benefits and possible complications and alternatives, have been explained to me " The evidence is not clear as to when, exactly, Dr. Scheinberg first saw L.G., but that fact is unimportant. The medical records reflect that at 8:30 p.m. on February 1, 2005, Dr. Scheinberg gave a telephone order to initiate an IV push of the antibiotic Ampicillin; therefore, he had taken charge of L.G.'s care by that time. The nurses' notes indicate that at 10:00 p.m., L.G.'s cervix had dilated to "rim" or approximately nine centimeters—— meaning that the dilation was complete, or nearly so. At this time, and throughout the duration of L.G.'s labor, an external fetal heart monitor was in place to detect and record the baby's heartbeats and the mother's uterine contractions. An intrauterine pressure catheter ("IUPC")——a device that precisely measures the force of uterine contractions——was not inserted into L.G.'s uterus at any time during this event. The Department argues (although it did not allege in the Complaint) that, at some point during L.G.'s labor, the standard of care required Dr. Scheinberg either to place an IUPC or perform a C-section. Pet. Prop. Rec. Order at 10, ¶36. The Department's expert witness, Dr. John Busowski, testified unequivocally and unconditionally, however, that the standard of care does not require the use of an IUPC. T. 36. The undersigned credits this evidence and finds that Dr. Scheinberg's nonuse of an IUPC did not breach the standard of care. Dr. Scheinberg conducted a physical at around 2:00 a.m. on February 2, 2005, which included taking L.G.'s complete history and performing a vaginal examination. L.G.'s cervix remained dilated to approximately nine centimeters, and her labor had not substantially progressed for about four hours. Dr. Scheinberg noted in L.G.'s chart that the baby was in the posterior position at 2:00 a.m. The Department argues, based on Dr. Busowski's testimony, that as of 2:00 a.m., the standard of care required [Dr. Scheinberg to] choose one of the following options: (1) watch the patient for a few more hours to allow for progress; (2) place an IUPC to determine the adequacy of Patient L.G.'s contractions; (3) start Pitocin without the placement of an IUPC; or (4) perform a C- section. Pet. Prop. Rec. Order at 9-10, ¶ 32. The Department contends that Dr. Scheinberg breached the standard of care by choosing "simply to watch the patient for approximately 10 more hours"—— which was tantamount to "choosing to do nothing." Id. at 10, ¶¶ 33-34. In fact, Dr. Scheinberg chose to watch the patient, which was, according to Dr. Busowski, within the standard of care. Obviously, at 2:00 in the morning on February 2, 2005, Dr. Scheinberg did not choose to wait for 10 more hours, because at that point he (unlike the parties to this litigation) did not know what was about to happen. The nurses' notes reflect that L.G. was under close observation throughout the early morning hours, and that Dr. Scheinberg was following the situation. At 4:30 a.m., L.G. was set up to push and at 4:45 a.m. was pushing well. At 6:15 a.m., the notes indicate that Dr. Scheinberg was aware of the mother's attempts to push. At 6:45 a.m., he reviewed the strips from the fetal heart monitor. At 7:45 a.m., he was present and aware of L.G.'s status. From 7:00 a.m. until 8:00 a.m., no contractions were identifiable on the external monitor. At 8:00 a.m., however, L.G. was comfortable and pushing well. She stopped pushing at 8:30 a.m., but remained comfortable. Dr. Scheinberg then ordered the administration of Pitocin, a medicine which is used to strengthen contractions and hasten delivery. Although the Department faults Dr. Scheinberg for giving L.G. Pitocin at this relatively late stage of her labor, Dr. Busowski (the Department's expert witness) admitted being unable to say "that Dr. Scheinberg should have started Pitocin earlier " T. 72. The Department therefore has no clear evidential basis for second-guessing Dr. Scheinberg's professional judgment in this particular, and neither does the undersigned. At 9:10 a.m., L.G. resumed pushing. The baby's fetal heart tones (heartbeats) were stable. L.G. continued pushing, with her family present, until around 11:00 a.m., at which time Dr. Scheinberg discussed the situation with the patient and her family. Dr. Scheinberg explained to L.G. or her husband the risks of, and alternatives to, performing a vacuum-assisted vaginal delivery. Either L.G. or her husband gave verbal consent to the use of a vacuum device to assist in the delivery. Between 11:00 a.m. and 11:10 a.m., the fetal heart monitor detected some variable decelerations, meaning a decrease in heart rate that could be a sign of fetal distress. Dr. Scheinberg delivered the baby at 11:23 a.m., using a vacuum device to help pull the infant out of the birth canal. In his post-operative notes, Dr. Scheinberg wrote that his "pre-operative diagnosis" was "+3 station — prolonged second stage 2½ hrs." As a "post-operative diagnosis," Dr. Scheinberg recorded, "same + tight cord." He reported the following "findings": "tight cord cut on perineum[;] mec[onium] aspirated on perineum."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Scheinberg not guilty of the charges set forth in the Complaint. DONE AND ENTERED this 20th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2011.