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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs PETER CHOY, M.D., 13-004280PL (2013)
Division of Administrative Hearings, Florida Filed:Miami, Florida Nov. 05, 2013 Number: 13-004280PL Latest Update: Aug. 08, 2014

The Issue The issues in this case are whether Respondent: (1) made deceptive, untrue, or fraudulent representations in or related to the practice of medicine; (2) failed to keep appropriate medical records with respect to Patient T.G.; (3) fell below the minimum acceptable standard of care in his treatment of T.G.; misrepresented or concealed a material fact during the course of the disciplinary process; and/or (5) improperly interfered with Petitioner's investigation. If so, it will be necessary to determine whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines, or take some other action.

Findings Of Fact At all times relevant to this case, Dr. Choy was licensed to practice medicine in the state of Florida, having been issued license number ME 74815. The Department has regulatory jurisdiction over licensed physicians such as Dr. Choy. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department has charged Dr. Choy with medical malpractice, which is a disciplinable offense pursuant to section 458.331(1)(t)1, Florida Statutes, both for allegedly failing to inform his patient, T.G., that a CT scan performed in June 2008 revealed the presence of a potentially malignant tumor in her pancreas, and for failing to refer T.G. to a specialist for further investigation of this finding. The Department alleges, as well, that, after an attorney representing T.G.'s family contacted Dr. Choy following T.G.'s death in 2010, Dr. Choy altered his medical records to make it appear as though he not only had informed T.G., in and after June 2008, that she might have pancreatic cancer, but also had urged her repeatedly to see a specialist. Based on these allegations,1/ the Department has charged Dr. Choy with: one, making deceptive, untrue, or fraudulent representations in the practice of medicine, an offense under section 458.331(1)(k); two, failing to keep legally sufficient medical records in compliance with Florida Administrative Code Rule 64B8-9.003, an offense under section 458.331(1)(m); and, three, misrepresenting or concealing material facts during, and improperly interfering with, a disciplinary proceeding, which are separate offenses under sections 458.331(1)(gg) and 458.331(1)(hh), respectively. The events giving rise to this dispute began on May 13, 2008, when Dr. Choy's longtime patient, T.G., presented with complaints of left lower quadrant pain and a change in bowel habits. T.G., who was then 77, had a number of medical conditions for which she had been seeing Dr. Choy, including diabetes, hypertension, depression, heart disease, and arthritis. Reviewing the results of blood work ordered the previous month, Dr. Choy diagnosed T.G. with anemia and ordered another blood test to determine if the condition persisted. In addition, Dr. Choy ordered a CT scan of T.G.'s abdomen and pelvis. T.G. went to the lab to have blood drawn on May 13. The next day, Dr. Choy received the test results, which showed that T.G. remained anemic. Dr. Choy suspected that T.G. might have colon cancer. He made a note on the lab report that T.G. should be prescribed a medication for her anemia and that she needed to "be referred to a GI specialist for eval[uation]." Following the customary procedure in Dr. Choy's office, an employee called T.G. on May 19 to inform her of these instructions and wrote "5/19 done" at the top of the lab report. T.G. underwent the CT scan of her abdomen and pelvis on June 17, 2008. The radiologist's three-page report was faxed to Dr. Choy on June 19. On the first page of the report, which discusses the abdominal scan, it is stated that "[t]here is a large lobulated malignant tumor mass in the tail of the pancreas . . . ." On the next page, the third of four enumerated impressions based on the abdominal CT scan reads: "Large malignant tumor mass tail of the pancreas as described." Also on page 2, following the report of the abdominal procedure, is the interpretation of the pelvic CT scan, which resulted in a finding of diverticulosis but was otherwise negative. Dr. Choy reviewed the report and wrote "ok" on page 1, next to the first impression from the abdominal scan, which was: "Old healed calcified granulomatous disease right lower lobe." On page 2, adjacent to the impressions from the pelvic scan, Dr. Choy wrote the following note:2/ At some point after Dr. Choy wrote the foregoing note, the report was scanned into his office's electronic medical records system. Also, a hard copy of the report of T.G.'s CT scan was placed in a traditional patient chart, as was done with all lab reports that Dr. Choy's office received. On June 19, 2008, someone from Dr. Choy's office called T.G. at 3:34 p.m. and spoke with her (or someone in her home) for nearly five minutes. Dr. Choy testified that he personally placed this call, a claim the Department disputes. The identity of the caller is immaterial, however, because the main purpose of the call was, most likely, to schedule an appointment for T.G., so that Dr. Choy could go over the recent blood work and CT scan with T.G. in person. T.G. was not told during this phone call about the tumor that had been observed in her pancreas, but she was probably given Dr. Choy's recommendations for managing diverticulosis, as indicated by a handwritten note at the top of page 2 of the CT scan report, which says, "6/19/08 Done." T.G. returned to Dr. Choy's office on June 30, 2008. Unfortunately, there is no reliable contemporaneous record of what Dr. Choy communicated to T.G., if anything, about the finding of a tumor in her pancreas. Dr. Choy testified that he did not use words such as "cancer" or "mass" in front of T.G., both to avoid upsetting her and because he is a "soft person" who "hate[s] to give people bad news." Dr. Choy thinks that he might have told T.G. there was a "spot" on her pancreas (although he is not sure he used that term), and he clearly recalls having advised T.G. to "see a specialist" because——he recalls telling her——although he "didn't know what it was," it "could be bad." The Department disputes that Dr. Choy said even that much. In support of its position that Dr. Choy failed to disclose to T.G. the radiologist's finding of a pancreatic tumor, the Department focuses on Dr. Choy's electronic medical records, in which——as originally prepared——he made no mention of a pancreatic mass. For example, at the time of T.G.'s June 30, 2008, visit, Dr. Choy wrote that the patient did not have "[a]bdomenal [sic] pain," and he typed the following notes regarding his impressions and diagnoses: ZZ-Dr Peter V Choy; Z-VP EKG; Anemia Iron Deficiency – 2809 repeat Test if no Improvement we will refer pt to GI evaluation;Diabetes w/ unspecified complication-250.90; Hyperlipidemia-2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function-7993; Depression- 311; Vertigo-7804 This record, made at or around the time of the June 30, 2008, visit, is silent about the potentially malignant tumor that had recently been seen in T.G.'s pancreas. Dr. Choy testified that his contemporaneous records are not silent as to the pancreatic mass because when he saw T.G. on June 30, 2008, he wrote an additional note on the hard copy of the CT scan report, creating the following:3/ That Dr. Choy inserted the reference to a pancreatic tumor after June 19, 2008, is proved by the existence of the digital copy of the CT scan report——converted via scanner from paper to electronic file that day——which does not contain the reference. Because Dr. Choy did not put a date on the subsequent note, however, his testimony is the only evidence that it was made on June 30, 2008. The Department contends that Dr. Choy's testimony in this regard is not credible. The undersigned agrees with the Department. There are a number of reasons for rejecting Dr. Choy's testimony. To begin, Dr. Choy's account requires one to imagine that, when making his original notes, Dr. Choy jotted down a treatment plan for diverticulosis while simultaneously failing to acknowledge the ominous finding of a pancreatic tumor, despite being aware of the potentially terminal condition. Further, Dr. Choy would have the undersigned believe that, just as he was soft-pedaling the CT scan results in conversation with T.G., he was writing "malignant tumor" on the report——using the type of words he (credibly) denies uttering in T.G.'s presence. The reference to the pancreatic tumor looks out of place, moreover, in the section of the report discussing the pelvic scan, which did not find the mass, atop the previous notes relating to diverticulosis, which the pelvic scan did reveal. Finally, there is the undisputed fact, which will be discussed in depth below, that Dr. Choy altered many other medical records after questions were raised concerning his treatment of T.G.