The Issue The issue for consideration in this hearing is whether Respondent's license to operate an Adult Congregate Living Facility should be disciplined because of the deficiencies identified in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the matters alleged in the Administrative Complaint, the Agency for Health Care Administration, (Agency), was the state agency responsible for the licensure and regulation of Adult Congregate Living Facilities, (ACLF), in Florida. Respondent, Gem House, is licensed to operate an ACLF at 2809 Round About Lane in Orlando, Florida. On December 19, 1994, representatives of the Agency conducted an inspection visit of the Respondent's facility and discovered certain deficiencies. These included: The facility had not maintained a file of all previous reports for the past five (5) years. This deficiency, cited at the initial visit, was still uncorrected at the follow-up visit of March 28, 1995 and at the desk review conducted on April 21, 1995. The facility had not provided a handout to residents, family or guardians outlining its provisions for assisting residents to obtain health care. This deficiency, cited at the initial visit, was uncorrected at the March 28, and June 14, 1995 follow-up visits. The facility had not maintained complete personnel files on each staff as documentation they are competent and properly trained. This deficiency, cited at the initial visit, was uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The facility continued to use staff who had no training in infection control procedures within ten (10) days of beginning employment. This deficiency, cited at the December 19, 1994 visit, was uncorrected at the March 28 and June 14, 1995 follow-up visit and at the April 21, 1995 desk review. No staff had participated in continuing education related to nutrition on an annual basis. The last course taken was in May, 1993. This deficiency, cited at the December 19, 1994 survey, was uncorrected at the March 28, 1995 follow-up visit. The facility did not execute contracts for each resident upon admission or prior thereto. This deficiency, cited at the December 19, 1994 survey, was uncorrected at the March 28 and June 14, 1995 follow-up visits, and at the April 21, 1995 desk review. The facility gave no admission packets to the residents' responsible parties or guardians. They had not received a copy of the resident contract, facility rules and regulation, a copy of the Resident Bill of Rights, the facility admission policies, retention and discharge policies, medication storage policies, refund policies or the fee schedule for additional services. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The facility had not completed demo- graphic data reports on file for each resi- dent. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28, 1995 follow-up visit and at the April 21, 1995 desk review. The health assessments were not complete in their entirety to give a full view of the residents' capabilities. This deficiency, cited at the December 19, 1995 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. The administrator had not provided in- service training to her staff concerning ACLF core areas relevant to their job duties. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. The facility did not provide staff with a current certification in an approved first aid course. This deficiency, cited at the December 19, 1994 survey, remained uncorrected on the March 28 and June 14, 1995 follow-up visits. The administrator had not designated in writing any staff person trained in first aid to act in her behalf during her absences from the ACLF. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The method of management for resident medications (self-administer, supervision of self-administration, or administration), was not identified on all resident health assess- ments. The administrator chose to supervise the self-administration of medication rather than contact the physician for clarification. This deficiency, cited at the December 19, 1994 survey, remained uncorrected on the March 28 and June 14, 1995 follow-up visits. No staff person had been designated in writing as properly trained and available at all times, with access to the supervised medications. The medication log was not accurately maintained with the timely recording of the dosages observed by staff as taken by the residents. Staff did not always observe residents take medications but recorded them as taken. Medications were not given to residents at the times indicated on the prescription labels. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. Due to uncorrected deficiencies in medi- cations a pharmacist consultant's services were required within fourteen days of March 28, 1995. The time allowed for corrected was May 15, 1995, but no report was received until May 31, 1995. No further reports have been received. This deficiency, cited at the March 28, 1995 follow-up visit, remained uncorrected at the April 21, 1995 desk review and at the June 14, 1995 follow-up visit. No notations of changes in residents' conditions had been recorded in the resident files. This deficiency, cited in the December 19, 1994 survey, remained uncorrected at the March 28, 1995 follow-up visit. The facility had not documented procedures in effect at the ACLF for the receipt, resolution and documentation of complaints from any source. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits and at the April 21, 1995 desk review. The facility had no current diet manual nor evidence that a current diet manual was accessible as needed. This deficiency, cited in the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visit and at the April 21, 1995 desk survey. Menus were not dated. Substitutions were not recorded. Menus with recorded substitutions were not kept on file for six months. This deficiency, cited at the December 19, 1994 survey, remained uncorrected at the March 28 and June 14, 1995 follow-up visits. Notice of the deficiencies was provided in writing to the Respondent at the time of the survey and a time frame was given for their correction. These deficiencies were alleged in an Administrative complaint filed in this matter on November 1, 1994. Respondent has admitted the allegations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a Final Order in this matter assessing an administrative fine against the Respondent, Gem House, in an amount determined to be appropriate under the statute and rules of the Agency. DONE and ENTERED this 15th day of February, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1996. COPIES FURNISHED: Linda L. Parkinson, Esquire Agency for Health Care Administration 400 W. Robinson Street, Suite S-309 Orlando, Florida 32801 Dean F. Mosley, Esquire McCrary & Mosley 47 E. Robinson Street, Suite 211 Orlando, Florida 32801 Sam Power Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32399
The Issue The issue for consideration in Case No 00-2973, is whether the licensee, Holly Hill Care Center, Inc., should be subject to administrative fines for failure to timely correct four (4) Class III deficiencies; two (2) Class IV deficiencies, and one (1) unclassified deficiency at Holly Hill Care Center, an assisted living facility (hereinafter Respondent) and, if so, the amount.
Findings Of Fact The Agency is responsible for the licensing and regulation of assisted living facilities (ALF) in Florida. The Respondent is licensed to operate Holly Hill Care Center as an ALF in Holly Hill, Florida. Mr. Robert A. Cunningham, a health facility Evaluator II, was called as a witness for the Agency. Mr. Cunningham identified Item One of Composite Exhibit 1 as a copy of a survey for the ALF bi-annual licensure survey conducted on February 23, 2000. Mr. Cunningham participated in conducting that survey. The Respondent was cited with Tag A-006 for providing services beyond the scope of its license, specifically, caring for eight mental health residents. The evidence presented that the residents in question were mental health residents was that they were being treated by ACT and had made application for Optional State Supplement. The Respondent was cited for Tag A-520 for failing to ensure that all staff persons who had been employed for more than 30 days had documentation for a health care provider stating they were free of the signs and symptoms of communicable disease. The evidence showed a physician at the local health department had examined the employees. The doctor had noted that the employees were in “good health” instead of certifying that the employees were free of signs and symptoms of communicable disease. The Respondent was cited with Tag A-608 for failing to ensure that medication records were accurate and up to date for each resident. This related to residents for whom medications had been ordered, but not administered. The facts revealed that ACT was providing their medication, but that ACT had failed to provide the medication. Although it was not documented in the records that the Respondent made an effort to obtain the medications, evidence to that effect was presented at the hearing. The Department acknowledged that ACT had suffered some cut backs that had prevented it from providing medications to some of ACT’s clients. An ALF’s duties regarding medication administration are defined by its contract with the resident. The Department did not introduce a contract; however, it was evident from the testimony of the witnesses that provision of medications was not included in the contract for care. The Respondent was cited with Tag A-615 for failing to engage a consulting pharmacist within the required time frame. This arose from the violation alleged above. The Respondent had difficulty engaging a pharmacist. When one was engaged, he was going on vacation and the contract could not be signed until his return. The Respondent was cited with Tag A-804 for failing to provide each resident with a therapeutic diet, as ordered by the resident’s health care provider and with Tag A-806 for failing to have standardized recipes available for food service staff to ensure that the nutritional needs of the residents were being met. The Respondent conceded it had violated these provisions. The Department levied fines of $500 and $150, respectively for these violations. The Respondent was cited with Tag A-814 for failing to engage a consulting dietician or nutritionist within the prescribed time in response to the Tags A-804 and A-806, above. The Respondent admitted that it had been late in engaging a nutritionist/dietician; nevertheless, it appeared that it had made a good faith effort in a difficult situation in which few qualified individuals were available.
