The Issue The issues are whether Petitioner is entitled to repayment of Medicaid reimbursements paid to Respondent, pursuant to section 409.913(11), Florida Statutes; and, if so, the amount of the overpayment to be repaid; the amount of any fine to be imposed against Respondent, pursuant to section 409.913(15)- (17), Florida Statutes; and the amount of any investigative, legal, and expert witness costs to be assessed against Respondent, pursuant to section 409.913(23)(a), Florida Statutes.
Findings Of Fact Introduction Respondent operates a large group medical practice with a focus upon psychiatric services. Although Respondent serves patients in varied locations, including its offices and patients' nursing homes, all of the recipients in this case were in hospitals when Respondent's physicians rendered the services for which Respondent obtained reimbursement. The audit in question examined all of the claims paid on account of 30 randomly selected recipients to whom Respondent provided services from March 1, 2008, through February 28, 2010. Petitioner duly issued a preliminary audit report and received feedback from Respondent. On July 31, 2012, Petitioner issued the FAR. As distinguished from its challenge to the statistical estimation process, Respondent has not challenged the procedures followed in the preparation and issuance of the FAR, so the Administrative Law Judge infers that it is in compliance with all applicable law. The overpayments that Petitioner found in the 30-recipient sample arise from three sources. Petitioner denied 83 reimbursement claims for a lack of medical necessity and two reimbursement claims for double billing.3/ Petitioner "adjusted" (i.e., reduced) 16 reimbursement claims for upcoding the services provided to recipients. Petitioner's expert witnesses are Dr. Rahul Mehra, who is Board certified in psychiatry, and Dr. Nanette Hoffman, who is Board certified in internal medicine and geriatrics. Respondent's expert witnesses are Dr. Scott Segal, who is the founder of Respondent and Board-certified in psychiatry, and Dr. Tanver Sobhan, who is employed by Respondent and Board- certified in psychiatry. CPT Codes Pursuant to the Florida Medicaid Physician Services, Coverage, and Limitations Handbook in effect during the audit period (Physician Handbook), the coding of claims for Medicaid reimbursement is governed by the Current Procedural Terminology® (CPT). Physician Handbook at 3-1. References to the CPT will be to the 2009 edition.4/ Hospital and office visits are covered in the CPT's "Evaluation and Management Service Guidelines." The CPT identifies seven components of Evaluation and Management (E/M) services: 1) history, 2) examination, 3) medical decisionmaking, 4) counseling, 5) coordination of care, 6) nature of presenting problem, and 7) time. CPT at 3. The first three components are the "key" factors in selecting the correct level of service for an E/M service. The next three components are "contributory" factors. Id.5/ The "extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s)." Id. at 7. The extent of history may be characterized by any of four levels of service: Problem focused: Chief complaint; brief history of present illness or problem. Expanded problem focused: Chief complaint; brief history of present illness; problem pertinent system review. Detailed: Chief complaint; extended history of present illness, problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems. Comprehensive: Chief complaint; extended history of present illness; review of systems that is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family, and social history. Id. The "extent of examination performed is dependent on clinical judgment and on the nature of the present problem(s)." Id. The extent of examination may be characterized by any of four levels of service: Problem focused: A limited examination of the affected body area or organ system. Expanded problem focused: A limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: An extended examination of the affected body areas(s) and other symptomatic or related organ system(s). Comprehensive: A general multisystem examination or a complete examination of a single organ system. For the purpose of these CPT definitions, the following body areas are recognized: head, including the face; neck; chest, including breasts and axilla; abdomen; genitalia, groin, [and] buttocks; back; [and] each extremity. For purposes of these CPT definitions, the following organ systems are recognized: eyes; ears, nose, mouth, and throat; cardiovascular; respiratory; gastrointestinal; genitourinary; musculoskeletal; skin; neurologic; psychiatric; [and] hematologic/lymphatic/immunologic." Id. "Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: The number of possible diagnoses and/or the number of management problems that must be considered. The amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed, and analyzed. The risk of significant complications, morbidity, and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), and/or the possible management options. Id. Four types of medical decision making are recognized: straightforward, low complexity, moderate complexity, and high complexity. To qualify for a given type of decision making, two of the three elements in Table 2 [see below] must be met or exceeded. Comorbidities/underlying diseases, in and of themselves, are not considered in selecting [an E/M level of service] unless their presence significantly increases the complexity of the medical decision making. Table 2 governs determinations of the complexity of medical decisionmaking and provides: Number of Amount and/or Risk of Compli- Type of Diagnoses Complexity of cations and/or Decision Or Manage- ment Options Data to be Reviewed Morbidity or Mortality Making minimal minimal or none minimal straight- forward limited limited low low complexity multiple moderate moderate moderate complexity extensive extensive high high complexity Id. at 8. As for time in a hospital setting, the CPT states: [U]nit/floor time . . . includes the time that the physician is present on the patient's hospital unit and at the bedside rendering services for that patient. This includes the time in which the physician establishes and/or reviews the patient's chart, examines the patient, writes notes, and communicates with other professionals and the patient's family. In the hospital, pre- and post-time includes time spent off the patient's floor performing such tasks as reviewing pathology and radiology findings in another part of the hospital. This pre- and post-visit time is not included in the time component described in these codes. However, the pre- and post- work performed during the time spent off the floor or unit was included in calculating the total work of typical services in physician surveys. Thus, the unit/floor time associated with the services described by any code is a valid proxy for the total work done before, during, and after the visit. Id. at 5. CPT ##99231, 99232, and 99233 cover "subsequent hospital care," which includes "reviewing the medical record and reviewing the results of diagnostic studies and changes in the patient's status (i.e., changes in history, physical condition and response to management) since the last assessment by the physician." CPT #99231 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: a problem focused interval history, a problem focused examination, and medical decisionmaking that is straightforward or of low complexity. The patient is usually "stable, recovering or improving," and the physician typically spends 15 minutes at the bedside and on the hospital floor or unit. A psychiatric example of CPT #99231 is: Subsequent hospital visit for a 14-year-old female in middle phase of inpatient treatment, who is now behaviorally stable and making satisfactory progress in treatment. Id. at 503. CPT #99232 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: an expanded problem focused interval history, an expanded problem focused examination, and medical decisionmaking of moderate complexity. The patient is usually "responding inadequately to therapy or has developed a minor complication," and the physician typically spends 25 minutes at the bedside and on the hospital floor or unit. CPT #99233 is for subsequent hospital care, per day, of a patient who requires at least two of three of the following components: a detailed interval history, a detailed examination, and medical decisionmaking of high complexity. The patient is usually "unstable or has developed a significant complication or a significant new problem," and the physician typically spends 35 minutes at the bedside and on the hospital floor or unit. Psychiatric examples of CPT #99233 are: Follow-up hospital visit for a teenage female who continues to experience severely disruptive, violent and life-threatening symptoms in a complicated multi-system illness. Family/social circumstances also a contributing factor. Subsequent hospital visit for an adolescent patient who is violent, unsafe, and noncompliant, with multiple expectations for participation in treatment plan and behavior on the treatment unit. Subsequent hospital visit for an 18-year-old male being treated for presumed PCP psychosis. Patient is still moderately symptomatic with auditory hallucinations and is insisting on signing out against medical advice. Id. at 505. CPT ##99221, 99222, and 99222 apply to ascending levels of initial hospital care, meaning that the initial day of inpatient care is billed under one of these codes and subsequent days of inpatient care are billed under CPT ##99231-99233. CPT #99221 requires a detailed or comprehensive history, a detailed or comprehensive examination, and medical decisionmaking of low complexity or that is straightforward. CPT #99222 requires a comprehensive history, a comprehensive examination, and medical decisionmaking of moderate complexity. CPT #99223 requires a comprehensive history, a comprehensive examination, and medical decisionmaking of high complexity. CPT ##99238 and 99239 apply to hospital discharge services. CPT #99238 applies if, on the day of hospital discharge, the physician spends 30 minutes or less with the patient, performing such tasks as a final examination, issuance of discharge instructions, and preparation of discharge records, prescriptions and referral forms. If the physician spends more than 30 minutes on these tasks, CPT #99239 applies. Medical Necessity of Psychiatric Services In this case, all of the denials for a lack of medical necessity pertain to psychiatric services, and all of the reductions for upcoding pertain to medical services that are not psychiatric in nature. (Although psychiatry is a branch of medicine, this recommended order generally6/ will refer to "medical" services to mean nonpsychiatric medical services.) Not raising difficult issues of fact or law, the upcoding issues are straightforward or, at most, of low complexity; Petitioner has prevailed on all but one upcoding claim, and it conceded this claim at the hearing. By contrast, many of the medical necessity issues, which are relatively consequential in estimating the total overpayment,7/ are highly complex, raising difficult issues of fact and law. Respondent has prevailed on most of these claims, in several instances, due to recurring shortcomings in Petitioner's evidence. In general, the expert witnesses offering psychiatric testimony were all highly qualified. Respondent's experts are interested in the outcome of the case. On the other hand, Dr. Mehra's experience over the past three years in treating psychiatric patients has not included inpatient care. By contrast, Dr. Sobhan and Dr. Segal have considerable experience in providing inpatient psychiatric services. Moreover, Respondent's experts, particularly Dr. Segal, have considerable knowledge and experience as to the entire range of local, regional, and state settings for the psychiatric treatment of patients, particularly those sharing the demographic characteristics of the recipients involved in this case. Dr. Mehra's experience does not appear to approach the experience of Drs. Segal and Sobhan in this important respect. Of course, the knowledge and experience of Drs. Segal and Sobhan extend to assessing the suitability of particular patients for particular settings. In addressing medical necessity, all of the psychiatric experts understood that, as noted in the Conclusions of Law, a billed service must be a generally accepted preventative, curative, or palliative service in the diagnosis or treatment of a recipient. All of the psychiatric experts understood that, to meet the definition of medical necessity, a billed service must be needed, not in excess of the recipient's needs, and the least costly, effective service among services that are available statewide. This Recommended Order will refer to services that are provided when no services are needed as Inappropriate Services and services that are provided in excess of the services that are needed as Excessive Services. However, Inappropriate Services and Excessive Services play a minor role in this case. As noted in the Conclusions of Law, the special provision of the rule applying only to inpatient services provides that billed inpatient services are not medically necessary if they could have been appropriately and effectively furnished less expensively on an outpatient basis or in an inpatient facility of a different type. This Recommended Order will refer to services that could have been furnished less expensively in another setting as Costlier-Setting Services. Almost all of the medical-necessity determinations in this case turn on whether certain psychiatric services are Costlier- Setting Services. Unfortunately, the expert psychiatric testimony focused on whether certain psychiatric services could have been appropriately and effectively furnished in a lower level of care--to the exclusion of any consideration of the cost of these services in another setting. As discussed in the Conclusions of Law, the burden of going forward with the evidence as to this aspect of medical necessity is on Petitioner, so that the shortcomings of Dr. Mehra's testimony were more consequential than the shortcomings of Drs. Segal and Sobhan's testimony. Exacerbating the shortcomings of the psychiatric testimony as to relative costs, much of the psychiatric level- of-care testimony was vague. Dr. Mehra identified the descending "levels of care" in psychiatric medicine: in order, starting with the highest level of care, these settings are inpatient, residential, partial hospitalization, and outpatient. Dr. Mehra identified specific circumstances that warranted the highest level of care, meaning inpatient psychiatric services.8/ But Dr. Mehra never specified for any recipient what lesser level of care would have been safe at any particular time. Ms. Eddleman identified a number of local behavioral programs--all available in South Florida--with a level of care less than hospitalization or partial hospitalization, but greater than treatment in an office or private residence. Persons at risk of hospitalization may obtain behavioral health day treatment services, which are more intensive than regular outpatient services and bundle psychosocial rehabilitation services to help build skills with individual and family therapy sessions. Persons may obtain mental health targeted case management services, automatically for 30 days after hospital discharge, and, without regard to hospitalization, if the person suffers from a severe and persistent mental disorder. The case manager helps the person obtain services, such as housing and the community behavior services described immediately above, to help stabilize psychiatric symptoms. Separate medication administration programs are also available to try to help persons with mental disorders obtain and take their medications. Ms. Eddleman provided very useful level-of-care testimony. But its utility in this case is limited by its timing. Petitioner obtained the testimony after Dr. Mehra had testified. If the testimony had been available earlier, Dr. Mehra might have been able to add much-needed detail to his level-of-care testimony. Regardless of the timing of Ms. Eddleman's testimony, no evidence links a particular date of inpatient services to a particular community-based behavioral service, so as to support a determination that a lower level of care was suitable on that date. Of course, as a layperson, Ms. Eddleman could not have provided this link. But, again, the larger problem was that the level-of- care testimony provided by Dr. Mehra and Ms. Eddleman was not supplemented by any testimony about relative costs. While requiring that the psychiatric services be appropriate so as to ensure patient safety, the subject audit is a cost audit, not a quality-of-care audit. The only explanation for why the three psychiatrists concerned themselves exclusively with level-of- care issues in addressing Costlier-Setting Services is that they assumed lower levels of care would mean lower costs. As shown below, though, the reimbursement rates do not bear a direct relationship to the level of care of the setting in which the services are provided.9/ A quick look at the CPT's treatment of E/M services reveals an obvious flaw in Dr. Mehra's failure to account for actual costs in his level-of-care testimony: the first and third levels of care in Dr. Mehra's list are combined into a single CPT code for E/M services, as noted above. CPT at 12. So, even if a recipient could have been treated safely on a partial-hospitalization basis, this would not deprive the inpatient services of medical necessity, as Costlier-Setting Services, because the same reimbursement rate applies to services in both of these settings. The larger problem is that the provision of a service in a hospital setting does not command the highest reimbursement rate. In fact, an inpatient service is invariably cheaper than the same level of service provided in the patient's boarding home or private home and is often cheaper than the same level of service provided in a patient's skilled nursing facility or a physician's office. Petitioner Exhibit #17, which contains the reimbursement rates for various CPT codes, reveals the relative costs. In the following table, which is for 2009,10/ "PF" means problem focused, "Ex" means expanded problem focused, "Det" means detailed, "Comp" means comprehensive, "Straight" means straightforward, and "Mod" means moderate. The first reference to any of these descriptors is to the history or interval history, the second reference is to the examination, and the third reference is to the complexity of the decisionmaking. The first numerical reference is to the CPT and the second is to the 2009 reimbursement rate. For each CPT listed below, only two of three criteria must be met. SUBSEQUENT HOSPITAL CARE PF/PF/Straight or Low 99231 $20.36 Ex/Ex/Mod 99232 $36.60 Det/Det/High 99233 $52.45 OFFICE OR OTHER OUTPATIENT CARE: ESTABLISHED PATIENT PF/PF/Straight 99212 $21.84 Ex/Ex/Low 99213 $26.61 Det/Det/Mod 99214 $41.46 Comp/Comp/High 99215 $60.27 NURSING FACILITY SERVICES: SUBSEQUENT NURSING FACILITY CARE PF/PF/Straight 99307 $21.72 Ex/Ex/Low 99308 $32.89 Det/Det/Mod 99309 $43.64 Comp/Comp/High 99310 $64.98 BOARDING HOME: ESTABLISHED PATIENT PF/PF/Straight 99334 $30.33 Ex/Ex/Low 99335 $46.77 Det/Det/Mod 99336 $65.58 Comp/Comp/High 99337 $93.75 HOME SERVICES: ESTABLISHED PATIENT PF/PF/Straight 99347 $28.77 Ex/Ex/Low 99348 $42.86 Det/Det/Mod 99349 $62.25 Comp/Comp/High 99350 $86.33 It is more difficult to compare the cost of inpatient services to the cost of services in an office or skilled nursing facility. But, in the context of this case, as found below, many of the psychiatric inpatient services represented a problem focused history, extended problem focused or detailed examination, and decisionmaking that is straightforward or of low complexity. These components earn a CPT #99231 and a reimbursement of $20.36 in a hospital, a CPT #99308 and a reimbursement of $32.89 in a skilled nursing facility, and a CPT #99213 and a reimbursement of $26.61 in an office or other outpatient setting. Thus, for this very common aggregation of components, the services provided to a recipient in a hospital setting were cheaper than the same services provided to a recipient in a skilled nursing facility, office, or other outpatient setting.11/ Petitioner's proof of Costlier-Setting Services encountered other problems, besides vagueness as to alternative suitable settings and an absence of relative cost data. Neither Petitioner nor Dr. Mehra ever dealt with the issues that, especially given the absence of direct admits in this case, Respondent's physicians had to treat these patients where they found them--in a hospital--and Petitioner has not sought to recover the reimbursements that it paid to the hospitals for the stays at issue in this case. Recipient 1 illustrates these problems. Recipient 1 primarily required detoxification with some psychiatric support during the process. To the extent that detoxification was a medical process, Recipient 1's medical needs required hospitalization. If, somehow, his psychiatric needs could be analyzed in isolation from his medical needs, they perhaps could have been addressed in another setting, and perhaps the reimbursement rate in the other setting might have been lower. But these services could not be isolated from the medical, detoxification process through which nonpsychiatric physicians were guiding him. By contrast, Recipient 2 also required detoxification, but her psychiatric issues were more prominent than Recipient 1's. Recipient 2's abuse of drugs injured herself and her fetus, so her psychiatric needs were necessarily more urgent and her case perhaps more complicated psychiatrically. Compared to Recipient 1, then, the high level of care provided by the hospital setting was clearly appropriate, even considering Recipient 2's psychiatric needs in isolation from her medical needs. Rather than repeat the foregoing findings of Costlier- Setting Services in the following discussions of each recipient, they are incorporated by reference and highlighted or differentiated, as needed, in discussions of specific recipients. Recipients Introduction 39. At issue are Recipients 1, 2, 11, 12, 23, 26, 27, 29, and 30. Based on Attachment C, the parties are litigating five denied claims as to Recipient 1; 16 denied claims as to Recipient 2, one denied claim and seven reduced claims as to Recipient 11; five denied claims and one reduced claim as to Recipient 12; 19 denied claims and seven reduced claims as to Recipient 23; six denied claims as to Recipient 26; five denied claims as to Recipient 27; four denied claims as to Recipient 29; and 24 denied claims and one reduced claim as to Recipient The two denied claims for double billing pertain to Recipient 12. Concessions of the parties first offered during the hearing will be noted in the discussion of the appropriate recipient. Recipient 1 For Recipient 1, a 34-year-old male diagnosed with depressive disorder, only one hospitalization is at issue. From December 2-7, 2009, Recipient 1 was hospitalized at Memorial Regional Hospital for detoxification to treat an opiate dependency. Recipient used heroin on the day prior to the admission, averaged three intravenous injections daily, and worried that he would continue to take heroin if he were not hospitalized. At issue are the following billed CPT codes: December 2: #99223 December 3: #99232 December 4: #99232 December 5: #99232 December 7: #99232 Petitioner denied these psychiatric claims for a lack of medical necessity. Misreading the chart, Dr. Segal testified that Recipient 1 had threatened to kill himself. As pointed out by Dr. Mehra, the medical records clearly disclose that Recipient 1 denied any thoughts of suicide--or, for that matter, homicide. Dr. Segal misunderstood a reported statement of Recipient 1 that he was going to kill himself--more or less inadvertently--through the continued use of drugs. Recipient 1 had been using heroin since he was 26 years old. He had previously completed treatment programs and enjoyed three years' sobriety. On admission, Recipient 1 was already suffering from muscle aches, hot and cold sweats, back pain, diarrhea, and nausea. The medical records state that, on admission, Recipient 1 "was experiencing an exacerbation of psychiatric symptoms," although these symptoms are not detailed in the records. The medical records do not describe in much detail the role of psychiatric services during this detoxification process. At one point during Recipient 1's six-day hospitalization, the medical records state: "The patient reported a reduction of psychiatric symptoms on the current medication regime " But the records do not identify the symptoms or the inpatient psychiatric services--apart from a mention of individual therapy--nor do the records explain how the medications or services may have contributed to a reduction in psychiatric symptoms. In general, the psychiatric notes are vague and provide little, if any, insight into any psychiatric symptoms, diagnoses, or treatments. Dr. Mehra testified that Recipient 1 underwent what was essentially an uncomplicated detoxification process. In hindsight, Recipient 1's detoxification was uncomplicated, but, of course, no one knew in advance that it would be. The possibility of difficulties during detoxification is suggested by the prescription for an anti-seizure medication, should the need have arisen. Dr. Mehra's implication that the hospital setting for this detoxification was an excessive level of care fails to address the medical needs of the recipient during this relatively brief detoxification process. Dr. Mehra contended for a lower level of care based on the absence of any threat of harm to self or others and the absence of any indication of a recent history of treatment failure. Failing to address the issue mentioned in the preceding paragraph, Dr. Mehra never discussed why, under the circumstances, the absence of these threats militates in favor of nonhospitalization, rather than a relatively brief hospitalization, especially as a brief hospitalization appears to have been necessitated by Recipient 1's medical needs in association with his detoxification. Dr. Mehra also failed to identify a lower level-of- care facility at which Recipient 1 could have been safely treated. Recipient 1's past failure to maintain sobriety after three years without heroin use and his well-founded fear that he would resume heroin use if treated on an outpatient basis precluded treatment in a lower level-of-care setting. Dr. Mehra never suggested that the billed psychiatric services were Inappropriate Services or Excessive Services, and Respondent has proved that they were not, notwithstanding the shortcomings in the medical records. Dr. Mehra suggested that the psychiatric services were Costlier-Setting Services, but Petitioner has failed to prove that they were. Petitioner therefore improperly denied these five psychiatric claims for a lack of medical necessity. Recipient 2 For Recipient 2, a 32-year-old female diagnosed as 21 weeks gravid and with depressive disorder, only one hospitalization is at issue. From December 1-18, 2008, Recipient 2 was hospitalized at Plantation General Hospital for detoxification from alcohol abuse, including binge drinking. Actually admitted on November 29, 2008, to the Broward Addiction Recovery Center within the hospital, Respondent's physician initially diagnosed Recipient 2 with Antepartum Polysubstance Dependence.12/ At issue are the following billed CPT codes: December 2: #99232 December 3: #99232 December 4: #99232 December 5: #99232 December 6: #99231 December 7: #99231 December 8: #99232 December 9: #99232 December 10: #99232 December 11: #99232 December 12: #99232 December 13: #99231 December 14: #99231 December 15: #99232 December 16: #99232 December 17: #99232 Petitioner denied these billed psychiatric claims for a lack of medical necessity. Recipient 2 was homeless. She had been working as a prostitute and, at one point during her hospitalization, reported that she had become pregnant while having sex with a customer. Recipient 2 had been treated briefly in 2006, but had relapsed immediately and had enjoyed only one, six-month period of sobriety since the inception of her alcohol addiction in 2001. Recipient 2 had no family support. Her father had been an alcoholic, and her mother had been a crack addict, so her grandmother had raised her from the age of six months. Recipient 2 claimed to have support from her boyfriend, but there is doubt that the boyfriend, with whom Recipient 2 appears to have had no contract during her hospitalization, was much more than Recipient 2's pimp. Dr. Sobhan treated Recipient 2 at the hospital and prepared for her a detailed treatment plan. Dr. Sobhan found that Recipient 2 had "very weak ego strength" and was in a "very fragile mental state." She maintained unrealistic expectations of others and used the defenses of displacement and drugs to deal with her feelings. She had minimal insight and often used inappropriate laughter as a defense. Dr. Sobhan found that Recipient 2's life "has been totally destroyed by her drug addiction," and she "has lost all volitional capacity to abstain from drugs or deal effectively with life on life's terms." Her drug use "has persisted and steadily worsened despite negative consequences in her life." At admission, Dr. Sobhan determined: "A lower level of care at this time would place the patient at risk for relapse, harm to herself and harm to the fetus." Recipient 2 required "stabilization of her mental health," and "[i]npatient services