Findings Of Fact The allegations against Petitioner in the underlying proceeding were all connected with his use of Grenz Ray therapy, a safe, rapid, and painless procedure for the patient. It has been used for the treatment of benign skin diseases for more than sixty years. The National Academy of Sciences in 1980 affirmed the safety factor inherent in the use of Grenz Rays and strongly endorsed the concept that it remained the prerogative of the physician to use any form of therapy in which the benefits accruing to the patient from its use are considered to outweigh the risks inherent in its use. The American Academy of Dermatology at its 1991 annual meeting offered lectures and a symposium on the beneficial use of Grenz Ray therapy. Medical schools have taught dermatologists the beneficial use of Grenz Ray therapy for many decades. Many doctors use Grenz Ray therapy as a modality of treatment. Until the underlying proceeding arose, Dr. Altman's use of Grenz Ray therapy had never been questioned by any federal or state regulatory agency. Until the underlying proceeding arose, no claim for Grenz Ray therapy rendered by Dr. Altman had ever been declined by any third-party payor, and all claims submitted by him to the Department for Grenz Ray therapy had been paid for the two years that Dr. Altman had been participating as a provider in the Florida Medicaid Program prior to the Department's Emergency Termination Order. There is no statute or rule on either the federal or the state level which prohibits the use of Grenz Ray therapy. Moreover, the Department has no policy against the use of Grenz Ray therapy. Grenz Ray therapy as utilized by Dr. Altman is conservative. The Department offered no evidence in the underlying proceeding that Grenz Ray therapy as utilized by Dr. Altman is similar to utilizing the drug Thalidomide or causing exposure to asbestos, as alleged in the Department's Administrative Complaint. No patient has complained regarding the treatment provided to that patient by Dr. Altman. The investigation into Dr. Altman's use of Grenz Ray therapy was triggered by a computer search. The matter was then assigned to an investigator who had been employed by the Department for approximately one year who held herself out to have special training in radiation therapy as a certified oncology nurse. She based her investigation upon experts that began with the use of an expert personally known to her--her own dermatologist who also uses Grenz Ray therapy. Thereafter, one expert recommended another. At about the same time, she was investigating the use of Grenz Ray therapy by another dermatologist in the Broward County area, the same area in which Petitioner practices. Related to that investigation, the investigator was presented with articles strongly advocating the use of Grenz Ray therapy authored by yet another dermatologist utilizing Grenz Ray therapy in the Broward County area. At the same time, the investigator was also provided with information showing that training in Grenz Ray therapy was a requirement for completing a medical residency in dermatology. The investigator ignored those articles presented to her and failed to even speak to the author of the articles. On the other hand, the scientific studies, medical textbook chapters, and other medical articles relied upon by the investigator to show that Dr. Altman's use of Grenz Ray therapy was excessive, inferior, or inappropriate did not support that conclusion, but rather supported the opposite conclusion. The investigator did not understand that some of the articles she was reading related to higher levels of ionizing radiation than the ultra-soft Grenz Rays. Prior to initiating the Emergency Termination Order and the Administrative Complaint, the investigator never spoke to Dr. Altman concerning the services that he was providing. Instead, she went to Dr. Altman's office, advised him that Grenz Ray therapy was an outdated and antiquated modality, and picked up his medical records for the patients in question so that she could make copies of them to have them reviewed by her experts. Although she had no preconceived list of experts when she started her investigation, the investigator spoke to no practitioner who used Grenz Ray therapy on children and contacted no professional dermatologist associations regarding the use of Grenz Ray therapy by their members. Similarly, although her own dermatologist uses Grenz Ray therapy, the investigator "built a case" which alleged, essentially, that when Dr. Altman utilized Grenz Ray therapy, it was inappropriate. The investigator specifically made no attempt to contact any expert who would be favorable to Petitioner's use of Grenz Ray therapy. The investigator formed a mental impression that Petitioner's use of Grenz Ray therapy was inappropriate for children and excessive for adults when she reviewed the computer report of Dr. Altman's claims which had, up to that moment, been paid by the Department without question. Her investigation was thereafter dictated by her personal beliefs, and she ignored all evidence to the contrary. Based upon her investigation, the Department determined that it would take action. Although it could have simply terminated its contract with Petitioner without cause, it did not do so. Similarly, the Department did not request that Petitioner reimburse the Department for claims already paid by the Department. Rather, the Department issued an Emergency Termination Order followed by an Administrative Complaint seeking to terminate Dr. Altman from the Medicaid Program for five years and seeking to fine him the amount of $20,000. Although the Department was justified in conducting its investigation, it was not substantially justified at the time that the underlying action was initiated by the issuance of its Emergency Termination Order and Administrative Complaint.