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Michael Davis, was licensed as a Doctor of Chiropractic in Florida. Respondent treated Karen D. Moss from December 14, 1984 to January 25, 1985 and pursuant to his treatment, maintained certain records of that treatment. Ms. Moss first met the Respondent when she was going to massage school. In December, 1984, she was involved in a serious automobile accident and, when she failed to feel better afterwards, was referred to him by a co-worker, Ms. Madison. When Ms. Moss first went to Dr. Davis, she had already seen another physician for approximately four weeks and was dissatisfied with the treatment rendered by him. At the time of her first visit with Respondent, her right knee was swollen and felt like it needed to be cracked. Her neck could not be turned and her back was always stiff. She had sharp pains in her neck and constant pain in her right shoulder. Respondent, as a part of his treatment, prescribed massage by Ms. Madison and took one set of x-rays of his patient. He also, in the course of his treatment, used an ultra-sound machine which Ms. Moss could not describe, but even after going to see Respondent for several weeks, three to four times a week, she concluded he was not giving her what she needed and decided to seek yet a third doctor. When she terminated her visits to Dr. Davis, in her opinion, she was not only not improved, but even felt worse. At the time of her last visit with Dr. Davis, on January 25, 1985, she told him she was switching to another physician. At this time, Dr. Davis did not tell her that she had reached maximum medical improvement and recommended, to the contrary, that she continue to come see him. Ms. Madison, who recalls that several weeks after Ms. Moss began treatment with the Respondent, she left him advising Ms. Madison that she was not getting any better. When Ms. Moss first visited Dr. Davis, she filled out a form for him listing her complaints and her history as she knew it. She contends that she listed her back, neck, and right leg injury on the form but review of the form she filled out does not reflect any knee injury though constant knee pain is listed. At the time she filled the form out, she was emotionally unstable and merely wanted to get treatment. She was in pain and did not take a lot of time in filling out the form. To this day, two to three years later, though she has improved and credits this improvement to the treatment she received from other physicians, she still suffers from some of the complaints she had when she was a patient of Dr. Davis. Ms. Moss's records were reviewed by Dr. Robert S. Butler, a chiropractic physician in practice in Miami Shores, who examined them as an expert for the Board of Chiropractic Examiners. In his review, Dr. Butler found no record of a comprehensive medical examination being completed on Ms. Moss or that Dr. Davis took an adequate personal history. The initial examination on December 14, 1984, was not described adequately on any records and the case history form filled out by the patient does not appear to contain any personal entries by the Respondent. His entries appear to include only what appears in the narrative summary produced subsequent to the taking of the history. Any form filled out by a patient should be the basis for the doctor to use to inquire further of the patient in taking a case history. This was not done here by Dr. Davis except very briefly on the first page of the form and it cannot be determined from looking at that who put the entries there. Dr. Butler cannot say, therefore, that the physical examination supposedly accomplished by Dr. Davis was comprehensive as billed to the insurance company by the doctor. After reviewing the doctor's records on Ms. Moss and cross referencing them with each other, Dr. Butler at first found some of them to be repetitious but on closer examination, it appears that the dates do not coincide. There are also several discrepancies which, in and of itself, is not uncommon. In this case, however, the records are so full of discrepancies as to be beyond the common experience. His review of Respondent's progress notes failed to reveal any specificity. Assuming that the records Dr. Butler looked at were contemporaneous with treatment, they are not adequate for a prudent chiropractic physician's minimum standards and he was unable to determine a proper relationship between the diagnosis done by the Respondent and the billings submitted to the insurance company for services reportedly rendered. Dr. Butler was also concerned that the narrative report prepared on the computer for the insurance company contains much information not documented elsewhere in the records, such as blood pressure, pelvic findings, and recitations of procedures done. He is also concerned over an indication of weakness on the part of the patient without evidence of muscle testing. This type of record keeping is not customary and is, in his opinion, not good practice. Even Dr. Brown, Respondent's expert, indicated that when he keeps records on his patients, he marks down almost every test result he receives. Admittedly, he does not necessarily put in all negative findings, but very definitely lists all positive findings. He utilizes a sheet of conditions on which he checks off those the existence of which is shown and it is from this form, along with others, that he prepares his narrative summary. He agrees in essence with Dr. Butler that it is not acceptable practice for a physician to write a report to an insurance company indicating that a patient has reached maximum medical improvement when this conclusions is based on matters outside the patient record. Here, Dr. Butler concluded that the records completed on Ms. Moss by the Respondent are sufficient with regard to format but not as to content. He would not put in narrative form matters which are not documented in the backup forms and the evidence here, the records kept by Respondent, reflect many conclusions in the narrative submitted to the insurance company which are not backed up by test results recorded on exam forms. In light of the fact that both experts agree that Respondent's records were inadequate, it is so found. Dr. Butler examined the records that were furnished to the Department's investigator by Dr. Davis after some substantial reluctance and obfuscation on his part was overcome. In response, Dr. Davis contends that at the time the records were sought of him, he did not produce all of the records he had on Ms. Moss because of the nature and manner in which the subpoena was served and because the subpoena only asked for certain documentation. He contends, however, that he offered his entire file