—— and particularly about whether he had told her she might have pancreatic cancer. In sum, the undersigned does not credit the annotated CT scan report as evidence tending to establish that Dr. Choy notified T.G. in June 2008 that there was a suspicious mass in her pancreas. The next time T.G. saw Dr. Choy was September 3, 2008. The entries that he made in the patient's electronic medical record for this visit were, originally, silent about the possibility that T.G. might have cancer of the pancreas. He noted that T.G. was "[d]oing well with no change in clinical status" although she reported "[a]domenal [sic] [p]ain," which she had not complained about on June 30, 2008. Dr. Choy recorded T.G.'s various diagnoses in the electronic patient chart, making no mention of the pancreatic mass. This pattern was repeated during the several visits which followed, on January 19, 2009; February 11, 2010; and March 31, 2010. Dr. Choy's contemporaneous records of these visits say nothing about T.G.'s pancreatic tumor or his efforts, if any, to follow the condition. When T.G. returned to Dr. Choy's office on June 24, 2010, she complained of abdominal pain and abnormal weight loss. Dr. Choy reviewed T.G.'s blood tests, which indicated that she was again anemic and might have liver disease. Concerned, and having forgotten the 2008 scan, Dr. Choy ordered additional blood tests and a CT scan of T.G.'s abdomen and pelvis. After leaving Dr. Choy's office, T.G. went to the lab, where her blood was collected on June 24. The test results, which were reported on June 28, 2010, showed that her platelets were low, suggesting a blood disorder. For that reason, Dr. Choy referred T.G. to Dr. Luis Villa, a hematologist and oncologist whom T.G. had wanted to see. Dr. Villa saw T.G. on July 1, 2010. In a letter to Dr. Choy that he prepared on the same day, Dr. Villa advised that T.G. "look[ed] great; certainly, younger than her stated age." Dr. Villa believed that laboratory data for T.G. were suggestive of chronic liver disease, and he recommended that Dr. Choy order additional tests. Dr. Villa informed Dr. Choy that he had "reassured [T.G.] that there is nothing acute here that necessitate[s] immediate attention." On July 7, 2010, T.G. returned to Dr. Choy's office for a follow-up visit. During this visit, Dr. Choy noted Dr. Villa's recommendation and recorded (for the first time) a differential diagnosis of "potential malignancy," to be ruled out. Dr. Choy ordered more tests, including an abdominal CT scan. T.G. underwent a CT scan on July 15, 2010, her second, two years after the previous scan had first detected a pancreatic mass. A report of the results of this CT scan was delivered to Dr. Choy's office on July 16, 2010. The report indicated that T.G. had "a large mass at the level of the pancreatic tail." T.G. had an appointment to see Dr. Choy for a follow- up examination on July 19, 2010. That morning, however, T.G.'s son, being worried about how weak T.G. suddenly had become, took her directly to the hospital, without stopping at Dr. Choy's office. Dr. Choy signed the order to admit T.G. to Mercy Hospital, where she was received on July 19 at 1:11 p.m. carrying a diagnosis of pancreatic cancer with possible metastasis to the liver. Although Dr. Choy did not see T.G. in his office that day, as expected, a record of the upcoming visit was created in Dr. Choy's electronic medical records system. Somehow, a record of the canceled visit was thereafter transmitted to T.G.'s HMO as if Dr. Choy had seen T.G. in his office as scheduled, making it appear that he had performed an examination which in fact had not occurred. The Department alleges that Dr. Choy submitted a false insurance claim in connection with the canceled appointment. This contention is rejected as unproved. There is no persuasive evidence that Dr. Choy received any payment for the July 19th appointment which, as it happened, T.G. could not keep, and more important, the evidence is insufficient to establish, clearly and convincingly, that Dr. Choy intended to deceive the HMO. The simplest and likeliest explanation for the July 19th office- visit note is that, owing to the unexpected change of plans, someone got the paperwork confused and made a mistake. The day after she was admitted to Mercy Hospital, T.G. underwent a liver biopsy, which revealed a "metastatic tumor of pancreatic origin." Sometime in July 2010, after the pathology report confirmed T.G.'s diagnosis, T.G.'s family requested that Dr. Choy's office provide them with copies of T.G.'s medical records. Dr. Choy's staff complied with this request, printing the electronic medical records on July 27, 2010, and delivering them to a family member. The set of records provided at this time went back only as far as January 19, 2009, and thus omitted the notes for T.G.'s appointments with Dr. Choy in 2008. On August 8, 2010, T.G. passed away due to liver disease and acute renal failure. On August 19, 2010, Dr. Choy received a letter from an attorney representing T.G.'s family, which requested copies of T.G.'s records. At this point, Dr. Choy feared that T.G.'s family would bring a medical malpractice lawsuit against him, and he "panicked" because he had never been sued before and did not have liability insurance. On reviewing the records, Dr. Choy concluded that some of the language was "ugly" and "didn't look right" as written. Wanting to make the records "as presentable as possible" for the lawyer, Dr. Choy decided to edit the electronic text. He then proceeded to delete some entries and add others without identifying any of the alterations. As a comparison of the original text to the revised text clearly reveals, Dr. Choy's self-confessed concern was obviously owing to the remarkable absence of any notes in the medical records pertaining to the possibility that T.G. might have pancreatic cancer as stated in the radiologist's report interpreting the June 2008 CT scan. This is apparent from the fact that, without significant exception, the sole purpose of the alterations is plainly to correct that particular, glaring deficiency. The covertly amended records convey the impression that Dr. Choy timely informed T.G. of the CT scan results and repeatedly urged her to see a specialist to investigate the findings further. Indeed, if one were unaware of the original, unaltered records, his review of the revised records would provide little or no cause to criticize Dr. Choy's handling of T.G.'s case. The inevitable inference is that Dr. Choy knew the original records would be persuasive, if not conclusive, evidence of his failure to inform T.G. of her potentially fatal condition, in violation of the standard of care, so he secretly (or so he thought) doctored the records to turn them into evidence that he had satisfied the standard of care. To see just how incriminating the alterations are, it is helpful to place the original and revised texts, respectively, side-by-side, as below. In the following table, the language printed in boldface identifies deletions from the original, contemporaneous record and additions to the much-later revised record (misspellings in original): Visit Date Contemporaneous Record Revised Record 6/30/08 ZZ-Dr Peter V Choy; Z-VP ZZ-Dr Peter V Choy; Z-VP EKG; Anemia Iron EKG; Anemia Iron Deficiency Deficiency – 2809 repeat – 2809 And abdominal pain Test if no Improvement we with and abnormal CT scan. will refer pt to GI We will refer pt to GI evaluation;Diabetes w/ evaluation for possible GI unspecified complication- malignancy of the 250.90; Hyperlipidemia- Pancreas;Diabetes w/ 2724; Hypertension-4019; unspecified complication- Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function- 7993; Depression-311; Vertigo-7804 250.90; Hyperlipidemia- 2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism-2449; Declining Function-7993; Depression-311; Vertigo- 7804 9/03/08 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG; Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism- 2449; Declining Function- 7993; Depression-311; Vertigo-7804 -; Abdominal Pain Unknown ET – 78900; Anemia – 2859 Pt was advice again to see a GI Dr. The possibility of a Ca of the pancreas was discuss with the pt; ZZ-Dr Peter V Choy; Z-VP EKG; Diabetes w/ unspecified complication-250.90; Hyperlipidemia-2724; Hypertension-4019; Hypertensive Heart Disease without HF 402.90; Hypothryoidism-2449; Declining Function-7993; Depression-311; Vertigo- 7804 1/19/2009 Malaise and Fatigue and Malaise and Fatigue and Other -780.79; Declining Other -780.79; Declining Function-7993; Dizziness Function-7993; Dizziness and Giddiness - and Giddiness - 780.4;Diabetes mellitus 780.4;Diabetes mellitus Uncontrolled-25002; ZZ- m Uncontrolled-25002; ZZ- m Resently admitted to BH Resently admitted to BH with CHF