Recommendation Based upon the violations proven and admitted above, the Respondent violated Tags A-804, A-806 and A-814 for which the Department levied respectively fines of $500, $150, and $300. The Department should enter its final order assessing those fines for those tags. The other violations alleged were not proven or the predicate for the requirement alleged to have been violated was not established. No action should be taken on the Tags A-006, A-520, A-608 and A-615. DONE AND ENTERED this 11th day of June, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of June, 2001. COPIES FURNISHED: Harry S. Hartman, Owner Holly Hill Care Center 1562 Garden Avenue Holly Hill, Florida 32117-2145 Michael O. Mathis, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building Three, Suite 3431 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Building 3, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Surindar S. Bedi, Respondent, is licensed as a medical doctor by the Florida Board of Medical Examiners and was so licensed at all times here relevant. He is board certified in family practice and has offices in Zephyrhills and Elfers, Florida. The charges involving six of the complaining witnesses arose following either a local health fair or open house (when Respondent opened his new office) at which these witnesses had a free EKG strip taken. At the health fair Respondent had set up facilities to take strip EKG's of persons so desiring them at no cost. Those given the EKG filled out a release form on which they gave name, address, age, phone number, date of birth, weight, height, whether they had high blood pressure, heart condition, stroke or diabetes, and medications they were taking. They were told that they would be notified by phone if any abnormalities were disclosed in the EKG and by letter if the EKG was normal. John Morris was 74 years old when he and his wife visited the health fair at Gulf View Mall in Port Richey July 23, 1982. At that time Mrs. Morris thought the health fair was sponsored by the county medical association and suggested to John Morris that he take the EKG offered, which he did. In the release form the heart condition, stroke, and diabetes boxes were checked yes, and under medications were listed Pronestyl, Quinidex, Isordil, Digitalis, and Procane (Exhibit 7). In March, 1976, Morris had a massive heart attack, a stroke in 1977, and was in intensive care for 43 days in 1979 with another coronary accident. Prior to the hearing, Mr. Morris has had three cardiac arrests and three strokes or near-strokes. As a result Mrs. Morris had been exposed to cardiovascular illness for several years and, as an intelligent lady, has acquired considerable knowledge of the subject. Approximately one week after the strip EKG was taken at the mall, Mrs. Morris received a telephone call from a female referring to the EKG strip taken at the mall and telling Mrs. Morris that the EKG showed irregularities and that Mr. Morris should have a full EKG taken immediately. This call was received Friday afternoon around 3:00 p.m. Mrs. Morris offered to bring her husband down immediately for the EKG but was told it was not necessary because they closed at 4:00 p.m. An appointment was made for 11:15 a.m. Monday. Mrs. Morris proceeded to the Pasco County Medical Society office on Route 54 with her husband. Upon arrival she was told the county medical society had not participated in the health fair and it was a private clinic that had participated. Mrs. Morris then drove to Bedi Medical Complex on the same road as the Pasco County Medical Society office. Upon arrival she told her husband to stay in the car. She went inside and asked if John Morris had an appointment for 11:15. When told yes, Mrs. Morris demanded all medical records they had on her husband to take to his regular doctor. After a short consultation she was given Exhibit 7. When told that the EKG was irregular, Mrs. Morris was quite concerned. When told that the full EKG could wait until a later time, Mrs. Morris, who was well aware of the necessity of prompt medical attention when a heart starts acting up, was upset. When she learned the appointment had been made with a private clinic, she was resolute in her decision to take the records to the doctor who was familiar with John Morris' medical history and condition. Allen R. Smith, M.D., completed his residency in internal medicine and became board certified in 1978. He started treating John Morris as a patient in October, 1981. When Mrs. Morris brought her husband to Smith's office, after the strip EKG had been taken at the mall, on his next scheduled visit, September 12, 1982, she requested an EKG be taken and gave Dr. Smith the strip EKG she had obtained from Respondent's clinic. All strips taken by Respondent or his associates and presented at this hearing were of poor quality due to wandering base lines with artifacts all through the strips. Artifacts are interferences from the electrical circuit into which the EKG machine is plugged and anything else not related to the heart that causes the needle to move. Although Respondent and Dr. Costarella both testified that certain information other than heart rhythm can be obtained from a single lead (strip) EKG, all of the other medical witnesses concurred that the only reliable evidence obtainable from a strip EKG is heart rhythm. The normal EKG contains 12 leads which measure electrical activity at various parts of the heart so a picture of the entire heart is generated; while a rhythm strip shows activity at only one point on the heart. With respect to the rhythm strip taken on Morris, all witnesses who examined the EKG found it to be of poor quality. Even Dr. Costarella, who worked at the clinic with Respondent and initially read the strip and marked it slightly abnormal, testified the strip was closer to being one that should be repeated than to abnormal. Dr. Smith categorized this strip as "It simply isn't readable. It's a bad rhythm strip. It's just uninterpretable." (TR p.155) Helvi Grinko went to Respondent's open house in March, 1982, with her husband and was given a free strip EKG (Exhibit 4). Dr. Bedi placed the lead on Mrs. Grinko's chest and operated the machine. Upon completion of the strip he told Mrs. Grinko she had a short life expectancy. Grinko testified that Respondent taped the lead to her chest with a piece of adhesive tape. Respondent contends he placed the lead under Grinko's breast and had to lift up the breast to properly secure the lead. It is not credible that Mrs. Grinko would fail to remember such a procedure. This patient is very much overweight but has never experienced any heart problems. At the open house she had been shown around the medical center and given a brochure on Respondent's diet program. She also talked to Respondent's father, who was presented as living proof of the success of Respondent's dietary program, which he calls the Polarization Diet. Mrs. Grinko testified that she was so stunned when told she was going to die that she does not remember much that occurred subsequent thereto. Respondent denied telling Mrs. Grinko she was going to die. After Mrs. Grinko left Respondent's clinic, she was called twice by someone identifying herself as calling from Bedi's clinic and asking her to come so Bedi could help her. When Mrs. Grinko went North on vacation in May, she visited her former family doctor who did an EKG but prescribed no medication or any other treatment for her. Dr. Sandra Mann examined Helvi Grinko when the latter moved to the area in 1981 and wanted to establish a family doctor. Dr. Mann is an internist. The EKG taken on Mrs. Grinko in April, 1981, indicated diffuse STD changes, there were no direct cardiac symptoms but her history of hypertension and overweight indicated further studies were needed to rule out heart problems. These other studies did not reveal any heart problems. Because of the wandering base line on Exhibit 4, the strip EKG taken on Grinko at Respondent's clinic cannot establish any irregularity in Grinko's heart. Randall H. Sells, M.D., is board certified in family practice and Helvi Grinko has been a patient of his since January, 1983. When he first examined her and took a cardiogram, it was perfectly normal. This patient has high blood pressure, is overweight, and has arthritic problems. His examination, Exhibit 4 and Exhibit 30, the one lead rhythm strip taken by Respondent on Grinko, reveals no irregular beats and, in his opinion, no diagnosis of serious heart problems can be made from this strip. This conclusion is concurred in by Dr. Neufeld (Exhibit 20 p. 16) who found this strip EKG to be of technically poor quality and showing no abnormality of heart. On the other hand, Respondent found the poor T-waves and obesity of patient indicated she may be hypothyroid. He showed her some literature used in conjunction with his Polarization Diet program which indicated people should stop killing themselves with what they eat. Dr. Costarella read Exhibits 4 and 30 as very bad because of the absence of T-waves which indicate the heart does not rest between beats. He acknowledged on cross- examination that a poor connection of the single lead could cause loss of T- waves, and the strip EKG could not support a conclusion that the patient had a serious heart condition. Salvatore Guerrera is 61 years old and has had poor circulation for sometime before he retired and came to Florida in 1980. He attended the health fair in July, 1982, conducted by Respondent and had an EKG strip taken. A short time later Guerrera was called by Respondent's clinic regarding the EKG and was told the EKG showed abnormalities. Mrs. Guerrera made an appointment for him to go to the clinic. While there with Mrs. Guerrera he was shown the strip EKG by Respondent