to the investigator, Ms. Pagett, who copied only certain records therefrom indicating that was all she needed. Review of the documentation submitted at the hearing, however, which was all that was submitted by either party, and which was examined by Dr. Butler, leads to the inescapable finding that the records kept by Respondent are minimal at best and appear to fall short of the minimum standards set for the chiropractic profession. Dr. Butler's testimony satisfies the Petitioner's requirement to go forward with the evidence and Respondent has failed to produce any evidence to counter the conclusions drawn by Dr. Butler which are adopted herein as to the sufficiency of the records. The Administrative Complaint alleges that on February 26, 1985, Respondent filed a report with Ms. Moss's insurance company indicating she had reached maximum medical improvement. Dr. Davis admits this was the case but contends that in his professional judgement, she had in fact reached that status at that time and there was nothing more that he could do for her to increase or improve her physical condition. Dr. Butler, concluded after evaluation of the records, that maximum medical improvement had not been reached and from the records, he cannot determine what standards the Respondent applied to reach the conclusion that he had. The patient still had symptoms which needed treatment and in light of the injuries sustained by Ms. Moss, the likelihood is slight that she would have reached maximum medical improvement within the six week period that Dr. Davis was treating her. Dr. Butler concedes that a physician has the obligation to report maximum medical improvement status when that status is reached, but here, he feels, the determination was premature. This no more than a professional difference of opinion, however. Dr. James E. Brown, a chiropractor practicing in Palm Beach Gardens also reviewed the records kept by Respondent on Ms. Moss and as a result of his review concluded differently. He is of the opinion that the Respondent's records on Ms. Moss are adequate and within standards. He feels they would support a conclusion of maximum medical improvement as well. In this regard, Dr. Brown states that the achievement of maximum medical improvement is not based merely on a period of time but on the condition of the patient's body. In the instant case, maximum medical improvement was achieved in a very short time under the Respondent's care. The patient was indicated as being pain free when she left Respondent's care and one does not properly continue to treat patients whose condition is as it was described in Respondent's records. In short, Maximum medical improvement can be reached when a patient is not completely healed and still has a continuing condition. He agrees with Dr. Butler to the effect that definition of the term "maximum medical improvement" is subject to varied interpretations by different physicians and he admits that even if the records show that a patient is pain free, if the patient still has stiffness, continued treatment would be given if there were indications that the patient was still in need of it. Here, neither Dr. Butler nor Dr. Brown examined Ms. Moss. Both relied solely upon the written records kept by Dr. Davis. Ms. Moss, however, still maintains that when she left Dr. Davis's treatment, she was still in pain and, in fact left, because she felt his treatment was not benefiting her. By itself, that might well mean she had reached maximum medical improvement because the experts both agree that an individual may still have pain but have reached the maximum improvement. However, Ms. Moss also relates that when she went to another doctor who continued to treat her, she did improve rapidly as a result of that treatment and it is found, therefore, that Dr. Davis's report of Maximum medical improvement upon Ms. Moss's leaving his care, was, for whatever reason, premature. During August, 1985, Dr. Davis also treated Teresa L'Heureux who had been injured in an automobile accident. As a part of the treatment of Ms. L'Heureux, Dr. Davis issued three prescriptions for a drug, Flexoril. The first two, those written on August 30, 1985 and September 20, 1985, were on prescription pads bearing the printed name of Dr. Sultana and the doctor's rubber stamp signature. The third prescription, on October 12, 1985, was a phone-in prescription which does not bear the name of any physician. Respondent contends that he wrote these prescriptions at the order of Dr. Sultana who had seen the patient prior to the day the prescriptions were issued and directed him to issue them using her prescription pad and a rubber stamp of her signature. Dr. Sultana, on the other hand, denies ever having seen Ms. L'Heureux as a patient; denies having written the prescriptions; denies having signed her name to them; and denies having authorized Respondent or anyone else to stamp them with her signature. What is more, she does not recall having ever called in the third prescription. Dr. Sultana admits to having discussed the matter with Detective Brown who was conducting an investigation into the matter and having told him that she does not stamp her prescriptions. She does not recall admitting to Detective Brown that she had a stamp. In fact, she does not have a stamp of her signature, has never used one, and denies ever having told Respondent to utilize a rubber stamp of her signature in writing prescriptions. Dr. Sultana did some work with the Respondent and served as his mentor in the field of psychiatry. She admits that, as Respondent claims, if it were true that she had called in prescriptions without having seen a patient and were to have allowed Respondent to affix her stamped signature to a prescription for a controlled drug, she could be in severe difficulty with licensing authority. However, she contends she is not denying it for that purpose but because she did not do what Respondent alleges she did, and her testimony, contradicted only by the attacks of the Respondent and