Possible angina with CHF Possible angina Pectoris before Pectoris before admittion admittion Dr. Peter V Weight Loss Abnormal- Choy; Z-VP EKG; Diabetes 783.21; Abdominal Pain w/ unspecified Unknown ET – 78900 Possible complication-250.90; ca of the Pancreas; ZZ-Dr. Hyperlipidemia-2724; Peter V Choy; Z-VP EKG; Hypertension-4019; Diabetes w/ unspecified Hypertensive Heart complication-250.90; Disease without HF Hyperlipidemia-2724; 402.90; Hypothryoidism- Hypertension-4019; 2449; Declining Function- Hypertensive Heart Disease 7993; Depression-311; without HF 402.90; Vertigo-7804; Congestive Hypothryoidism-2449; Heart Failure-428.0 Declining Function-7993; associatted with Actos Depression-311; Vertigo- 7804; Congestive Heart Failure-428.0 2/11/10 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG; Trigger finger on the right great finger.; Contusion Foot-924.20; Back Pain Lower-7242 and in the thoracic area;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Congestive Heart Failure- 428.0; Hypothryoidism- 2449; Back Pain Lower- 7242; Neuropathy Peripheral-3569 Trigger finger on the right great finger.; Contusion Foot-924.20; Back Pain Lower-7242 and in the thoracic area;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Congestive Heart Failure- 428.0; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral-3569 3/31/10 A- Medically Stable; ZZ- Dr Peter V Choy; Z-VP EKG;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral- 3569; Hypertensive Heart Disease with HF 402.91 Dr Peter V Choy; Z-VP EKG; Weight Loss Abnormal-783.21 Again case was discuss with the Pt and she was advice of the abnormal finding;Diabetes w/ unspecified complication- 250.90; Hyperlipidemia- 2724; Hypertension-4019;; Hypothryoidism-2449; Back Pain Lower-7242; Neuropathy Peripheral-3569; Hypertensive Heart Disease with HF 402.91 The alterations are clear and convincing proof of the material fact that Dr. Choy did not tell T.G. that the June 19, 2008, CT scan report stated she had a "[l]arge malignant tumor mass" in her pancreas, for a simple reason: he was unaware that a tumor mass was described in the report. This latter fact is evident from Dr. Choy's alarm, in August 2010, about the deficiencies in the records. Why, only then, did Dr. Choy realize that the records "didn't look right?" What did Dr. Choy know, without question, in August 2010, that he might not have known earlier? The answer, of course, is that in August 2010 Dr. Choy knew that the 2008 CT scan report disclosed the existence of a large mass in T.G.'s pancreas, a grave finding that should have been conspicuously noted in T.G.'s medical records. Dr. Choy's admission that the records looked "ugly" to him in August 2010 is revealing because, in fact, the records look bad only in the light of the 2008 CT scan results; but for that report, they would appear to be at least adequate, notwithstanding a few typographical errors. The bottom line is that if the CT scan report had contained no references to a pancreatic mass, then T.G.'s original medical records would have looked alright. The undersigned readily infers, therefore, without hesitation, that T.G.'s medical records looked fine to Dr. Choy when he originally wrote them because, when he originally wrote them, he was unaware that the 2008 CT scan report described a tumor mass in T.G.'s pancreas. Only later, after learning the full contents of the 2008 CT scan report, did the incriminating nature of the contemporaneous medical records become clear to Dr. Choy, who then, in his panic, made the costly mistake of tampering with the evidence. Dr. Choy's failure to read the 2008 CT scan report closely enough to take notice of its critical finding regarding T.G.'s pancreas, whatever the cause of that failure was, is sufficient to explain his failure to tell T.G. that she might have pancreatic cancer. Simply put, Dr. Choy did not tell T.G. about the pancreatic mass because he did not know of its existence. The parties stipulated that the minimum standard of care required that, within a reasonable time after June 19, 2008, Dr. Choy both: (1) notify T.G. that the results of the June 2008 CT scan suggested she had a mass in her pancreas; and (2) refer T.G. to an appropriate specialist for further evaluation and treatment of the pancreatic mass. Being unaware of the finding regarding a pancreatic mass, Dr. Choy did neither. Thus, his treatment of T.G. fell below the standard of care. T.G.'s family ultimately elected not to sue Dr. Choy, but in July 2011, T.G.'s son filed a complaint with the Department alleging that Dr. Choy had provided T.G. with substandard care. This consumer complaint set in motion the investigation which led to the instant proceeding. In connection with its investigation, the Department requested a copy of all T.G.'s electronic medical records from Dr. Choy going back to T.G.'s first visit in 1999. These medical records were printed from Dr. Choy's office computer system on July 27, 2011, and delivered to the Department in August 2011. On August 23, 2011, a Department investigator interviewed Dr. Choy regarding his care of T.G. The investigator——who was in possession not only of the recently produced records, but also copies of the records Dr. Choy's office had provided to T.G.'s family back in July 2010, before Dr. Choy had tampered with the electronic documents——asked Dr. Choy to explain why there were two different versions of the office notes for T.G.'s January 19, 2009, visit. After some initial hesitation, Dr. Choy admitted that he had altered the records to reinforce his case after learning he might be sued for malpractice. During the course of discovery in this proceeding, the Department asked Dr. Choy whether he had made any other changes to T.G.'s records besides the ones previously identified. Dr. Choy compared the printouts of T.G.'s untampered-with records given to the family in July 2010, which covered office visits from January 19, 2009, forward, to the fabricated versions provided to the Department in August 2011, and was unable to identify any additional changes. Neither the Department nor Dr. Choy was able to retrieve copies of T.G.'s original electronic records for the office visits prior to January 19, 2009, because Dr. Choy had overwritten the computer files when he altered the documents in August 2010. Consequently, the Department retained a forensic computer expert, who managed to recover the authentic records from a backup. Armed at last with a full set of T.G.'s medical records as they had looked on the dates Dr. Choy saw T.G., the parties were finally able to identify the changes Dr. Choy subsequently made to the office notes for the visits of June 30 and September 3, 2008. Ultimate Factual Determinations The Department has established by clear and convincing evidence that Dr. Choy made deceptive, untrue, or fraudulent representations in the practice of medicine. He did so by deliberately altering T.G.'s medical records with the intention of fabricating evidence to support his claim that he had timely informed T.G. about the mass in her pancreas, when in fact the authentic, contemporaneous records make no mention of the pancreatic mass. Dr. Choy is therefore guilty of the offense defined in section 458.331(1)(k), Florida Statutes. The Department has established by clear and convincing evidence that Dr. Choy failed to identify, as such, any of the material, after-the-fact revisions he made to T.G.'s medical records, so that the office notes appeared to be contemporaneous accounts of the patient's course of treatment, when in fact they were not, in violation of Florida Administrative Code Rule 64B8- 9.003(4). Dr. Choy is therefore guilty of the offense defined in section 458.331(1)(m). The Department has established by clear and convincing evidence that Dr. Choy committed medical malpractice in his treatment of T.G., by failing to timely inform her of the pancreatic mass seen in the CT scan in June 2008, and by failing to timely refer T.G. to a specialist for further investigation of the mass. Dr. Choy is guilty of the offense defined in section 458.331(1)(t)1. The Department has established by clear and convincing evidence that Dr. Choy concealed the material fact that he had altered the original, contemporaneous records of T.G.'s care and treatment when he knowingly produced T.G.'s revised medical records to the Department in August 2011 without disclosing that the records were not what they purported to be. Dr. Choy is guilty of the offense defined in section 458.331(1)(gg). The Department failed to prove that Dr. Choy interfered with its investigation. Dr. Choy was reasonably cooperative throughout the investigation, during the course of which, however, he committed the additional offense of concealing a material fact from the Department, for which he will be disciplined. Dr. Choy is therefore not guilty of the offense defined in section 458.331(1)(hh).