and told something was wrong with his heart. When Mrs. Guerrera asked how could he tell from such a small strip, Respondent took a full 12-lead EKG and again pronounced Guerrera's heart was not beating right and tried to interest the Guerreras in his Polarization Diet program. Mrs. Guerrera suffers from agoraphobia and she testified by deposition (Exhibit 12). Respondent pointed out how much she needed her husband to take her places she could not go alone and that she should take care of him because he was the only husband she had. Guerrera did not enroll in Respondent's nutrition program but went to see his regular doctor, Allen Smith, for a checkup. Dr. Smith had first seen Guerrera October 10, 1980, when he came as a new patient. Dr. Smith saw Guerrera in his office on September 3, 1982. Guerrera's medical records (Exhibit 8) show he told Dr. Smith that he had been told by Respondent that he had an abnormal EKG and would die if he did not get nutritional prescriptions. The EKG taken by Smith showed no abnormality. When Guerrera returned four days later complaining of chest pressure, Dr. Smith suspected a hiatal hernia and subsequent tests so found. No diagnostic irregularities in Guerrera's EKG had been found by Smith and no cardiac symptoms are indicated. Guerrera has a slow heart rate (sinus bradycardia) but from the EKG Smith could not conclude Guerrera has a heart problem. Dr. Smith then obtained Guerrera's medical records from Respondent (Exhibit 9). The EKG in these records showed sinus bradycardia, some coarse artifact irregularity of the base line, but no other abnormal conditions. With no specific complaint of discomfort from the patient which would require further investigation, the EKG and patient history will not support a diagnosis of heart disease. Phyllis Hagedorn is a 62-year-old retired school teacher who attended the health fair in July, 1982, with her husband and participated in the free EKG strip. Mrs. Hagedorn is overweight and has a tendency towards high blood pressure. For this she took a drug called Apresazide. A few weeks after the health fair Mrs. Hagedorn received a telephone call suggesting she come to Respondent's clinic for a free complete EKG. About one week later she received a second call advising that the EKG taken at the health fair showed a slight irregularity and she should come in for a full EKG. She made an appointment for early September, 1982, at which time she went to the clinic where a full EKG was taken. She was then invited into a classroom area where Respondent discussed problems he observed on the EKG and to hear about a program on nutrition. Respondent marked with a pen on Hagedorn's EGK showing problem areas and advised Mrs. Hagadorn that she had a 70 percent blockage but his nutritional and exercise program could correct her condition. The price of $160 was quoted for four sessions at weekly intervals where she would be shown how to prepare tasty meals without the harmful fats, oils, salts, etc. If her husband also attended the price for him would be less than $160. Mrs. Hagedorn then went to her family doctor, Randall B. Sells, who is board certified in family practice. Dr. Sells, at patient's request, took a 12- lead EKG and no evidence of heart disease was found. When Dr. Sells examined the strip EKG and the full EKG taken by Respondent, he found both of them inadequate for diagnostic purposes. The strip was inadequate for the same reasons given with respect to the other strip EKG's. The full EKG had a wandering base line which makes it almost impossible to tell about the elevation or depression of the ST segments (TR p.54) . From a purely technical standpoint this EKG was inadequate to diagnose heart irregularities or abnormalities of the patient. No ischemic changes are observable in the EKG and, absent physical complaints from the patient, no blockage of the blood vessels can be predicted, let alone a specific percentage. Mrs. Hagedorn was subsequently subjected to a stress test but the test was stopped before any results could be reached because of difficulty in walking on the treadmill. Dr. Neufeld reviewed Respondent's records of Mrs. Hagedorn and found the strip EKG to be poor with a wandering base line but showed normal rhythm. The full EKG taken also had a wandering base line and Neufeld could find thereon no evidence of heart disease. Neither of these EKG's were technically capable of being used to make a definitive diagnosis regarding heart disease of Phyllis Hagedorn. Accordingly, no diagnosis of vessel blockage of 50 to 70 percent could be made from those EKG's. Ellen Buonocore and Robert Neville attended the health fair in July, 1982, and participated in the free EKG strips. About a month later Ms. Buonocore received a call advising her that there was an irregularity in the EKG and she should come in for a full EKG. She was also told there was an irregularity in Neville's EKG and he, too, should come in. She made an appointment for both of them. After a full EKG was taken Respondent, with EKG in hand, pointed out to Buonocore various irregularities and suggested she have a full physical examination. Neville suggested they go to their regular doctor. Respondent offered them a full physical exam for $70 each. Since that was less than they expected to pay their regular doctor, they accepted. Neville went for his physical exam the day before Buonocore and came back with her for a stress test. Respondent had told Neville that he was receiving an inadequate supply of blood to his brain and recommended the stress test to determine the extent of blockage. Buonocore was also told she had an inadequate flow of blood to the brain and she wanted all the tests Neville had been given. No extra charge for the stress test was quoted to Buonocore but the evidence is in dispute whether or not Neville was told there was an extra charge for this. Both commenced the stress test but Buonocore did not complete the test because the room was not air conditioned and it got too hot. When both complained of the bills exceeding the $70 quoted, the amount Neville had paid over $70 was refunded and Buonocore was charged only $70. Buonocore testified that during her eye examination Respondent called the nurse over to show what Buonocore understood to be a cataract in her eye. She also testified that he conducted the examination with a pen light. Respondent testified he used an ophthalmoscope, called the nurse over to show her an arcus senilis which some people thought was a cataract. Nothing was said to Buonocore regarding her having a cataract and no such indication was entered in the physical exam; accordingly, Respondent's version of the cataract incident is found to be correct. The EKG's taken by Respondent and subsequent EKG's taken by others reveal that Buonocore has earlier had a mild infarction of which she was unaware at the time it occurred and there has been no significant change since that time; and that Neville has a right bundle branch block which causes deep Q-waves in one lead which are not present in others, and therefore that Q-wave cannot be interpreted as lack of blood supply or evidence of ischemia. This diagnosis was concurred in by Dr. Neufeld, who opined that a diagnosis of heart disease could not be made from the EKG 's and physical examination taken by Respondent on Buonocore and Neville. Mary Mundy, a 57-year-old housewife, had been a patient of Respondent for treatment of back injury suffered in an automobile accident in 1980. On September 21, 1982, Mrs. Mundy went to her gynecologist, Dr. Madani, for a checkup and annual Pap smear. The Pap smear indicated the presence of squamous cell carcinoma. After discussing the problem with Mundy and her husband, Dr. Madani, on October 12, 1982, performed a fractional D and C and a cervical cone biopsy to check the tissue at the cervix. The tissue sample went to the lab and came back positive for cancer. Dr. Madani told Mrs. Mundy and her husband that she should have a hysterectomy to cure the cancer. She agreed and her operation was scheduled for about one month after the cone biopsy. Mrs. Mundy then called Respondent for an appointment to get a second Pap smear. When she arrived at his office and they were in consultation, she asked for a second Pap smear. Instead of examining her or performing the Pap test, Respondent talked to her about some of the programs he was running at the clinic and indicated to Mrs. Mundy that if she went on his diet and exercise programs she might not have to undergo the hysterectomy. He also discussed chelation therapy and Mrs. Mundy saw several people walking around the clinic carrying IV bottles taking chelation therapy. Although denied by Respondent, Mrs. Mundy was also told by Respondent that if it was his own mother he would not recommend a hysterectomy. Regardless of the words used, Respondent conveyed to Mrs. Mundy the concept that her cancer could be treated and cured by diet, exercise, chelation therapy, and/or laetrile. Respondent does not use laetrile in his practice and has never used laetrile so his purpose in mentioning that drug is not clear. After leaving Respondent's clinic, Mrs. Mundy realized that she had no choice but to have the hysterectomy and went to the hospital the next week as scheduled. Ernest Wiard is 69 years old and retired in 1970. In 1978 he had a blood clot and cardiac failure and has taken Coumadin since that time. When he moved to Florida in 1978, he was taking Aldomet, Apresoline, Lasix, Zyloprim, Colchicine, Digoxin, and Coumadin for his heart condition, gout, blood pressure, blood thinner, and excess fluids. He introduced himself at Bedi's clinic and was checked by Respondent's physician's assistant and got his prescriptions for these medications. Wiard first saw Bedi in October, 