his assertion that she did allow him to use her prescription pad as alleged, is accepted. Further, the note taken from what appears to be patient records bearing her apparent signature and ostensibly relating to Ms. L'Heureux, is an obvious forgery in that the note refers to another patient and has been excised from records improperly with an inaccurate date and name placed thereon. Comparison of the handwritten signature of Dr. Sultana on the note with that on the stamped prescriptions and the computer printout indicates that the signatures are dissimilar. It is concluded, therefore, that the stamp signature is not that of Dr. sultana but a forgery instead. Dr. Davis is also alleged to have improperly examined Ms. L'Heureux during a visit she made to his office on December 17, 1985 by, in the course of an examination for a bladder infection, placing his fingers in her vaginal area without first donning rubber gloves and by moving his fingers in and out of her vaginal area making sexually suggestive comments to her while doing so. He is also alleged to have provided unnecessary treatment based on his record of diagnosis and treatment of the patient. Ms. L'Heureux came to see Dr. Davis in October, 1985 after she was involved in a car accident. She had heard his advertisement on the radio and went to see him for relief, During the course of his treatment, he applied heat, electrical muscle stimulation, traction, and adjustments. Ms. L'Heureux claims that on one occasion during a manipulation, while she was laying on her stomach, Dr. Davis placed his hand in between her legs and told her to move. This made her uncomfortable. On another occasion, when he came back into the room after being absent for a moment, he commented that something smelled good. Neither of these actions is considered actionable, however, absent any further evidence of impropriety. On one visit, however, she complained to the Respondent of having urinary problems. She had brought the matter to the attention of the Respondent's technician previously and had been advised to provide a urine sample. When the Respondent came into the area where she was waiting, she mentioned it to him and he had her go back into the examining room where he advised her to take off her pants and examined her. At this time, there was no other female present in the building. During the course of the examination, without using gloves, he pushed with his hands on her lower abdomen and then inserted his fingers inside her. She claims that while doing this he asked her how long it took her to climax and advised her of different ways of climaxing. When he was finished with the examination, he gave her a prescription for flexoril on Dr. Sultana's prescription pad and let her out the door. Ms. L'Heureux indicates that she had never been to a chiropractor before this series of treatments with Dr. Davis and therefore did not know what was appropriate for him to do. She does know, however, that she never met Dr. Sultana. During the course of Ms. L'Heureux' treatment, she saw Dr. Davis every day for the first three weeks and then for three weeks thereafter, every other day. Starting with the seventh week, for two months, she saw him every third or fourth day, returning to be treated by him even after the visit during which he conducted the pelvic examination. She finds it difficult to believe that she saw Dr. Davis for as many times as he billed her for, but she cannot dispute it. Her attorney, when she went to see him referred her to another chiropractor. She continued to visit Dr. Davis even after he did the inappropriate vaginal examination because she had no money and Respondent agreed to wait for her insurance company to pay. He was guiding her with regard to timing and kept telling her not to worry about the fee - that the insurance company would pay - and in fact, he was the one who referred her to an attorney. After she left him to seek the services of another chiropractor, he billed her for a total of $1,996.00 of which the insurance company paid only $600.00. Dr. Davis is suing her for the balance. Dr. Butler examined Ms. L'Heureux' records as well as those of Ms. Moss. At no place in Ms. L'Heureux', except for the narrative billing sent to the insurance company, is there any mention of testing for a urine problem. No lab reports are contained in the records and as a result, the records are deficient in that regard. The results should be reported to the patient at the next visit unless something is extremely wrong, in which case, the patient should be notified immediately. Dr. Butler examined those records of Ms. L'Heureux made available to him and was of the opinion that there was nothing in them to justify the diagnosis made by Respondent much less to justify the billings. He did contend, however, that the use of a medical doctor's signature stamp on a prescription pad would be totally improper for a chiropractor and Dr. Davis, who denies the vaginal examination ever took place, stipulates that a vaginal exam, such as alleged herein, would be an inappropriate diagnostic procedure for a chiropractor. Dr. Davis' reputation regarding his relationship with his patients is somewhat mixed. On the one hand, Ms. Madison, who has known and worked with him for several years, considers him to be a considerate individual who shows concern for his patients who seem to like him. At no time, while she was working for him, did he ever show any sexual interest in any patients and in fact was quite reserved. Others, such as Mr. Mackhanlall, agree. On the other hand, some, like Dr. Kastein, with whom Respondent had a business disagreement, think little of him, his professional capabilities, his ethics, and his personality. Dr. Davis contends that he interviewed and examined Ms. Moss, as alleged in her testimony but asserts, contra to her statement, that he took a personal history and x-rays of her. He claims he made up a chart as to the type 4of manipulation to be done and on each of the periodic visits she made to his