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Choy guilty of the offenses described in sections 458.331(1)(k), 458.331(1)(m), 458.331(1)(t)1, and 458.331(1)(gg), Florida Statutes. It is further RECOMMENDED that the Board of Medicine revoke Dr. Choy's medical license and impose an administrative fine of $4,000. DONE AND ENTERED this 15th day of April, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of April, 2014.

Florida Laws (6) 120.569120.57456.057456.50458.331924.20
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DEPARTMENT OF HEALTH, BOARD OF CHIROPRACTIC vs ROBERT S. BARUS, D.C., 01-000843PL (2001)
Division of Administrative Hearings, Florida Filed:Panama City, Florida Mar. 01, 2001 Number: 01-000843PL Latest Update: Dec. 23, 2024
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BOARD OF MEDICINE vs MICHAEL MORRISON, 93-006228 (1993)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Nov. 01, 1993 Number: 93-006228 Latest Update: Aug. 29, 1994

Findings Of Fact The word "rewrote" in paragraph 14 of the Recommended Order has been changed to "modified." The Board finds that this word more accurately reflects the activity of the Respondent as set forth by the evidence in the record. A comparison of the "original" medical record and the subsequently prepared medical record unequivocally establishes that Respondent did more than just copy over the "original" medical record. The language in paragraph 23 stating that the original medical record would verify that the subsequently prepared medical record was identical to the original is rejected as not being supported by any competent and substantial evidence in the record. To the contrary, a comparison of exhibits 1 and 2 clearly establishes that the two versions of the medical record are not identical. Paragraph 40 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The first sentence of paragraph 48 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Paragraph 48 is further modified to reflect Respondent's failure to reveal the existence of an "original" record. This failure is admitted by Respondent and Respondent's attorney witnesses in their testimony and reiterated by Mr. McPherson in his testimony. The final sentence of paragraph 53 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Furthermore, as a matter of policy, the public safety is harmed by exposure to potential and real injury due to the egregious nature of Respondent's fraudulent act and hiding that fact from appropriate authorities for several years. The harm that would be done to the public by tolerating the fraudulent reconstructing of medical charts is such that it strikes deep at the public safety and welfare. Paragraph 54 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The proposed finding of fact ignores the fundamental and obvious fact that at least one of Respondent's stated motive in reconstructing the medical record was to better protect against exposure in a malpractice action. Appendix B RULINGS ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT 1. - 3. Accepted Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. Accepted. - .7 Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. 8. - 9. Accepted.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of Count Two of the Administrative Complaint filed herein; Finding Respondent not guilty of Counts One, Three, and Four and dismissing those Counts of the Administrative Complaint filed herein; Imposing an administrative fine of $250 to be paid by a date certain; and Requiring that Respondent perform 150 hours of community service over a 3-year period. DONE and ENTERED this 3rd day of May, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6228 Petitioner's proposed findings of fact numbered 1, 3-9, 11, 14-16, 19, 20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 10, 12, 13, 17, 18, 21, and 25 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 23, 24, and 26-29 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-29, 31-41, and 43-92 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 30 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed finding of fact numbered 42 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Joseph Harrison, Esquire Slepin, Harrison & Feuer 2500 North Military Trail, Suite 275 Boca Raton, Florida 33431 Michael Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (7) 120.53120.57120.68455.225458.305458.331766.102
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JEROME F. WATERS, M.D., 04-000869PL (2004)
Division of Administrative Hearings, Florida Filed:Miami, Florida Mar. 15, 2004 Number: 04-000869PL Latest Update: Oct. 20, 2005

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.

Florida Laws (7) 120.569120.57381.0261456.072456.073458.331766.102
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BOARD OF MEDICINE vs PETRU ORASAN, 94-001471 (1994)
Division of Administrative Hearings, Florida Filed:Hollywood, Florida Mar. 17, 1994 Number: 94-001471 Latest Update: Feb. 29, 1996

The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Petitioner on the basis of alleged violations of the Medical Practice Act, Chapter 458, Florida Statutes. In an eight-count Amended Administrative Complaint, the Respondent has been charged with four violations of Section 458.331(l)(m), Florida Statutes, and four violations of Section 458.331(l)(t), Florida Statutes.