1980, for his three-month checkup. At that time he did not need any prescription refills. On January 15, 1981, Wiard went to the pharmacy to get his prescription for Coumadin refilled. The pharmacist noted the prescription was over a year old, could not be refilled, and that Wiard needed a new prescription. He told Wiard he would call Bedi's clinic and that Wiard could return later in the day for his medication. Later that afternoon Wiard returned to the pharmacy and was told the clinic had never called back. Wiard had been told by his previous doctor that he would always have to take Coumadin so he then went to the clinic and saw Respondent. Respondent took out Wiard's chart and told him that he wanted Wiard to come in the following day for a physical examination and that he wanted to put Wiard on his Polarization Diet and get him off of medication. Wiard told Respondent that he had been told he would be on Coumadin the rest of his life but no new prescription was forthcoming. The following day Wiard reported to the clinic and spent all day undergoing his physical examination and the following day, January 17, 1981, after signing a release, he was given a stress test. During the examination Wiard requested the prescription for Coumadin. Respondent had Wiard bring his wife in so he could talk to both of them about the Polarization Diet. While preparing Wiard for this diet, Respondent told him to stop all medication but Digoxin. Respondent explained to Wiard how Respondent's father had been on numerous drugs as a result of heart problems and how he had been able to stop taking medication, start feeling good again, and enjoying good health since he went on the Polarization Diet and the exercise program. On January 20, 1981, when Wiard went to Respondent for his three-month checkup his legs were beginning to cramp and hurt him. He told Respondent his legs were beginning to stiffen and burn and asked to be put back on his medication. Respondent diagnosed this problem as lack of potassium and drug withdrawal without examining Wiard's legs. Respondent gave Wiard a prescription for Slow K to increase his potassium level and Tranxene for nerves. Wiard took those drugs as prescribed until he entered the hospital. When Wiard went to Respondent on January 16, 1981, to get his prescriptions renewed, he had three Coumadin left. These ran out January 18,1981. After the January 20 visit Wiard's legs continued to hurt and cramp. On Friday evening, February 2, 1981 Wiard's legs were hurting badly and Mrs. Wiard called Respondent's home. Respondent was going to his office to tend to another patient and told Mrs. Wiard to bring her husband down. That night around 9:00 p.m. Mrs. Wiard, with the help of a neighbor, got Mr. Wiard in the car and into Respondent's office. Wiard told Respondent that his legs were burning and cramping and Respondent told him to do an exercise demonstrated by Respondent, go home, and take two aspirin. Wiard again asked Respondent to put him back on his old medication. Respondent asked Wiard to continue on his diet and exercise program for another week to give it a chance to work. Wiard testified that Respondent did not examine his legs. Respondent testified that he did examine Wiard's legs and found nothing wrong. No notes were made in Wiard's chart reporting the actions taken by Respondent on that evening. The following Monday afternoon around 3:00 p.m., on February 5, 1981, Mrs. Wiard got her husband in the car and drove him to Respondent's office. Upon arrival she went in to get a wheelchair because Wiard's legs were so bad he could not walk. Respondent saw her and went out to the car with her to see Wiard. When he saw Wiard, Bedi apparently realized he had a sick man on his hands and asked Wiard if he wanted to go to the hospital. Wiard was sitting in the front seat on the passenger's side of the car. Respondent testified he opened the car door and examined Wiard's legs and saw no mottling or discoloration and felt a good pulse. Wiard and Mrs. Wiard testified Respondent did not examine Wiard's legs. Respondent told Wiard to go home and take two Coumadin, to which Wiard replied that he had no Coumadin. The physical configuration of the front seat of a car with a door obviously hinged to the front is such that an examination of the legs of the passenger whose feet were on the floor of the car would be awkward, if not difficult. At this time Respondent contends he first became aware that Wiard was no longer taking Coumadin after he asked Mrs. Wiard what drugs her husband was taking and Coumadin was not included in her reply. He felt two might be needed to thin the blood that had received no Coumadin for some two weeks. No explanation was provided why more specific action was not taken by Respondent when Mrs. Wiard told him he had no Coumadin to take. Respondent's testimony that Wiard's legs appeared normal to sight and touch does not square with a report of the emergency room at Dade City Community Hospital where Wiard was taken around 9:00 p.m. on February 5, 1981. Upon his arrival there Wiard was examined and found to have arterial occlusion of both lower extremities, the legs were mottled and discolored with evidence of very poor circulation. Treatment was beyond the capabilities of Dade City Community Hospital and Wiard was transferred to Tampa General Hospital by ambulance that night. He arrived at Tampa General early on the morning of February 6, 1981. His examination there revealed a major decrease in the blood supply to Wiard's legs (Exhibit 15 p. 7) and an irregular heartbeat. Arteriograms were taken which suggested a embolic occlusion. Further procedures were carried out. Heparin was administered for anticoagulation. Clots were removed from both legs and Wiard was carefully monitored for circulation in the legs. Ultimately on February 10, 1981, Wiard's right leg was amputated three inches above the knee. Respondent's Director of Public Relations, Linda Sharp, started working for Respondent the Monday following the health fair conducted mid-July, 1980. She is the one who made the telephone calls to those who had strip EKG's taken. She has been trained by Respondent to conduct seminars for senior citizens to explain heart disease and how diet relates to the circulatory system. She has had no medical training other than that provided by Respondent. Dr. Costerella had reviewed more than half of the strip EKG's taken and of those he reviewed only 10 to 15 percent were readable. On those that were too bad to read he put "irregular," "slightly abnormal," or "repeat." All of those strip EKG's with irregular or abnormal on them resulted in a phone call from Ms. Sharp telling the patients that they had an irregular or abnormal EKG and they should come in for a free full EKG. Once the patients came to the office they were given the free EKG and then given some explanation of the EKG and a sales pitch on the diet and exercise program. Respondent has embarked on a program he refers to as preventive medicine. He was led to this program a few years ago in trying to take care of his father who suffered from cardiovascular problems. During this time Respondent became a disciple of Dr. Sodi Pollaris, who is described by Respondent as being one of the foremost cardiologists in the world and who practices in Mexico, and who treats cardiac patients by dietary means. This diet focuses on fruit and vegetables, no red meat, reduction in salt, no canned vegetables, etc. Respondent talked to Dr. Sodi's patients in Mexico and tried the diet and exercise program on his father. When his father got better after going on the program and giving up his medications, Respondent further developed the program and solicited patients to come in to learn about the Polarization Diet. In setting up the strip EKG's at the open house and health fair at the mall, Respondent used those EKG's to get new patients into his office. Although Respondent contends he is trying to help those cardiac patients to a better life, and, in fact, made no money whatsoever on several of the witnesses who testified in these proceedings, nevertheless he brought these people into his office by giving them inaccurate medical information and thereafter attempted to sell them on his program. Respondent's testimony that he can read changes in the electrocardiogram when the patient goes on the diet and can detect patients' cheating on the diet by use of an electrocardiogram differs from the testimony given by all other witnesses regarding the information obtainable from an electrocardiogram. Furthermore, his testimony that such information can be obtained from a strip EKG also conflicts with all other medical testimony presented. This misplaced confidence also appears in the use of stress tests by Respondent. All other medical witnesses who testified on the subject of stress tests did not deem it prudent for anyone other than a cardiologist to give a patient a stress test; and then, only if appropriate equipment was readily available with the necessary expertise of the physician to take care of the cardiac accident which can readily occur during a stress test. These witnesses included family practitioners, such as Respondent, and internists. The latter are generally better qualified to treat heart patients than are family practitioners, although the latter are qualified to treat routine heart conditions.
The Issue The issue is whether, pursuant to Section 57.111, Florida Statutes, Petitioner (all references to "Petitioner" are to Dr. Reich, even though in the preceding case he was the respondent) is entitled to attorneys' fees and costs in defending a case against him in which Respondent alleged that he was guilty of deviating from the applicable standard of care and failing to keep appropriate medical records.