office, made progress notes which, though minimal themselves, served to refresh his memory at the end of each day when he dictated into a computed program log, more extensive progress notes on each of the forty or so patients he saw that day. Most of the information placed into the computer in this fashion was from memory, however, and not from his hand-kept progress notes. This is not a system designed to generate much confidence in either his notes or his credibility. Respondent also relates that toward the end of January, 1985, Ms. Moss indicated that she had no more dizziness and in fact, felt better though she still had some stiffness. Finally, she came in and told him she was totally free of dizziness and pain and on January 25, 1985, said she was "ok" and feeling fine. A complete examination which he made that day, he claims, showed normal motion. Based on this examination, he concluded that she had reached maximum medical improvement and so indicated to her insurance company. In March, 1985, he was asked to submit a report to the insurance company which he prepared, based on the computer printout of his daily progress notes. At that time, he had received no information from Dr. Alden, the healer to whom Ms. Moss went after severing her relationship with Respondent, to the effect that she was treating Ms. Moss and no records were requested of him by the insurance company. When the DPR investigator contacted him, he claims he gave her what was requested; no more and no less. As to Ms. L'Heureux, he relates that when he initially examined her he gave her a complete orthopedic and neurological examination. Based on his diagnosis, he prescribed traction, ultra-sound and x-rays. Respondent avers that in August, 1985, Ms. L'Heureux indicated she was having pain and wanted to see Dr. Sultana. He apparently set this up because, he claims, shortly thereafter, Ms. L'Heureux indicated she wanted the prescription Dr. Sultana said she would get. He claims he called Dr. Sultana who directed him to give her the prescription for Flexoril using the stamp signature and pad in her desk drawer. The second prescription was also approved by Dr. Sultana according to Respondent, and he continued to treat Ms. L'Heureux until her attorney told her to see an orthopedic surgeon rather than a chiropractor. Dr. Davis categorically denied ever having conducted any vaginal examination of Ms. L'Heureux and claims that on the day in question, after she had deposited the urine specimen for analysis with his technician, she left the building and that was the end of that visit. Dr. Sultana denies ever having given permission to write prescription on her pad and denies having a stamp of her signature. Having evaluated the testimony of Dr. Davis in this regard, vis a vis the testimony of Ms. L'Heureux, Ms. Moss, and Dr. Sultana, it is clear that Dr. Davis's testimony is the less credible. Evaluating the witnesses and considering the relative probabilities, it is clear that the complainants are the more credible and there is no indication that any of them stands to gain anything by initiating unfounded complaints against him. It is therefore, found that, as to the writing of the prescriptions, Dr. Davis had no authority to write them utilizing Dr. Sultana's pad and a rubber stamp of her signature. As to the alleged incident with Ms. L'Heureux involving the improper pelvic examination, it is found that it did occur as alleged in light of the deposition testimony of Ms. Johnson, a former patient who indicated Respondent, in May, 1983, conducted a pelvic examination on her without first securing her consent. Turning, then to the ultimate issue of the sufficiency of the medical records kept on both patients in question here, Dr. Butler is convinced that the records are inadequate. Dr. Brown to a lesser degree agrees. Consequently, it is found that the records have been shown to be inadequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent's license as a chiropractic physician in Florida be revoked and he be fined a total of $8,000.00, but that so much of the penalty as calls for revocation of the license be suspended for two years under such terms and conditions as are prescribed by the Board of Chiropractic Examiners. RECOMMENDED this 19th day of June, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1987. COPIES FURNISHED: Edward H. Reise, Esquire Suite F 207 11173 N. Kendall Dr. Miami, Florida 33176-0917 Michael Davis, pro se 645 South Military Trail No. 9 West Palm Beach, Florida 33415 Erskine C. Rogers, III, Esquire 2875 South Ocean Blvd., Suite 200 Palm Beach, Florida 33480 Van Poole, Secretary Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation Board of Chiropractic 130 North Monroe St. Tallahassee, Florida 32399-0750 APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4108 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 hereto: By the Petitioner Petitioner's counsel, notwithstanding, the oral comments made by the Hearing Officer at the conclusion of the hearing regarding the format of the Proposed Finding of Fact, failed to number the paragraphs to facilitate identification herein. This has therefore been accomplished by the undersigned. Findings that at all times in issue, Davis licensed as a chiropractor in Florida, Findings of Fact's 1-29 relate to the 2nd Administrative Complaint. Findings of Fact's 30-46 relate to the first. The remainder go to the issue of the credibility of the Respondent as a witness and relate to both. Accepted and incorporated herein. Rejected as immaterial except as to the fact that after leaving Respondent's treatment, the patient was seen and treated by an osteopathic physician. 3-5. Accepted and incorporated herein. 6. Accepted and incorporated herein except for the last two sentences which are irrelevant. 7-9. Accepted and incorporated herein. 