Findings Of Fact The Respondent is, and has been at all times material to this proceeding, a licensed physician in the State of Florida. His license number is ME0022079. Facts regarding Patient #1 The Respondent provided medical treatment to Patient #1 from April 20, 1987, through April 12, 1988. During the period of that treatment Patient #1 was approximately 92 years old and was diagnosed as having organic brain syndrome. Respondent obtained a brief past medical history of the patient and failed to document the patient's current complaints or review any prior medical records of the patient. On May 26, 1987, Respondent diagnosed the patient with pedal edema and ordered Hygroton 25 mg., but failed to document in the medical records the number of times per day the patient was to take the medication or the dosage for the medication. On June 6, 1987, the patient presented with shortness of breath and a blood pressure of 110/80. Respondent did not perform any tests or examinations to determine the cause of the symptoms. On July 14, 1987, and September 22, 1987, the patient again presented with shortness of breath and pedal edema and Respondent only recorded the lungs as clear and took her blood pressure. Respondent did not perform any other tests or examinations to determine the cause of the symptoms. On October 26, 1987, when the patient presented with shortness of breath, Respondent noted an arrhythmia and blood pressure of 136/82. However, Respondent did not perform any tests or examinations to determine the course of the symptoms. When the patient presented with arrhythmia, the applicable standard of care 5/ required Respondent to perform an EKG, to check her digoxin levels, and monitor her electrolytes and renal functions. Respondent's medical records for the patient did not meet the applicable record-keeping standards 6/ because the records were incomplete, inadequate, and illegible. Specifically, the records did not have diagnoses, did not have a plan of treatment, and did not include thorough examinations or histories, making it impossible to determine the appropriate treatment for the patient. Facts regarding Patient #2 Respondent provided treatment to Patient #2 from July 11, 1978, until September 13, 1988. Patient #2, a male, was seventy-one years old when such treatment began. The patient had a history of gastric ulcers. Nevertheless, Respondent prescribed nonsteroidal anti-inflammatory medications which exacerbate or increase difficulties with gastric ulcers and bleeding without obtaining a complete history or conducting a full examination. Respondent's medical records did not document whether Respondent assessed the risk to the patient, discussed the risk with the patient, or made any determinations that the risks outweighed the benefits for the patient. In 1978, the patient presented with a chronic cough and chronic bronchitis. However, Respondent did not perform any chest x-rays to determine the origin of the cough or to rule out lung carcinoma. Over the years, the cough persisted and in 1982-1983, the patient experienced shortness of breath and increased ankle edema. Respondent prescribed diuretics without determining the etiology of the edema and without conducting renal status or electrolyte monitoring. In 1985, the patient was hospitalized with severe ankle swelling. Respondent did not aggressively treat the possibility of deep vein thrombosis or cellulitis, nor did he treat the patient with anticoagulants to lessen the risk of a blood clot going to the lung. The applicable standard of care required anticoagulant treatment under these circumstances. In 1987, the patient suffered a severe weight loss with the chronic cough. The Respondent's records do not reveal any attempt to make a diagnosis. On December 15, 1987, the patient complained of abdominal problems, which could have related to the steroidal anti-inflammatory medications prescribed. The Respondent's records fail to document any laboratory tests or examinations by Respondent to determine the cause of the complaints. Respondent breached the applicable standard of care by failing to perform an EKG on the patient when he presented with dizziness, light-headedness or syncopal episodes from September 1987, until July 12, 1988. When the patient presented on August 30, 1988, and September 13, 1988, with very serious complaints of precordial chest pain, shortness of breath, and palpitations, a reasonably prudent physician would have suspected that the patient was having a heart attack. Despite the symptoms, Respondent made a psychiatric diagnosis, rather than fully evaluating the heart and cardiac status. Respondent's medical records for the patient did not comply with the applicable record-keeping standards in that they did not contain thorough examinations or histories, and did not have diagnoses or plans of treatment for the patient. Facts regarding Patient #3 Respondent provided care to Patient #3 from November 17, 1987, until May 16, 1989. Patient #3, a female, was eighty-five years old when such treatment began. Respondent should have been aware from the patient's initial presentation, that the patient did not qualify to reside in an adult congregate living facility and should have taken steps to have her admitted to a skilled nursing facility. Respondent's failure to do so is a breach of the applicable standard of care. Respondent's initial examination of the patient was limited and Respondent failed to conduct an EKG to reveal the origin of the patient's pedal edema or irregular heartbeat. Respondent also failed to diagnose, treat, or refer the patient for a consult to evaluate her vision and hearing loss. Even though the diagnosis was not made in the Respondent's records, it is apparent from the medications prescribed by Respondent that the patient was being treated for congestive heart failure. She also had pedal edema, shortness of breath, and cardiac arrhythmia. Respondent failed to perform or conduct the appropriate tests and examinations to make a diagnosis of the patient's condition or to provide effective treatment. The patient had frequent episodes of high blood pressure for which Respondent prescribed diuretics. Respondent's prescribing of Tenormin violated the applicable standard of care and subjected the patient to serious cardiac risks. Respondent's medical records for the patient were illegible for the most part and in many instances omitted information about the diagnosis and course of treatment. For these reasons the records failed to comply with applicable record-keeping standards. Facts regarding Patient #4 Respondent provided treatment to Patient #4 from April 1985 until January 5, 1988. Patient #4, a male, was seventy-four years old when such treatment began. When the patient originally presented to Respondent, he was on cardiac medications, had complaints of possible arrhythmias, and had a history of organic brain syndrome and tardive dyskinesia. Respondent was required by the applicable standard of care to evaluate the patient's cardiac condition, renal status, and potassium level. Respondent breached the standard of care by failing to conduct these evaluations and examinations. On October 1, 1985, the patient presented with back pain. Rather than conducting a physical exam to determine the source of the pain, Respondent violated the standard of care and treated the pain symptomatically. The patient was prescribed an anti-psychotic drug, Mellaril, and throughout Respondent's care exhibited side effects, including falls with resulting abrasions. Respondent failed to discontinue the drug or take appropriate measures to determine the extent of the patient's condition and implement a course of treatment. On July 23, 1987, Respondent prescribed an amount of Dalmane considered excessive for geriatric patients. These inappropriate prescriptions constitute a departure from the applicable standard of care. Respondent's medical records for the patient were replete with omissions of physical exams, diagnoses, and plans of care, and were inadequate as to patient history and justification for course of treatment. For these reasons the records failed to comply with applicable record-keeping standards. Facts regarding prior discipline Respondent has been the subject of prior disciplinary action by the Board of Medicine. The prior disciplinary action was based on deficiencies in Respondent's record-keeping. The prior disciplinary action does not appear to have improved Respondent's record-keeping in any significant way.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine issue a final order in this case to the following effect: Concluding that the Respondent is guilty of four counts of violations of Section 458.331(l)(m), Florida Statutes, and four counts of violations of Section 458.331(l)(t), Florida Statutes, as charged in the Amended Administrative Complaint; and Imposing administrative penalties consisting of all of the following: (a) an administrative fine in the total amount of $4,000.00 (representing a $500.00 fine for each of the eight counts); (b) a one-year period of suspension of the Respondent's license; and (c) a one-year period of probation following the suspension, during which probation period the Respondent shall be required to have his records reviewed by a supervising physician approved by the Board, such supervising physician to provide quarterly reports to the Board regarding the sufficiency of the Respondent's record-keeping. DONE AND ENTERED this 2nd day of February 1995 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 2nd day of February 1995.