The Issue The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department of Health, Board of Dentistry (Petitioner), against Miranda Smith, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this case, the Respondent was a licensed dentist in the State of Florida, holding license no. DN 15873, with an address-of-record at 17020 County Line Road, Spring Hill, Florida 34610, and operating a dental practice identified as "Smiles and Giggles Dentistry." On August 23, 2011, the Respondent performed a dental examination of S.W., a three-year-old female. This was S.W.'s first visit to the Respondent's office. Routine procedures at the Respondent's office included taking radiographs (x-rays) of every new patient. After checking in with the receptionist and waiting for a brief time, S.W. and her mother were called from the reception area by a dental assistant, who accompanied them to a type of x-ray machine called a "Panorex." Patients can remain in a standing position while x-rays are taken with a Panorex, and the images can be produced without requiring the insertion of x-ray film into a patient's mouth. Despite encouragement from her mother and the offer of various enticements by the dental assistant, S.W. refused to stand in the Panorex, and no x-rays were taken. After the attempt to use the Panorex failed, S.W. and her mother were taken into an examination room ("operatory"). Each operatory at the Respondent's practice contained a standard x-ray machine that required the insertion of film into a patient's mouth to produce images. The evidence fails to establish that there was any attempt to obtain images from S.W. using the x-ray machine in the operatory. After S.W. was taken into the operatory and seated, the dental assistant performed a routine cleaning ("prophylaxis") and then left the room. S.W. was cooperative during the prophylaxis. After the prophylaxis was completed, the Respondent entered the room with a different dental assistant and proceeded to perform a comprehensive oral evaluation using routine dental tools. S.W. was cooperative during the examination. The Respondent examined the condition of S.W.'s teeth and verbalized her observations to the dental assistant, who recorded the information by hand into the patient chart. According to the patient chart, the Respondent observed decay in the teeth designated as A, B, I, J, K, L, S and T. After the evaluation was completed, S.W.'s mother was advised that the Respondent had observed "eight cavities" in S.W.'s teeth. The evidence failed to establish whether the mother received the information from the Respondent or from the dental assistant. Thereafter, the dental assistant escorted S.W. and her mother to the "check out" desk, where the mother was advised to schedule a follow-up appointment for dental work related to the Respondent's observations of decay. The follow-up appointment was scheduled for November 17, 2011, and the mother was advised that sedation would be administered at that time. S.W. and her mother then left the Respondent's office. According to the patient chart, the Respondent proposed to treat the observed decay by performing resin-based composite restorations on the teeth. S.W. did not return to the Respondent's office for the follow-up appointment. The Respondent provided no further dental care to S.W. Concerned about the Respondent's evaluation of her child's teeth, S.W.'s mother spoke with a friend who had been employed as a dental assistant, and then decided to seek another opinion regarding the condition of S.W.'s teeth. On or about September 6, 2011, S.W. and her mother went to see Dr. Eva Ackley, a dentist practicing at the Ackley Dental Group, for an evaluation of the child's teeth. Dr. Ackley was aware that S.W.'s mother was seeking a second opinion of the child's dental health. S.W. was cooperative throughout her appointment with Dr. Ackley. S.W. submitted to being x-rayed at Dr. Ackley's office. Dr. Ackley examined the child's teeth and reviewed the x-ray images and observed that, although S.W. had one tooth that required follow-up observation for potential decay, there were no actual cavities requiring treatment. According to S.W.'s mother, the child has been evaluated by two other dentists since 2011, one of whom observed three cavities and the other of whom observed none. According to the mother, neither of the subsequent dentists took x-rays of S.W.'s teeth. At the hearing, the Respondent presented an "expanded functions dental assistant" employed by the Respondent, who testified as to office procedures routinely followed at the Respondent's practice. The witness was not personally involved with S.W. on August 23, 2011. The witness testified that it was sometimes difficult to obtain x-rays from younger patients and that, in such cases, x-ray images would be obtained during a follow-up visit. If required, sedation was administered to calm the patient and obtain the images. The witness