10. Rejected as not a Finding of Fact. 11-14. Rejected as not Findings of Fact but mere comment on the evidence. The ultimate finding that Respondent conducted an examination of S.J. is accepted. Irrelevant and cumulative. Rejected as an improper finding of fact. 18-20. Irrelevant. Rejected as a comment on the evidence and not a finding of fact. Accepted and incorporated except for the last sentence which is comment on the evidence and not a Finding of Fact. 23-25. Rejected as a summary of the evidence and not a Finding of Fact. Rejected. Rejected as a summary of evidence and not a Finding of Fact. 28-29. Rejected as a comment on the quality of the evidence, not a Finding of Fact. Accepted and incorporated herein. Accepted except for the last sentence which is a comment on the evidence and not a Finding of Fact. Accepted and incorporated herein. Rejected as irrelevant as a Finding of Fact. 34-38. Rejected as a summary of the evidence and not a Finding of Fact. 39-43. Rejected as a summary of the evidence and not a Finding of Fact. Accepted as to medical justification - Rejected as to nature. Accepted and incorporated herein. Rejected as a comment on the evidence and not a Finding of Fact. 47-48. Rejected as irrelevant. 49-50. Cumulative. 51. Rejected. For the Respondent Respondent does not identify Findings of Fact. Paragraph numbers start with 6. 7 a. Rejected as a summary of evidence. Accepted. Rejected as a summary of the witness's testimony. 9 a. Accepted. Accepted. Rejected as a summary of the witness's testimony. 11 a. Accepted. Rejected as contra to the weight of the evidence. Rejected as a comment on the evidence. d-g. Rejected as a summary of the evidence - not a Finding of Fact. 13 a-c. Rejected as a summary of the evidence. 15 a. Rejected as contra to the evidence. b-c. Irrelevant. 17 a. Accepted. Irrelevant. No evidence before the Hearing Officer. Not supported by evidence of record. e-f. Irrelevant. 19 a. Accepted that Sx 3 was a called in prescription. b. Rejected as comment on the evidence. c-f. Rejected as a summary of the evidence. Not proven. Accepted 21 a-b. Irrelevant c-e. Rejected as a summary of evidence and not a Finding of Fact.
The Issue The issues to be resolved in this proceeding concern whether the Respondent has failed to practice medicine at the level of care, skill, and treatment recognized by reasonably prudent, similarly-situated physicians, by allegedly failing to appreciate the nature of a complaint, failing to order a proper diagnostic test, and failing to make a timely referral to an appropriate specialist, as well as whether the Respondent failed to keep adequate medical records documenting a rationale for his diagnosis of the patient, in alleged violation, respectively, of Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating the practice of medicine and enforcing the licensure and practice standards contained in Chapter 458, Florida Statutes, and appurtenant rules. The Respondent, at all times material to this proceeding, has been a licensed physician in the State of Florida holding license number ME 0032003. On or about October 3, 1986, Patient #1, a thirty-five year-old male, presented to the Respondent's office with complaints of testicular pain, swelling, and a lump in the vicinity of the left testicle. The patient was seen by Dr. Laski, a physician (M.D.) employed by the Respondent. Dr. Laski examined the patient and diagnosed him as suffering from epididymitis. Epididymitis is an inflammation of the epididymis, which is a series of tubules that runs from the testicle to the vas deferens. The epididymis partially surrounds the testicle but is not actually a part of the testicle itself. The epididymis is part of the scrotal structures, and is attached to and continuous with the testicle, both being located within the scrotum. Patient #1 related that while working at his job as a truck driver, he was straining, trying to lift or move a 427-pound hot tub, when he felt pain and swelling in the left testicle, associated with a small lump. Upon diagnosing epididymitis, Dr. Laski started a treatment regimen of antibiotic and anti- inflammatory medications. He required the patient to return in four to five days. Dr. Laski saw the patient the second time on October 8, 1986 with continued complaints of left testicular pain. Dr. Laski again continued the same diagnosis and treatment. On October 13, 1986, Patient #1 again presented to Dr. Laski with continued left testicular pain with a small mass on the left testicle. Dr. Laski continued his diagnosis of epididymitis and continued the antibiotic and anti-inflammatory medications, although he changed the type of antibiotic prescribed. The patient visited a fourth time on October 17, 1986, and Dr. Laski found a tender nodule over the left testicle but also found that the remainder of the symptoms, consisting of pain and swelling, had disappeared. Dr. Laski found on the patient's first and fourth visits to him, and noted in the medical records, a mass or nodule on the left testicle; however, on the fourth visit, he found that the acute symptoms had disappeared. Dr. Laski still felt the nodule, which he could not ascribe to anything related to the purported accident experienced by the patient. Therefore, Dr. Laski felt that a urologist would be the appropriate person to see, "to take no chances and to make sure that there was not something else." Dr. Laski, accordingly, noted in his records that a referral to a urologist was in order. This was on Friday afternoon, October 17, 1986. The Respondent's office staff apparently made an attempt to refer the patient to a urologist that afternoon but was unsuccessful, due to the inability to contact the urologist's office. Apparently, the patient was instructed to call the Respondent's office the following Monday or Tuesday concerning the referral appointment. The patient maintains that he called the Respondent's office on Tuesday and was told that they could not send him to a specialist until the Respondent himself saw the patient. The Respondent disputes this and states that there is no such policy in his office that he had to see any patient before referral out to a specialist could occur. In any