Florida Laws (4) 120.57120.68458.33190.706
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RICHARD LANGFORD, D.V.M. vs DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, BOARD OF VETERINARY MEDICINE, 11-005760F (2011)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Nov. 09, 2011 Number: 11-005760F Latest Update: Oct. 07, 2013

The Issue The issue presented is whether Petitioner is entitled to attorney?s fees pursuant to section 57.105, Florida Statutes (2011), and if so, what constitutes a reasonable fee?

Findings Of Fact The Department is the state agency charged with the licensing and regulation of veterinarians in the State of Florida pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. At all times material to these proceedings, Petitioner has been a licensed veterinarian in Florida, having been issued license number VM 5290. Petitioner was the treating veterinarian for a dog named, Awesomer, owned by Sheri Lawhun. On April 28, 2009, Ms. Lawhun brought Awesomer to Petitioner for examination and treatment. Details of the treatment provided to Awesomer are related in the Findings of Fact in the Merits Case. For the purposes of this Final Order, it is sufficient to state that Respondent treated Awesomer from April 28-30, 2009, and that on April 30, Awesomer died. Ms. Lawhun filed a complaint with the Department of Business and Professional Regulation regarding the care and treatment Respondent provided to Awesomer. Just prior to his provision of care for Awesomer, Dr. Langford?s office switched to a “paperless” system, which involved switching to electronic medical records, bookkeeping, etc. Petitioner testified in the Merits Case that the medical record itself is stored on the computer software and that there are a wide variety of “print screen” options available. Dr. Langford demonstrated the complicated nature of the software and the ability to “hide” different parts of the medical records from the print screen, as well as to copy and paste entries to the “top” or most recent page, of the medical record. The software does not allow the user to delete record entries, but does allow a user to hide them, change the dates for them, or make them unavailable to print. There are also entries on screens called “snatch screens” that do not print. As a result, there are three different sets of medical records for the same period of time for Awesomer that were admitted into evidence in the underlying case: 1) Petitioner?s Exhibit A, which was printed on May 16, 2009, at the request of Ms. Lawhun; 2) Petitioner?s Exhibit B, which is the copy of the records printed on July 15, 2009, in response to the complaint filed with the Department; and 3) Petitioner?s Exhibit C, which was printed August 2, 2011, and provided to Petitioner?s counsel during the litigation of this case. The three sets of medical records are not identical. Dr. Langford attributed these differences to entries that he ordered “declined” or hidden, so that the client did not see them, or because information was on the “snatch screen” in the program, which does not print. For example, the information related to Awesomer?s final visit to the clinic, according to Dr. Langford, was moved to the top of the record on May 16, 2009, so that Ms. Lawhun could see what happened on the day the dog died. He claimed that the entry was originally recorded soon after the dog?s death, but that it was moved when providing the records to Ms. Lawhun. Similarly, the date of the dog?s death is recorded in Petitioner?s Exhibits A and B as May 1, 2009, the first business day following the dog?s after-hours? visit. It is changed to April 30, 2009, in Petitioner?s Exhibit C. After the initial investigation of this case, counsel for the Department prepared a draft closing order and presented it to the probable cause panel for the Board of Veterinary Medicine at its meeting April 21, 2010. However, after some concerns expressed by the panel members, the Department?s recommendation was changed from closing the case to obtaining an expert review of the file. The Department had the file reviewed by two veterinary experts, Dr. Jerry Green and Dr. Melanie Donofro. Dr. Donofro is a former member of the Board of Veterinary Medicine. Both experts opined that there were problems with the care and treatment of Awesomer, as well as problems with the medical records for Awesomer. As a result of the expert witness reviews, a four-count Administrative Complaint was drafted and filed, charging Respondent with violating subsections 474.213(1)(r)(violation of the relevant standard of care); 474.213(1)(ee)(failure to keep contemporaneously written medical records as required by rule of the board); 474.214(1)(w) (practicing at a location without a valid premises permit); and 474.214(1)(m)(failure to notify Board of a change of address). The case was not taken back to probable cause prior to the drafting of the Administrative Complaint because of a computer data entry error that resulted in a computer record indicating probable cause had already been found. As is recounted below, the case eventually was presented to the probable cause panel a second time on the issue of medical records. Because the Fees Motion is directed to the medical records count, the failure to take the case back to the probable cause panel before the filing of the original Administrative Complaint has no real significance at this point. Petitioner?s assertion that counsel for the Department had a personal vendetta against him and had to remember that probable cause was not found at the April 2010, meeting is specifically rejected. As stated by Ms. Henderson at hearing, Dr. Langford?s case was one of many presented for consideration. While it is unfortunate that an error occurred, it is not indicative of any “personal” interest in prosecuting Petitioner. The Department and Dr. Langford agreed to a settlement that would have dismissed three of the four counts in the Administrative Complaint, and imposed a minimal penalty for Count III. However, when the stipulation was presented to the Board for approval, it was rejected. Board members voiced serious concerns regarding both the standard of care given to Awesomer and the adequacy of the medical records. The prosecutor told the Board that the Department entered into the settlement stipulation “in the interest of getting the case wrapped up,” and that the Department believed that the case would be a “battle of the experts” with respect to the standard of care issue. Ultimately, the Board voted to reject the stipulation offered and offered a counter proposal that would have resulted in dismissal of all of the charges except the medical records count, with a penalty consisting of a $1,500 fine, 30 days probation, and costs. Dr. Langford rejected the counter- proposal. An Amended Administrative Complaint was prepared and, along with the expert reports received, was submitted to the probable cause panel for review and approval. Also included in the materials was Dr. Langford?s response to the Amended Administrative Complaint. While counsel for Dr. Langford offered to “walk them through” his response to the allegations contained in the Amended Administrative Complaint, counsel acknowledged that she did not have anything to add that was not in his written response. The probable cause panel voted to approve amendment of the Administrative Complaint to a single charge of violating section 474.213(1)(ee). The panel also directed counsel for the Department to consult one of its experts, Dr. Green, to make sure the allegations in the Amended Administrative Complaint were consistent with his opinion. She did so. Contrary to Petitioner?s assertions, the panel did not simply “rubber stamp” the actions of the Department. Dr. Jones indicated her agreement with Dr. Green?s expert opinion, and there is lengthy discussion of the case. See Petitioner?s Exhibit P, pages 13-21, and 23-26. Respondent disputed the allegations in the Amended Administrative Complaint and on June 24, 2011, the case was forwarded to the Division of Administrative Hearings to conduct a section 120.57(1) hearing. Discovery and motion practice was active and, at times, acrimonious.1/ See, for example, the Order on Pending Motions, dated August 24, 2012. On August 29, 2012, Respondent filed the Fees Motion giving rise to this proceeding. The Fees Motion contains a certification that it was served on Petitioner on August 4, 2012. Ironically, much of the Fees Motion has nothing to do with the allegations contained in the Amended Administrative Complaint. The first four pages of the Fees Motion present Dr. Langford?s version of what happened in the final days of Awesomer?s life, and include facts not found anywhere in the pleadings. The next sections deal with accusations of the dog owner involving a psychic, and “public untrue statements about Respondent,” by Ms. Lawhun, which are also accusations not finding their way into the Department?s charging document. It is not until page 16 of the Fees Motion that the actual allegations that would give rise to the motion are identified and discussed. Ultimately, a Recommended Order was submitted that recommended dismissal of the Second Amended Administrative Complaint. The Recommended Order was issued after a section 120.57(1) hearing, and after consideration of all of the evidence presented at that hearing. The Board of Veterinary Medicine issued a Final Order on June 25, 2012, adopting the Findings of Fact and Conclusions of Law contained in the Recommended Order. At the time Petitioner