Findings Of Fact At all material times, Petitioner has been a licensed physician in Florida, holding license number ME 0051631. He is Board-certified in ophthalmology. At all material times, Petitioner has been a "small business party," within the meaning of Section 57.111(3)(d), Florida Statutes. From 1996-98, Petitioner worked part-time at The Metabolic Treatment Center in Ft. Myers. Twice weekly, Petitioner visited the center and saw patients, who generally complained of symptoms consistent with metabolic conditions. Toward the end of Petitioner's term of employment at The Metabolic Treatment Center, its owners, one or more natural persons, sold the facility to a publicly traded corporation. Petitioner's relationship with the new chief operating officer was poor. One day, Petitioner reported to work and found the facility had been closed, leaving Petitioner without access to the records kept by the center. Petitioner commenced litigation with the corporate owner of The Metabolic Center to obtain copies of medical records. Petitioner obtained a court order compelling the corporation to turn over medical records, but the corporation did not do so, and the case was closed in February 1999 without Petitioner's ever obtaining the records that he had sought. The corporate owner was administratively dissolved by the Department of State in September 1999. On November 21, 2000, Respondent filed an Administrative Complaint against Petitioner concerning one patient whom he treated in 1997 at The Metabolic Treatment Center. In 2001, Respondent prepared a 50-count Administrative Complaint against Petitioner concerning 10 patients whom he had treated at The Metabolic Treatment Center. In 2001, Petitioner was represented by attorney William Furlow. Mr. Furlow and a representative of Respondent negotiated a settlement, but Petitioner claimed that he had lacked the authority to enter into the settlement. The Board of Medicine declined to reopen the settlement and issued a Final Order to this effect. Petitioner appealed to the First District Court of Appeal, which issued an opinion on March 26, 2004, requiring the Board of Medicine to give Petitioner an evidentiary hearing on the factual issue of whether he had authorized Mr. Furlow to settle the case on the conditions set forth in the settlement agreement. Rather than litigate the authorization question, the Board of Medicine filed an amended Administrative Complaint on August 20, 2004, concerning the lone patient who had been the subject of the earlier-filed Administrative Complaint, and filed a second Administrative Complaint on October 27, 2004, concerning the 10 patients who had been the subject of the never-filed, 50-count Administrative Complaint. After transmittal to the Division of Administrative Hearings, these cases, which were consolidated, became DOAH Case Nos. 04-3222PL and 04-4111PL, respectively. By the time of the filing of the 2004 Administrative Complaints, Petitioner was represented by his present counsel. However, this representation has not been continuous. Shortly before the final hearing in the consolidated cases, Petitioner's counsel moved for leave to withdraw because Petitioner had fired them. The motion was granted, an accompanying request for continuance was denied, and Petitioner represented himself at the hearing, which took place on December 6 and 7, 2005. The undersigned Administrative Law Judge issued a Recommended Order on May 5, 2006. The Recommended Order excluded all of Respondent's evidence consisting of purported medical records, except for the records that Petitioner had identified in a prehearing deposition. These evidentiary rulings left evidence concerning only four patients. The recommendation was for the Board of Medicine to enter a Final Order dismissing all charges against Petitioner concerning all but the four patients mentioned above. For these patients, the recommendation was for the Board to enter a Final Order finding Petitioner guilty of the financial exploitation of four patients, failure to perform a statutory obligation as to three patients, failure to maintain adequate medical records on three patients, preparation of inappropriate prescriptions for two patients, and violation of the applicable standard of care as to one patient. The Recommended Order recommended an administrative fine of $29,000 and five years' probation. In Final Orders issued September 7 and October 9, 2006, the Board of Medicine substantially adopted the Recommended Order with revisions to the penalty. Petitioner appealed the Final Orders and, on January 23, 2008, the Fourth District Court of Appeal vacated the Final Orders. The reasoning of the court was that Petitioner had been denied access to medical records at The Metabolic Treatment Center, and, thus, there was no competent substantial evidence, given the clear and convincing standard, to support the findings of violations. On March 17 and 21, 2008, pursuant to the mandate, the Board of Medicine entered Final Orders dismissing all charges against Petitioner and taxing appellate costs of $610. On March 21, 2008, Petitioner filed his Petition Pursuant to the Florida Equal Access to Justice Act. The attorneys whom Petitioner had discharged immediately prior to the final hearing were re-engaged immediately after the issuance of the Recommended Order. These attorneys, who are presently representing Petitioner, prepared the briefs and argued the appeal. Petitioner seeks attorneys' fees for three phases of this litigation: 1) litigation over the purported consent agreement, concluding with the filing of the two Administrative Complaints that were transmitted to the Division of Administrative Hearings; 2) litigation in the two Division of Administrative Hearings cases through the appellate court's mandate; and 3) litigation with the Board of Medicine in obtaining the Final Order vacating the earlier Final Orders. To the extent that the first claim concerns the consent agreement, it is untimely for the reasons discussed in the Conclusions of Law. To the extent that the first claim concerns the same allegations covered in the second claim, it is part of the second claim. The second claim is really two claims: one concerns the proceeding at the Division of Administrative Hearings and culminating with the Final Orders issued by the Board of Medicine, and the second is for the appellate proceeding. The third claim really is part of the second claim, as the Board of Medicine never filed anything to initiate this phase of the overall proceeding. The question underlying the claim for attorneys' fees for the second phase of litigation is whether the Board of Medicine was substantially justified in filing the two Administrative Complaints in August and October 2004. Respondent has submitted as Respondent Exhibit A a voluminous stack of investigative reports prepared by the Agency for Heath Care Administration (AHCA) in connection with the disciplinary cases prosecuted against Petitioner. The periods of investigation run from July 9, 1998, through August 28, 2001, although the whole period is not covered and the periods covered by some reports overlap the periods covered by other reports. The investigative reports contain opinion letters from five physicians. The investigative report for the period of July 9, 1998, through September 9, 1998, contains an undated letter from Kevin M. Holthaus, M.D. Dr. Holthaus's letter addresses three patients, including one for whom AHCA had obtained medical records. Dr. Holthaus opined that Petitioner fell below the standard of care in the diagnosis and management of endocrine disorders like hypothyroidism and diabetes. Dr. Holthaus added that Petitioner failed to perform an appropriate history and physical examination prior to ordering extensive diagnostic studies. Dr. Holthaus noted that Petitioner's prescription of thyroid hormone, despite laboratory studies obviating the need for this treatment, posed a threat to the wellbeing of the patient. Dr. Holthaus's letter also states that Petitioner stood to gain from his actions, which included inadequate assessments of patient complaints and symptoms and inappropriate or inadequate diagnoses. The investigative report for October 14, 1998, through February 4, 1999, contains the notes of a telephone interview with Craig R. Sweet, M.D., who said that he had contacted The Metabolic Treatment Center about Petitioner's treatment of one patient. An unidentified person said that Petitioner no longer worked at the center, but had treated patients for nonexistent thyroid problems. Dr. Sweet stated that he had seen nothing justifying Petitioner's administration of thyroid medication or human growth hormone to the patient. This investigative report also contained a letter dated April 18, 1999, from E. Timothy Shapiro, M.D., who treats patients for a wide variety of endocrine problems. Dr. Shapiro, who was also an assistant clinical professor at the University of Miami, addressed one patient and found excessive and unjustified lab work, inappropriate treatment with thyroid hormone despite normal thyroid functions, inappropriate treatment with testosterone despite normal testosterone levels, and inappropriate treatment with growth hormone despite inadequate growth hormone testing and no clinical features of growth hormone deficiency. Dr. Shapiro concluded that the evidence "points to a scheme to extract money." The investigative report for May 2, 2000, to July 19, 2000, includes an undated letter from H. Curtis Benson, M.D. Dr. Benson found that Petitioner ordered unnecessary lab tests, treated a patient for hypothyroidism despite normal thyroid function studies, and kept "cursory" medical records containing no mention of a complete physical examination. The investigative report for September 21, 2000, through November 8, 2000, notes that one patient reported that Petitioner had told her that she had a fatal blood disease, but, when she was seen by her regular physician, he found no problems with her blood. Interestingly, this complainant was the insurance investigator who had submitted the other complaints, which were the bases of the insurance company's concern of excessive and unnecessary testing. A principal of The Metabolic Treatment Center had invited the insurance investigator to visit The Metabolic Treatment Center as a patient and see the operation for herself. Also in this report is a letter from Mr. Furlow, dated November 20, 2000, stating that many of Petitioner's records were out of his possession when he was forced out by the center. The investigative