will be needed to prevent regression and restore patient to a state of competence where she can move on to a lower level of care in 21 days but still remain in a residential setting." Dr. Sobhan's treatment plan was for Recipient 2 to work on her substance abuse problems by attending individual and group therapy, meet with a psychiatrist, increase coping skills to prevent relapse and identify triggers to relapse, and begin a 12-step program to rid herself of her addiction. Intra-hospitalization progress notes document the therapeutic work involved in preparing Recipient 2 for a lower level of care. Such work included helping Recipient 2 forgive herself for past failings, find appropriate leisure and recreational activities, develop relaxation techniques (such as meditation and guided imagery), and prepare for the delivery of her baby. Recipient 2 was referred to the hospital by personnel at Gratitude House, which is a residential and day facility for treating women with drug or alcohol addictions. It is not clear whether she was in the residential or day program at Gratitude House immediately prior to her hospitalization, but Recipient 2 was transferred to the residential program at Gratitude House upon discharge from the hospital. The pregnancy addiction program that served Recipient 2 at Plantation General Hospital was once located at Adventura Hospital--under Dr. Segal's administration. At that time, the program called for 45 days of inpatient treatment of the pregnant addict, and Medicaid reimbursed this inpatient treatment. Medicaid reduced its reimbursements to 28 days of inpatient treatment in such a program a few years ago, at which time the program relocated to Plantation General. At all times, Medicaid-required reimbursement conditions provided that a physician must see the recipient daily in the hospital. Dr. Segal testified that the 21-day program to which Recipient 2 was admitted at Plantation General was the only program available for treating pregnant patients with active alcohol or drug addictions. The twin purposes of the program are to provide the pregnant inpatient with medications to assist with detoxification and the psychiatric therapy required to help her conquer her addiction. Dr. Mehra countered, though, that Recipient 2 had not used cocaine since September 2008 and marijuana since October 2008. The medical records also disclose that Recipient 2 reported that she last used Xanax in September 2008. Nothing in the record suggests Inappropriate Services or Excessive Services. Petitioner's theory of a lack of medical necessity rests on Costlier-Setting Services, which is rejected for the above-discussed reasons. From a level-of-care perspective, Recipient 2's hospitalization was bookended by treatment at Gratitude House, and it may be inferred that Gratitude House staff had agreed with the need for an interim hospitalization. Certainly, Respondent's psychiatrists had made this determination. In contrast, Dr. Mehra appears to have had no idea as to what alternative settings would have been appropriate for Recipient 2 and her fetus--let alone the costs of psychiatric services provided in such settings. Petitioner therefore improperly denied these 16 psychiatric claims for a lack of medical necessity. Recipient 11 For Recipient 11, a 26-year-old male diagnosed with paranoid schizophrenia, only one hospitalization is at issue. From February 17-28, 2010, Recipient 11 was hospitalized at Broward General Medical Center to treat a recent exacerbation of his psychiatric illness. Recipient 11 was brought to the hospital emergency room by someone from his assisted living facility, where he had been residing for only one day and was refusing to take his psychotropic medication. Recipient 11 presented at the hospital with delusional thoughts and anxiety, claiming that his brain was in convulsion, and displaying a bizarre, though cooperative, demeanor. Due to disordered thought, Recipient 11 was unable to give an accurate history on admission. Recipient 11 received a second diagnosis on the second day of his hospitalization: acute hepatitis C. Recipient 11 had undergone a half dozen previous psychiatric admissions. The medical records for the subject hospitalization record Recipient 11's past medical history as follows: "According to the records, positive for human immunodeficiency virus and hepatitis C, but the recent tests in 2005 was [sic] not confirmatory." The axis II diagnosis on February 17 was thus: "History of questionable human immunodeficiency virus and hepatitis C. We will repeat laboratories in the morning." On February 18, a physician's report notes that Recipient 11's "laboratory data is normal." From February 18 through discharge, then, Recipient 11 did not bear a diagnosis of either HIV or hepatitis C. At issue are the following billed CPT codes: February 18: #99232 February 21: #99232 February 22: #99232 February 23: #99232 February 24: #99232 February 25: #99232 February 26: #99232 February 28: #99232 Petitioner denied the February 18 psychiatric claim for a lack of medical necessity and downcoded the remainder of the claims, which involve medical services, from CPT #99232 to #99231. At the hearing, Dr. Mehra conceded the medical necessity of the psychiatric services covered by the February 18 billing. (Tr. 284) Petitioner therefore improperly denied this psychiatric claim for a lack of medical necessity. Dr. Hoffman addressed the downcodings. By not later than February 22, any questions about HIV and hepatitis C had been answered in the negative. Dr. Segal testified that Recipient 11's remaining diagnoses were weakness, obesity, and headache. Dr. Segal admitted that the headache resolved during the course of the hospitalization. The February 20 progress note adds that the weakness, too, had at least become stable by that date. The February 21 progress note states that Recipient 11 "feels better physically" and lists as diagnoses only mild obesity and improving weakness. Respondent's upcoding of these medical claims is obvious. As Dr. Hoffman testified, from February 22 through February 28, the medical decisionmaking was straightforward, and the histories were problem focused with no more than a mention of a chief complaint. Dr. Hoffman admitted that the examinations were more intense than problem focused, but she correctly noted that the CPT #99231 requires only that two criteria be met. Here, the history and medical decisionmaking satisfied CPT #99231, not a higher code. Petitioner therefore properly downcoded from CPT #99232 to #99231 the medical claims on February 21-26 and 28. Recipient 12 For Recipient 12, a 19-year-old male diagnosed with bipolar disorder, only one hospitalization is at issue. From May 23-28, 2009, Recipient 12 was hospitalized at Florida Medical Center for treatment of an exacerbation of bipolar symptoms, including manic behaviors, disorganized thinking, loose association, and poor judgment. Respondent had recently moved to South Florida from Tennessee and had not taken his psychotropic medications for one month. At issue are the following billed CPT codes: May 23: #99222 May 24: #99232 May 24: #99232 May 24: #99232 May 26: #99232 May 28: #99232 Petitioner denied the May 23 claim, one of the May 24 claims, and the May 26 claim for a lack of medical necessity; all of these were for psychiatric services. Petitioner denied two of the May 24 claims for double billing. Petitioner downcoded the May 28 medical claim from CPT #99232 to #99231. At the hearing, the parties conceded as to all dates of service except for the double billings on May 24. Respondent's counsel conceded the downcoding of the May 28 claim. (Tr. 488) Dr. Mehra conceded that the psychiatric services on May 23 were medically necessary. (Tr. 232) After hearing a detailed explanation of the psychiatric services, Dr. Mehra conceded that the services on all three dates--May 23, 24, and 26--were medically necessary. (Tr. 240) Petitioner thus improperly denied these psychiatric claims. These concessions leave the only issue for disposition as to Respondent 12 the so-called double billings on May 24. Dr. Segal conceded that Respondent received these double reimbursements. It is equally evident that Respondent did not repay these over-reimbursements to Petitioner prior to their discovery during the audit. These are the crucial facts. Dr. Segal's argument against the extension of these double reimbursements on the ground that Respondent did not double bill them is unpersuasive. Regardless of whether these duplicated items represent double billings and reimbursements or merely double reimbursements, the point is that, prior to their discovery during the audit, Respondent failed voluntarily to repay these unearned sums. There is thus no reason not to include these sampled overpayments in the estimation process by which Petitioner determines the total overpayment. Recipient 23 For Recipient 23, a 57-year-old male diagnosed with depression, six hospitalizations are at issue. From September 8-14, December 12-18, and December 21-24, 2009, and January 10-12, February 6-8, and February 22-23, 2010, Recipient 23 was hospitalized at several facilities to treat his psychiatric illness. Recipient 23 has a history of use of cocaine and marijuana and abuse of alcohol. Not long before the first hospitalization, Recipient 23 had been released from an eight- year term in prison for robbery. At issue are the following billed CPT codes: September 9: #99232 September 10: #99232 September 11: #99232 September 12: #99232 September 13: #99232 September 14: #99238 December 12: #99222 December 12: #99254 December 13: #99232 December 14: #99232 December 14: #99232 December 15: #99232 December 15: #99232 December 16: #99232 December 16: #99222 December 17: #99232 December 17: #99232 December 18: #99238 December 18: #99232 December 23: #99232 December 23: #99232 December 24: #99238 December 24: #99232 January 12: #99238 February 6: #99223 February 7: #99223 February 8: #99233 Petitioner denied all of the claims for a lack of medical necessity except for the downcodings from CPT #99232 to #99231 on December 14-18 and 23-24. The psychiatric denials will be addressed before the medical downcodings. On September 8, Recipient 23 was transported to the hospital from jail by law enforcement officers. He had been exhibiting suicidal and homicidal tendencies while in jail. He presented with hyperverbal speech, bizarre appearance, withdrawn and uncooperative behavior, irritable mood, persecutory and paranoid delusions, auditory hallucinations, and poor judgment. Recipient 23 required 24-hour supervision. His history included the suicide of his mother when he was a young child. Dr. Mehra testified that the progress notes for this hospitalization were vague--failing, for instance, to specify the nature of the delusions. Dr. Mehra faulted the medical records for failing to detail how Recipient 23's psychiatric symptoms were impacting him. For instance, did Recipient 23 require restraints or as-needed administration of antipsychotics? In terms of Recipient 23's suicidal tendencies, Dr. Mehra noted a lack of a plan for suicide. Dr. Mehra also raised the question of whether the patient merely wanted to escape a nonpreferred setting--jail--by admittance to the hospital. Dr. Segal testified that Recipient 23 had been Baker Acted recently on one or two other occasions preceding the September 8 hospitalization. His treatment plan included, among other things, increasing the dosage of Risperdal that he had been taking. During this brief hospitalization of no more than six days, the psychiatrist also increased the patient's Seroquel to control psychiatric symptoms. As soon as Recipient 23 did not seem suicidal, Respondent had him discharged to Second Chance Recovery, a halfway house representing a lower level of care, where he would be followed by another of Respondent's psychiatrists. Dr. Sobhan admitted that, with this kind of psychiatric patient, it is necessary to discharge him as soon as he says that he is doing better and no longer represents a risk of suicide or homicide. Just as Respondent's psychiatrists are concerned about a patient's acting out on suicidal or homicidal ideation, they are also concerned that unnecessarily long hospitalizations will make the patient dependent on the hospital. It is difficult to characterize Dr. Mehra's medical- necessity concerns. They seem equally applicable to Inappropriate Services, Excessive Services, and Costlier-Setting Services. However, Respondent has proved that the psychiatric services during this relatively brief hospitalization were appropriate and not excessive. Presumably aware that inmates would prefer a hospital to a jail and might fake psychiatric symptoms, correctional officers nonetheless felt it necessary to transport Recipient 23 to the hospital due to his suicide threats. Upon arrival at the hospital, Recipient 23 exhibited symptoms consistent with a serious mental disorder. Respondent's psychiatrists treated Recipient 23 until, in fairly short order, he stabilized and was discharged without delay. Nor has Petitioner proved that the psychiatric services were Costlier-Setting Services for the reasons already discussed. The inpatient psychiatric services provided on September 9-14 were thus medically necessary. The next hospitalization took place from December 12-18. At the hearing, Dr. Mehra conceded the medical necessity of the CPT #99222 on December 12. (Tr. 259) But he testified that medical necessity was lacking for the psychiatric services provided from December 13-18. Again, Recipient 23 presented to the hospital with suicidal ideations. His plan was to cut his wrists, as, he claimed, to have done previously. Multiple stressors in his life included homelessness, unemployment, cocaine use, and alcohol abuse. His global assessment of functioning, on a scale of 0-100, was 30, which is, as Dr. Mehra graciously conceded, "on the low side." (Tr. 257) Respondent's psychiatrist gradually increased Recipient 23's Seroquel, but also placed him on Prozac during this hospitalization. Reflecting the seriousness with which hospital staff took Recipient 23's suicidal ideation, they put him on visual observation, followed by a check every 15 minutes. The psychiatric records reveal that, on December 13, Recipient 23 still suffered auditory hallucinations and suicidal ideation. He was still receiving 24-hour supervision. The Seroquel was increased the following day, as well as on December 16, after the patient's symptoms had not improved. After increasing the Seroquel again on December 17, Respondent's psychiatrist discharged Recipient 23 to Second Chance Recovery, although, instead of reporting to this halfway house, Recipient 23 returned to his halfway house in Pompano Beach. It is puzzling why Petitioner denied the December 13- 18 claims for a lack of medical necessity. If anything, Recipient 23 required a longer hospitalization: three days after discharge, he slashed his arm with a razor blade, leaving a 30 cm-long gash. The circumstances of the December 13-18 hospitalization plus the suicide attempt three days after discharge establish the medical necessity of the December 13-18 hospitalization. After slashing his arm, Recipient 23 was involuntarily Baker Acted on December 21 to a receiving facility, where Respondent's psychiatrist treated him. On admission, Recipient 23 revealed a plan to kill himself by running into traffic. Petitioner challenged the medical necessity of only the third and final days of this hospitalization--December 23 and 24. As Dr. Sobhan testified, ten years ago, Recipient 23 would have qualified for long-term commitment to a state hospital under the Baker Act. This was not necessarily the better approach to Recipient 23's mental illness. Because Recipient 23 eats and takes his medicine in the local hospital, he achieves sufficient short-term stabilization that short-term hospitalization followed by outpatient treatment produce a better prognosis than long-term hospitalization. However, as Dr. Segal concluded, Recipient 23's multiple hospitalizations over a relatively short period of time demonstrate the inadequacy of community resources, like halfway houses, whose levels of care are not sufficient for the treatment of Recipient 23's psychiatric symptoms during periods of exacerbation. Somewhat surprisingly, given his testimony that inpatient psychiatric services at local hospitals were not medically necessary, Dr. Mehra did not argue for lower-level-of- care settings, but for an equal or higher level-of-care setting--a state hospital. (Tr. 266) Addressing the patient's "best interest," if not medical necessity, Dr. Mehra opined that past failures of coordination of care in settings with lower levels of care than local hospitals militate against the providing of services in local hospitals. It is unnecessary to resolve the disagreement between Dr. Sobhan and Dr. Mehra about the efficacy of treating Recipient 23 in a state hospital. Petitioner did not prove that the state hospital is a lower level of care or that psychiatric services in this setting are reimbursed at a different rate than those provided in the local hospital. More importantly, both experts implicitly agreed that a lower level-of-care would not have been appropriate for Recipient 23 at the time. In a wider-ranging discussion triggered by the December 23 and 24 claims, but obviously not limited to Recipient 23, Dr. Mehra testified: "my concern has been not even whether the patients need to be in the hospital, but it's just kind of the documentation to kind of communicate that urgency or that need for things. So obviously, that's why on some of these cases where maybe I have overlooked it, I am very much willing to concede those dates that maybe I've missed." (Tr. 270) It seems that Dr. Mehra was approaching a concession as to the psychiatric services on December 23 and 24--and perhaps other dates of service regarding Recipient 23 and even other recipients. With or without his concession, the inpatient psychiatric services on December 23-24 were medically necessary. Recipient 23's next hospitalization took place less than three weeks after discharge on December 24. For the January 10-12, 2010, hospitalization, Petitioner denied, as noted above, the CPT #99238 on January 12. This hospitalization was necessitated by Recipient 23's calling 911 and stating that he was holding a blade wanting to kill himself. Sheriff's deputies disarmed him and transported him to the hospital where he was admitted under the Baker Act, although Recipient 23 later agreed to hospitalization. As before, while hospitalized, Recipient 23 ate, took his medicine, and improved. Dr. Sobhan noted in the medical records a concern that the patient was manipulative, but testified that denying admission to patients such as Recipient 23 is impossible when they appear in emergency rooms threatening to kill themselves and emergency room physicians admit them under the Baker Act. Dr. Mehra sensibly seized on the possibility that Recipient 23 was manipulating the system in order to be hospitalized. Dr. Mehra asked whether physicians were really helping this patient by repeatedly admitting him. With equal logic, though, Dr. Sobhan responded that it is hard to deny admission or discharge a patient who tells everyone that he is suicidal, so that it is well-documented in the records. Dr. Segal stated that, if a patient has a good support system, he does not believe that he must hospitalize such a patient, even if she has voiced suicidal ideas. But Recipient 23 was unstable, lacked outside support, and had recently cut himself badly in a suicide attempt. This is a closer call, but the final day of inpatient hospital services was medically necessary. As Dr. Segal testified, the day of discharge is time-consuming for the treating physicians to try to ensure that the patient will receive continuity of care post-hospitalization and perhaps avoid the need of rehospitalization. This is exactly what the subject CPT code covers. The importance of such efforts is underscored in a case such as Recipient 23, as he was in and out of the hospital repeatedly in a brief period of time. Lastly, as to psychiatric services and their medical necessity, Recipient 23 was hospitalized February 6-8. Petitioner denied each CPT #99223 on February 6 and 7, as well as the CPT #99232 on February 8. Although these dates of service appear on Attachment C, the expert witnesses neglected to discuss these dates of service. Of the 476 pages of medical records for Recipient 23 included in the present record, only pages 2290-91 address this hospitalization. Page 2290 is irrelevant to this case. Dated February 6, page 2291 covers psychiatric services, mentions a treatment plan, and refers to Recipient 23's presenting on that day at the hospital with suicidal ideation, depression, and substance dependence. Given the richly developed record concerning Recipient 23 and the proximity of the February 6 date of service to earlier and later hospitalizations, the spare comments on page 2291 support a finding of medical necessity for February 6, but not February 7 and 8, for which no evidence whatsoever exists. Additionally, even though a different psychiatrist saw Recipient 23 on February 7 than who saw him on the prior day, the February 7 date of service did not qualify for another CPT #99253.13/ Respondent's failure to prove that the February 7 and 8 psychiatric services were not Inappropriate Services or Excessive Services means that Petitioner's denial for a lack of medical necessity is sustained. As noted above, the downcodings involve the medical services provided on December 14-18 and 23-24. At the time of admission on December 12, 2009, Respondent presented medically with hyperlipidemia, hypertension, ademia, localized osteoarthrosis, seborrheic dermatitis, and gastroesophageal reflux disease (GERD). On December 14, the progress notes record only dermatitis, a toothache, and a third condition, which is illegible. Dr. Hoffman testified that this was a problem focused interval history, detailed examination, and straightforward medical decisionmaking. She is correct. The skin condition and toothache appear minor, and the patient was "stable, recovering or improving." There was no complexity to the decisionmaking, and the history was no more than problem focused. On December 15, the progress notes record GERD, hypertension, seborrheic dermatitis, and a fourth condition that is illegible. The patient's vital signs were within normal limits. Dr. Hoffman testified that the medical decisionmaking was of low complexity and implied that the history was problem focused. She is correct. On December 16, the progress notes record dental pain over night, hypertension, and seborrheic dermatitis. Dr. Hoffman testified that the medical decisionmaking was still of low complexity, and the history was problem focused. Again, Dr. Hoffman is correct.14/ On December 17, the progress notes record GERD, seborrheic dermatitis, and tooth pain. The tooth pain had decreased, and the dermatitis remained a minor issue, although the hypertension had turned to hypotension. Dr. Hoffman testified that the medical decisionmaking remained of low complexity, and the history problem focused. On December 18, the progress notes record GERD, tooth pain, seborrheic dermatitis, and hypertension. The tooth pain had improved. As Dr. Hoffman testified, the medical decisionmaking remained of low complexity, and the history problem focused. Dr. Hoffman's testimony was correct as to these dates of service. Dr. Segal's rebuttal for the medical claims for this hospitalization occasionally blended the psychiatric services into the medical services. He stressed a more complicated past history, but failed to explain how these potentially complicating components were relevant to the subject hospitalization. Dr. Segal helpfully pointed out the potential complexity of medical decisionmaking in terms of the management of the many medications that Recipient 23 was taking. But ultimately Dr. Segal failed to overcome Dr. Hoffman's testimony about the complexity of the medical decisionmaking. The multiple medications were a complicating factor, but were more than offset by the limited number of possible diagnoses and management options, the lack of complexity of medical records and diagnostic tests, and the absence of risk of significant complications, morbidity, or mortality associated with the relatively minor presenting problems. Obviously, the December 21-24 hospitalization was driven by the patient's psychiatric deterioration, which, as noted above, resulted in a serious wound to the arm during an apparent suicide attempt. As Dr. Hoffman testified, for December 23, the progress notes reveal that the chief complaint was the wound to the arm; without more, this was a problem focused history. Although the examination was detailed, the medical decisionmaking was of low complexity. For December 24, the progress notes state that the wound was healing, and mild hypotension and dehydration were concerns. As Dr. Hoffman testified, this was a problem focused history with medical decisionmaking of low complexity. The downcodings are all correct. Petitioner therefore improperly denied all of the psychiatric claims except for those of February 7 and 8 and properly downcoded all of the medical claims. Recipient 26 For Recipient 26, a 13-year-old male diagnosed with bipolar or depressive disorder, only one hospitalization is at issue. From April 29-May 5, 2009, Recipient 26 was hospitalized at Memorial Healthcare System for treatment of a recurrence of aggressive behavior, including threatening to kill his mother with a butter knife. At issue are the following billed CPT codes: April 30: #99232 May 1: #99232 May 2: #99232 May 3: #99232 May 4: #99232 May 5: #99232 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. At hearing, after a discussion between Dr. Segal and Dr. Mehra as to the care of Recipient 26, Dr. Mehra conceded the medical necessity of April 30 and May 1. The remaining dates still in dispute are thus May 2-5. As Dr. Segal testified, Respondent's psychiatrists are "very careful" about putting children on medications, but, to control Recipient 26's symptoms, it was necessary to put him on four powerful medications: Prozac, Abilify, Trazodone, and Buspar. From April 29 to May 2, Recipient 26 was also on Ativan. Early in the hospitalization, Recipient 26 displayed depression and poor eye contact, and he was nonverbal. He was on elopement precautions during his hospitalization. On May 1, Recipient 26 was also responding to internal stimuli. The lack of improvement in symptoms caused the psychiatrist to establish a rule-out diagnosis of pervasive development disorder. Because Recipient 26 was no longer displaying aggressive behavior that posed a risk to his mother, Respondent's psychiatrist decided to discharge him on May 5. Dr. Mehra's testimony predicated a lack of medical necessity for the final four days of this seven-day hospitalization on the lack of need to continue to observe and stabilize the child. Dr. Segal responded that they were treating a "very sick child" and could not have dealt with the situation, including the introduction of new medications, any faster in the inpatient setting. Recipient 26 had undergone another psychiatric admission on February 18-24, 2009, during which time he was placed on suicide and elopement precautions. For this earlier hospitalization, Recipient 26 had been Baker Acted for assaulting his younger sister. For the entire hospitalization, Recipient 26 had refused to respond to questions during psychotherapeutic sessions, responding instead with gestures. The child's mother had advised, at one time, that he only spoke at home. This hospitalization had concluded with a reference to the Henderson Community Mental Health Center and instructions for the child to attend an aftercare program. The subject hospitalization took place only two months later. Following the subject hospitalization, Recipient 26 was next hospitalized, according to the medical records, in December 2009. Dr. Mehra is right about this case. Neither the documentary record nor Dr. Segal's testimony establishes the medical necessity for psychiatric services after May 1. Notwithstanding the apparent illness of the child, the evidentiary record fails to establish if it was necessary to provide services to monitor the introduction of new drugs or existing drugs in higher doses, to provide services to continue to stabilize the child, or to provide services toward a diagnosis concerning pervasive development disorder. For these reasons, Respondent has failed to prove that the services provided after May 1 were not Inappropriate Services. Petitioner therefore improperly denied the psychiatric claims of April 30 and May 1, but properly denied the remaining psychiatric claims. Recipient 27 For Recipient 27, a 52-year-old male diagnosed with bipolar disorder, depression, and alcohol and cocaine dependence, only one hospitalization is at issue. From August 26-September 1, 2009, Recipient 27 was hospitalized at Broward Health for treatment of an exacerbation of the symptoms of his bipolar disorder and depression. At issue are the following billed CPT codes: August 27: #99232 August 28: #99232 August 29: #99232 August 30: #99231 August 31: #99232 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. Recipient 27 was homeless. He had no support from family or friends. The evidentiary record documents repeated hospitalizations during the audit period. All of the hospitalizations follow a pattern. Recipient 27 fails to take his medications, ingests cocaine and/or large volumes of alcohol, feels hopeless and sometimes suicidal, and is