filed the Fees Motion, the case was proceeding on the Amended Administrative Complaint. There was pending at that time a Motion to Amend the Amended Administrative Complaint, which was granted, and the case went to hearing on the Second Amended Administrative Complaint. At pages 16-17 of the Fees Motion,2/ Petitioner asserts that the Department alleges that he failed to properly document the dog?s heart rate and did not record any recommendations for diagnostic tests or follow-up examinations to determine the cause of the heart rate.3/ The basis for Petitioner?s challenge is an attack on the sources used by and the opinion of Dr. Donofro, one of the Department?s experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding Awesomer?s heart rate. The Department had a reasonable basis upon which to file the allegations in the Second Amended Administrative Complaint, and to proceed with those allegations. Petitioner cites to the Department?s allegations regarding his failure to record a fecal test. It was found in the Recommended Order that Respondent did not perform a fecal test (hence no record for one). While the Recommended Order concluded that the Department did not prove a medical records violation on this ground by clear and convincing evidence, the medical records indicate that the pet owner had reported that Awesomer had suffered from diarrhea the night before, and noted that his stool was “near normal” at the clinic. A notation of “near normal” stool could be interpreted, as it was in light of testimony presented at hearing, that no fecal test was performed and that the notation was based upon observation alone, or that fecal tests resulted in findings that were close to normal but that were not expressly recorded. Petitioner?s record is ambiguous enough to support either interpretation, and the Department relied on the interpretation of its experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the tests, or lack thereof, of Awesomer?s stool, and the Department had a reasonable basis to include the allegation in the Second Amended Administrative Complaint and to proceed with prosecution. Respondent takes issue with the allegations regarding low-urine gravity and other serum values. The specific allegations, found at paragraphs 12-13 of the Second Amended Administrative Complaint, state: Respondent performed a urinalysis for Awesomer. Respondent recorded in the medical records that he found a “low urine gravity,” but failed to address the elevated serum creatinine, serum albumin, serum sodium, and urine pH in Awesomer?s medical records. Dr. Donofro found the failure to address these values to be a problem. Ultimately, Dr. Langford?s testimony that he documented the values in the record but did not record any follow-up based on his belief that the identified values were not abnormal was credited at hearing. However, the fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the evaluation of serum creatinine, serum albumin, serum sodium, and urine pH. The Department had a reasonable basis on which to include the allegations in the Second Amended Administrative Complaint and to proceed with the prosecution of these allegations. At page 16 of the Fees Motion, Petitioner takes issue with paragraphs 14-15 of the Second Amended Administrative Complaint, which allege that Respondent failed to record any indication that Awesomer drank excessively, beyond the tentative diagnosis of polydipsia. Dr. Donofro?s report specifically addresses the failure to indicate excessive fluid consumption in that one would expect to see a notation regarding the level of consumption, in light of Respondent?s tentative diagnosis for Awesomer. Once again, however, the inclusion of this item in the Second Amended Administrative Complaint was based upon expert reports received by the Department prior to filing the Amended Administrative Complaint and the Department had a reasonable basis for including it and for prosecuting it. At page 19 of the Fees Motion, Petitioner takes issue with the allegation that he failed to include anything in the medical records for April 28, 2009, to support the administration of Phenylpropanolamine. This allegation is discussed by Dr. Donofro in her report, upon which the Department relied. At hearing, the issue was decided in Dr. Langford?s favor based upon his testimony and that of his expert witness, Dr. Vega (who is also a former member of the Board of Veterinary Medicine). However, the Department had a reasonable basis for including this factual allegation in the Second Amended Administrative Complaint and for prosecuting it. At pages 19-20 of the Fees Motion, Petitioner takes issue with the inclusion of allegations related to the documentation of a modified water-deprivation test. He is especially critical because he testified that he performed a modified water-deprivation test as opposed to a water- deprivation test, and states that the medical records clearly delineate that a modified water-deprivation test was performed. While the April 28, 2009, entry indicates that a modified water- deprivation test will be performed, there are other entries in the records for Awesomer that refer to scheduling and conducting a water-deprivation test. Based on the records, Dr. Donofro addressed this issue in her report.4/ While Petitioner ultimately prevailed on this issue, there was a legitimate basis for the Department to include the allegations in the Second Amended Administrative Complaint and to proceed with these allegations. On page 21 of the Fees Motion, Petitioner alleges that “Amended administrative complaint lines 25-26 allege Respondent failed to record in Awesomer?s medical record for April 29, 2009, anything regarding this visit, including the lactated- ringers solution administration. It is there in the record for that date, clear as day, that it was administered, as it was, on April 30, 2009, not on April 29, 2009.” Petitioner?s allegation is not consistent with the actual allegations in the Second Amended Administrative Complaint. That document states: Respondent?s written response from July 7, 2009, states that he examined Awesomer after 9:30 PM on April 29, 2009 and “found nothing abnormal in the examination of the dog, but considered the possibility of the lingering effects from the water deprivation study.” Respondent failed to record in Awesomer?s medical records for April 29, 2009, anything regarding this visit or examination. Respondent?s written response from July 7, 2009, also states that he examined Awesomer after 9:30 PM on April 29, 2009, and “placed a catheter in [Awesomer?s] arm, and administered 1000 cc of [Lactated Ringers Solution].” Respondent failed to record in Awesomer?s medical records for April 29, 2009, that he placed a catheter or administered the Lactated Ringers Solution (LRS). The Fees Motion does not mention the July 7, 2009, response by Dr. Langford. It was not admitted into evidence in this proceeding or in the disciplinary proceeding. It is, however, mentioned in Dr. Donofro?s report, and she comments on the discrepancy between Dr. Langford?s account of the events and Ms. Lawhun?s. Dr. Donofro also discusses at length what she viewed as some ambiguities in the recording of the amount of LRS, and opined that the amount provided under either interpretation she could reach was inappropriate. There was a basis upon which the Department could rely for including these allegations in the Second Amended Administrative Complaint and proceeding with those allegations. At page 21 of the Fees Motion, Petitioner claims that the Department alleges “in administrative complaint line 35 that Respondent should have included a „discussion? of electrolytes and white blood count,” and claims that there are no facts to support a records violation for line 35. Paragraph 35 of the Second Amended Administrative Complaint simply states that “the CBC results indicated that Awesomer?s white blood count was elevated.” A review of both the original and the Amended Administrative Complaint confirm that neither of those documents have the allegation of which Petitioner complains, at paragraph 35. Paragraph 36 of the Second Amended Administrative Complaint alleges that “Respondent failed to record any explanation or discussion of the results of the CBC or General Health Profile with Electrolytes in the April 30, 2009, medical records for Awesomer.” Dr. Langford?s criticism that “this is a medical record, not a dissertation,” is flippant at best, and ignores the requirement in Florida Administrative Code Rule 61G18-18.002(1) that the records “contain sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered.” Concerns about issues revealed in the CBC were discussed in Dr. Donofro?s report, and the lack of follow-up or discussion led her to believe that certain possibilities in treatment were overlooked. The Department?s belief, that some reference other than the test result itself was necessary, was reasonable given the need for records to justify a diagnosis, and the Department had a basis to proceed with this allegation. Finally, at page 22 of the Fees Motion, Dr. Langford takes issue with the Department?s allegations that medical records were not contemporaneously recorded for events taking place April 30, 2009. Yet, there is no dispute that there are three separate versions of the medical records in this case, and one of the issues presented was the discrepancy in dates for certain services. The Department had a reasonable basis to proceed with the allegations with respect to the May 16, 2009, entries.