event, on October 22, 1986, Dr. Laski saw the patient again and called in the Respondent, who also examined the patient. The evidence of record does not indicate clearly why the Respondent took over the care and treatment of the patient from Dr. Laski at this point; however, that was apparently the case. When the Respondent initially saw Patient #1 on October 22, 1986, the Respondent did not enter in his medical records information which would either affirm or negate the presence of a mass or nodule, as identified by Dr. Laski. The Respondent testified, however, that he felt something "because, here, I'm palpating something, yes." Because he felt something in the left testicle, the Respondent ordered a urinalysis. The urinalysis was a routine "dipstick" urinalysis without microscopic slide or culture evaluation for bacteria. The Respondent testified that he wanted the urinalysis as diagnostic information because he was "palpating something". He did the urinalysis by dipstick method, such that he was able to evaluate the color, quality, and specific gravity of the urine sample. The results were negative. Dr. Carmichael testified, however, that the Respondent should have gone farther and done a microscopic evaluation in which white blood cells, if present, could have been visualized in the urine sediment. Dr. Carmichael testified that a urine culture could have been performed even though the patient had already been through two different antibiotic courses, because, as it was the Respondent's feeling that the epididymitis had not yet been resolved, there was the possibility of the presence of a type of bacteria which had not been affected by the antibiotics already administered. According to Dr. Carmichael, if the culture grew out of a pathogenic organism, "you would then have a very good likelihood that that is a causative organism, and you could tell what drug to use." The urinalysis, however, as Dr. Carmichael established, would not rule out epididymitis. The microscopic urinalysis, if done, could have been normal and the culture could have been negative; and epididymitis could still have been present. However, the lack of these tests contributed to the Respondent's inadequate assessment of the patient's status. The Respondent had Patient #1 visit a second time on November 5, 1986. On the second visit, the Respondent found, and the medical records showed, that there was a small area of "prominence" (nodule) in the epididymis. The Respondent chose to continue to observe the patient, however, to continue the prescription of the anti-inflammatory medication and ordered the patient to return in one month. Dr. Carmichael opined that another diagnostic procedure could have been used with the patient, presenting in this status at this point in his treatment course, which could have helped differentiate whether there was actually a definite mass present or not. That is, the Respondent could have ordered an ultrasound test, a procedure which uses high-frequency sound waves to outline areas of soft tissue that will not be depicted on x-rays. Dr. Herold, the Respondent's expert witness, acknowledged that ultrasound could be ordered if there is some uncertainty in the doctor's mind about the diagnosis, although he opined that it would not be the usual procedure to order an ultrasound test when the doctor suspects epididymitis to be the problem. Here, the Respondent still felt comfortable with his diagnosis of epididymitis. However, in the face of Dr. Laski's finding on October 17, 1986 that there was some sort of nodule present and that he was uncertain enough to feel the need to refer the patient to a specialist, it was established by Dr. Carmichael that if the ultrasound had been ordered of the genital area, it could confirm the diagnosis of epididymitis or, correspondingly, whether an actual tumor was present at that time. In any event, the Respondent's treatment plan as of November 5, 1986 was to continue observation and order Patient #1 to return in one month. The patient failed to return until January 12, 1987, for unexplained reasons. On that date, the Respondent examined the patient and immediately noted a hard, non-tender mass in the area of the epididymis. The Respondent then immediately referred the patient to a urologist, Dr. Antar, who testified on behalf of the Petitioner. On or about January 19, 1987, Dr. Antar evaluated the patient and determined that surgery was immediately necessary, because his immediate impression was that the mass was cancerous. Blood tests revealed that the tumor markers were very high, and Dr. Antar felt that there was no reason to observe further. Three days later, Dr. Antar performed a radical orchiectomy on the left testicle (removal of the testicle). The testicular tumor was a teratoma. A teratoma is a tumor which appears to be benign but behaves like a malignancy. Moreover, however, a biopsy of a lymph node from the left side of the patient's neck showed three elements of cancer: the teratoma, embryonal cancer cells, and choriocarcinoma cancer cells. Dr. Antar established that all three indications were coming from the left testicle. Thus, the cancer had metastasized from the left testicle to the lymph system. However, Dr. Antar established that through chemotherapy the cancer cells which had migrated were eliminated, since this type of cancer, although it is virulent, is particularly amenable to chemotherapy. The medical records show that the Respondent saw the patient on three occasions; October 22, 1986, November 5, 1986, and January 12, 1987. The patient had also been seen by Doctor Laski independently of the Respondent for the first four visits and in conjunction with the Respondent's initial examination on October 22, 1986. Thus, Dr. Laski, before the Respondent, had seen the patient four times in three weeks. It was Dr. Laski's judgement that the symptoms of the acute problem had gone away but that, because a nodule remained which Dr. Laski could not explain, he should be referred to a urologist. The