report for March 22, 2001, through June 8, 2001, contains a letter dated January 2, 2001, from Dr. Shapiro. Stating that he had reviewed four more cases, Dr. Shapiro stated that Petitioner was performing excessive lab testing, usually of tests that carry high reimbursement levels. Dr. Shapiro questioned the accuracy of the numerous diagnoses of peripheral neuropathy, noting that Petitioner routinely ordered nerve conduction tests, which were performed by a radiologist, rather than, as was common in Dr. Shapiro's experience, a neurologist. Dr. Shapiro also stated that Petitioner treated patients with thyroid hormone despite their normal thyroid function. He concluded that this pattern of medical practice was fraudulent and below the applicable standard of care. This investigative report also contains a letter dated January 18, 2001, from Hamilton R. Fish, M.D., who had examined the records of three patients. Dr. Fish summarized his concerns as: 1) many unnecessary lab tests, including reported abnormalities in the nerve conduction studies with no follow-up or referral; 2) no follow-up or referral on a patient diagnosed with hyerinsulinemia and insulin resistance; 3) lab tests and an EKG done on one patient prior to an evaluation by a physician; and 4) inaccurate medical advice contained in The Metabolic Treatment Center handbook given to patients, such as a warning that exercise makes insulin levels rise. The investigative reports for January 12, 2001, through February 7, 2001, and March 22, 2001, through June 8, 2001, contain letters from Dr. Shapiro dated December 27, 2000, and March 19, 2001. In each of these letters, Dr. Shapiro analyzes another patient and finds excessive and inappropriate lab testing, inappropriate diagnoses and treatment, a failure to refer a patient with neuropathy to a neurologist, and a failure to meet the applicable standard of care. The transcript of the probable cause meeting held on October 22, 2004, reveals that the probable cause panel had all of the above-described investigative materials, which included extensive medical records. Counsel summarized to the panel the important portions of the Administrative Complaint concerning the 10 patients who were the subject thereof. In authorizing the filing of the Administrative Complaint, the chair noted that he had never seen such unanimity of opinion among the consultants and suggested an emergency suspension. Although the transcript of the probable cause meeting on the Administrative Complaint involving only one patient has been lost, it must be inferred, based on the memorandum of action, that a probable cause panel similarly considered the file materials and similarly authorized the filing of that Administrative Complaint a couple of months earlier. Respondent contends that Petitioner never claimed the existence of additional medical records until the final hearing. This is not exactly true, as the records contain representations that Petitioner was unable to obtain all of the records from The Metabolic Treatment Center. On the other hand, Petitioner did not provide the probable cause panels with any expert opinion in his favor, except for Petitioner's medical claims for his treatment methods, which are detailed in the Recommended Order. The first Administrative Complaint filed in this case was on November 21, 2000; it was the complaint concerning one patient, so it was the precursor to the Administrative Complaint filed on August 20, 2004, in DOAH Case No. 04-3222PL. The next Administrative Complaint was filed in 2001, and it was the precursor to the Administrative Complaint filed on October 27, 2004, in DOAH Case No. 04-4111PL. From the earliest of these dates to the latest, Respondent had a reasonable basis in fact to proceed. Viewing the investigative materials in the manner most favorable to Petitioner, they presented a conflict between mainstream medical opinions concerning the proper diagnosis and treatment of endocrinal disorders and Petitioner's opinion, unsupported by other authorities (at least, in the investigative file), that conventional, acceptable ranges for various items, such as T-3 or TSH, are wrong or that holistic approaches are medically necessary to treat certain metabolic syndromes. At best, from Petitioner's point of view, this was a conflict in opinions between five practitioners, on the one hand, and Petitioner, on the other, and the informed, well-reasoned opinions of the five experts with whom Respondent consulted provided a reasonable basis in fact for the filing of all the Administrative Complaints and all of the charges contained within them.
The Issue In a short pre-hearing discussion it was determined that the Division of Retirement did not controvert the status of the applicant as being totally and permanently disabled; however, it did controvert whether the disability arose totally out of an in-line duty accident, although the Division of Retirement did not controvert the fact that the applicant had had an accident on duty which had resulted in some degree of physical impairment. Specifically at issue were the affects of a mastectomy and of a degenerative bone disease upon the applicant's total physical disability. It was also agreed that the applicant had no psychological overlay contributing to her disability.
Findings Of Fact The applicant testified that she had hurt her back transferring a patient from the operating table to a stretcher and that as a result she immediately felt a sharp pain in the middle of her lower back radiating upward. She testified that she had later leaned over to take off her operating booties and had been unable to straighten up whereupon she reported to the hospital health center. There she was given some medicine and put on physical therapy. This back pain continued to worsen and although the applicant returned to work during the time between her injury and her application for retirement, she was unable to perform her duties which involved a substantial amount of bending, stooping and similar physical activity. While she was being treated for her back condition over one year after the original injury, she contracted breast cancer, and a radical mastectomy was performed on August 9, 1974. The Division of Retirement has controverted the application primarily because of the encouraging reports of Dr. Parker of May 27, 1974 (Exhibit 7), which was followed by the entirely opposite report of September 3, 1974 (Exhibit 8); the mastectomy having occurred in the interim. The Division of Retirement asserts Dr. Parker's report of September 29, 1974, in which he references the mastectomy, supports the Division's position. "Mrs. Purcell was seen and examined in the office on September 27, 1974. She continues to have intermittent severe back and hip pain. This is somewhat more severe recently, probably because of the possible adjustment caused by her mastectomy. I do not feel she will be able to return to her previous work. The applicant testified that although she had had some pain associated with the surgery but that after she had recovered and received physical therapy for the affected arm, she had not been bothered any further. Avis Garrett as investigator for the County of Dade testified that she had visited the applicant ten times on an unscheduled basis in fifteen months and had almost always found her in bed or at rest. During Garrett's visits the applicant manifested pain by her walk, stance and by complaining of great pain. Garrett visited the applicant within a few weeks after the mastectomy and was uaware of the operation, the applicant not having mentioned or complained of it, until some comment related to it was made as she was leaving. Beyond the passing comment contained in Dr. Parker's medical report quoted above there is no other medical opinion expressed regarding the mastectomy affecting the applicant's condition. Both medical reports of Dr. Parker and dr. Herskowitz, dated September 16, 1975, supporting the application, diagnose the applicant's physical diability as a back injury. In neither case do the doctors' reports indicate the radical mastectomy as contributing to the patient's disability as indicated by their response to questions 2 and 7 (respectively Exhibits 22 and 23). I find that the report of Dr. Parker dated September 29, 1974, quoted above, consistent with the applicant's testimony that she had some difficulty in movement associated with the then recent surgery. Based on the foregoing, I find that the mastectomy is not a contributing factor to the existing physical disability. There is some indication that the lack of activity enforced by the back injury has caused the development of a disease of the bone; however, I find that it is the lack of mobility resulting from the disability which has aggravated or "caused" the disease and not the disease that has caused the disability.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations contained in a five-count Administrative Complaint. The charges against the Respondent may be summarized as follows: Count One charges the Respondent with violating Section 458.331(1)(h), Florida Statutes (1985) , by failing to perform any statutory or legal obligation placed on a licensed physician. Count Two charges the Respondent with violating Section 458.331(1)(1), Florida Statutes (1985), by making deceptive, untrue, or fraudulent representations in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. Count Three charges the Respondent with violating Section 458.331(1)(n), Florida Statutes (1985), by failing to keep written medical records justifying the course of treatment of the patient. Count Four charges the Respondent with violating Section 458.331(1)(q), Florida Statutes (1985), by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. Count Five charges the Respondent with violating Section 458.331(1)(t), Florida Statutes (1985), by gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, or treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. The Respondent filed an answer to the Administrative Complaint. In his answer, the Respondent admits some of the factual allegations in the Administrative Complaint, but denies all allegations of wrongdoing. Following the hearing, a transcript of the proceedings at hearing was filed on September 16, 1987, and the parties were allowed fifteen days from that date within which to file proposed recommended orders. The Respondent filed a proposed recommended order on October 1, 1987, and the Petitioner filed one on October 2, 1987. Careful consideration has been given to the