Florida Laws (9) 120.52120.569120.57120.6820.16539.01474.213474.21457.105
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BOARD OF MEDICINE vs THOMAS R. UGARTE, 98-000051 (1998)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jan. 07, 1998 Number: 98-000051 Latest Update: Mar. 03, 2000

The Issue As stated in the Order of Remand entered March 26, 1999.

Findings Of Fact On or about March 7, 1994, Mark Leibowitz, an attorney representing Patient E.G., sent a Notice of Intent to the Agency for Health Care Administration (AHCA) which advised of his client's intent to file a malpractice action against Respondent. The Notice of Intent was reviewed by Marie Kokol, an employee of AHCA. During the course of his representation of Patient E.G., Mr. Leibowitz obtained a copy of Respondent's medical records for Patient E.G. On or about April 5, 1994, Ms. Kokol requested that Mr. Leibowitz provide her with a copy of those medical records. Those medical records were received by Ms. Kokol at AHCA on or about April 18, 1994. The medical records received from Mr. Leibowitz were incorporated as part of Petitioner's investigative record as pages numbered 234 and 235. These records included Respondent's medical records for Patient E.G. for July 17, 1992, and July 29, 1992. In or about June 1994, the medical records received by Ms. Kokol were sent to AHCA's investigative office in Miami, Florida. On July 14, 1994, Georgina Jorge, an investigator employed by AHCA, issued a subpoena to Respondent for all medical records of Patient E.G. Respondent provided the medical records of Patient E.G. to Ms. Jorge, which were included in the investigative record as pages numbered 293 through 296. Included in the medical records received by Ms. Jorge pursuant to her subpoena issued July 14, 1994, were Respondent's medical records for Patient E.G. dated July 17, 1992, and July 29, 1992. These records were numbered pages 294 and 295. The medical records of Patient E.G. obtained from Mr. Leibowitz (pages 234 and 235) and the medical records received by Ms. Jorge pursuant to her subpoena (pages 294 and 295) should have been identical, but they were not. The subpoenaed medical records (pages 294 and 295) contain handwritten notations not found on the medical records obtained from Mr. Leibowitz (pages 234 and 235). Respondent's medical records for Patient E.G. for July 17, 1992, received pursuant to the subpoena contain the following handwritten notations not found on the medical records obtained from Mr. Leibowitz: unable to dilate today (illegible word) r/o (rule out) retinopathy Respondent's medical records for Patient E.G. for July 29, 1992, received pursuant to the subpoena contain the following handwritten notations not found on the medical record obtained from Mr. Leibowitz: Martha Delgado 326-6421 Pt. Did not keep appt. at BEIP as recommended. The additional notations contained in the medical records obtained pursuant to the subpoena were not dated or signed by Respondent. Dr. William Cobb served as the Petitioner's expert witness at the initial formal hearing. Dr. Cobb reviewed the medical records obtained from Respondent by the agency investigator and based the opinions expressed at the initial formal hearing on those records. A review of his deposition reveals that Dr. Cobb had access to the two sets of medical records and that he observed that there were discrepancies between the two sets of records. Dr. Cobb did not base the opinions he expressed at the initial hearing on the fact that there were two sets of medical records, one with the notations and the other without. Both before and after the Order of Remand, Dr. Cobb expressed the opinion that Respondent practiced within the standard of care on July 17, 1992. His opinions that Respondent committed the violations alleged in the Administrative Complaint were unaffected by the existence of the additional notations on the subpoenaed medical records. A physician may make additional notations to a medical record when the record is reviewed after the initial examination at the end of the day without dating or signing the additional notation. A physician making additional notations to a medical record more than one day after the initial examination must date and sign the additional notation. Dr. Cobb expressed the opinion in his deposition, taken after the remand, that the failure to date and sign additional notations made more than one day after the initial examination would be a violation. 1/ The only plausible explanation for the additional notations on the medical records for July 17 and July 29, 1992, is that Respondent made the notations after Mr. Leibowitz obtained his copy of E.G.'s records. While Dr. Cobb may be correct in his opinion that Respondent's failure to date and sign these notations would be a violation, the Administrative Complaint filed against Respondent did not charge him with that violation.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order consistent with the findings of fact, conclusions of law, and recommendations contained in the Recommended Order entered January 8, 1999. DONE AND ENTERED this 29th day of November, 1999, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 29th day of November, 1999.

Florida Laws (4) 120.569120.57120.68458.331
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BOARD OF MEDICINE vs. WILLIAM T. BREESMAN, 88-005117 (1988)
Division of Administrative Hearings, Florida Number: 88-005117 Latest Update: May 15, 1989

Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.

Florida Laws (3) 120.57120.68458.331
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JOHN ALLISON ROWE vs BOARD OF DENTISTRY, 94-000542F (1994)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida Jan. 31, 1994 Number: 94-000542F Latest Update: Nov. 23, 1994

Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.

Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK CLARK 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 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792

Florida Laws (13) 120.6820.165455.201455.203455.225466.001466.018466.028542.19542.2057.111621.03766.111
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