hospitalized for a brief period so that his habitual use of intoxicants can be abated, medications can be reestablished, and psychiatric condition can be stabilized. During these hospitalizations, Recipient 27 receives medical treatment for a variety of conditions, mostly associated with his largely untreated diabetes. According to the medical records, Respondent's psychiatrist ordered an increase in Recipient 27's antipsychotic medication, Seroquel, on August 27. On that day, Recipient 27 continued to demonstrate childlike behavior, poor contact with reality, disorganized thought, and persecutory delusions. Recipient 27's condition was unchanged until August 31, when he exhibited some improvement. Dr. Mehra's main criticisms involved the medical records. For instance, the form prompts the psychiatrist to describe the persecutory delusions, if present, and Respondent's psychiatrist did not do so. Likewise, the form prompts the psychiatrist to supply a chief complaint, but Respondent's psychiatrist did not do so. And the medical records reveal little of what is going on with the patient. Dr. Mehra made a good case for downcoding the CPT #99232 to #99231 for August 27-29 and August 31, but Petitioner has staked its challenge on a lack of medical necessity, not upcoding. In a closer case, the omitted information on the forms might have proved material, but, on these facts, Respondent has proved that the psychiatric services in question were not Inappropriate Services or Excessive Services. Petitioner has failed to prove that they were Costlier-Setting Services. Recipient 27 is a good example of the effects of transportation, motivation, and substance-abuse problems combining with a lack of insight to preclude successful treatment in lower levels of care. Dr. Mehra did not suggest a lower-level-of-care setting, but seemed to focus on what he viewed as the inadequacy of the medical records. Petitioner therefore improperly denied the psychiatric claims of August 27-31. Recipient 29 For Recipient 29, a 33-year-old male diagnosed with schizophrenia, only one hospitalization is at issue. From April 21-30, 2009, Recipient 29 was hospitalized at Broward General Medical Center for treatment of an exacerbation of the symptoms of his schizophrenia. At issue are the following billed CPT codes: April 27: #99232 April 28: #99232 April 29: #99232 April 30: #99238 Petitioner denied these claims involving psychiatric services for a lack of medical necessity. After listening to Dr. Segal's testimony, Dr. Mehra conceded the medical necessity of the inpatient services on April 27-28. (Tr. 300) Dr. Mehra testified, though, that the patient was ready for discharge by April 29. Dr. Mehra did not address the fact that Recipient 29 was readmitted to the hospital on May 9--just 10 days after when Dr. Mehra opined that he had been ready for discharge and eight days after he had been actually discharged. Dr. Mehra did not address that, on readmission, Recipient 29 presented with suicidal and homicidal ideations--both with plans--and command delusions, among other symptoms. At the time of the subject admission, Recipient 29 was hearing voices telling him to hurt himself and others. Reportedly, Recipient 29 had access to a gun. On April 24, Recipient 29 stated that a voice was telling him to kill people. His insight and judgment remained limited. Until April 26, the reason cited in the medical records for continued hospitalization was a need to continue to plan. On April 27, the reason was changed to monitor changes in medications. On April 28, Recipient 29 reported hallucinations of ghosts and asked for an increase in his antipsychotic medication, Trilafon--an unusual request from a psychiatric patient. At that time, lab work indicated that blood levels of Depakote were low, so Respondent's psychiatrist had to increase the Depakote and Trilafon. Although the patient was still childlike, bizarre, irritable, and disorganized of thought, the psychiatrist determined that he could be safely discharged on his newly adjusted medications. The unsettled condition of Recipient 29 on April 28 precluded his discharge the next day. The mental illness and psychiatric symptoms that necessitated this hospitalization amply justified the last two dates of service at issue, as further evidenced by another psychiatric hospitalization eight days after discharge. Recipient 30 For Recipient 30, a 52-year-old female diagnosed with schizoaffective disorder and bipolar disorder, four hospitalizations are at issue. From August 5-10, October 8-20, October 28-November 3, and December 11-22, 2009, and February 12-17, 2010, Recipient 29 was hospitalized at Broward General Medical Center for treatment of exacerbations of the symptoms of her schizophrenia. At issue are the following billed CPT codes: August 6: #99232 August 7: #99232 August 8: #99232 August 10: #99238 October 17: #99232 October 18: #99232 October 19: #99232 October 20: #99232 October 29: #99232 October 30: #99232 October 31: #99232 November 1: #99232 November 2: #99232 December 17: #99232 December 18: #99232 December 19: #99232 December 19: #99232 December 20: #99232 December 21: #99232 February 12: #99223 February 13: #99233 February 14: #99231 February 15: #99233 February 16: #99233 February 17: #99239 Petitioner denied these claims for a lack of medical necessity, except that it downcoded one of the CPT #99232 claims for services on December 19 to CPT #99231. All of the claims at issue were for psychiatric services, except the downcoded claim was for medical services. At the hearing, after learning that illegible notes pertained to chest pain, Dr. Hoffman conceded that the December 19 medical service was properly billed at CPT #99232. (Tr. 516) The remaining services at issue are psychiatric. At the hearing, Dr. Mehra conceded the medical necessity of the psychiatric services for August 6-7 (Tr. 306-07) and February 12-14. (Tr. 324) The four hospitalizations in this case all took place within seven months; the first three of these hospitalizations took place within five months. The first hospitalization was the result of a Baker Act. Recipient 30 presented at the emergency room with depression, homicidal and suicidal ideation, psychosis, auditory hallucinations, and a history of polysubstance abuse, including cocaine, marijuana, and alcohol. Lab work subsequently revealed the presence of alcohol, cocaine, and marijuana. She was violent, hitting and biting at hospital personnel, who had to restrain her at the wrists and ankles. On August 6, Recipient 30 continued to be depressed and displayed, among other things, symptoms of alcohol withdrawal, psychotic behaviors, rocking, and flight of ideas. The next day, Recipient 30 continued to display depression, disorganized thinking, and hallucinations. Dr. Segal described the psychiatric services from August 5-7, but he skipped to August 10 in his testimony, explaining the discharge on that date by noting that the patient was on her medications and, with much greater insight, recognized that she was doing better. (Tr. 305) Dr. Mehra likewise skipped the last two days in question from this hospitalization. (Tr. 306-07) The physician's progress note for August 8 states that Recipient 30 was more depressed, but no longer had suicidal or homicidal ideation. Her thought process had improved from a flight of ideas to disorganized thought. Her cognition was grossly intact. There does not appear to be any note for August 9. Respondent has proved that the psychiatric services on August 8 were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. However, Respondent has failed to prove that the psychiatric services on August 10 were not Inappropriate Services. The next dates at issue are October 17-20. The start of this hospitalization was October 7, again involuntarily under the Baker Act. Through October 17, Recipient 30 displayed rocking, auditory hallucinations, depression, disorganized thought, and paranoia, according to Dr. Segal and the records. The next day was the first that the patient was not rocking, although she still suffered from paranoia and auditory hallucinations. The rocking returned on October 19, and she exhibited increased suicidal ideation--clear signs of regression, as testified to by Dr. Segal. She exhibited marked improvement on the following day, at which time she was discharged. Dr. Mehra questioned whether the auditory hallucinations were of the command variety, and he dismissed the rocking as justification for continued hospitalization. Dr. Segal responded that Recipient 30 was rehospitalized about one week after this discharge. Through October 20, Dr. Segal reasoned that Recipient 30 was still psychotic, manic, and unsafe for a lower level-of-care setting, such as the assisted living facility at which she resided. Dr. Segal observed that, shortly after discharge on October 20, Recipient 30 was cycling between mania and depression. Dr. Segal noted that Recipient 30 was Baker Acted again on October 28. She was suffering from suicidal ideation and again intoxicated with alcohol, drinking massive quantities of beer daily and consuming cocaine and marijuana. The next day, Recipient 30's mood was less stable, her thinking more disorganized, and her irritability more pronounced. These symptoms continued unchanged through October 30. On October 31, Recipient 30 continued to suffer from hallucinations and delusions, disorganized thought, depression, and poor judgment, but she was no longer entertaining ideas of suicide. On November 1, Recipient 30 was no longer entertaining thoughts of suicide, but she continued to have unspecified delusions and hallucinations. On November 2, Recipient 30 was free of delusions and hallucinations, and she was discharged. Dr. Mehra rightly complained about the documentation for the second October hospitalization. (Tr. 314) Despite the close proximity of these hospitalizations--although the next one was nearly six weeks thereafter--the medical necessity of psychiatric services on October 31-November 2 is absent; Respondent has failed to prove that these services were not Inappropriate Services. Psychiatric services were necessary through October 30, which was the last day of reported suicidal ideation, but not thereafter. By contrast, Respondent has proved that the psychiatric services provided from October 17-20 were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. On these days, Recipient 30 continued to display varying levels of symptoms, including suicidal ideation. Worrisome regression had taken place in this brief period. If anything, her discharge on October 20 was premature, as suggested by her readmission eight days later. The next hospitalization started December 11, as Recipient 30 was again Baker Acted with suicidal and homicidal ideations. Her blood alcohol level at admission was .355. She had been living on the streets prostituting herself. She had been participating in the community mental-health services provided by the Henderson Mental Health Center, but Henderson personnel had encouraged her to enter the hospital at this time, evidently due to a recent exacerbation in symptoms. As pointed out by Dr. Segal, the Henderson wraparound services, including mental health targeted case management, were insufficient for Recipient 30. On December 17, Recipient 30 was still in withdrawal from alcohol. Her thinking was disorganized with a flight of ideas. She was depressed. She no longer suffered from suicidal or homicidal ideations. The next day, though, Recipient's suicidal ideation returned. There was a question whether she was suffering from hallucinations and delusions. For the next two days, December 19-21, Recipient 30 continued to exhibit depression with compromised insight and judgment, and she felt hopeless and was unable to agree not to hurt herself, if discharged. Dr. Mehra objected again to the documentation. (Tr. 318) Noting that Recipient 30's symptoms "seem to be pretty consistent, irrespective of whether she says [in the hospital] for three days, five days or ten days," Dr. Mehra agreed that "there's some type of psychiatric condition here that needs some type of treatment. The question beckons, at what level of care . . .?" (Tr. 319) As Dr. Mehra noted, Recipient 30 presented with one or more psychiatric conditions that required treatment during this and all hospitalizations at issue. Dr. Mehra did not contend that the psychiatric services in the December hospitalization were Inappropriate Services and appears not to contend that they were Excessive Services. In either event, Respondent has discharged its burden of going forward as to these issues. The underlying objection of Dr. Mehra seems to be that the psychiatric services from December 17-21 are Costlier- Setting Services. Perhaps exhibiting frustration with the apparent lack of progress with Recipient 30, Dr. Mehra implies that the appropriate setting is at a lower level of care. These claims fail for the reasons discussed above. As to level of care, Dr. Mehra's criticism ignores that, immediately preceding this hospitalization, Recipient 30 was receiving fairly intensive community services, and clearly these services were insufficient. Dr. Mehra's level-of-care testimony also fails to account for the repeated failures of hospital-based psychiatric services. The psychiatric services during the December 17-21 hospitalization were medically necessary. Recipient 30's final hospitalization at issue took place from February 12-17, of which only the last three dates require consideration after Dr. Mehra's above-described concession at hearing. This hospitalization was due to suicidal and homicidal ideation and depression. Recipient 30 had been living in Second Chance Recovery, but had regressed into violent behavior, severe depression, severe anxiety, manic behavior, and auditory and visual hallucinations. After having enjoyed 60 days of sobriety, Recipient relapsed from alcohol abstention. On February 15, Recipient 30 continued to display the features of her manic episode: agitation, loud and pressured speech, and hostility. On February 16, she continued to demonstrate irritability, loose associations, and loud and pressured speech. Respondent's psychiatrist was still waiting for lab work on her Depakote level. On February 17, Recipient 30 was improved. In fact, the progress notes for February 17 as to psychiatry reflect a lined-out entry: "Pt interviewed. Chart reviewed and [discussed with] staff." In the place of this somewhat formulaic note is: "Pt doing better. Improved. No need for further stay." There are some illegible notations, but one note reports the Depakote level at 70.9. (Petitioner Exhibit 30, p. 4591) Dr. Mehra rightly questioned how the patient progressed from February 16 when she suffered from a flight of ideas and loose associations to discharge-ready the following day. (Tr. 324-25) Although he admitted that such an improvement is possible, Dr. Mehra implied that it is likelier that no such sudden improvement ever took place. The consequences that follow this implication require careful consideration. If the sudden-improvement scenario were disregarded, then Dr. Mehra had two options: discredit the notes of the preceding days and credit the cheery note on the day of discharge or credit the notes of the preceding days and discredit the cheery note on the day of discharge. By choosing the former option, Dr. Mehra was able to deny a couple of days of services for a lack of medical necessity. But recent experience with Recipient 30 does not support Dr. Mehra's choice. Recipient 30 had been hospitalized repeatedly for serious psychiatric symptoms. She had had an unusually long 11-day hospitalization in December. In October, she had required rehospitalization eight days after discharge, suggesting, if anything, a premature discharge. On February 17, Respondent's psychiatrist obtained the Depakote level, which apparently was satisfactory. If one had to choose between the manufacturing of symptoms on the February 15-16 records and an optimistic, but selective, effort to justify discharge on the February 17 records, the evidence would favor the latter, as the psychiatrist, perhaps daunted by the prospect of another lengthy hospitalization, may have been tempted to downplay any remaining symptoms to facilitate an early discharge. More relevantly, among the three scenarios--the manufacturing of symptoms, an unduly sunny rendering of symptoms, and a dramatic overnight recovery--the record permits only the finding that February 15-16 records are unlikely to have been inaccurate. This was a sick patient with recurrent, persistent symptoms. It is unnecessary to determine which of the remaining two scenarios explains the February 17 records. Respondent has proved that the February 15-17 psychiatric services were not Inappropriate Services or Excessive Services, and Petitioner has failed to prove that they were Costlier-Setting Services. Petitioner has therefore properly denied the psychiatric claims of August 10 and October 31-November 2 for a lack of medical necessity, but has improperly denied the remaining psychiatric claims. Conclusion As noted above, Attachment C itemizes 83 denials of reimbursements of psychiatric claims for a lack of medical necessity, two denials of reimbursements for double billing, and 16 "adjustments" (i.e., reductions) of reimbursements of medical claims for upcoding. Of the 83 denials, Petitioner has prevailed as to only 10. Of the two denials, Petitioner has prevailed as to both. Of the 16 reductions, Petitioner has prevailed on 15--failing to prevail only as to one reduction that Petitioner conceded at hearing. Statistical Estimation of Total Overpayment In addition to disputing Petitioner's overpayment determinations among the sampled recipients, Respondent has contested the means by which Petitioner has inferred the total overpayment for the population of 2765 recipients from the overpayment determined for the 30 recipients. Each party presented an expert witness to provide statistical evidence supporting or discrediting the process by which Petitioner inferred the total overpayment. Petitioner's expert was Dr. Fred Huffer, and Respondent's expert was Dr. Bruce Kardon. Both experts patiently explained important statistical concepts and applied them to this case. Their testimony has been most useful. Dr. Kardon defined the nomenclature to describe different processes by which one could proceed from the overpayment for the sample to the overpayment for the population. The most accurate method to determine the total overpayment is not inference at all; it is counting. Apart from the time and expense, nothing prevents Petitioner from auditing each of the 2765 recipients and each of the 27,681 claims associated with these recipients, just as Petitioner has done with each of the 30 recipients and each of the 387 claims associated with them. For obvious reasons, Dr. Kardon did not propose this approach. Between counting and its opposite--guessing--is what Dr. Kardon identifies as estimation, which is produced by any statistically valid process by which the determined overpayment from the sample is extended to a total overpayment among the population. Dr. Kardon testified that the estimation process used by Petitioner in this case is invalid. For the reasons set forth below, this testimony has been rejected. In summary, Petitioner's estimation process in this case commenced with the selection of a random sample of 30 recipients. Petitioner determined the sample overpayment after analyzing each of these claims for accuracy. Dividing the sample overpayment total by 387 claims, Petitioner obtained the average overpayment per claim. Multiplying the average overpayment per claim by 27,681 claims in the population yielded the point estimate of total overpayments for the population. Petitioner's estimation process did not stop with the point estimate, though. Petitioner next determined the standard error, which is a measure of how variable the point estimate is. In this case, the standard error was about $99,600. Obtaining the appropriate multiple from statistical tables to derive the 95% confidence interval identified below, Petitioner then calculated a multiple of the standard error, which it then subtracted from the point estimate to arrive at the lower limit of the 95% confidence level. The estimated total overpayment corresponding to this lower limit of the 95% confidence level is the amount of overpayment identified in the FAR. Petitioner's estimation process involved only a few steps. First, Petitioner selected a random sample of recipients from the population. Petitioner routinely selects 30 recipients for each of its samples. Dr. Kardon objected dutifully to the randomness of the sample. But his objection may have been due to the failure of Petitioner to have provided him timely with all of the supporting statistical documentation. In fact, there is no reasonable doubt as to the randomness of the sample. Dr. Huffer testified that Petitioner's database management program contains a suitable random number generator. Dr. Huffer admitted that, some years ago, random number generators sometimes were flawed, but these problems are no longer common. After identifying the recipients to be sampled, Petitioner identified the number of claims per recipient during the audit period. In all audits, Petitioner must determine if the number of claims per recipient is small enough to permit analysis of each claim. If it is, Petitioner proceeds to analyze each claim of each sampled recipient. If the number of claims is too large, Petitioner selects a random sample of claims for each recipient and analyzes these claims, rather than all of the claims of the randomly selected recipients. These two approaches represent the single-stage or two-stage cluster sampling process for estimation. The clusters are the recipients. In this case, the number of claims was small enough to permit analysis of each claim, so Petitioner performed a single-stage cluster sampling. If a sampling of claims had been required to produce a more manageable number of claims for audit, Petitioner would have performed a two-stage cluster sampling. Essentially, Dr. Kardon challenges Petitioner's estimation process on two related grounds: the sample size of 30 recipients is too small, and consequently the sample is unrepresentative of the population.15/ Additionally, Dr. Kardon argues for the use of the unbiased estimator--described below-- to extend the sample overpayment to the population overpayment. Essentially, Dr. Huffer defends these challenges on two grounds: Petitioner invariably uses the same methods for the same sampling conditions to avoid charges of unfairness, and simulations conducted by Dr. Huffer demonstrate the validity-- and fairness--of the methods used by Petitioner to estimate the total overpayment. In all cases involving a one-stage cluster sample, Petitioner uses a ratio estimator to generate the point estimate. This was reflected in the multiplication of the average overpayment per sampled claim by the total number of claims in the population, as discussed above. In all cases involving a two-stage cluster sample, Petitioner uses an unbiased estimator to generate the point estimate.16/ Dr. Kardon's preference for the unbiased estimator for the one-stage cluster sample--or at least Respondent's one- stage cluster sample--not only invites individualized decisionmaking by Petitioner to shape outcomes, but fails to address the suitability of the ratio estimator when applied to monotone relationships. Given the direct relationship between the number of claims and size of the overpayment, the ratio estimator typically provides more accuracy than the unbiased estimator. Dr. Huffer ran several million simulations using a 30-unit cluster sample--some with the ratio estimator and some with the unbiased estimator. For one set of simulations, in which Dr. Huffer scaled the 30-unit cluster to the 2765-unit population, Dr. Huffer demonstrated that the ratio-estimator approach was more "precise"--as in leading to a "much smaller standard deviation for the point estimate." (Id. at p. 22) Dr. Kardon's argument for invalidity based on the nonrepresentative nature of the cluster sample fails to account adequately for the fact that Petitioner's estimation process did not stop with the identification of the point estimate. As noted in the preceding paragraph, his argument for the unbiased estimator is wrong. For one-stage cluster estimations where the number of claims is in direct relationship to the size of the overpayment, Dr. Huffer demonstrated that the 95% confidence interval is narrower using the ratio estimator than for estimations using the unbiased estimator. Dr. Kardon's argument for a greater sample size is stronger. All other factors remaining equal, a larger sample size would produce a narrower 95% confidence interval. But the shortcomings of a smaller sample size are offset--at least with a 30-unit sample size--by a wider 95% confidence interval-- especially, where, as here, Petitioner selects the lower limit of the interval to establish the provider's overpayment liability, rather than the point estimate or some other point within the confidence interval. Obviously, Petitioner's selection of the lower limit of the 95% confidence interval is more favorable to a provider than the selection of any other value within the 95% confidence interval, including the point estimate. As Dr. Huffer testified (id. at p. 30), Dr. Kardon's criticisms seem, at times, to fail to give adequate weight to this point. Dr. Huffer's simulations quantify the extent to which Petitioner's selection of the lower limit of the 95% confidence interval favors providers. Based on his work, Dr. Huffer estimated the probabilities of a five percent overcharge at about 1.4% and a 10 percent overcharge at about 0.5%. On average, Petitioner's estimation method undercharges a provider by about 30% of the total, actual overpayment. Overall, Petitioner's estimation undercharges a provider 95% of the time. Based on an illustration provided by Dr. Huffer (id. at p. 29), these probabilities and the magnitude of the consequences of various contingencies can be seen by using an example of a mortgage debt of $100,000. The lender offers all of its borrowers a chance to discharge their debt by paying an amount to be determined randomly, but pursuant to a process that ensures that the randomly generated payoff amount will average only 70% of the outstanding indebtedness and will be less than the outstanding indebtedness 95% of the time; however, 1.4% of the time the randomly generated payoff amount will exceed the outstanding indebtedness by 5%. If a borrower's outstanding indebtedness is $100,000, her offer is that the average payoff will be only $70,000 and 95% of the time the payoff will be less than $100,000, but 1.4% of the time the payoff will be $105,000. Dr. Kardon's argument for a larger sample size requires close consideration. At some point, it would seem, the sample size becomes so small and, correspondingly, the 95% confidence interval becomes so wide as to call into question the utility, if not the validity, of the estimation process.17/ Dr. Huffer's simulations quantify the effect of doubling the sample from 30 to 60 units. Of course, doubling the sample size would produce gains in accuracy, but not much. In the simulations, if all other factors remained equal, doubling the sample size decreased the average underpayment from about 30% to about 20%. (Petitioner Exhibit #24, second volume, p. 104) So, a doubling of the sample size--with a doubling of the effort of the agency and provider in audit and litigation-- would produce only a 33% improvement in accuracy--an improvement in accuracy that almost invariably would come at the expense of the provider. Interestingly, noting the weak relationship between increases in the size of the sample and the size of the estimated overpayment, Dr. Huffer explained Petitioner's apparent largesse in undercharging providers 95% of the time and using a sample of merely 30 recipients: Petitioner can do more audits, using the same resources. (Id.) In other words, Petitioner could audit 60 recipients and, on average, increase the estimated overpayment by 33%--or it could audit only 30 recipients and, with the same resources, conduct a second audit of a different provider, which would go unaudited in the first example. Lastly, Dr. Kardon argued for stratification of the data to produce more accurate results. As noted above, under the estimation process used by Petitioner, more accurate results are not required for statistical validity or basic fairness. Stratifying the sampled data would likely be a case-specific exercise, leaving Petitioner open to challenges that it chose to stratify or chose specific stratification criteria in order to maximize overpayments. So, while properly selected stratification criteria would produce a narrower 95% confidence interval--and likely a higher lower limit--this would be an example of the medical adage that better is the enemy of good.18/
Recommendation It is RECOMMENDED that: Petitioner shall enter a final order determining the sampled overpayment as set forth in the Findings of Fact and directing a re-run of the statistical estimation process described in the FAR and this Recommended Order to determine the total overpayment; and If, after Petitioner determines the new total overpayment, the parties are unable to agree on costs and fines, Petitioner may remand the matter(s) to DOAH for further proceedings as to either or both of these issues, to which DOAH retains jurisdiction. DONE AND ENTERED this 23rd day of August, 2013 in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 2013.