testified that during the course of her employment with the Respondent, no restorative treatment had been performed on a patient without x-ray images having been obtained prior to treatment. Her testimony was credible and convincing, and it has been accepted. The witness also testified that, in cases where no x-rays were taken at an initial evaluation, the routine procedure at the Respondent's office was to document the need to obtain x-rays at a follow-up appointment in the patient's file. Although the patient records of S.W.'s evaluation by the Respondent on August 23, 2011, state that the patient "would not do any x-rays," the records do not specify that they were to be taken at the follow-up appointment. The witness testified that the failure to document the need to obtain the x-ray images in the patient records was contrary to routine office procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Amended Administrative Complaint at issue in this case. DONE AND ENTERED this 3rd day of October, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of October, 2013. COPIES FURNISHED: Susan Foster, Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Christopher Claude Torres, Esquire Casey and Torres, LLC Suite 200 1240 Thomasville Road Tallahassee, Florida 32303-8707 Adrienne C. Rodgers, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265
Conclusions An Administrative Law Judge with the Division of Administrative Hearings ("DOAH") submitted his Recommended Order of Dismissal to the Department of Environmental Protection ("DEP") in these consolidated administrative proceedings. The Recommended Order of Dismissal indicates that copies thereof were served upon counsel for the Co-Respondent, Escambia County Utilities Authority (“Authority”), and upon pro se Petitioners, Kerry Culligan (*Culligan’ ) Mary Pueschel Studstill (“Studstill’), and Chris Englert Cnglert. A copy. of the Recommended Ofder of Dismissal i is attached hereto as s Exhibit A The matter is now "before the Secretary o of DEP for final agency action. a | BACKGROUND The Authority owns and operates a public water system in Escambia County, Florida. These consolidated cases involve an application fi fi led with DEP seeking a permit to construct fluoridation treatment facilities at six of the Authority’s potable water a supply wells. On September 5, 2000. DEP executed an Intent to Issue and draft permit . } 4 F tor the Applicant’ fluoridation treatment construction project. The Petitioners then fi led “similar petitions with DEP contesting the issuance of the permit to the Applicant and requesting formal administrative hearings. The Petitions, which were forwarded to : r appropriate proceedings, basically questioned the safety and effi icacy of oe DOAH fc fluoridation i in their drinking water. Administrative Law w Judge, Donald R. Alexander, AL, was assigned to “~ insuffi cient to state a cause ofa action for relief f against DEP under the controling ‘provisions of Rule 62- 555. 328, Florida Administrative Code. Rule 62- 555. 325 establishes conditions and requirements for the issuance by of permits to public oO Bo yee ee water systems for the installation and operation of fluoridation treatment equipment. _ sad The ALS J recommended that DEP center a fi ina alorer dismissing, with prejudice, t the wale) eh as ed squares sas chante és antes? CONCLUSION The case law of Florida holds that parties to. formal administrative proceedings ‘must alert agencies to any perceived defects in DOAH hearing procedures or in the findings of fact of administrative law judges by filing exceptions to the DOAH recommended orders. See Couch v. Commission on Ethics, 617 So.2d 1119, 1124 (Fla. 5th DCA 1993); Florida Dept. of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987). The ALJ ruled in his Recommended Order of Dismissal that Petitioners’ allegations were legally insufficient to state a cause of action warranting denial of the construction permit for Applicant's proposed fluoridation treatment facilities. Nevertheless, no exceptions were filed by any of the Petitioners objecting to this critical adverse ruling or objecting to the ALJ’s ultimate recommendation that DEP enter a final order dismissing the three petitions with prejudice. Having considered the Recommended Order of Dismissal and other matters of record and faving | reviewed the applicable law, | concur with the rulings and ultimate recommendation of the ALJ. Itis therefore ORDERED: A. The ALJ’s Recommended Order of Dismissal is adopted in its entirety and is incorporated by reference herein. - B. Culligan’s amended petition for administrative hearing and the initial petitions for administrative hearings of Studstill and Englert are dismissed, with prejudice, for failure to state a cause of action upon which a final order can be entered denying the Authority’s requested permit to construct the fluoridation treatment facilities. seals Lae eee es i x A a Mk ii i ie aL C. DEP's