Respondent then took over his care for unexplained reasons but did not carry out Dr. Laski's recommendations for a urological evaluation by a specialist. The Respondent contended in his testimony that he would always honor another physician's recommendation but did not specifically indicate in his testimony or in the medical record why Dr. Laski's recommendation that a urologist be consulted and see the patient was not carried out. Even though, in fact, the Respondent noted in his subsequent examinations the prominence in the left testicle, he simply continued to diagnose the problem as epididymitis and elected to continue to "observe". The medical record prepared by Dr. Laski included the recommendation that the patient be referred to a urological specialist. Thus, the Respondent should have known of this recommendation whether or not he actually conversed with Dr. Laski about the referral (the record does not indicate whether they actually conversed about this subject or not). In any event, as shown by Dr. Carmichael, the Respondent's notes in the medical record do not provide any explanation or justification for merely continuing to observe the patient. The medical records prepared by the Respondent do not support his decision not to follow up and have the patient actually referred to a urologist and not to conduct further tests or investigation of the left testicle, such as an ultrasound test. Given the course of treatment by the Respondent, consisting merely of continuing to observe for another month, along with the continuing of a prescription for an anti-inflammatory, with the unexplained inconsistent deletion of the prescription for an antibiotic, even though the Respondent believed that the epididymitis was continuing; the medical record kept by the Respondent for the patient did not justify this course of treatment. He did not order any further diagnostic tests and yet, according to the record, ignored the recommendation that a specialist consultation be effected. All three of the medical experts testifying established that such a tumor could have initially presented as epididymitis. Dr. Carmichael opined that when a person has a lump or soreness in the testicle, he frequently tries to relate it to some type of activity, like lifting or straining. He opined that the usual presenting complaint of a testicular tumor would be a lump, with some sort of soreness or discomfort. Dr. Antar, the urologist who ultimately saw the patient and operated, testified that people with testicular cancer can present as having epididymitis. Dr. Antar testified that they need to be treated with antibiotics for two to three weeks, to be rechecked to be sure the epididymitis is dissolved and that the testicle has returned to normal. Dr. Herold also opined that the inflammation of epididymitis can occur as a result of trauma or as a reaction to the presence of a tumor. If the Respondent had such an awareness, as described by these experts, he did not act on it, however. He elected merely to continue the anti-inflammatory medication and part of the course of treatment already tried by Dr. Laski, in spite of the fact that his employee and colleague had already shown, and entered in his medical record, that the rest of the supposed epididymitis symptoms had disappeared, that there still remained a tenderness and small mass on the left testicle and that a consultation with a specialist was in order. Respondent's reaction upon first seeing the patient on October 22nd was that there was a tenderness in the left testicle and a swelling in the epididymitis, as well. The Respondent's testimony and his medical records simply do not explain why he ignored Dr. Laski's recommendation that a specialist see the patient and be consulted, if all he himself was going to do, at least for the ensuing one and one-half months, was to continue the anti- inflammatory therapy the patient had already been given.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered by the Board of Medical Examiners finding that the Respondent has violated Section 458.331(1)(t), Florida Statutes, as found and concluded above, for which a penalty of a $1,000.00 fine and one year's probation should be imposed. It is FURTHER RECOMMENDED that the Final Order determine that Section 458.331(1)(m), Florida Statutes, has been violated, for which the penalty of a reprimand and administrative fine in the amount of $500.00 be imposed. It is FURTHER RECOMMENDED that, as to both Counts, that 20 hours of continuing medical education in the area of oncology and five hours in the area of risk management, over and above that required for licensure, be imposed. DONE AND ENTERED this 5th day of April, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-930 Petitioner's Proposed Findings of Fact: 1-8. Accepted. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on the subject matter. 11-20. Accepted. Respondent's Proposed Findings of Fact: Respondent did not submit numbered proposed findings of fact and it is, therefore, difficult to rule on the proposed findings of fact specifically. Nevertheless, the first two paragraphs of the proposed findings of fact are accepted. The third paragraph is, for the most part, established by the evidence of record. However, it is rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter to the extent that they differ from the proposed findings of fact in the third paragraph in the Respondent's proposed findings of fact. The fourth paragraph of the Respondent's proposed findings of fact is accepted but not necessarily for the material import the Respondent proposes. COPIES FURNISHED: Barbara Whalin Makant, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, FL 32399-0792 James Facciolo, Esquire KENT, HAYDEN, ET AL. 200 West Forsyth Street Suite 1330 Jacksonville, FL 32202 Dr. Marm Harris, Executive Director Board of Medicine Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792
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 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.