The Issue Whether Respondent violated sections 458.331(1)(m), (q), and (t), Florida Statutes (2007-2011), and, if so, what discipline should be imposed.
Findings Of Fact The Parties DOH is the state agency charged with regulating the practice of licensed physicians pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. DOH is pursuing sanctions against Respondent based on her provision of medical care to patients A.M., C.B., and P.A. At all times relevant to this case, Respondent was licensed as a medical doctor within the State of Florida, having been issued license number ME 59800. Respondent is board certified by the American Board of Internal Medicine with a specialty in Infectious Disease. Respondent received her medical degree from Christian Medical College in India in 1984. Her medical career, according to her curriculum vitae, includes the following places of employment: 1996 Bay Area Primary Care 1997 American Family and Geriatrics 1998 Faculty appointment at University of South Florida – voluntary 2/99-11/99 Veteran’s Administration (Medical Officer on Duty) 1993-present Private Practice Respondent’s June 30, 2014, deposition testimony was that she is currently working as a medical provider at Fort Tryon Rehab and Nursing Home in New York, and prior to that she was working at a walk-in clinic in Queens, New York. Respondent testified that she currently resides in Pinellas Park, Florida. In 2008, Respondent’s Florida practice, Bay Area Infectious Disease (BAID), was located at 5840 Park Boulevard, Pinellas Park, Florida, and most recently at 1527 South Missouri Avenue, Clearwater, Florida. Each practice location is now closed. Respondent later testified that she had a practice located at 6251 Park Boulevard, Pinellas Park, Florida, which is also closed. Jamie Carrizosa, M.D. (Dr. Carrizosa) is a board- certified internal medicine and infectious disease physician who testified as an expert for DOH. Prior to his retirement in July 2011, Dr. Carrizosa had an active medical practice including hospital privileges. He is currently an Associate Professor of Medicine at the University of Central Florida, teaching first and second year students in the areas of microbiology and immunology. While in private practice, he treated patients with suspected skin infections, MRSA skin infections, candidiasis and other types of skin diseases. Issa Ephtimios, M.D. (Dr. Ephtimios) is a board- certified physician in internal medicine, infectious diseases and infection control who testified as an expert for Respondent. He is an attending physician at Sacred Heart Hospital, West Florida Hospital, Baptist Hospital, and Select Specialty Hospital in Pensacola, Florida. DOH Case No. 2009-13497 (DOAH Case No. 13-0595PL) On October 8, 2008, A.M. presented to Respondent with complaints of fatigue, headaches, and moodiness, according to a History and Physical Medi-Forms document. A BAID contract for services and an authorization for BAID to disclose protected health information (PHI) were executed on October 8. Within the records there was a diagram that contained pictures of a front and back body diagram and the handwritten words: “fatigue cold sweats fevers headaches.” Neither A.M.’s name nor the date appeared on the diagram, yet Respondent identified the diagram as belonging to A.M. and showing A.M.’s small lesions. On October 9, A.M. executed a Bay Area Infectious Disease and Infusion, PLC, “CONSENT FOR TREATMENT” form. Respondent’s progress notes are generally listed in the S.O.A.P. format.16/ The following appeared on one of A.M.’s October 9th Progress Notes: S: Complaint: MRSA,17/ headecha [sic], she like [sic] to talk W Dr. Pimple on but [sic] 3 rounds Zyvox, [illegible] c/o lethargic, gain wt, fatigue, headaches Pale, feets [sic] not Percocet –[illegible].” O: Exam: Ht 5.6” Wt 172 Age 16 M/F BMI T BP 118/64 P 65 R PO2 99_ Gluc A: General Appearance: WNL/18 HEENT: WNL Neck: WNL Chest: WNL Breast: WNL Heart: WNL Lungs: WNL Abdomen: WNL Genitalia: WNL Skin: WNL + multiple abcees [sic] Spine: WNL Extremities: WNL [All the “WNL” were typed capital letters.] DIAGNOSIS: Skin Abcess- Buttock, leg MRSA – Community Acquired P: PLAN: Vancomycin 1 gr daily [illegible] A second Progress Note for A.M., also dated October 9, contains the same information in the “S” and “O” portions, but at the “A” portion, it has no notations other than the pre-printed “WNL” at the “Skin” section, and it does not contain a “Diagnosis.” Respondent admitted that there were times when she would “complete records later on.” Respondent’s progress notes for A.M. from October 10 through October 16 were in a slightly different SOAP format. A.M.’s October 10 Progress Note reflects the following: S: Complaint: Vanco reaction O: Examination: BP P T R HT WT PO2 Glucose General Appearance; Awake alert,orientedx3 Head: Normocephalic atraurmatic EENT: PERLA, EOMI,Sclera-non-icteric, conjunctiva-pink Neck: Supple, no JVD. No Lymph nodes Heart: S1 S2 normal, murmurs Lungs: clear Abdomen: Soft, no masses, no tenderness, BS+, no hepatomegaly, no splenomegaly Left Lymph-inguinal: WNL Right Lymph-inguinal: WNL Extremities: No clubbing, cyanosis, edema Neurological: Motor-5/5, sensory-5/5, Deep tendon reflexes 2+ Cranial nerves Intact Skin: no rashes + circled Abscess Muskuloskeletal: WNL CLINICAL ASSESSMENT: MRSA, Skin Abcess CVIO PLAN: Zyvox A.M.’s progress notes between October 11 and 31, 2008, reflect various subjective complaints regarding her skin conditions. The physical examinations for each day do not contain consistent information regarding A.M.’s blood pressure, her height, weight, respirations, PO2, and glucose. On two days the “skin” section reflected “no rashes,” yet the clinical assessment reported “Skin Abces – improvely” [sic] or just “skin abcess.” On three progress notes (October 17, 18 and 20, 2008), there is a hand-written notation at the “Heart” section which indicates that A.M. might have a heart murmur, yet in the diagnosis section there is no mention of a heart issue or endocarditis.19/ All other progress notes regarding the “heart” contain the pre-printed “WNL.” A.M.’s IV/IM procedure notes beginning on October 10 and continuing through October 31, each reflect “heart murmur” in the diagnosis section along with “MRSA Skin abcess.” Respondent testified that she felt justified in using IV Vancomycin because A.M. was “doing the heart murmur.” However, Respondent’s initial plan included Vancomycin before any heart murmur was detected or assessed. Vancomycin is a prescription medication used to treat staphylococcal infections, and is usually utilized for more serious infections such as endocarditis. Zyvox is a prescription medication that comes in either an IV or oral form used to treat infections. Respondent claimed that there were missing medical records for A.M. However, with respect to patient A.M., Respondent claimed a progress note (part of the history and physical exam) from October 8 was the only medical record that was missing. Respondent then asserted that A.M. brought in her primary doctor’s referral which reflected A.M.’s treatment, including the medication prescribed; yet those medical records are not present. Respondent further testified that she “usually” puts prior treatment provider records in her patient’s file. Respondent maintained that she kept a lot of A.M.’s medical records on a computer that was bought in January 2001. However, that computer crashed in October 2011. A computer crash is plausible; however, the DOH subpoena was properly issued and served on Respondent on January 28, 2010, more than nine months before the alleged computer crash. Respondent then claimed that she “did not have access to that computer, which later crashed,” followed by her claim that “that practice was closed and when they came here, we only had the old, whatever, paper records.” Respondent’s position on these records was disingenuous at best. Respondent claimed that A.M. was seen and her medical records were at a different location (6251 Park Boulevard) than where the subpoena was served (5840 Park Boulevard).20/ Respondent then claimed the records that were moved from one facility to another facility could not be located. Respondent alluded to a potential police report regarding an alleged theft of medical records and other office items; however, nothing substantiated that, and Respondent’s testimony about possible criminal activity is not credible. Respondent admitted that some of A.M.’s medical records, specifically progress notes, were pre-printed, and that she wrote on some of the progress notes. In the progress notes dated October 10, 11, 13 through 18, 20 through 25, and 27 through 30, the handwriting appears to be the same, except for the change in each date. Further, Respondent confirmed A.M.’s 18 pages of progress notes of Vancomycin administration, yet distanced herself from them by saying “sometimes the charts were completed later on, so it’s possibility that it -- that it -- you know, it’s progress notes for the IV administration, but – um . . . the dates are written by nurses, so I don’t -- I don’t know.” Respondent’s inability or unwillingness to identify who may have written on A.M.’s progress notes and her avoidance in answering direct questions or claiming she did not recall the patient (and then discussing the patient) greatly diminished her credibility. Respondent claimed that there were “some verbal changes” she gave that were in a “set of nursing records,” which were not present. Any “changes” or directions given by Respondent should have been contained within her medical records for the care of A.M. Respondent maintained that her diagnosis of A.M. was based on Respondent’s total clinical picture of A.M., including A.M.’s “symptoms, her presentation, her lesions, her course -- she’d had repeated courses of oral antibiotics, and was getting recurrence.” Yet, Respondent also claimed A.M. “came in with these culture results from the primary, and that’s how the staff . . . it states MRSA, because it was already documented MRSA.” Standard of Care Respondent was required to practice medicine in her care of A.M. with “that level of care, skill, and treatment which is recognized in general law related to health care licensure.” Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of A.M. violated the standard of care for the following reasons. A reasonably prudent health care provider suspecting a patient has MRSA would observe the abrasion(s), culture the abrasion (MRSA), send the culture out for laboratory confirmation, prescribe oral antibiotics, and if the MRSA does not respond to the oral antibiotics, prescribe and administer IV antibiotics. Dr. Carrizosa noted that Respondent did not provide a description of A.M.’s abscesses, did not indicate that A.M.’s abscesses were drained, incised, cleaned or bandaged, or that Respondent provided any patient education to A.M. Although labs were ordered, there was no request for a bacterial culture or for an antimicrobial susceptibility test to be completed. Dr. Carrizosa expressed concern that young people can eliminate antibiotics within six to eight hours and there is a need for monitoring their medications to ensure they maintain a therapeutic level. Dr. Carrizosa opined that Respondent did not meet the standard of care in her treatment of A.M. The evidence clearly and convincingly establishes that Respondent violated the standard of care applicable to an infectious disease practitioner. Respondent presented the deposition testimony of Dr. Ephtimios. Dr. Ephtimios reviewed the same records as Dr. Carrizosa. Dr. Ephtimios admitted he had several lengthy conversations with Respondent during which time she provided additional information to Dr. Ephtimios that was not in A.M.’s written records regarding “the rationale for using the Vancomycin.” Respondent shared additional information with Dr. Ephtimios yet failed to recall or remember the patient during her own deposition testimony. Dr. Ephtimios’ opinion is not credible. Respondent’s deposition behavior lessens her credibility. Medical Records Medical records are maintained for a number of reasons. Primarily, medical records are necessary for the planning of patient care; for continuity of treatment; and to document the course of the patient’s medical evaluation, treatment, and progression through treatment. Further, medical records should document any communications between health care providers, and they serve as a basis for health care providers to be paid by either the patient or another party. See, rule 64B8-9.003. The medical records of A.M.’s contact with Respondent’s office between October 8, 2008, and October 31, 2008, do not meet Florida’s standards for medical records. A.M.’s records do not describe the abscesses, do not indicate if any of the abscesses were drained, incised, or cultured. Respondent failed to provide any assessment of a staph infection or provide any laboratory support for the use of the medication administered. Respondent did not document A.M.’s possible heart murmur, and failed to provide a diagnostic basis for endocarditis. Further portions of the medical record are illegible. There is no clear indication that Respondent provided A.M. with any education on her condition. Inappropriate Drug Therapy Respondent authorized the administration of Vancomycin and/or Zyvox to a 16-year-old female without adequately monitoring A.M.’s condition, or documenting the need for such use. Respondent’s failure to document the need for Vancomycin through appropriate or adequate testing was not in the best interest of A.M. DOH Case No. 2011-06111 (DOAH Case No. 14-0514PL) On February 28, 2011, patient C.B., a 42-year-old female, presented to Respondent with complaints of food allergy issues, and gastrointestinal problems, gas, bloating, and other stomach issues.21/ When she presented to Respondent in February 2011, C.B. did not have any concerns about candida or thrush.22/ Respondent prescribed a Medrol Pak (a steroid) and directed C.B. to have lab tests for the candida antibody and an immune system panel. One week later, C.B. again presented to Respondent. C.B. did not have any of the symptoms for a chronic yeast infection such as vaginal itching or thrush. Respondent advised C.B. that she had a chronic yeast infection and her immune system required treatment. However, Respondent did not prescribe any medication to C.B. at that time. On March 14, 2011, C.B. returned to Respondent’s office and received Immunoglobulin23/ via an intravenous (IV) line. On March 22, 24 and 25, 2011, C.B. received IV Ambisome.24/ Thereafter, C.B. developed a rash on her arm where the IV had been placed and a papule on her stomach. C.B. declined further IV treatments because she did not think the medication was working. On March 29, Respondent prescribed VFEND25/ to C.B. On March 30 and 31 and April 1, 2011, C.B. was a “no show” at Respondent’s office. Yet each of C.B.’s progress notes contained information regarding C.B.’s general appearance. Respondent testified that those progress notes are preprinted forms and would be adjusted upon a patient’s examination. On April 4, 2011, Respondent’s progress note for C.B. reflects “Discuss with patient in detail, patient complains of one papule, advised patient about candidiasis, GI tract not responding to azoles. Complains of diarrhea, abdominal symptoms, wants IV meds.” C.B.’s progress note dated April 5, 2011, reflects under the “S: COMPLAINT: No show - Refused to get PICC line out. Patient walked out yesterday. Patient was told to wait for dressing change. Patient states to receptionist she will come today.” Respondent elected to document on April 5, something that happened on April 4, despite the fact that the progress note for April 4 reflected a discussion with C.B. On April 11, 2011, C.B. presented a request for her medical records to Respondent’s staff. C.B. received copies of her medical records and provided them to DOH. Respondent testified as to C.B.’s 2011 presentation and Respondent’s course of treatment, including what medications were prescribed. Respondent confirmed that an undated “History and Physical” (H&P) for C.B. was C.B.’s “initial history and physical” created from a template. This H&P purports to reflect that C.B. was “discharged [from Respondent’s practice] for misbehavior . . . was in jail. . . [and] begging [for Respondent] to help her.” This H&P also contained Respondent’s physical examination of C.B., which was recorded on a “Progress Note” of the same date. Differences in the two records of the same date exist. C.B. testified that she has never been in jail and that she had not been discharged from Respondent’s practice. C.B. is found to be a credible witness. Respondent’s testimony is not credible. Respondent averred that she discussed C.B.’s vaginal itching with C.B. during the March 7, 2011, office visit, yet Respondent did not prescribe any medications for C.B. C.B.’s first IV immunoglobulin was administered on March 14, a week later. Respondent claims she discussed her care and treatment with C.B. on Wednesday, March 23, 2011. C.B. did not see Respondent on March 23, as C.B. went to Respondent’s office located on Park Boulevard in Pinellas Park and that location was closed. C.B. found out that Respondent was working at an address in Clearwater. C.B. did not have adequate time to get to that Clearwater location before it closed for the day. Thus, C.B. missed the appointment on that day. C.B.’s candid and succinct testimony is credible. Respondent testfied that certain medical records for C.B. were missing: anything that was documented electronic or anything -- any reports or any old records, old reports, it doesn’t contain anything. And she came in for the treatment of a disease that’s been existing since 2006, so a lot of workup that’s done in the prior years for -- which is the relevant basis of the treatment at this point is not there. Respondent was not clear which medical records were missing. C.B. had not been a patient of Respondent for approximately two years. Respondent’s reliance or purported reliance on C.B.’s “old records, old reports” without adequate confirmation of C.B.’s current health issues via appropriate work-ups, laboratory studies and tests falls below the reasonably prudent similar health care provider standard. Standard of Care Respondent was required to meet the same standard of care as outlined in paragraph 25 above. Dr. Carrizosa’s testimony was clear, concise, and credible. He did not appear to have any prejudice against Respondent as a person, but was concerned about how she was practicing medicine. Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of C.B. violated the standard of care for the following reasons. Respondent failed to practice in such a manner as to determine within a reasonable degree of medical certainty that C.B. had systemic candida as was diagnosed by Respondent. Further, the laboratory results were not positive for an antimicrobial sensitivity culture taken from C.B. Additionally, C.B.’s complete blood count (CBC) and the differential count, which included neutrophils and lymphocytes, were normal. The administration of Ambisome, the most expensive of all the drugs available, was not warranted as C.B. did not have systemic candidiasis. Further, the immunoglobulin treatment was inappropriate as there was no evidence that C.B. had an immune dysfunction. Medical Records Dr. Ephtimios also provided an opinion on behalf of Respondent. Dr. Ephtimios had a discussion with Respondent regarding the care and treatment provided to C.B. outside the medical records provided. Dr. Ephtimios admitted that he does not use a Medrol Pak in his practice; he does not feel comfortable practicing immunology (and would have referred C.B. out to an immunologist.) Dr. Ephtimios would not have ordered the laboratory tests that Respondent ordered; his understanding of what candidiasis means may differ from Respondent’s, and he speculated on what he thought Respondent “meant” in several instances. Dr. Ephtimios provided a somewhat exhaustive approach to the various forms of candidiasis; however, he qualified each approach. Each physician practices medicine using their own skill set and different methods of providing clinical assessments and treatment. However, Dr. Ephtimios provided various qualifiers to his opinion which rendered it less credible. The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. The medical record of C.B.’s contact with Respondent’s office during this time does not meet Florida’s standards for medical records. C.B.’s records do not reflect an appropriate evaluation, as they fail to analyze C.B.’s main complaints, they fail to analyze the previous evaluations of C.B., and her physical exams were incomplete. DOH Case No. 2011-17799 (DOAH Case No. 14-0515PL) According to Respondent, patient P.A., a 38-year-old female, was “an ongoing patient [of hers] for over ten years.” Respondent saw P.A. between February 2008 and December 2011. Respondent provided medical records to DOH regarding P.A. However, Respondent admitted she did not provide all P.A.’s medical records because “a lot of records were missing,” and Respondent knew “at one point when they were very old records in the 6251 office some of them were also shredded.” Respondent further claimed in response to additional questioning about her shredding statement, [B]ecause the statute says, you know, after three years, so I’m not sure if the -- because I know some of the records were shredded by one of the secretaries. * * * The one [statute] which says once a practice is closed retain records for three years. Respondent identified one of P.A.’s progress notes (dated January 26, 2011) as “our procedure note,” but when asked “What was going on here according to these notes,” Respondent answered: “It’s hard to say. It’s not my handwriting.” Respondent could read the handwriting, but had “no clue” who wrote the progress note. Further, Respondent was unable to state if P.A. was administered either the gentamicin 40 milligrams or the clindamycin 600 milligrams as listed on the progress note. Medical Records The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. In this instance, the testimony of Respondent clearly and convincingly proves Respondent violated section 458.331(1)(m) and rule 64B8-9.003. No evidence was presented that Respondent has been previously disciplined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that Respondent, Neelam Uppal, M.D., violated section 458.331(1)(m), (q) and (t), Florida Statutes; suspending her license for six months followed by two years probation with terms and conditions to be set by the Board of Medicine; imposing an administrative fine of $10,000.00; requiring the successful completion of a course or courses to make, keep and maintain medical records; requiring a course in professional responsibility and ethics, and such other educational courses as the Board of Medicine may require; and assessing costs as provided by law. DONE AND ENTERED this 17th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September,2014.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Zevart Manoyian, M.D. is a licensed physician in the State of Florida, having been issued License No. ME 0003347. Respondent is engaged in the practice of family medicine at 725 Opa Locke Boulevard, Opa Locke, Florida. The Respondent has practiced medicine for the past thirty-eight years. The Respondent treated patient Willie Dawson from October 1981 through May 1984. When interviewed by DPR Investigator Lichtenstein during the initial investigation of this case on October 2, 1986, the Respondent stated that she was treating Dawson for a broken jaw and depression. Based on information contained in hospital records and the Respondent's office records during the period which Dawson was treated by Respondent, the following medical history is disclosed: In 1980, Dawson was hospitalized because of a broken jaw; In 1982, the Respondent diagnosed Dawson as having narcolepsy and began prescribing Preludin. In 1984, Dawson was admitted to the Veteran's Administration Hospital and died due to an "intestinal obstruction." Between December 1983 and September 1984, the Respondent prescribed 180 doses of Preludin and 180 doses of Percodan to Dawson. Narcolepsy is a rare and unusual sleeping disorder and may be treated with Preludin, a Schedule II controlled drug. Percodan, a Schedule II controlled drug, may be prescribed for pain. Percodan could be an appropriate medication to prescribe for lingering pain associated with a previously broken jaw. The Respondent's medical records pertaining to Dawson contained no medical history, given by the patient, allergy history physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Physicians' Desk Reference (PDR) is accepted by physicians as an authoritative reference source of appropriate drug usage indications and contraindications, The PDR is made up of inserts provided by various drug companies and manufacturers and will indicate the limits and limitations of a particular drug. Although the POP is accepted by physicians as an authoritative reference source, physicians recognize that it is merely a guide and that the treating physician must determine the most appropriate and medically justifiable treatment for a given patient. According to the PDR, the appropriate recommended dosage for Percodan is four per day or one every six hours when medically indicated. However, a physician may increase this dosage if the patient has developed a tolerance to the analgesic effects of the drug or when there is severe pain. The appropriate recommended dosage for Preludin is one per day. The PDR advises that the recommended dosage for Preludin not be exceeded. The amounts of Preludin and Percodan given to Dawson were within the dosage and administration recommendations in the PDR. In addition, the choice of drug, and the amount prescribed, could have been indicated to a reasonably prudent physician based on Dawson's medical conditions. The Respondent treated patient Barbara Gaskill from September 1977 through December 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for lower back pain and obesity. Based on information contained in the Respondent's office records during the period which Gaskill was treated by Respondent, the following medical history is disclosed: In 1977, Gaskill hurt her back, suffered an arthritis attack and had a ruptured sciatica; In 1978, Gaskill was experiencing problems sleeping due to her back conditions; In 1980, Gaskill was involved in an automobile accident; In 1982, Gaskill suffered headaches; In March 1983, Gaskill had an infected tooth in her right jaw; In March 1984, Gaskill injured her back when she tripped and fell; In April 1984, Gaskill suffered from chronic pain in her lower back; Between December 9, 1983, and August 7, 1984, the Respondent prescribed 115 tablets of Tuinal and 102 tablets of Percodan to Gaskill. Tuinal is a Schedule II controlled drug used to help induce sleep. The recommended dosage in the PDR for Tuinal is one per day. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical problems such as those with which Gaskill suffered between December 9, 1983 and August 7, 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Gaskill were within the recommended limitations established for those drugs in the PDR. The Respondent's medical records pertaining to Gaskill contained no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Respondent treated Linda Godfrey from November 1980 through July 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for severe pain. The Respondent stated she knew that Godfrey was addicted to the medication but that she continued to prescribe the medication to alleviate the pain. Based on information contained in hospital records and the Respondent's office records during the period Godfrey was treated by Respondent, the following medical history is disclosed: In 1980, Godfrey was diagnosed as having congenital cerebral palsy and multiple sclerosis. On the same visit, the Respondent noticed that Godfrey had an abscess on her left buttock; In March of 1981, Godfrey was involved in an automobile accident; In August of 1981, Godfrey passed a kidney stone and went to the hospital; In August and September of 1983, Respondent noted that Godfrey was experiencing severe pain "all over"; In April of 1984 Godfrey had an infected ulcer; In June of 1984, Godfrey was admitted to the hospital by the Respondent. The Respondent noted that the patient had a drug addiction, which the patient denied. During Godfrey's hospital stay, the Respondent did not allow her to have visitors because Godfrey was overheard requesting a friend to bring drugs to her in the hospital. Godfrey admitted to snorting cocaine while in the hospital. On June 4, 1984, Godfrey was discharged to North Miami General Hospital in order to be cared for in the drug and detoxification unit. The diagnosis at that time was acute gastritis and drug dependence. On June 3, 1984, the Respondent noted that Godfrey was scheduled for a psychiatric consultation with another physician; In July of 1984, Godfrey was readmitted to the hospital because she fell down a flight of steps and injured her right knee and twisted her lower back. Between December 26, 1983, and July 8, 1984, the Respondent prescribed 10 doses of Percocet, 12 doses of Nembutal, and 377 doses of Perdocan to Godfrey. Percocet is a Schedule II controlled drug which is used in the treatment of pain. Percodan and Percocet are similar except that Percocet has a Tylenol base and Percodan has an aspirin derivative. The PDR's recommended dosages and limitations are the same for Percodan and Percocet. Nembutal is a short-acting or medium-acting barbiturate and is used to help induce sleep. The recommended dosage in the PDR for Nembutal is one per day. Percodan, Prococet and Nembutal, in the amounts prescribed, could be appropriate drugs with which to treat pain and associated sleeping problems arising from medical conditions such as those with which Godfrey suffered between December 26, 1983 and July 8, 1984. The dosages of Percodan, Prococet and Nembutal which Respondent prescribed to Godfrey were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to Godfrey contain no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Martha Guc from January of 1977 through September of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that she was treating Guc for severe back pain. Based on information contained in hospital records and the Respondent's office records during the period which Guc was treated by Respondent, the following medical history is disclosed: In January of 1979 Guc was involved in a serious automobile accident and also suffered from scoliosis. Guc was experiencing cramps in her spine and was unable to sleep as a result of her back pain; In the automobile accident of January 1979, Guc received extensive injuries, including multiple abrasions and lacerations, a broken arm and multiple contusions in her sternum and knee. Plastic surgery was required to repair the facial lacerations and her arm was placed in a cast. In December of 1979, Guc experienced pain in her back and left knee; In 1980, Guc continued to experience back pain; In 1983, Guc was involved in an automobile accident and her head hit the windshield; From March to June 1984, Guc continued to experience back pain; Between January 20, 1984, and August 27, 1984, the Respondent prescribed 580 doses of Percodan to Guc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems and conditions such as those with which Guc suffered between January 20, 1984 and August 27, 1984. The dosages of Percodan which Respondent prescribed to Guc were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Guc did not show any medical history, allergy history, physical examination or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Delores Jones from January of 1969 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Jones for back pain. The Respondent stated that she knew that Jones was addicted to narcotics but that the medication was required to relieve the symptoms of pain. Based on information contained in hospital records and the Respondent's office records during the periods which Jones was treated by Respondent, the following medical history is disclosed: In 1969, Jones experienced severe back pain; In 1970, Jones suffered from acute gastritis; In 1974, Jones again experienced severe back pain; In May of 1974, Jones was involved in an automobile accident and injured her back; Additionally, Jones suffered from a hernia, stenosis of the spine and a duodenal ulcer. Between December 1, 1983, and August 28, 1984, the Respondent prescribed 1200 doses of Percocet to Jones. The Respondent was aware that Jones was becoming addicted to narcotics and referred Jones to a Doctor Baldry in Coral Gables for treatment. The Respondent stated that she was not aware if Jones ever followed her referral. Percocet, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Jones suffered between December 1, 1983 and August 28, 1984. The dosages of Percocet which Respondent prescribed to Jones were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Jones did not show any medical history, allergy history, physical examinations or the result thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Cheryl LeBlanc from December of 1983 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that Ms. LeBlanc was being treated for pains in the left hip and bursitis. Based on information contained in hospital records and the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: In December of 1983, LeBlanc was diagnosed as having bursitis. Respondent noted that LeBlanc had pains in her left hip and down the posterior portion of her left leg; On January 6, 1984, the Respondent noted that LeBlanc had bursitis in the left hip; In July of 1984, Respondent noted that LeBlanc had a problem with a lymph node; In September of 1984, the Respondent noted that LeBlanc suffered from chronic pain; (f) Prior to being treated by the Respondent, LeBlanc was admitted to North Shore Medical Center in October of 1983 for treatment of infertility and irregular periods. In October of 1983, LeBlanc had a D&C and salpingogram. In November of 1983, she was readmitted to North Shore Medical Center for tubal reconstruction. Between December 13, 1983, and August 2, 1984, the Respondent prescribed 90 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems such as those with which LeBlanc suffered between December 13, 1983 and August 2, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established in the PDR. Respondent's medical records pertaining to LeBlanc did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Gerald LeBlanc, husband of Cheryl LeBlanc, from October of 1983 to October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that Mr. LeBlanc suffered from severe bursitis in the shoulder and upper back pain. Based on information contained in the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: On October 7, 1983, LeBlanc was treated for muscle spasms in his back; shoulder; On November 9, 1983, LeBlanc was treated for acute bursitis in his On December 6, 1983, Respondent noted that she intended to wait one month and if LeBlanc's shoulder was not better, she was going to have it x- rayed; On December 26, 1983, Respondent noted that LeBlanc's shoulder was still very sore and that he had difficulty working in the cold; On February 17, 1984, the Respondent noted that LeBlanc still had bursitis in his left shoulder; On March 16, 1984, the Respondent indicated that LeBlanc still had bursitis; On April 25, 1984, and September 17, 1984, Respondent noted that LeBlanc was still experiencing severe pain in his shoulder; On October 8, 1984, Respondent noted that LeBlanc refused Tylenol #3, because he stated that it made him sick and nauseous. Between December 1983 to July 9, 1984, the Respondent prescribed 405 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which LeBlanc suffered between December 1983 and July 9, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to LeBlanc did not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Betty Mitchell from November of 1981 to August of 1984. When questioned. By DPR Investigator Lichtenstein regarding this patient, Respondent stated that Mitchell suffered from chronic pain. The Respondent stated that Mitchell was drug dependent, but not addicted. Based on the information contained in the Respondent's office records during the period in which Mitchell was treated by Respondent, the following medical history is disclosed: In 1982, Mitchell was shot in her left buttock; On July 21, 1982, Respondent noted that the bullet was still lodged in Mitchell's buttock and that Mitchell had a drainage tube in her abdomen; pain; On September 7, 1982, Mitchell suffered from pelvis and mouth On January 14, 1983, the Respondent noted that Mitchell suffered from pain in the buttocks and back; On April 6, 1984, Respondent noted that Mitchell had pain in her back near her buttock area; On August 7, 1984, Respondent noted that Mitchell was still experiencing back pain; On April 18, 1983, Respondent noted that Mitchell was experiencing pain. Between December 23, 1983, and August 24, 1984, Respondent prescribed 180 doses of Percodan to Mitchell. Respondent was aware that Mitchell was becoming dependent on Percodan. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Mitchell suffered between December 23, 1983 and August 24, 1984. The dosages of Percodan which Respondent prescribed to Mitchell were within the recommended limitations established for that drug in the PDR. Respondent treated patient Rhona Molin from September of 1981 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Molin was being treated "for nervousness and being very high strung." Based on information contained in the Respondent's office records during the period which Molin was treated by Respondent, the following medical history is disclosed: In 1981, Molin suffered from colitis and stomach pain; In 1981, Respondent noted that Molin had bursitis in her right shoulder; In 1982, Molin suffered from right arm pain; On March 16, 1984, Respondent noted sporadic stomach pain; On June 1, 1984, Respondent noted that Molin was nervous and experiencing severe stomach pain; On August 28, 1984, Respondent diagnosed Molin as having colitis. Between December 21, 1983 and August 28, 1984, the Respondent prescribed 300 doses of Tuinal to Molin. Tuinal, in the amount prescribed, could be an appropriate drug with which to treat sleeping problems arising from the medical conditions with which Molin suffered between December 1983 and August 1984. The dosages of Tuinal which Respondent prescribed to Molin were within the recommended limitations established in the PDR. The Respondent's medical records pertaining to Molin do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient John Skilles from May of 1981 through October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Skilles was being treated for severe pain and bursitis in both shoulders. The Respondent further stated that Skilles was provided two prescriptions for fifty (50) doses of Percodan on the same date because he could not afford to have a prescription for one hundred (100) Percodan filled at one time. Based on information contained in hospital records and the Respondent's office records during the period in which Skilles was treated by Respondent, the following medical history is disclosed: Respondent noted on May 25, 1981, that Skilles was shot five or six times in an accident at Camp Pendelton while he was in the military. Respondent noted that his upper body was full of lead shot; On September 14, 1981, the Respondent noted that Skilles was experiencing pain in both shoulders; On December 7, 1981, the Respondent indicated that Skilles was still experiencing shoulder pain; On August 30, 1982, Respondent noted that Skilles was in an automobile accident and injured the left side of his chest; On October 1, 1982, Respondent noted that Skilles was still experiencing shoulder and chest pain; On June 3, 1983, the Respondent noted that Skilles had pain in both shoulders and was unable to work (Skilles was a painter); On September 6, 1983, the Respondent noted that Skilles was experiencing severe pain in his shoulder. On December 28, 1983, Respondent noted chest pain, and on February 17, 1984, and March 26, 1984, it was noted that Skilles was still experiencing chest pain; On June 13, 1984, the Respondent noted that Skilles had bursitis in both shoulders and was suffering from insomnia; On October 1, 1984, the Respondent noted that Skilles suffered from severe pain in the shoulder and chest. Between August 11, 1983, and September 1, 1984, the Respondent prescribed 90 doses of Tuinal and 600 doses of Percodan to Skilles. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Skilles suffered between August 1983 and September 1984. Respondent's medical records pertaining to Skilles do not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests or the results thereof, or x-rays. The Respondent treated patient June Sweeney between February of 1980 and August of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Sweeney for nervousness and insomnia. Based on information contained in Respondent's office records during the period in which Sweeney was treated by Respondent, the following medical history is disclosed: In 1980, Sweeney was having difficulty sleeping and was experiencing back pain; In 1982, Sweeney was involved in an automobile accident and experienced more back pain; In 1982, Sweeney experienced severe back pain. In August of 1984 Sweeney returned to Respondent's office complaining of pain and insomnia. On August 9, 1984, the Respondent prescribed 30 doses of Percodan and 30 doses of Tuinal to Sweeney. Percodan and Tuinal, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Sweeney suffered. The dosages and Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations as established for those drugs in the PDR. The Respondent's medical records pertaining to Sweeney did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Mike Sweeney from April of 1979 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Mr. Sweeney for "various things, including back pain and insomnia." Based on information contained in hospital records and the Respondent's office records during the period in which Sweeney was treated by the Respondent, the following medical history is disclosed: Prior to being seen by Respondent, Sweeney had surgery on his left buttock in 1978. On March 12, 1979, Sweeney fell and injured his back; In May of 1979, Sweeney was beaten up and his left eye was swollen; In 1980, the Respondent noted that Sweeney was still experiencing back pain; On May 11, 1981, the Respondent noted that Sweeney was still experiencing back pain and was experiencing difficulty sleeping as well; On August 4, 1981, Respondent again noted that Sweeney was still experiencing back pain; Between December 1983 and September 1984, Respondent prescribed 240 doses of Tuinal and 48 doses of Percodan to Mike Sweeney. On one occasion, the Respondent prescribed two thirty-dose prescriptions of Percodan to Sweeney on the same day. The Respondent stated that it was cheaper to prescribe multiple prescriptions of thirty doses than one prescription for sixty. Tuinal and Percodan, in the amounts prescribed could be appropriate drugs with which to treat pain and sleeping problems associated with medical conditions such as those with which Mike Sweeney suffered between December 1983 and September 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations established for those drugs in the PDR. The Respondent treated patient Ivan Weithorn from November of 1970 through September of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that she treated Weithorn for back and shoulder pain and insomnia. Based on information contained in the Respondent's office records during the period in which Weithorn was treated by Respondent, the following medical history is disclosed: In 1977, Respondent recorded that Weithorn had dental work done and a root Canal was done along with oral surgery; In 1978, Respondent noted that Weithorn had pain in his right elbow; In 1982, the Respondent noted that Weithorn fell and hit a table; In August 1983, the Respondent noted that Weithorn had an abscess on his left forearm and in December 1983 noted that he had an infected finger on his left hand; On February 3, 1984, Respondent noted that the patient had sustained a puncture wound in his upper lip. Between December 9, 1983, and August 27, 1984, the Respondent prescribed 360 doses of Tuinal and 600 doses of Percodan to Weithorn. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Weithorn suffered between December 1983 and August 1984. The dosages of Percodan which Respondent prescribed to Weithorn were within the recommended limitations established for that drug in the PDR. The dosages of Tunial which Respondent prescribed to Weithorn slightly exceeded the recommended dosage contained in the PDR. The FOR recommends one Tuinal per day. In this instance, 360 Tuinal were prescribed over a 300-day period. It may be appropriate for a physician in the exercise of his or her professional judgment, to slightly exceed the recommended dosage of a particular drug if the patient has developed a tolerance to the effects of the substance. Respondent's medical records pertaining to Weithorn do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, or x-rays. All of the Respondent's medical records were stored in a plastic shoe- box like container and were maintained on 3 X 5 index cards. The use of small file-type index cards for the maintenance of a physician's office medical records was prevalent about 20 to 25 years ago. Today, most physician's written medical records are maintained in standard size folders and include laboratory tests, examination results, hospital records, discharge summaries and letters from consulting physicians. Although Respondent sometimes indicated a diagnosis on an initial visit, she rarely noted the diagnosis, objective findings or subjective symptoms of the patients on return visits. On some occasions, a subjective complaint such as "pain" was the only symptom recorded. Extensively within the Respondent's medical records upon a return visit of a patient, nothing was recorded except a prescription, the number of doses and the office charge. Occasionally, a blood pressure or temperature reading was recorded by Respondent. Except for the prescription of pain and sleep-inducing medication, the Respondent's written medical records for the patients described herein failed to demonstrate or indicate the Respondent's overall treatment plan for the patients. In order to justify a course of medical treatment which includes the long term use of Schedule II controlled substances, good medical practice requires that a physician's written patient medical records contain subjective findings (i.e. complaint, onset, duration and severity), a patient history and objective, physical findings made by the physician and/or confirmed and disclosed through laboratory tests or x-rays. The medical records maintained by Respondent on the patients described herein contained only anecdotal information about the patients and contained only scant subjective and objective findings, contained no medical histories and no laboratory results or x-rays. The records maintained by Respondent during the periods when Schedule II controlled drugs were prescribed to the patients herein were inadequate and demonstrated a failure to provide medical care at the minimum level of skill and care required of a reasonably prudent physician under similar conditions. Episodic treatment or care is defined as treatment of symptoms or problems as they present themselves in a patient without any consideration of the root causes of the symptoms, the long term affects the problem may have on the patient, and no consideration of a viable treatment plan. Episodic treatment is considered very poor quality medical care and is a type of treatment which is below the standard of care which is recognized by reasonably prudent physicians as being acceptable. This type of treatment is especially unacceptable when provided to a patient on a long term basis. The patients described herein had medical conditions which could have caused moderate to moderately severe pain and/or sleep disorders. Moderate to moderately severe pain may be defined as pain that interferes with a person's ability to lead a normal life and to perform the daily activities of living which they would normally perform. Chronic pain patients present a difficult challenge to the treating physician because pain is not usually a directly measurable disability. Some patients require greater or lesser amounts of pain medication to relieve a similar amount of pain than do other patients. It may be appropriate and ethical for a physician to prescribe a Schedule II controlled drug to relieve a patient's pain even though the patient may have developed a tolerance to or dependence on the substance. In each instance described herein, the Respondent prescribed the medication in question in a good faith effort to either relieve pain or induce sleep in the patients that she was treating. There was no evidence that any of the drugs prescribed to the patients discussed herein were ever resold on the streets or used by anyone other than the patients for whom they were prescribed. Doctors Handwerker and Frazier testified on behalf of the Petitioner. Neither Dr. Handwerker nor Dr. Frazier examined any of the fifteen patients described herein nor had they reviewed or seen any of the patient hospital records. The Respondent has privileges at the North Shore Hospital in Miami and enjoys an excellent reputation among her fellow physicians as a person of good character and as a dedicated provider of medical treatment. In addition, the Respondent is known among her colleagues as a physician that devotes a substantial portion of her time treating indigent patients. The Respondent cooperated fully with DPR Investigator Lichtenstein during the initial investigation of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and a consideration of the aggravating and mitigating factors delineated in Rule 21M- 20.01, F.A.C. it is, RECOMMENDED that a Final Order be entered assessing a $2,000 administrative fine. It is further recommended that Respondent's license to practice medicine in the State of Florida be placed on probation for a period of three (3) years under the following terms and conditions: Respondent shall make semi-annual appearances before the board. Respondent shall not use, dispense, administer, or prescribe Schedule II controlled substances, except in a hospital setting. Respondent shall successfully complete fifty (50) hours annually of Category I Continuing Medical Education. The primary subject matter of each course taken must involve Pharmacology, General Medicine and/or Medical Record- Keeping. DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0995 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 2, 3 and 8. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as unnecessary. At the final hearing, the Petitioner was allowed to amend the Administrative Complaint to reflect that Mary Dukes received zero (0) doses of Percodan. Thus, any findings regarding the prescribing of Percodan to patient Mary Dukes is unnecessary. Adopted in Findings of Fact 11 and 13. Adopted in Findings of Fact 18 and 20. Rejected as subordinate. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 34. Adopted in Findings of Fact 32 and 35. Adopted in Findings of Fact 38 and 40. Adopted in Findings of Fact 43 and 45. Adopted in Findings of Fact 47 and 49. Adopted in Findings of Fact 53 and 55. At the final hearing the Petitioner was allowed to amend the complaint to reflect that zero (0) doses of Percodan were prescribed to patient James Sams. The Petitioner stated that it was determined by Investigator Lichtenstein after viewing the signature of the Respondent and those upon the prescriptions acquired from the various pharmacies that all prescriptions for patient Sams were forgeries. There- fore, Findings of Fact involving prescriptions to patient James Sams are unnecessary. Partially adopted in Findings of Fact 58 and 60. Matters not contained therein are rejected as unnecessary. Adopted in Findings of Fact 63 and 65. Adopted in Findings of Fact 69 and 71. Adopted in Findings of Fact 74 and 76. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 83. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Addressed in the Procedural Background section. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 84. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as subordinate and/or a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 83. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 85. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Adopted in Findings of Fact 85 and 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 82. Addressed in Procedural Background section. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/or subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Findings of Fact 68 and 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 79 and 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Findings of Fact 85 and 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 86. Rulings on Proposed Findings of Fact Submitted by the Respondent (The Respondent's Findings of Fact were un-numbered. For the purpose of this Appendix, each paragraph in the Findings of Fact submitted by the Respondent was assigned a number in chronological order beginning with Paragraph Number 1.) Adopted in Finding of Fact 1. Addressed in Conclusions of Law Section. Addressed in Procedural Background section. Partially adopted in Findings of Fact 9 and 87. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as argument end/or subordinate. Rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 2, 3, 4, 5, 6, 8, 9 and 10. Rejected as unnecessary. Adopted in substance in Findings of Fact 11, 12, 13, 14, 15 and 16. Adopted in substance in Findings of Fact 18, 19, 20, 21, 22, 23 and 24. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in substance in Findings of Fact 20, 21, 22, 23 and 24. Adopted in substance in Findings of Fact 26 and 27. Adopted in Finding of Fact 27. Adopted in substance in Findings of Fact 27, 28, 29 and 30. Adopted in substance in Findings of Fact 32 and 33. Adopted in substance in Findings of Fact 34, 35 and 36. Adopted in substance in Findings of Fact 38 and 39. Adopted in substance in Finding of Fact 39. Partially adopted in Findings of Fact 40 and 41. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 43 and 44. Adopted in substance in Finding of Fact 44. Partially adopted in Finding of Fact 46. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 47 and 48. Adopted in substance in Finding of Fact 48. Partially adopted in Findings of Fact 49, 51 and 52. Matters not contained therein are rejected as mis- leading. Adopted in substance in Findings of Fact 53 and 54. Partially adopted in Findings of Fact 55 and 56. Matters not contained therein are rejected as mis- leading. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 58 and 59. Adopted in substance in Finding of Fact 59. Adopted in substance in Findings of Fact 60 and 61. Adopted in substance in Findings of Fact 63 and 64. 36. Adopted in substance in Findings of Fact 65, 66 and 67. Adopted in substance in Findings of Fact 69 and 70. Adopted in substance in Findings of Fact 71, 72 and 73. Adopted in substance in Findings of Fact 74 and 75. Adopted in substance in Findings of Fact 76, 77 and 78. Rejected as a recitation of testimony and/or subordinate. Rejected as argument. Rejected as a recitation of testimony. Rejected as argument. Adopted in substance in Finding of Fact 88. Partially addressed in Procedural Background section. Matters not contained therein are rejected as recitation of testimony. Adopted in Finding of Fact 5. 48. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 16. Rejected as argument and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as unnecessary. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 88. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 89. Partially addressed in Procedural Background section. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 6 and 10. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 5. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 23. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Addressed in Procedural Background section. Rejected as subordinate. Partially adopted in Finding of Fact 87. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 87 and 88. Matters not contained therein are rejected as argument and/or a recitation of testimony. Rejected as argument. Partially adopted in Finding of Fact 81. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 90. Matters not contained therein are rejected as subordinate. COPIES FURNISHED: David F. Bryant, Esquire 1107 E. Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issues in these three consolidated cases are whether Respondent, Jerome F. Waters, M.D., committed the violations alleged in three Administrative Complaints filed by Petitioner, the Department of Health, and, if so, what disciplinary action should be taken against him.