parties' proposed recommended orders, and specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0004527. Respondent's last known address is 463 Emerald Road, Ocala, Florida 32672. Ionamine is a brand name for a scheduled controlled substance as defined by Chapter 893, Florida Statutes. Respondent's treatment of patients for obesity included B-12 vitamin injections. Approximately two-thirds of the Respondent's practice is devoted to the treatment of obesity. The other third of the Respondent's practice is devoted to a general practice of medicine. The Respondent graduated from Indiana University Medical School in 1945, interned in 1946, and became licensed in the State of Florida in 1951. The Respondent served for two years in the Air Force during the Korean War, and then returned to Florida where he established a practice in Miami. He practiced in Miami until 1970, at which time he moved to Ocala, where he has practiced since 1970. The Respondent is a board certified anesthesiologist and graduated at the top 10 percent of his class from Indiana University. The Respondent subscribes to and reads many medical journals and articles, including those concentrating on bariatrics. The Respondent has purchased and reviewed the American Medical Association video and study guide concerning the treatment of obesity. The Respondent also has continued his post graduate studies. When a new patient comes to the Respondent's office for treatment for obesity, the patient is first given a questionnaire to fill out. Subsequently a medical history is obtained from the patient, and the patient is given a thorough physical examination. Usually, but not always, blood and urine samples are obtained from this patient for testing, and the patient is given an EKG. If this patient appears to be in good health, the Respondent puts the patient on a weight loss program consisting of a reduction of calories, an exercise program consisting of a thirty minute walk each day, and an appetite suppressant, usually Phentermine or Diethylpropion. Phentermine and Diethylpropion are both helpful in the treatment of obesity. The Respondent also encourages each patient to take a vitamin injection on a weekly basis, regardless of whether there is any evidence of vitamin deficiency or pernicious anemia. Thereafter, the patient is instructed to return to the Respondent's office once a week, at which time an R.N. or L.P.N. checks their blood pressure, pulse, respiration, and weight. The nurse questions each patient to find out how they are reacting to the weight loss program. If everything appears to be satisfactory, the patient receives another seven-day supply of diet suppressant medication and a vitamin injection. The Respondent sees the patient every fourth visit (once a month) to determine what progress the patient is making. The Respondent routinely commences treatment of obesity patients, including the prescription of or dispensing of Phentermine or Diethylpropion, before reviewing the results of blood and urine tests. The Respondent continues obesity patients on an appetite suppressant (usually Phentermine or Diethylpropion) at the rate of seven 30 mg. pills per week as long as the patient continues to lose one percent of their body weight per week until their ideal weight is reached. In January of 1986, the Respondent saw a patient by the name of Sandy Wilson who came to his office for the treatment of obesity. The Respondent gave Ms. Wilson a thorough physical examination. The Respondent also questioned Ms. Wilson about her medical history. During the course of relating her medical history, Ms. Wilson complained of swelling of her hands and feet. The Respondent did not obtain blood or urine samples from Ms. Wilson, nor did he do an EKG on Ms. Wilson. Following his examination of Ms. Wilson, the Respondent placed her on a 1000 calorie per day diet, recommended that she exercise by walking 30 minutes each day, and dispensed to her a seven-day supply of Ionamine, which is a form of Phentermine. The Respondent also wrote a prescription for Ms. Wilson for thirty tablets of Furosemide 40 mg. Furosemide is a rather potent diuretic. The Respondent also suggested that Ms. Wilson have a vitamin injection, but she refused the injection. Ms. Wilson also refused to have blood drawn, saying she was afraid of needles. The Respondent told Ms. Wilson if she changed her mind she could have the blood drawn and the vitamin injection on her next visit. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain sufficient information to show that Ms. Wilson received a thorough physical examination. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not show that an adequate medical, social, or family history was obtained from Ms. Wilson. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not mention that Ms. Wilson had or complained of edema. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain the results of any blood or urine tests or the results of any EKG. Ionamine and Furosemide should not be dispensed or prescribed to a patient for obesity and edema without first giving the patient a thorough physical exam, obtaining an adequate medical history, and obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG. This is in part because a patient may have the beginnings of some illness, such as diabetes or hypothyroidism, that are not detectable by a physical examination alone. The dispensing of Ionamine and the prescription of Furosemide to Ms. Wilson without first obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG is a failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. A physician's records must be sufficient to justify the treatment given to the patient. In particular such records should contain complete information regarding examinations, histories, and laboratory tests. Because the Respondent's records regarding Ms. Wilson did not contain complete information in this regard, the Respondent has failed to keep written medical records justifying the course of treatment of the patient. Vitamin injections do not have any direct therapeutic effect in the treatment of obesity. They do not cause weight loss, nor do they contribute to weight loss. Nevertheless, periodic vitamin injections are commonly given to patients who are being treated for obesity as a form of "behavior modification." The goal of the behavior modification is to have the patient return for follow- up treatment on a regular basis. Vitamin injections do not pose any significant risk to the patient.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medicine issue a final order in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Finding the Respondent guilty of the violations charged in Counts Three, Four, and Five of the Administrative Complaint; and Imposing the following penalty on the Respondent: (1) an administrative fine in the amount of one thousand dollars ($1,000.00), and (2) placement of Respondent's license on probation for a period of two years under conditions to be prescribed by the Board. DONE and ENTERED this 4th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH 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 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2031 The following are my specific rulings on all of the findings of fact proposed by the parties. As the parties are well aware, there is a large amount of conflict in the testimony in this case, especially in the expert witness testimony. To the extent that the testimony of the expert witnesses on behalf of the Petitioner (Dr. Clark and Dr. Weiss) conflicts with the testimony of the expert witnesses on behalf of the Respondent (Dr. Haimes and Dr. Asher), I have for the most part been persuaded by, and have incorporated into the findings of fact, the version set forth by the Petitioner's witnesses. Among other things, the version set forth by the Petitioner's expert witnesses more often appeared to be more logical, more reasonable and well reasoned, and more consistent with other evidence in the case. Findings proposed by the Petitioner: Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with some irrelevant details deleted. Paragraph 3: Accepted in substance with some additional findings in the interest of clarity and accuracy. Paragraphs 4 and 5: Accepted. Paragraphs 6 and 7: Accepted in substance with additional clarifying details. Paragraph 8: Rejected as not fully supported by competent substantial evidence. Paragraphs 9 and 10: Accepted in substance with additional clarifying details. Paragraph 11: Accepted. Paragraph 12: Rejected as not supported by persuasive competent substantial evidence. Paragraph 13: Accepted. Paragraphs 14 and 15: Rejected as constituting argument rather than proposed findings of fact. (The failure to include argument in the findings of fact is not a comment upon the merits of the argument.) Paragraphs 16 and 17; Accepted in substance. Findings proposed by the Respondent: By way of clarification of some of the rulings which follow, it is noted that a substantial number of the findings proposed by the Respondent begin with the words "Dr. So-and-so testified" or the words "Dr. So-and-so believes." Such findings are, in most cases, nothing more than summaries of the testimony and might well have been rejected on that basis alone. However, I have chosen to direct attention to the substance of such proposals, overlooking their form, and have treated each such proposal as a proposed finding of the fact testified to or the fact believed by the witness. Accordingly, when such proposals are rejected as being contrary to the greater weight of the evidence, that is not to say that the witness did not so testify or did not so believe, but that the fact testified to or believed by the witness is contrary to the greater weight of the evidence. Paragraphs 1, 2, 3, 4, and 5: Accepted. Paragraph 6: Most of this paragraph has been accepted, but many of the statements have been made subject to additional qualifications to be fully consistent with the evidence. Some details have been omitted as not supported by competent substantial evidence. A major qualification is that the procedures described in this paragraph are performed on many, but not all, of the Respondent's patients. Paragraph 7: Rejected as subordinate and unnecessary details. It has already been found that the Respondent gives thorough physical examinations. Paragraph 8: Accepted. Paragraphs 9 and 10: Rejected as irrelevant. Paragraph 11: Accepted in substance. Paragraph 12: First sentence is accepted in substance. Second sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Paragraphs 13 and 14: Rejected as constituting subordinate and unnecessary details. Paragraph 15: Rejected as constituting subordinate and unnecessary details. Also, last clause of first sentence is not supported by competent substantial evidence. Paragraph 16: Rejected as constituting subordinate and unnecessary details. Paragraph 17: Rejected as irrelevant. Paragraphs 18, 19, 20: Rejected as irrelevant and as constituting subordinate and unnecessary details. Paragraph: 21: Rejected as subordinate and unnecessary details. Also rejected as inaccurate because there were other reasons for the opinion. Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as irrelevant. Paragraph 29: First two sentences rejected as subordinate and unnecessary details. Third sentence rejected as irrelevant because it ignores and omits the context of the statement. Paragraph 30: Rejected as unnecessary. Paragraphs 31 and 32: Accepted in substance with additional clarifying details. Paragraph 33: Rejected because an important detail of the proposal is not supported by competent substantial evidence. Paragraph 34: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. Paragraphs 35 and 36: Rejected as irrelevant. Paragraph 37: Rejected as contrary to the greater weight of the evidence. Paragraph 38: Rejected as subordinate and unnecessary details. Paragraph 39: Rejected as irrelevant and as subordinate and unnecessary details. Paragraph 40: Rejected as irrelevant. Paragraph 41: Rejected as subordinate and unnecessary details, because Dr. Haimes did not witness the examination and treatment of the patient. Paragraph 42: Rejected as irrelevant. Paragraph 43: Rejected because the witness's use of vitamin injection is irrelevant in light of other evidence and because the witness's opinion that vitamin injections are acceptable world wide is rejected as not persuasive. Paragraph 44: Rejected as contrary to the greater weight of the evidence. Paragraph 45: Rejected as irrelevant; the witness's beliefs notwithstanding, the greater weight of the evidence is to the contrary. Paragraph 46: Rejected as subordinate and unnecessary. Paragraph 47: First three sentences rejected as irrelevant. Last sentence rejected as contrary to the greater weight of the evidence. Paragraph 48: Rejected as contrary to the greater weight of the evidence. Paragraph 49: The first, second, and fourth sentences are rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant. Paragraph 50: Rejected as contrary to the greater weight of the evidence. Paragraph 51: First two sentences rejected as contrary to the greater weight of the evidence. Last sentence accepted in substance. Paragraph 52: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in substance. Third and fourth sentences are rejected as subordinate and unnecessary details. Paragraph 53: First sentence rejected as irrelevant. Second sentence rejected as contrary to the greater weight of the evidence. Paragraph 54: Rejected as contrary to the greater weight of the evidence. Paragraph 55: Rejected as irrelevant. Paragraph 56: First sentence is rejected as contrary to the greater weight of the evidence. The second sentence is rejected as irrelevant. Paragraph 57: Rejected as subordinate and unnecessary. Paragraph 58: Rejected as contrary to the greater weight of the evidence. Paragraph 59: Rejected as subordinate and unnecessary details. Paragraph 60: Rejected as contrary to the greater weight of the evident. Paragraph 61: Rejected as irrelevant. Paragraph 62: First two sentences rejected gas contrary to the greater weight of the evidence. Third sentence accepted in substance. Last sentence rejected as irrelevant. Paragraph 63: First sentence rejected as irrelevant. Second sentence accepted in substance. Third sentence rejected as contrary to the greater weight of the evidence. Paragraph 64: Rejected as irrelevant. Paragraph 65: Rejected because the opinions in this paragraph are contrary to the greater weight of the evidence. Paragraph 66: First and third sentences rejected as subordinate and unnecessary details. Second and fourth sentences rejected as contrary to the greater weight of the evidence. Paragraph 67: Rejected as contrary to the greater weight of the evidence. Paragraph 68: Rejected as irrelevant. Paragraphs 69 and 70: Rejected as contrary to the greater weight of the evidence. Paragraph 71: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Francine C. Landau, Esquire Inman and Landau, P.A. 2252 Gulf Life Tower Jacksonville, Florida 32207 H. Edward Dean, Esquire 201 Northeast Eighth Avenue Suite 100 Ocala, Florida 32670 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues are whether Respondent, an assisted living facility (ALF), failed to provide adequate supervision of the residents and failed to perform a duty to contact a health care provider after one resident was struck and injured by another resident. If so, an additional issue is the penalty that should be imposed.
Findings Of Fact Respondent operates a ALF in Miami that is licensed for 350 beds. The ALF occupies a 14-story tower. The front desk is on the first floor. The second floor contains common area, including an activities area, a beauty salon, a cafeteria, a physical therapy room, offices for human resources, accounting and administration, a behavioral analyst's office, and offices for health care staff and visiting physicians. Team leaders of the health care staff perform rounds on the second floor. Seven days per week, one team leader is on duty from 5:30 a.m. to 4:00 p.m., one team leader is on duty from 1:00 p.m. to 11:30 p.m., and one team leader is on duty from 11:30 p.m. to 5:30 a.m. At the time of the subject incident, rounds were performed every two hours, 24 hours per day. Resident #1 and Resident #2 were admitted to Respondent's ALF in the summer of 2014. At the time of the subject incident, Resident #1 was 64 years old, and Resident #2 was 88 years old. The health assessment prepared at the time of the admission of Resident #2 states that Resident #2 suffered from moderate progressive dementia and poor cognitive or behavioral status, and he required 24-hour supervision of his activities of daily living. The assessment states that Resident #1 needed assistance eating and needed supervision ambulating, bathing, grooming, toileting, and transferring. The assessment adds that Resident #1 was not a danger to self or others, but needed 24-hour "nursing or psychiatric care." However, the assessment concludes that his needs could be met in an ALF that was not a medical, nursing, or psychiatric facility. Between 2:00 p.m. and 3:00 p.m. on Sunday, November 30, 2014, Resident #1 and Resident #2 were playing dominoes in the activities area on the second floor. Respondent's posted activities list dominoes at this location daily from 9:00 a.m. to 8:00 p.m. The activities area is an open area that does not have doors, so it cannot be locked, but, at 8:00 p.m. daily, staff turn off the lights. The dominoes games in the activities area are initiated by the residents and unsupervised by Respondent's staff, except as the games are observed during routine rounds. A disagreement between Resident #1 and #2 emerged during the game, and the disagreement quickly escalated to a brief physical confrontation between the two men. Resident #1 struck Resident #2 who fell to the ground where he remained for about 30 seconds, but did not lose consciousness. Other residents separated Resident #1 and Resident #2 after Resident #2 stood back up. None of the residents reported this physical confrontation to Respondent's staff, none of whom witnessed the incident. On Sundays, health care staff total 25 persons working various shifts throughout the 24-hour day. Other staff are present onsite, including 20 or 21 persons in housekeeping, memory care staff, maintenance staff, and a manager. On Monday, December 1, a staff person noticed blood on the floor where Resident #2 had fallen. Respondent's staff initiated an investigation, and, by the end of the day, staff learned of Resident #1's participation in the confrontation. Later in the day on Monday or possibly early on the following day, Respondent's staff learned that the other resident in the confrontation was Resident #2. Independently, on December 2, the director of health care, who is a registered nurse, ran into Resident #2 and noticed that he had a bruise on his right ear. She had Resident #2 accompany her to her office where she asked him what happened. Resident #2 said that he could not recall. He had no other visible wounds, and he seemed fine. Later on the same day, after the director of health care learned from other staff what had happened, she went to Resident #2's room and conducted a general assessment of the resident. She discovered some small bruises on his chest. At this point, the director of health care did not know that Resident #2 had fallen to the floor during the incident. Resident #2 said that he was fine. Due to the size of the bruises on the chest and having seen no other sign of injury besides the bruise on the ear, the director of health care did not document anything except the bruise on the ear and did not contact Resident #2's health care provider. On Wednesday, December 3, a family member visited Resident #2 and, seeing his injured ear, called the police to investigate. A law enforcement officer visited the ALF that day and conducted some interviews. Later that evening, staff took Resident #2 to Baptist Hospital for an evaluation. Resident #2 presented at the hospital with bruising of the right ear and "small skin abrasion[s]" on both elbows. During the three hours that Resident #2 remained at the hospital, he underwent a CT scan of the head due to the fall and a claim of loss of consciousness. After discharge, Resident #2 went to a family member's home and never returned to the ALF. Petitioner failed to prove any act or omission that constitutes an intentional or negligent act seriously affecting the health, safety, or welfare of Resident #2.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 1st day of February, 2016, 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 1st day of February, 2016. COPIES FURNISHED: Nelson E. Rodney, Esquire Agency for Health Care Administration 8333 Northwest 53rd Street, Suite 300 Miami, Florida 33166 (eServed) Barbara Galindo, Qualified Representative Residential Plaza at Blue Lagoon, Inc. 5617 Northwest 7th Street Miami, Florida 33126 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed) Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