Findings Of Fact The Parties Petitioner, the Department of Health (hereinafter referred to as “Petitioner” or “Department”), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. Respondent, Jerome F. Waters, M.D. (hereinafter referred to as “Respondent”) is, and has been at all times material to these consolidated cases, a physician licensed to practice medicine in Florida, having been issued license number ME 7236. Respondent graduated from New York University Medical school 48 years ago and did four years of a general surgical residency. He is not board-certified although he is board eligible in general surgery. Respondent had only one medical malpractice lawsuit against him and that was in 1964. The Administrative Complaints in these consolidated cases are the first license discipline cases against Respondent. Respondent has had a long and distinguished medical career. He has been in private practice in Miami, Florida, since 1961 and he has been at the same location for the last 23 years. He currently has a general medical practice, although he also still practices surgery. Twenty-five percent of his practice comprises Medicaid patients and 30 percent comprises Medicare patients. Respondent had about 125 AIDS patients at the time of the emergency restriction of his practice. Respondent became interested in treating patients with pain as a result of his surgical practice. Approximately twenty-five percent of his practice is devoted to pain management. Respondent's pain practice grew as a result of a few patients from Broward County in 1996 who recommended other "pain patients" to Respondent. Respondent admits that because of his “compassion for his patients” he was probably more indulgent than he should have been with his pain patients. Respondent acknowledges that his medical record documentation was poor. He concedes that he relied too much on his memory and had a tendency to write down only special negatives or positives in his findings. Respondent also often omitted information in his medical records that he thought might be stigmatizing or embarrassing to the patient. He tried to rely on his memory regarding such matters. Respondent often has been reluctant to refer his patients to consultants because of their economic constraints. Applicable rules The Board of Medicine has adopted rules that contain standards for the use of controlled substances for the treatment of pain. Those standards include Florida Administrative Code Rule 64B8-9.013(3), which read as follows at all times material to these consolidated cases: Guidelines. The Board has adopted the following guidelines when evaluating the use of controlled substances for pain control: Evaluation of the Patient. A complete medical history and physical examination must be conducted and documented in the medical record. The medical record should document the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and history of substance abuse. The medical record also should document the presence of one or more recognized medical indications for the use of a controlled substance. Treatment Plan. The written treatment plan should state objectives that will be used to determine treatment success, such as pain relief and improved physical and psychosocial function, and should indicate if any further diagnostic evaluations or other treatments are planned. After treatment begins, the physician should adjust drug therapy to the individual medical needs of each patient. Other treatment modalities or a rehabilitation program may be necessary depending on the etiology of the pain and the extent to which the pain is associated with physical and psychosocial impairment. Informed Consent and Agreement for Treatment. The physician should discuss the risks and benefits of the use of controlled substances with the patient, persons designated by the patient, or with the patient’s surrogate or guardian if the patient is incompetent. The patient should receive prescriptions from one physician and one pharmacy where possible. If the patient is determined to be at high risk for medication abuse or have a history of substance abuse, the physician may employ the use of a written agreement between physician and patient outlining patient responsibilities, including, but not limited to: Urine/serum medication levels screening when requested; Number and frequency of all prescription refills; and Reasons for which drug therapy may be discontinued (i.e., violation of agreement). Periodic Review. At reasonable intervals based on the individual circumstances of the patient, the physician should review the course of treatment and any new information about the etiology of the pain. Continuation or modification of therapy should depend on the physician’s evaluation of progress toward stated treatment objectives such as improvement in patient’s pain intensity and improved physical and/or psychosocial function, i.e., ability to work, need of health care resources, activities of daily living, and quality of social life. If treatment goals are not being achieved, despite medication adjustments, the physician should reevaluate the appropriateness of continued treatment. The physician should monitor patient compliance in medication usage and related treatment plans. Consultation. The physician should be willing to refer the patient as necessary for additional evaluation and treatment in order to achieve treatment objectives. Special attention should be given to those pain patients who are at risk for misusing their medications and those whose living arrangements pose a risk for medication misuse or diversion. The management of pain in patients with a history of substance abuse or with a comorbid psychiatric disorder may require extra care, monitoring, documentation, and consultation with or referral to an expert in the management of such patients. Medical Records. The physician is required to keep accurate and complete records to include, but not be limited to: The medical history and physical examination; Diagnostic, therapeutic, and laboratory results; Evaluations and consultations; Treatment objectives; Discussion of risks and benefits; Treatments; Medications (including date, type, dosage, and quantity prescribed); Instructions and agreements; and Periodic reviews. Records must remain current and be maintained in an accessible manner and readily available for review. Compliance with Controlled Substances Laws and Regulations. To prescribe, dispense, or administer controlled substances, the physician must be licensed in the state and comply with applicable federal and state regulations. Physicians are referred to the Physicians Manual: An Informational Outline of the Controlled Substances Act of 1970, published by the U.S. Drug Enforcement Agency, for specific rules governing controlled substances as well as applicable state regulations. Florida Administrative Code Rule 64B8-9.003, on the subject of the adequacy of medical records, read, in pertinent part, as follows at all times material to these consolidated cases: Medical records are maintained for the following purposes: To serve as a basis for planning patient care and for continuity in the evaluation of the patient’s condition and treatment. To furnish documentary evidence of the course of the patient’s medical evaluation, treatment, and change in condition. To document communication between the practitioner responsible for the patient and any other health care professional who contributes to the patient’s care. To assist in protecting the legal interest of the patient, the hospital, and the practitioner responsible for the patient. A licensed physician shall maintain patient medical records in a legible manner and with sufficient detail to clearly demonstrate why the course of treatment was undertaken or why an apparently indicated course of treatment was not undertaken. The medical record shall contain sufficient information to identify the patient, support the diagnosis, justify the treatment and document the course and results of treatment accurately, by including, at a minimum, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; reports of consultations and hospitalizations; and copies of records or reports or other documentation obtained from other health care practitioners at the request of the physician and relied upon by the physician in determining the appropriate treatment of the patient. All entries made into the medical records shall be accurately dated and timed. Late entries are permitted, but must be clearly and accurately noted as late entries and dated and timed accurately when they are entered into the record. However, office records do not need to be timed, just dated. Relevant Drugs Methadone is a legend drug and is a Schedule II controlled substance listed in Chapter 893, Florida Statutes.1 Methadone is indicated for the relief of severe pain, for detoxification treatment in cases of narcotic addiction, and for the temporary maintenance treatment of narcotic addiction. Methadone can produce drug dependence of the morphine type. Psychological dependence, physical dependence, and tolerance may develop upon repeated administration of methadone. Xanax is a legend drug and it contains Alprazolam, a Schedule IV controlled substance listed in Chapter 893, Florida Statutes. Alprazolam is a Benzodiazepine Anxiolytic, and the abuse of Alprazolam can lead to physical and psychological dependence. Xanax is indicated for the short-term relief of symptoms of anxiety. It produces additive CNS (Central Nervous System) depressant effects when co-administered with other CNS depressants. Oxycontin is a legend drug and it contains Oxycodone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Oxycodone is a narcotic analgesic indicated for the relief of moderate to moderately severe pain, and carries a high potential for abuse which may lead to severe physical and psychological dependence. Dilaudid is a legend drug and it contains Hydromorphone, a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydromorphone is a powerful narcotic analgesic indicated for the relief of moderate to severe pain, and carries a high potential for abuse and dependence. Abuse of hydromorphone may lead to severe physical and psychological dependence. Soma (Carisoprodol) is a legend drug and it is a muscle relaxant used as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute, painful musculoskeletal conditions. The effects of Carisoprodol and other drugs that depress the CNS may be additive, and Soma should be prescribed with caution to patients taking other CNS depressant medications, such as narcotics, benzodiazepine anxiolytics and tranquilizers, and barbiturates. Fiorinal with Codeine is a legend drug and it contains Codeine and Butalbital, both Schedule III controlled substances listed in Chapter 893, Florida Statutes. Codeine is a narcotic analgesic indicated for the relief of moderate to severe pain, and carries a significant potential for abuse and dependence. Butalbital is a barbiturate sedative which also carries a significant potential for abuse and dependence. Fiorinal with Codeine is indicated for the treatment of tension headaches. Keflex (Cephalexin) is a semi-synthetic cephalosporin antibiotic intended for oral administration. MS Contin is a legend drug and it contains Morphine Sulfate USP, a Schedule II controlled substance listed in Chapter 893, Florida Statutes, which is indicated for the relief of moderate to severe pain. Morphine has a high potential for abuse and has a currently accepted but severely restricted medical use in treatment in the United States. Abuse of Morphine may lead to severe psychological or physical dependence. Restoril contains Temazepam, a schedule IV controlled substance indicated for the relief of insomnia. The abuse of Temazepam can lead to physical or psychological dependence. Vicodin is a legend drug and it contains Hydrocodone Bitartrate, a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone is a narcotic analgesic indicated for the relief of moderate to severe pain, and is also used as an antitussive (cough suppressant). Hydrocodone carries a high potential for abuse and dependence. General facts about Respondent's medical records Respondent's medical records for each of the patients whose treatment forms the basis for the administrative complaints in these consolidated cases included an office cover sheet with a patient name. However, the individual records following the cover sheet contained no patient names. The patient's name should be on each page of medical records for that patient. Physicians are taught in medical school to use a variation of the S.O.A.P. method for creating medical records. S.O.A.P. is an acronym standing for Subjective, Objective, Assessment, and Plan. The basic elements of the S.O.A.P. method should be present in the records of each patient visit. In the medical records prepared by Respondent during the course of his treatment of the six patients at issue in these consolidated cases, more often than not some elements of the S.O.A.P. method were omitted. Many of Respondent's entries in these records are insufficient because they omit information required by the S.O.A.P. method. Admitted Facts regarding Patient S.T. (Case No. 2002-26343) On or about December 5, 2000, Patient S.T., a 46-year- old female, first presented to Respondent with complaints of back and neck pain, bronchitis, chronic hepatitis B, bipolar illness, lupus discoid and seizure disorder. According to Patient S.T.’s medical records, Patient S.T. had a history of being treated with controlled substances, including Dilaudid. Based on his impression that Patient S.T. was suffering from severe asthmatic bronchitis, seizures, and lupus and needed immediate care, Respondent directed Patient S.T. to the local emergency room, where she remained in the hospital until December 9, 2000. Various tests were performed on Patient S.T. including a complete blood count (CBC) and an electrocardiogram (EKG). On or about December 11, 2000, Patient S.T. presented to Respondent and Respondent prescribed Albuterol and a Nebulizer for her bronchitis. On or about January 15, 2001, Patient S.T. returned to Respondent’s’ office. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Dilaudid, 4 mg 60 Xanax, 2 mg 180 Fiorinal #3 On or about February 13, 2001, Respondent saw Patient S.T. Patient S.T.’s records, for the February 13, 2001 visit, do not indicate the reason for the Keflex. During the course of that visit, Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances, and without documenting a treatment plan for Patient S.T. On or about February 26, 2001, Patient S.T. presented to Respondent. On or about March 13, 2001, Patient S.T. visited Respondent and complained of urinary incontinence and heartburn. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg Dilantin Fiorinal #3 90 Dilaudid, 4 mg On or about April 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 90 Soma, 350 mg 60 Xanax, 2 mg 120 Fiorinal #3 120 Methadone, 10 mg On or about April 12, 2001, Respondent initially prescribed 90 Dilaudid, 4 mg, but then crossed this prescription out and substituted Methadone instead. On or about May 10, 2001, Patient S.T. returned to Respondent’ office. During the course of that visit Respondent prescribed the following drugs to Patient S.T.: 60 Soma, 350 mg 60 Xanax, 2 mg 100 Firoinal #3 120 Methadone, 10 mg On or about May 10, 2001, Respondent also prescribed Cipro and Prednisone, 10 mg, for an apparent skin condition affecting Patient S.T.’s legs. On or about June 7, 2001, Respondent saw Patient S.T. again. During this visit, Respondent noted that Patient S.T. suffered from edema (excess fluid in cells and tissues). Respondent failed to document any other physical examination of Patient S.T. during the course of the June 7, 2001, visit. On or about June 7, 2001, Respondent treated Patient S.T.’s edema. On or about June 7, 2001, Respondent failed to document any explanation or adequate medical justification for prescribing 60 Xanax, 2 mg, 100 Fiorinal #3 and 120 Methadone, 10 mg to Patient S.T. On or about July 6, 2001, Patient S.T. returned to Respondent at which time he prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Firoinal #3 150 Dilantin, 100 mg 120 Methadone, 10 mg On or about August 3, 2001, Patient S.T. returned to Respondent. Respondent's medical records regarding S.T.'s August 3, 2001, visit do not reflect that there was a discussion of risks and benefits of using controlled substances. During the course of that visit, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 180 Dilantin, 100 mg 120 Methadone 10 mg On or about September 12, 2001, Respondent prescribed the following drugs to Patient S.T.: 60 Xanax, 2 mg 100 Fiorinal #3 120 Methadone 10 mg On or about September 17, 2001, Patient S.T. presented to Respondent for a final time. During the September 17, 2001, visit, Patient S.T. complained of cellulitis (inflammation of tissue) to her abdomen. During the September 17, 2001 visit, Respondent treated Patient S.T.’s cellulitis with ointment and Tequin (an antibacterial agent). Additional Facts regarding Patient S.T. (Case No. 2002-26343) During her hospitalization, Patient S.T.'s treatment included Atrovent with Ventolin. Patient S.T. remained in the hospital until December 9, 2000, when she was discharged with directions to follow up with Respondent. Contained within the medical file for Respondent are copies of magnetic resonance imaging (MRIs) for the lumbar spine (dated January 17, 2000), the brain (dated January 12, 2000) and the neck (dated January 17, 2000). The MRI of the brain was normal but the MRIs of the neck and low back showed disc herniations, among other changes. An echocardiogram was also performed on January 12, 2000 that stated “if a significant valvular lesion is still being considered, correlation with a cardiac Doppler examination is recommended.” There is no medical record concerning Patient S.T.'s visit to Respondent's office on December 11, 2000. There is only a copy of the prescription written that day with some notes written on the bottom of the prescription. Respondent's record for the January 15, 2001, visit with Patient S.T. consists basically of a list of prescription drugs. There is no documented subjective complaint, objective result, assessment, or treatment plan. There are also no notes concerning the treatment in the hospital or concerning the test results from January 2000. On January 15, 2001, Respondent prescribed 90 Dilaudid 4 mg, 60 Xanax 2 mg, 180 Fiorinal #3, Dilantin, Soma and Phenergen to Patient S.T. Respondent failed to document why any of these medications were prescribed. On February 13, 2001, Patient S.T. presented to Respondent. Respondent noted that the patient was getting Keflex (an antibiotic) on her own. Respondent’s records do not indicate any inquiry concerning how she was obtaining Keflex on her own or the reason for the Keflex. On the February 13, 2001 visit, Respondent noted pharynx infected and no evidence of thrush. Respondent then prescribed Soma 350 (now three times per day), Cipro 500, an inhaler and Fiorinal #3 to Patient S.T. Presumably, the Cipro (an antibiotic) was prescribed for some infection, but there are no notes indicating this. On February 13, 2001, Respondent prescribed Soma, Cipro, and Fiorinal #3 to Patient S.T. without documenting an assessment or treatment plan for Patient S.T. Respondent prescribed Soma and Fiorinal #3 to Patient S.T. without documenting the presence of one or more recognized medical indications for the use of controlled substances. Respondent does not indicate why he increased the Soma. On February 13, 2001, Respondent noted that he wrote a prescription for Neurontin 400 but then put a note over that that says “hold.” There is no explanation in the record for this change in treatment nor is there a reason why the Neurontin was prescribed initially. On February 26, 2001, Patient S.T. presented to Respondent. Respondent noted that Patient S.T.’s Dilantin level was low, noted a recent seizure, and noted that there were extreme sores with two arrows pointing downward. Respondent then switched the patient to Tequinn (another antibiotic) without any explanation for the switch. There were no other subjective or objective complaints listed. Respondent failed to record an assessment or treatment plan other than to “do Dilantin level.” Respondent failed to document any medical reasons for doing a Dilantin level check if Respondent already knew the Dilantin level was low. On March 13, 2001, Respondent prescribed #90 Soma 350 mg, Dilantin, Paxil, Xanax 2.0 mg, 90 Dilaudid 4 mg, Fiorinal #3, Phenergen, a Nebulizer and Neurontin to Patient S.T. There are no explanations for the prescribing of these drugs. There is no assessment, other than of the skin condition, and no written plan concerning the prescriptions given. On March 13, 2001, Respondent also prescribed a trial of Lithium 450. There were no subjective or objective complaints concerning the reason Respondent prescribed this drug. There is no assessment or plan concerning the prescription of this drug. Lithium can be prescribed for psychiatric diagnoses but there are no notes indicating why Respondent is prescribing this drug. On April 12, 2001, Patient S.T. returned to Respondent. Respondent noted in Patient S.T.’s records that the DEA (Drug Enforcement Agency) “confiscated some of her meds” which were in a friend’s house. Respondent did not note any follow-up, plan, or inquiry concerning the note that the DEA confiscated Patient S.T.’s medications. Respondent noted that Patient S.T. should try to take the Lithium and that she needed a right ankle brace. There are no subjective or objective complaints in this note. There is also no assessment or plan, other than to try to take Lithium. The medical records for the visit on April 12, 2001, do not contain any explanation as to why Respondent prescribed any of the controlled substances he prescribed during that visit. It is clearly a “red flag” when a patient informs a doctor that the DEA has confiscated her medications. When this type of event occurs, it is inappropriate and egregious for the physician to prescribe controlled substances like the ones Respondent prescribed on April 12, 2001, without inquiry and investigation into the circumstances. On May 10, 2001, Patient S.T. returned to Respondent’s office. Respondent noted that Patient S.T. was non-diabetic. Respondent then prescribed Cipro and Prednisone 10 mg for the sores on the lower limbs. There is no explanation why Respondent switched the patient back to Cipro. There are no documented subjective or objective complaints concerning the legs other than that there were sores. There was no adequate assessment of the legs. The rest of Respondent’s medical record for May 10, 2001, is basically a list of prescriptions. There is no written explanation for the prescriptions, no assessment, and no plan concerning their use. On July 6, 2001, Patient S.T. returned to Respondent. Respondent listed Patient S.T.’s conditions on the side of his record. These conditions were: lupus, hepatitis, bronchitis, herpes simplex, proven non-diabetic, edema and seizure disorder. Respondent notes a plan to do a complete blood count (CBC) and Dilantin level. The rest of the record is a list of prescriptions. During the visit on July 6, 2001, Respondent prescribed controlled substances without documenting any medical complaints by the patient. There are no subjective or objective complaints. There is no assessment or plan concerning the drugs prescribed. Respondent prescribed controlled substances to Patient S.T. without documenting that he discussed the patient’s chronic pain with her (if she had any). Respondent's medical records for Patient S.T.'s visit on August 3, 2001, do not contain any subjective or objective complaints. Also there is no assessment or plan concerning the drugs prescribed that day. On September 12, 2001, Patient S.T. returned to Respondent. Respondent wrote in Patient S.T.’s record abbreviations for Glucosamine and Chondroitin. There is no other note other than a weight recorded for this visit. However, contained within Respondent’s medical file are copies of some of his prescriptions. These copies indicate that Respondent prescribed 60 Xanax 2 mg, 100 Fiorinal #3, Methadone 10 mg on this visit. On the prescription form itself, Respondent indicated that the Fiorinal was for headaches and the Methadone for pain. There are no notes at all in the medical record about these prescriptions or why they were prescribed. Further, Respondent’s medical records for September 12, 2001, fail to indicate why the Xanax was prescribed. The medical records do not contain any subjective or objective complaints. There is no assessment or plan. It is not sufficient to write instructions and the rationale for prescribing a drug on the prescription form only. A physician should document in the medical record the prescription, the dosing, and the reason why the drug is being prescribed. Respondent failed to do this on September 12, 2001. On September 20, 2001, Patient S.T. died. An autopsy was performed and the cause of death was determined to be acute polydrug toxicity (Fentanyl, Codeine, Methadone, Oxycodone, Butalbital, and Alprazolam or Xanax). Butalbital is a component of Fiorinal. The Miami-Dade County medical examiner’s report indicated that Patient S.T. had a history of drug abuse since aged 20. The toxicology report indicated that Patient S.T. had fatal doses of Fentanyl, Oxycodone and Codeine in her system. Respondent violated the statutory standard of care2 by failing to adequately address the etiology of Patient S.T.’s pain, by prescribing controlled substances without adequate medical justification, and by failing to set up a treatment plan concerning the prescribing of controlled substances. Respondent’s actions were particularly egregious following the DEA seizure of the patient’s medication. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.3 Respondent failed to keep adequate medical records justifying the course of treatment by failing to document an appropriate plan concerning the controlled substances and by failing to document the justification for the controlled substances he prescribed. Respondent failed to keep adequate medical records documenting the source of any alleged pain and failed to document adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient S.T. Respondent inappropriately increased the Soma without noting any reason or discussion concerning this increase. Respondent also inappropriately prescribed medications by discontinuing the Dilaudid and prescribing the Methadone without justification or explanation. Finally, Respondent inappropriately prescribed controlled substances to Patient S.T. after learning that the DEA had seized her medications.4 Admitted Facts regarding Patient C.C. (Case No. 2002-26342) On or about August 2, 2001, Patient C.C., a 45-year- old male, first presented to Respondent with a history of several injuries including a left and right hip replacement, a left ankle fusion, and a right ankle compound break. According to Patient C.C.’s medical records for this visit, Respondent verified the injuries reported by Patient C.C. by only examining the surgical scars on Patient C.C.’s body. At the conclusion of this visit, Respondent instructed Patient C.C. to return with copies of his X-rays and to undergo “blood work”. During the course of this visit, Respondent prescribed 90 Dilaudid, 4 mg, and 60 Oxycontin, 80 mg, to Patient C.C. On or about August 6, 2001, Respondent prescribed 15 Xanax, 2 mg, to Patient C.C. Patient C.C.’s medical records for the August 6, 2001, visit do not contain examination results or subjective or objective complaints. On or about August 23, 2001, Patient C.C. returned to Respondent’s office, whereupon, Respondent prescribed 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg, to Patient C.C. Patient C.C.’s records for the August 23, 2001, visit reflect that the only physical examination results recorded are weight and blood pressure. Patient C.C.’s records for the August 23, 2001, visit reflect that Patient C.C. did not provide Respondent with copies of his X-rays. Patient C.C.’s records for the August 23, 2001, visit also reflect that Patient C.C. did not provide Respondent with verification of completion of the “blood work” that Respondent requested during Patient C.C.’s visit of August 2, 2001. On or about September 19, 2001, Patient C.C. returned to Respondent’s office complaining of an upper respiratory infection. Respondent renewed Patient C.C.’s prescriptions for 90 Dilaudid, 4 mg, and 30 MS Contin, 100 mg. On or about September 20, 2001, Respondent prescribed 30 Xanax, 2 mg, to Patient C.C. by telephonic order. On September 26, 2001, Patient C.C. presented to Respondent. Patient C.C.’s medical records for the September 26, 2001, visit indicate that Patient C.C. complained of a gastrointestinal disorder. Patient C.C.’s medical records for the September 26, 2001 visit indicate that Respondent again noted: “must do lab work.” Patient C.C.’s medical records contain what appears to be an entry for September 29, 2001, which simply states “Restoril 30 — trial.” On or about October 11, 2001, Respondent prescribed 30 Vicodin ES by telephonic order for Patient C.C. Patient C.C.’s final visit to Respondent occurred on or about October 19, 2001. During the course of that visit, Patient C.C. complained of a contusion that resulted from a fall. Patient C.C.’s medical records for the October 19, 2001, visit fail to document which part of Patient C.C.’s body was contused. Patient C.C.’s records for the October 19, 2001, visit do not contain any documentation that Respondent performed a physical examination of Patient C.C. During the course of the October 19, 2001, visit, Respondent prescribed the following drugs to Patient C.C.: 90 Dilaudid, 4 mg 90 Soma, 350 mg 60 MS Contin, 100 mg Additional Facts regarding Patient C.C. (Case No. 2002-26342) In the medical record of the August 2, 2001, visit there are no notations as to when the injuries occurred or which injury was causing a complaint that day, if any. Respondent noted that the patient was disabled and on Medicare. On August 2, 2001, in addition to the Dilaudid and Oxycontin, Respondent also prescribed Fiorinal with Codeine and Tuinal (a short-acting barbiturate). Respondent’s medical records for Patient C.C.’s August 2, 2001, visit do not contain examination results or subjective or objective complaints. The record has no assessment of Patient C.C.’s hips or ankles. Respondent requested copies of the X-rays from the patient, presumably to confirm the prior injuries to the hips and ankles. There is no indication in the record that Respondent ever tried to obtain the X-rays himself. In the medical record for the August 23, 2001, visit, Respondent did not document any indication why he switched Patient C.C. from Oxycontin to MS Contin. The Dilaudid was prescribed apparently for “breakthrough pain.” However, there are no notes concerning the severity of any pain or the source of any pain. Respondent also noted on this visit that the patient had GERD (gastroesophogeal reflux disease) or irritable bowel syndrome. No subjective complaints or symptoms are recorded. He questioned whether it was due to diet and thought he might be a candidate for Librax (a medication used for irritable bowel disease). Respondent then gave Patient C.C. a sample of Prevacid (a medication that can treat GERD). In the medical record for the September 19, 2001, visit there are no notations concerning the patient's respiration or whether he was wheezing. No other symptoms are recorded. Respondent did not record any objective results, failed to record any assessment and did not record an adequate plan. Respondent gave the patient a Zithromax sample for the respiratory infection. Respondent then renewed Patient C.C.’s prescriptions for #90 Dilaudid 4 mg and #30 MS Contin 100 mg. There are no records indicating why these medications were prescribed. The medical record for Patient C.C. does not document why Respondent prescribed Xanax to the patient by telephone on September 20, 2001. The medical records for the October 11, 2001, visit contains no notations as to why Respondent prescribed Vicodin ES, nor are there any subjective or objective complaints noted. In the medical record for the October 19, 2001, visit, there is no chief complaint recorded, other than the contusion. There is no assessment and no plan other than prescribing narcotics. There are no indications in the record as to why prescriptions for Dilaudid, Soma, and MS Contin were written, or what chief complaint required these medications. On October 29, 2001, Patient C.C. died. The medical examiner’s report stated that the cause of death was acute morphine toxicity. The toxicology report indicated the following drugs were detected in Patient C.C.’s body: Alprazolam or Xanax, Benzodiazepines, Meprobamate, Corisoprodol or Soma and Morphine. The medical examiner's report also detailed a history of a motor vehicle accident at aged 17 (approximately 28 years before Respondent first saw the patient). The medical history indicated that Patient C.C. broke his legs during this accident and that the legs never healed properly. The medical examiner’s report also indicated a social history of drug abuse, both illegal and prescription, as well as prior suicidal attempts years ago by cutting his wrists. There were also the typical track or needle marks on the arms that would have been visible a month or longer before death. Respondent did not record the detailed medical history from the motor vehicle accident nor the past suicide attempts. Even if the patient was not candid with Respondent, an examination of Patient C.C.’s arms would have revealed the prior track or needle marks as well as the prior marks from the suicide attempts. However, Respondent’s records do not contain any such details. Respondent failed to practice medicine within the statutory standard of care by failing to adequately assess Patient C.C.’s pain, failing to create an adequate treatment plan and by failing to obtain prior medical records to review past drug use. Respondent also violated the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by refilling controlled substances without identifying a chief complaint, without performing a review of systems, without performing adequate physical exams and assessments, and without preparing adequate plans. Respondent also failed to meet the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document a complete medical history as well as a history of Patient C.C.’s present complaint, and by failing to document adequate physical exams, adequate treatment plans and assessments of the etiology of Patient C.C.’s pain. Respondent also failed to keep medical records that justify the course of treatment by failing to document a discussion of risks and benefits of using controlled substances, and the medical justification for the continued treatment with controlled substances. Respondent inappropriately prescribed controlled substances to Patient C.C. Respondent continued to inappropriately prescribe controlled substances to this patient without a definitive diagnosis and without verifying the patient’s medical history and past drug use. Admitted Facts regarding Patient B.F. (Case No. 2002-26340) On or about October 15, 2001, Patient B.F., a 55-year- old female, presented to Respondent with complaints of lower back pain, polyneuropathy, bronchitis, a history of HIV (human immunodeficiency virus), AIDS (acquired immunodeficiency syndrome), heroin addiction, and hepatitis C. No other physical exam results are documented. During the course of this visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg On or about November 15, 2001, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed a review of systems. Patient B.F.’s medical records for the November 15, 2001, visit do not document that Respondent performed an adequate physical examination of Patient B.F. during this visit. Respondent then noted that “Pt to bring in all her HIV meds for renewal.” During the course of the November 15, 2001, visit, Respondent prescribed the following drugs to Patient B.F.: 90 Oxycontin, 80 mg 60 Xanax, 2 mg There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent received the prior HIV medical records. There is no documentation in Patient B.F.’s medical record for the December 17, 2001, visit that Respondent addressed the nature or intensity of Patient B.F.’s pain. On or about January 14, 2002, Patient B.F. returned to Respondent with complaints of severe asthmatic bronchitis. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent treated Patient B.F.’s bronchitis with medication. Patient B.F.’s records for the January 14, 2002, visit reflect that Respondent renewed Patient B.F.’s prescription for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Patient B.F.’s medical records of February 12, 2002, indicate that Respondent needs lab work at the next visit. On or about March 15, 2002, Patient B.F. returned to Respondent’s office. Patient B.F.’s medical records for the March 15, 2002, visit reflect that Patient B.F.’s pain was fluctuating and that her anxiety was high. On the March 15, 2002, visit Respondent briefly listened to Patient B.F.’s lungs and noted her blood pressure and pulse. On the March 15, 2002, visit, Respondent renewed Patient B.F.’s prescriptions for 90 Oxycontin, 80 mg, and for 60 Xanax, 2 mg. Additional Facts regarding Patient B.F. (Case No. 2002-26340) During the visit on October 15, 2001, Respondent documented a painful lumbar region. However, Respondent did not document results of other physical exams, including the level of pain for the lower back, the location of the polyneuropathy in the body, and the rate of respiration. Lab tests were ordered. There is no clear indication from the medical records of the first visit what Respondent’s treatment plan was for this patient. At Patient B.F.'s visit on November 15, 2001, Respondent wanted to see if the patient qualified for Neupogen. He also recommended Glucosomine and Chondroitin with water exercises. He also noted that the liver studies reflected hepatitis C. Respondent’s recommendation to try Neupogen is unexplained. Because Neupogen stimulates white blood cells and Patient B.F.’s white blood count was normal, there was no justification for Respondent’s consideration of Neupogen. Respondent’s medical record for his December 17, 2001, visit with Patient B.F. is very brief. He wrote a blood pressure reading and the word “pulse” but with no reading next to it. He also drew an arrow pointing up next to the words “bronchitis; smoking !!”. There are no subjective complaints documented, no assessment, and no treatment plan documented. During the December 17, 2001, visit, Respondent prescribed #60 Xanax 2.0 mg and #90 Oxycontin 80 mg for Patient B.F. Respondent failed to document a reason for prescribing these two controlled substances. There is also no documented plan concerning treatment for the notation about the increased bronchitis or smoking. Regarding the January 14, 2002, visit, there are no subjective complaints listed other than the one about severe asthmatic bronchitis. There is no documented physical exam or review of systems for this visit. The record does not contain any details of the patient’s respirations or diagnosis as to whether this was an acute bronchial attack or chronic bronchitis. In the medical records for the January 14, 2002, visit, Respondent noted that he had a discussion about Oxycontin with Patient B.F. However the record does not reflect why the drug was prescribed. On February 5, 2002, Patient B.F. returned to Respondent. Respondent’s note on this date is also brief. It contains a blood pressure, a pulse and a weight. Respondent also notes “GERD - ? to meds or anx.?” and gives the patient a sample of Prevacid for this problem. GERD means gastro- esophageal reflux disease. Respondent once again prescribed #90 Oxycontin 80 mg and #60 Xanax 2.0 mg. Respondent also prescribed some drugs for Patient B.F.’s HIV condition. However, there are no notes explaining why the Oxycontin and Xanax were prescribed. There is no assessment of the prior bronchial problems, the prior back problems, or any new complaints. On February 12, 2002, Patient B.F. returned to Respondent’s office. Respondent’s medical record indicated that Patient B.F. needs lab work at the next visit and contained a list of prescriptions. Respondent provides no indication why the various drugs were prescribed, no assessment of the patient, no subjective complaints detailed and no plan for treating the patient. Respondent saw Patient B.F. again on March 15, 2002. At that time he noted decreased breath signs, and at some later time he recorded the lab results. On the March 15, 2002 visit, Respondent also questioned the patient’s “compliance.” There was no explanation given as to what type of compliance issues were of concern to Respondent. Respondent then renewed Patient B.F.’s prescription for #90 Oxycontin 80 mg and #60 Xanax 20 mg. On March 25, 2002, Patient B.F. died. According to the initial Miami-Dade County Medical Examiner’s report, the cause of Patient B.F.’s death was accidental heroin and Xanax intoxication. The contributing causes were AIDS and Hepatitis C. A toxicology report was issued on October 1, 2004, by the Miami Dade County Medical Examiner’s office. This report was positive for Oxycodone, Methadone, Morphine, Codeine, and Alprazolam or Xanax. The Miami-Dade County Medical Examiner’s office issued an amended report on November 2, 2004, indicating that Patient B.F.’s cause of death was polydrug intoxication (Heroin, Oxycodone, Methadone, and Alprazolam or Xanax). The contributing causes were AIDS and Hepatitis C. The report added Oxycodone and Methadone as contributing to the death. Both the original and the amended Medical Examiner reports contain a social history indicating that Patient B.F. was a known IV drug abuser and had received treatment at a local Methadone clinic. None of Respondent’s medical records for Patient B.F. contain a past or current history of treatment at a Methadone clinic. The records also fail to identify whether Respondent inquired about any current drug abuse. Respondent should have inquired about, and should have documented, any Methadone treatment Patient B.F. was involved in before Respondent instituted his own treatment in order to prescribe narcotics properly. This patient was a complicated case and would have benefited from a multi-disciplinary team approach.5 In his treatment of Patient B.F., Respondent failed to practice medicine within the statutory standard of care by inappropriately prescribing controlled substances without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent also violated the statutory standard of care by failing to sufficiently assess the bronchial asthmatic condition by noting the patient’s respiratory rate and degree of wheezing. Respondent failed to keep adequate medical records that justify the course of treatment by failing to document adequate physical exams, by failing to document an adequate review of systems, by failing to document a treatment plan, and by failing to document the respiratory rate and degree of wheezing related to B.F.’s bronchial asthmatic condition. Respondent failed to keep adequate medical records to justify the course of treatment by failing to document adequate justification for prescribing Oxycontin on the first visit and for continuing to prescribe Oxycontin and Xanax in a patient with a history of heroin abuse. Respondent inappropriately prescribed Oxycontin to Patient B.F. on the first visit and inappropriately prescribed Oxycontin and Xanax to her on subsequent visits without adequate medical justification. Many of Respondent’s medical records are merely a list of the drugs prescribed without any rationale or reason stated for the prescriptions. Respondent inappropriately prescribed controlled substances without documenting a physical exam, a review of systems, assessments, or any plans for the patient and without inquiring about the patient's Methadone clinic treatment. Admitted Facts regarding Patient D.P. (Case No. 2002-12858) On or about February 2, 2002, Patient D.P., a 25-year old male, presented to Respondent’s office with complaints of severe lower lumbar pain with radiation into both thighs, left greater than right. The medical record for this visit contains a brief family history, social history, and notation of no allergies in the medical records. The medical record for this visit has no adequate review of symptoms. Respondent documented that the patient is to furnish the X-rays of his lumbar spine, and pending this review, Respondent elected to hold off on ordering an MRI (magnetic resonance imaging). Blood work was deferred to the next visit. Further instructions included glucosamine and chondroitin and water exercises. During the course of the February 2, 2002, visit, Respondent prescribed the following drugs to Patient D.P.: 240 Methadone, 10 mg 120 Dilaudid, 4 mg 90 Xanax, 2 mg On or about March 1, 2002, Patient D.P. returned to Respondent with a complaint of an area of baldness in the upper right occipital area, secondary to striking his head. Patient D.P. also had complaints concerning his left great toe. Respondent again requested that Patient D.P. supply him with his lumbar X-rays. During the course of this visit, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 120 Dilaudid, 4 mg Respondent’s medical records indicate that on or about March 30, 2002, a Saturday, Patient D.P. appeared for an office visit. The medical records indicate that some type of final warning was given. The record indicates that on or about March 30, 2002, Respondent prescribed the following drugs to Patient D.P.: 60 Soma, 350 mg 90 Xanax, 2 mg 105 Dilaudid, 4 mg On the record of the March 30, 2002, visit, after the Dilaudid, Respondent wrote, “start to lower.” There is also an entry that Patient D.P. paid $75.00 for this visit. Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent sent Petitioner a letter on or about August 29, 2002, indicating that Respondent did not see Patient D.P. on the March 30, 2002, visit because the patient was late. Respondent’s secretary waited for the patient in order to give him the prescriptions written by Respondent. Additional Facts regarding Patient D.P. (Case No. 2002-12858) Patient D.P. presented to Respondent with a history of prescriptions for Methadone, Dilaudid, Xanax, and Oxycontin. Although Respondent wrote refill prescriptions for Methadone, Dilaudid, and Xanax, he did not write a refill prescription for Oxycontin. There is no explanation in the medical record for the Respondent's decision not to refill the Oxycontin. Respondent failed to document an explanation for continuing some of the pain medications and discontinuing the Oxycontin. It is not safe to discontinue Oxycontin abruptly. Respondent also failed to document the name of the physician who previously prescribed the above-described pain medications and failed to document any need to obtain the medical records from the prior physician. Patient D.P. presented to Respondent with several “red flags.” Among the “red flags” were: a young man with a list of previously used pain medications, no X-rays, and a request to refill the pain medications based on unverified back pain. The medical record for Patient D.P.'s visit on March 1, 2002, does not indicate what medical conditions the pain medications that were prescribed on that date were supposed to treat. Two body parts (the head and large toe) were identified with subjective complaints. An appropriate objective note was not made. The medications prescribed on March 1, 2002, were essentially the same as those prescribed during the February 2, 2002, visit but with no mention of back problems in the record of the March 1, 2002 visit. In a patient such as D.P., pain is a vital sign and should be documented. Pain is usually documented on a scale of one to ten. There is no record of pain for any of the three body parts (head, back or great toe). Soma was also prescribed on this visit. There is no documented justification for the prescription of Soma. On April 1, 2002, Patient D.P. died of a combined drug overdose (Methadone, Xanax, Alprazolam, Soma, Carisoprodol, and Meprobamate). A toxicology exam was done, with a follow-up confirming report. The report was positive for Xanax, Soma, Methadone, and the metabolites for Cocaine. The report showed fatal or lethal levels of Methadone and Xanax in Patient D.P.’s body. Respondent violated the statutory standard of care by prescribing controlled substances to Patient D.P. without even seeing or examining him. Respondent also violated the statutory standard of care by prescribing the controlled substances inappropriately without adequate justification. Respondent also violated the statutory standard of care by his inadequate physical exams, especially on the visits after February 2, 2002. Respondent’s medical records for this patient fail to justify the course of treatment for all of the visits. There is an inadequate history of any prior back problem or drug abuse problem. The records concerning any physical exam are inadequate. Respondent’s records for this patient fail to contain an adequate history documenting any prior diagnostic testing or diagnosis that would have been the basis for his previously prescribed drugs. The medical record of March 30, 2002, fails to accurately describe what actually happened that day. Further, the medical record for that date is written in such a way as to suggest that Respondent had seen and treated the patient on that date, when, in fact, Respondent did not see Patient D.P. on March 30, 2002. Respondent inappropriately prescribed Soma, Methadone, Xanax, and Dilaudid to Patient D.P. In addition, he inappropriately prescribed the Soma, Xanax, Methadone and Dilaudid when he left them with his secretary for Patient D.P. to pick up without examining Patient D.P. or discerning a need for these drugs. Respondent left the prescriptions "out of compassion" for D.P. In hindsight, Respondent admits that it was a mistake to do so. He had never done such before and has not done it since. During the course of his treatment of Patient D.P., Respondent failed to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Admitted Facts regarding Patient F.K. (Case No. 2002-26339) On or about January 31, 2002, Patient F.K., a 46- year-old male, first presented to Respondent with complaints of back pain, with pain radiating to both sides, insomnia, and depression. According to Patient F.K.’s medical records, Patient F.K., had a history of heroin addiction in the past. According to Patient F.K.’s medical records, Patient F.K. has a documented history of hepatitis 30 years ago, most likely from a needle. According to Patient F.K.’s medical records, Patient F.K.’s current medications included Methadone, 80 mg/day, Oxycontin, 80 mg qid (4 times daily), and Xanax, 2.0 mg, “3, 4, or 5”. On or about January 31, 2002, Respondent ordered lab work for Patient F.K. On or about January 31, 2002, Respondent noted in Patient F.K.’s medical records that the X-ray reports were “on the way.” On or about January 31, 2002, Respondent also recommended Glucosamine and Chondroitin for Patient F.K., both to be taken twice daily. During the course of the visit on January 31, 2002, Respondent prescribed the following drugs to Patient F.K.: 120 Xanax, qid 240 Methadone (8 pills/day) 180 Dilaudid (6 per day) On or about March 4, 2002, Patient F.K. returned to Respondent’s office. On or about March 4, 2002, Respondent noted that Patient F.K. was stabilizing. On or about March 4, 2002, Respondent noted that Patient F.K.’s X-ray reports were pending at the prison. On or about March 4, 2002, Respondent did not record an adequate examination or a range of system review for Patient F.K. On or about March 4, 2002, the lab data was reviewed and a notation that Patient F.K. was a non-diabetic was made. On or about March 4, 2002, Respondent recommended water exercises and Glucosamine/Chondroitin for Patient F.K. On or about March 4, 2002, Respondent failed to document in Patient F.K.’s medical record that he had performed a physical examination. On or about March 4, 2002, there is an entry in Patient F.K.’s medical record that states the pain is a combination of pathology and depression. On or about March 4, 2002, the Respondent failed to document in Patient F.K.’s medical records that he discussed the risks and benefits of the use of controlled substances with Patient F.K. During the course of the visit on March 4, 2002, Respondent prescribed the following drugs to Patient F.K.: 180 Dilaudid, 4 mg 240 Methadone 120 Xanax, 2 mg On or about April 1, 2002, it was noted that Patient F.K. was doing water exercises. On or about April 1, 2002, Respondent failed to document in his medical records a physical examination or review of Patient F.K.’s systems. During the course of the April 1, 2002 visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg, 2 q6h (every six hours) 180 Dilaudid, $ mg, 2 q8h (every eight hours) On or about April 1, 2002, there is also an entry in Patient F.K.’s medical records that a pharmacist called to discuss and confirm the medications prescribed. On or about April 29, 2002, Patient F.K. presented to Respondent’s office. On or about April 29, 2002, an entry in Patient F.K.’s medical record indicates that the patient will try to get his X-ray report that was done while in prison, apparently in early 2000. On or about April 29, 2002, Respondent did not document in Patient F.K.’s medical record that he performed a physical examination of Patient F.K. during this visit or that he identified the nature and intensity of Patient F.K.’s pain. During the course of the April 29, 2002, visit, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002 (a Saturday), Patient F.K. returned to Respondent’s office. On or about May 25, 2002, Respondent noted that the patient was recently incarcerated and could not persist in his efforts to get the X-rays from prison. On or about May 25, 2002, there is no documented physical examination or review of systems in Patient F.K.’s medical records. On or about May 25, 2002, Respondent recommended that Patient F.K. continue water exercises with Glucosomine and Chrondroiton. During the course of the visit on May 25, 2002, Respondent prescribed the following drugs to Patient F.K.: 90 Xanax, 2 mg 240 Methadone, 10 mg 180 Dilaudid, 4 mg On or about May 25, 2002, Respondent ordered X-rays for Patient F.K.’s right knee and back ASAP. On or about May 26, 2002, Patient F.K. died. According to the Broward County Medical Examiner’s report, the cause of Patient F.K.’s death was acute bronchopneumonia due to combined drug toxicity (cocaine and methadone). Additional Facts regarding Patient F.K. (Case No. 2002-26339) In his medical records for the visit on January 31, 2002, Respondent indicates “severe low back syndrome,” but does not indicate how he reached this diagnosis. On April 1, 2002, Patient F.K. presented to Respondent’s office for polyarthritis. There is no other note concerning the polyarthritis such as its location, duration or severity. On April 1, 2002, Respondent also failed to document an assessment of any problems or a treatment plan, other than prescribing Xanax, Methadone, and Dilaudid. A telephone call from a pharmacist about prescriptions for narcotic drugs is often perceived as a “red flag.” This phone call, combined with the patient’s heroin history, should have alerted Respondent that Patient F.K. was a drug seeker or drug user with a history of abuse. Respondent's records for the April 29, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Patient F.K.’s history of incarceration is another “red flag” which should have been taken into account before prescribing controlled substances to this patient. Respondent's records for the May 25, 2002, visit do not indicate why Respondent prescribed Xanax, Methadone, and Dilaudid to Patient F.K. Prior to May 25, 2002, Respondent should have himself either obtained Patient F.K.'s X-rays from the prison or he should have ordered X-rays for the back and right knee sooner and before prescribing controlled substances over an extended period of time. At the time of his death, Patient F.K.’s level of Methadone recorded from the toxicology screen was in the toxic or lethal range. The level of Cocaine was at a low level. Patient F.K. would have benefited from a multi- disciplinary team approach. The multi-disciplinary approach could have dealt with his addiction problems, as well as his physical ailments.6 Respondent violated the statutory standard of care by failing to perform adequate physical exams, failing to identify or recommend a treatment plan, and by failing to adequately assess any pain the patient had. Respondent also violated the statutory standard of care by prescribing controlled substances to this patient without adequate medical justification, and prescribing controlled substances for pain before ordering or obtaining X-rays. Respondent also violated the statutory standard of care by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control. Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient F.K. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, and failed to document an appropriate treatment plan for this patient. Respondent inappropriately prescribed controlled substances without adequate medical justification to Patient F.K. Admitted Facts regarding Patient A.C. (Case No. 2002-26341) On or about March 13, 2001, Patient A.C., a 43-year- old male, first presented to Respondent. The medical record for that visit notes that Respondent questioned a loss of Patient A.C.’s medications and that the patient is to return with X- rays. On or about March 19, 2001, Patient A.C. returned to Respondent’s office with his X-rays. On or about March 19, 2001, Respondent noted that the X-rays were indicative of significant advanced lumbar disc disease. On or about March 19, 2001, the recorded history also noted that Patient A.C. was involved in a motor vehicle accident on February 3, 2000. On or about March 19, 2001, Respondent noted a complaint of pain in the lumbar region radiating to both of Patient A.C.’s thighs, left greater than right. On or about March 19, 2001, Respondent ordered laboratory studies for Patient A.C. Respondent’s medical record of March 19, 2001, also contains a note that a pharmacy advised Respondent that Patient A.C. was “on Oxycontin 40 mg before.” Respondent notes in Patient A.C.’s record of March 19, 2001, the names of two doctors. On or about March 19, 2001, Respondent gave Patient A.C. samples of HCTZ (hydrochlorothiazide), an anti- hypertensive. On or about March 19, 2001, Respondent started Patient A.C. on Tevetan, an anti-hypertensive, 600 mg daily. During the course of the visit on March 19, 2001, Respondent also prescribed the following drugs to Patient A.C.: 60 Oxycontin, 80 mg Xanax, 2 mg, bid (twice daily) On or about March 21, 2001, Patient A.C. returned to Respondent’s office. On or about March 21, 2001, there are no notes in Patient A.C.’s medical records concerning a physical examination or review of systems. On or about March 21, 2001, there is also a note in Patient A.C.'s medical records about a pending evaluation with no details concerning the proposed evaluation. On or about March 21, 2001, Patient A.C.’s record also contains a note that his next appointment was April 4, 2001. On or about March 21, 2001, Respondent’s medical records also contain a dated entry of March 19, 2001, that lists Patient A.C.’s medications on this date as HCTZ 25 mg daily; Tevetan 600 mg daily; Norvasc 5 mg, 2 daily; Xanax 2 mg bid; and Oxycontin 80 mg bid. On or about March 21, 2001, Patient A.C.’s record does not reflect that the Respondent attempted to obtain Patient A.C.’s past medical records in order to verify Patient A.C.’s reported injuries and medical history. On or about March 21, 2001, Respondent did not document a treatment plan for Patient A.C. other than to order or request lab work. On or about April 1, 2001, Patient A.C. was transported to Broward General Hospital where he was pronounced dead at 9:06 a.m. The medical examiner ruled that the cause of Patient A.C.’s death was accidental Cocaine excited delirium and Oxycodone toxicity. The toxicology report indicated that the following drugs were detected in Patient A.C.'s body: Benzoylecgonine, Cocaine, Ecgonine, Methylester, and Oxycodone. Additional Facts regarding Patient A.C. (Case No. 2002-26341) Respondent also noted in the medical record for March 19, 2001, two doctors’ names (“Roonig” and”Washman”). Next to these names Respondent noted “ pt. given Oxycontin 160 #116 on 3/14” and under that “Oxycontin 40 + 20 Sig T.I.D. on 2/17.” There is no indication in the medical record that Respondent attempted to contact either of the doctors mentioned in his note or to obtain any of the medical records from either doctor. There are no notes about counseling the patient about the consequences of taking controlled substances. There is no indication in the medical records as to why Respondent prescribed Xanax and Oxycontin to this patient on March 19, 2001. Although the medical records for March 19, 2001, contain some subjective and objective results, there is no assessment or treatment plan for this patient. Respondent failed to document how he was managing the pain medication prescribed for this patient, particularly since the patient was obtaining Oxycontin from two other doctors. Respondent knew or should have known that Patient A.C. was a doctor shopper (an individual going to numerous doctors in order to obtain a number of controlled medications). Patient A.C. would have benefited from a multi-disciplinary team approach.7 Patient A.C. obviously had an addiction problem and that should have been apparent to Respondent. Respondent violated the statutory standard of care by failing to perform adequate physical exams, by failing to identify or recommend a treatment plan, and by failing to obtain past medical records. Respondent also violated the standard of care by prescribing controlled substances to this patient without adequate medical justification and by failing to follow the guidelines in Florida Administrative Code Rule 64B8-9.013(3) for the use of controlled substances for pain control.8 Respondent failed to keep adequate medical records justifying the course and scope of treatment for Patient A.C. Respondent failed to adequately document justification for the controlled medications, failed to document adequate physical examinations, failed to document a complete history and failed to document an appropriate treatment plan for this patient. Respondent also failed to keep adequate progress notes. Respondent inappropriately prescribed controlled substances to Patient A.C. without adequate medical justification.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in these cases to the following effect: Adopting all of the foregoing findings of fact and conclusions of law; Dismissing the six counts in the Administrative Complaints alleging violations of Section 458.331(1)(q), Florida Statutes; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(m), Florida Statutes, alleged in the Administrative Complaints; Finding Respondent guilty of the six counts of violations of Section 458.331(1)(t), Florida Statutes, alleged in the Administrative Complaints; and Imposing a penalty consisting of the revocation of Respondent's license to practice medicine in the State of Florida. DONE AND ENTERED this 30th day of August, 2005, 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 30th day of August, 2005.
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
Findings Of Fact At all times relevant to the issues involved in this hearing, the Respondent was licensed as a registered nurse, having been licensed on September 1, 1967, by examination, with license number 41856-2. At all times pertinent to the issues involved in this hearing, Respondent was employed as a registered nurse at Gulf Coast Community Hospital (GCCH), Panama City, Florida. On August 4, 1983, Dr. David W. Scott, an orthopedic surgeon with practice privileges at GCCH, treated Arthur Collins in the emergency room of that hospital. After taking a history from the patient and examining him, he concluded that Mr. Collins was a drug addict who had the ability to manipulate physicians for the purpose of obtaining narcotics. As a part of his treatment of this individual, Dr. Scott prescribed 100 mg of Demerol four times a day which was obviously insufficient for Mr. Collins who had developed a drug tolerance. As a result, Dr. Scott added an additional drug, Vistoril, to augment the Demerol. Before leaving the hospital that night, and because Mr. Collins was obviously addicted to narcotics, Dr. Scott left an oral order with the nurse on duty at the nurses' station, subsequently identified as Ms. Habersham, not to increase the dosage prescribed for the patient, not to give additional narcotics, and not to call the on-call physician in the event Mr. Collins complained of pain. The reason for this last instruction concerning the physician was to prevent the on call physician, who might not know the patient's history and of his drug addiction, from prescribing additional narcotics. Ms. Habersham worked as a charge nurse on the day shift during this period and recalls patient Collins. When she was relieved by the Respondent at the end of her shift, she passed Dr. Scott's orders on to her. Consequently, it is clear that Respondent was aware of Dr. Scott's order not to increase Collins' dose and not to contact the on-duty physician in the event Collins asked for more medicine. Nonetheless, Respondent admits giving Mr. Collins an injection of 125 mg of Demerol even though the doctor's order called for a 100 mg dose. She justifies this on the basis that the patient had said he was in great pain and constantly kept coming to the nurses station begging for more medication. She observed him to be sweating and grabbing at his stomach. Based on her experience in the Army Nurse Corps and the Army Surgeon General's recommendation for a 125 mg dose of Demerol in situations such as this, and because she did not want to wake up Dr. Rohan, the on-call physician, she gave the additional dose on her own authority feeling she could get Dr. Rohan's approval later on. Dr. Rohan recalls only an incident in August of 1983 where he got a call from a nurse whose name he cannot remember for a "cover order" for a medication. As he recalls it, the nurse in question called to notify him that she had administered more of a drug than was called for in the doctor's order. It was his understanding, however, that the nurse had given too much by accident and was telling him about it after-the-fact, not in advance, to authorize a higher dose. It is clear from the above, therefore, that Respondent called Dr. Rohan after she had administered the higher dosage to Mr. Collins on her own authority. Respondent indicates, however, that Ms. Habersham had told her that if this particular patient needed more medication he was to get it and that the nurse should secure the authorization by phone. Respondent presented no evidence to support this, however, and though she contended she had a witness to this conversation, the witness was not presented. Respondent contends that she could change the amount of medication prescribed by the physician if it was necessary. She claims that nurse-practitioners can do this within the protocols set down by a physician. Respondent was not then nor is she now a nurse practitioner. During the month of February, 1984, Linda Marie Jones was unit coordinator for three units at GCCH, including Respondent's. Part of her job involved the monitoring of and investigation of drug discrepancies. During this time, Mr. Jones was conducting an audit of drug accountability in Respondent's unit. This audit, while not based on any suspicion of misconduct by any employee, resulted in a determination that one Nembutal tablet was missing from the unit. A check of the records reflected that this medicine had not been ordered for any patient on the unit that day. She then checked the patients' charts to see if a Demerol 100, a similar drug, had been used, and as a part of this procedure, she found that in the case of some patients, two different records dealing with a specific administration of medication did not agree. Her check of all records on the unit revealed that only the Respondent had any discrepancies. All other nurses' records were satisfactory. Her investigation included a comparison of the medication administration record (MAR) with the nurses notes on which the same administration was to be noted. In the course of her investigation, she checked six patient records, including those of patient Haire, patient Oakley, and patient Crosby. At the conclusion of her investigation, she prepared a summary of her findings which she presented to Ms. Flemister, the Director of Nursing. Ms. Flemister met with Respondent and showed her a copy of the report. At that point, Respondent denied having taken any of the medications and said that she could not figure out why the discrepancies existed. As to the Nembutal, which prompted the investigation initially, Respondent remembered cleaning out the narcotic box the first time, but did not identify a shortage at the time. As a result, the missing Nembutal was attributed to "wastage" and when that happens, the wastage must be recorded on the narcotics sheet. This Nembutal wastage was not recorded by Respondent or any other nurse. Ms. Jones admits, however, that there is no evidence to connect Respondent with the wastage of the Nembutal any more than any other nurse assigned to that floor. With regard to an administration of Morphine Sulfate to patient Haire at 9:00 P.M., on February 6, 1984, the narcotics control sheet fails to show that morphine sulfate was administered to this patient on that occasion. With regard to the 8:30 P.M. administration of Morphine Sulfate to patient Haire on February 5, 1984, the narcotics control sheet reflects that Respondent recorded the administration of this medicine but does not reflect the date in question. The entry made reflects the patient's room rather than the date. As a result, it is impossible to tell if the administration was done on February 4 or February 5. However, the Respondent did reflect this administration on the nurses' notes although in the wrong place. As to the issue of Respondent's signing out Morphine Sulfate for patient Haire at 7:00 A.M. on February 5, the evidence establishes that she did sign out both Morphine Sulfate 100 and Demerol 100 as alleged. The MAR reflects some entry but it is impossible to determine what the entry is or to what drug it refers and Respondent's nurse's notes for that date are silent. The medical records pertaining to patient Oakley for February 5, 1984, reflect that, as to the nurses' notes, the patient was given medication for pain but the notes fail to show what type of medication was administered. It could have been aspirin or tylenol and the note should have said what medicine was administered. This administration was not listed on either the narcotics control sheet or the MAR. If the substance given was not Demerol or Morphine Sulfate, it need not appear on the narcotics control sheet, but whatever it was, it should have been listed on the MAR and it was not. The records regarding patient Crosby reflect that on February 5, 1984, Respondent signed out 75 mg Demerol for the patient as alleged. The notes do not, however, reflect that she administered Demerol specifically. They reflect only that she administered some medication. As to the 9:30 P.M. dose of Demerol on February 5, 1984, Respondent did sign out Demerol at that time but the nurses' notes do not reflect what the substance administered was. Patient Haire's records reflect that on February 4, 1984, Respondent signed out Morphine Sulfate for the patient. The nurses' notes reflect that at 8:00 P.M. on that date, she administered a "pain medication" to the patient without defining what that medication was. The record does not indicate that Morphine Sulfate was administered. The narcotics control sheet for this period is not dated so it is impossible to determine whether Morphine Sulfate was listed on its document or not. However, the MAR reflects that Respondent administered Morphine Sulfate to this patient at 6:00 A.M. On February 4, 1984, Respondent signed out Demerol for patient Oakley and properly noted this on the narcotics control sheet but the nurses' notes fail to show that the substance was administered as required. Later on, at 8:30 P.M. the same day, Respondent again signed out Demerol for Patient Crosby listing on the narcotics control sheet the patient's room number but not the date. Other dates on the sheet lead to the conclusion that it was February 4, however Respondent thereafter failed to record the drug's administration on the nurses' notes. She also signed Demerol out for Patient Crosby at 7:30 P.M. on February 4 though the narcotics control sheet fails to reflect the date - only the room number. This administration is in the MAR at 8:30 P.M. rather than at 7:30 P.M. but is not in the nurses' notes at all. On February 3, 1984, Respondent recorded in her nurse's notes that she administered Demerol to patient Crosby at 8:00 P.M. The narcotics disposition record (narcotics control sheet) shows that she signed the medication out between 8:00 and 9:00 P.M., but it is impossible to tell with certainty the exact time. It is obvious that Respondent's handwriting is poor. This fact adds to the difficulties encountered from the way in which Respondent kept her records. In the opinion of Ms. Jones, who has been doing quality assurance checks for a number of years, Respondent's records are inaccurate, inconsistent, incomplete and totally insufficient for a nurse on the next shift to know what medications have been given and what must be done. In this area alone, Ms. Jones was of the opinion that Respondent's charts are below the minimum standards for nursing practice in the area and even though her own report was erroneous in some respects, there are still enough verified errors by the Respondent to support her opinion that Respondent's performance is less than acceptable. Respondent admits that some but not all of the charges against her are true. Though she may have mischarted her administration of drugs she never took the drugs herself. The patient always got the drug that he or she was supposed to get and her errors were errors only as to the recordation of time. They were administrative errors, not substantive errors. She contends that in February, 1984, because the floor on which she had been charge nurse since December, 1981 had been closed, she was forced into a staff nurse position. This was not a good situation and as a result of the closing of that floor, several nurses quit. This loss of nurses resulted in more patients per nurse to the point where Respondent felt that patient safety was in danger. She contends she tried to tell Ms. Jones about this but Ms. Jones would not see her. All of a sudden, she found herself called in front of Ms. Flemister and Ms. Jones and terminated based on the alleged inaccuracies in her records. Respondent contends she received no information about this other than that contained in Ms. Jones' summary and in that regard she says, Ms. Jones assured her that her summary was correct and in no way tried to explain the inaccuracy of the records. Respondent contends that she had frequently asked her supervisors for extra help but never got any. She contends she had as many as 18 patients to handle by herself and at the time involved in the records discrepancies here, she had 8 patients on the floor. She contends that the errors to which she admits were due to her hectic schedule. As a single parent, she was working, she says, between 60 to 80 hours per week on two jobs and had a sick child at home. Ms. Flemister, on the other hand, says that Respondent had plenty of help. At the time, Respondent was working the night shift from 7:00 P.M. to 7:00 A.M. The shift was staffed by 4 registered nurses, 2 licensed practical nurses, and a secretary, and in her opinion, this staff was well within the normal range of staff-patient ratio. Ms. Flemister contends that while Respondent was on duty, she had between 5 and 6 patients to take care of. She was the charge nurse for the shift and therefore had less patients than a regular floor nurse. She admits that Respondent did complain about being shorthanded, but these complaints were neither constant nor repeated and were never submitted through proper channels. Ms. Flemister contends that prior to this time Respondent had been counseled about her writing and documentation, but there has been no evidence of any discrepancies other than those involved in this case. There are certain procedures followed at GCCH and a part of Ms. Flemister's job is to oversee the standards of the hospital, the Board of Nursing, and the Joint Committee on Hospital Accreditation as they are applicable at this hospital. On the first day of duty, all new nurses are given an orientation which includes records management and how to use a medication cart. A medications test is given and a model cart is used in this training. On the cart, each patient has his or her own area. Narcotics and barbiturates are kept together. Medication administration records, including a page for every patient, are kept with the cart. Each administration of medication is supposed to be recorded and each use of narcotics is supposed to be listed on the narcotics sheet with the name of the patient, the date, the drug, and the nurse administering it. Medications are first called for in the doctor's orders and are checked by the secretary and the nurse who checks and signs it initially. The doctor's orders are then used to give medications. When a nurse gives a medication she checks the doctor's order against the medical records and then prepares the medicine, administers it, charts it and signs it off. The entry is recorded on the medical administration record and it and the charting register are both on the cart. The nurse goes back to the nurses' station to record the administration of the medicine in the nurses' notes which are kept in the patient record. This method of documentation is set out in the hospital policy and procedures which are given to all nurses. Accurate medication records are important so that nurses on subsequent shifts do not administer a drug too soon after the last dose was given and thereby create an overdose. Therefore, medications are logged in several different locations because state law requires it to promote agency oversight by the pharmacy and the Department of Nursing, and because the record is used at shift change to insure an accurate count of narcotics on hand on the medicine cart. Failure of employees to follow the hospital procedures results in the following sequence of events: reprimand; counseling; a written reprimand; and discharge; all depending, of course, on the seriousness of the offense. However, after the discussion with Ms. Flemister and Ms. Jones Respondent was terminated because of the discrepancies between the narcotic record and the poor and illegible documentation in the nurses' records and elsewhere. Respondent, on the other hand, claims that though she has been licensed in the State of Florida since 1967 and has worked at GCCH since 1981, there has never been any prior disciplinary action taken against her nor has she received any prior complaints about her method of charting or administration of drugs and she was doing it as she usually does in February, 1984. Notwithstanding her protestations of no prior disciplinary action, however, the records reveal that Respondent was given a two-day suspension for the incident involving the over administration of Demerol to Mr. Collins and advised that a repeat discrepancy would result in her discharge. It is important to note that as a part of the investigation into Respondent's alleged misconduct, she was requested to provide a urine sample for urinalysis. This routine drug screen revealed no use of controlled substances within the seven days prior to the test which was accomplished on February 20, 1984.