Northwest District Office shall ISSUE to the Authority the construction permit for the fluoridation treatment facilities, subject to the terms and conditions of the draft permit issued in DEP File No. 0083021 -001 -WCIMA. Any party to these proceedings has the right to seek judicial review of this Final : pursuant “to Rife 9.110, Florida Rules of Appellate Procedure, ‘with the clerk of the Department in the Office of General Counsel, 3900 Commonwealth Boulevard, MS. 35, Tallahassee, Florida 32399-3000; and by filing a copy of the Notice of Appeal accompanied by the applicable fi iling fees with the appropriate District Court of Appeal. The Notice of ‘Appeal must be fi led within 30 days from the date ‘this Final Order is fi led ; with the clerk of the Department. -DONE AND ORDERED this Z day of January, 2001, in Tallahassee, Florida. bn STATE OF FLORIDA DEPARTMENT . OF ENVIRONMENTAL PROTECTION LS DAVID B. STRUHS Secretary Marjory Stoneman Douglas Building AOS OSU ue SAAS ai head. te 3900 Commonwealth Boulevard ; Tallahassee, Florida 32399-3000 moun i}76lo1 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has-been sent by United States Postal Service to: Kerry Culligan Mary Pueschel Studstill 814 North 13" Avenue 414 North Guillemard Street Pensacola, FL 32501 Pensacola, FL 32501 Chris Englert Robert W. Kievet, Esquire 4121 West Avery Avenue Kievet, Kelly & Odom Pensacola, FL 32501 15 West Main Street Pensacola, FL 32401 Ann Cole, Clerk and Donald R. Alexander, Administrative Law Judge David S. Dee, Esquire Division of Administrative Hearings John T. LaVia, Ill, Esquire The DeSoto Building Landers & Parsons, P.A. 1230 Apalachee Parkway Post Office Box 271 Tallahassee, FL 32399-1550 Tallahassee, FL 32302 and by hand delivery to: Craig D. Varn, Esquire Department of Environmental Protection . . 3900 Commonwealth Blvd., M.S. 35 ° “~~~ Tallahassee, FL 32399-3000 this LStkd ay of January, 2001. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION : “TERRELL WILLIAMS Assistant General Counsel ate ) Mhea 3900 Commonwealth Blvd., M.S. 35 Tallahassee, FL 32399-3000 “Telephone 850/488-9314 ce it 1a ea
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaint?
Findings Of Fact Board eligible in internal medicine, respondent Earl B. Britt has staff privileges of one kind or another at Tallahassee Memorial Regional Medical Center (TMRMC), Jackson, Lykes Memorial, Tallahassee Community and Gadsden Memorial Hospitals, all Florida institutions. He studied medicine at Syracuse University, which awarded him the M.D. in 1973, then did his internship at Shands Teaching Hospital, at the University of Florida in Gainesville, and stayed on at Shands for a two-year residency in internal medicine. He spent an additional two years in Gainesville on a cardiology fellowship, which finished in 1978, at which time he moved to Tallahassee, and began in private practice. While at Shands, Dr. Britt "did extensive work with . . . M-mode echocardiography." He also read two dimensional, echocardiographic videotapes under professorial supervision, toward the end of his time in Gainesville. He is an associate professor at Florida A&M University's School of Pharmacy, and a member of several professional organizations, including the Florida Medical Association and the "Leon County Medical Association" (sic). T. 670. Dr. Britt is apparently licensed to practice medicine in Florida. Nothing in the record suggests otherwise, and he did in fact practice in Tallahassee at the time of the hearing, holding himself out as a cardiologist. ECHOCARDIOGRAPHY At the University of Rochester in New York a "Dr. Gramiak . . . essentially invented echocardiography . . . in about 1966. . . ." (T. 590) From the beginning, the technique has been to examine the heart from different angles seriatim. Originally a single beam of ultrasonic waves was used in sonar fashion to cause a single spot on an oscilloscope to vary in brightness. Eventually "a strip chart recorder" (T. 24) was added to produce a graph representing the heart's motion over time, as well as other attributes of the heart. Many of these so-called M-mode echocardiograms are in evidence. Unedited, they are strips of paper 20 to 30 feet long. In more recent years technological advances have made two dimensional videotapes of the heart commonplace. These "real time" studies depict the moving heart and other tissues within a wedge-shaped sector. They yield information in their own right, and are also used to pick the axis for producing M-mode echocardiograms. Unidimensional echocardiograms produced with the two dimensional technology are known as "derived M-modes." When both M-mode and real time studies are done, the real time study yields additional information in about ten percent of the cases. The importance of the additional information varies with the case. When the M-mode graph is abnormal, the real time study is more likely to yield pertinent additional information than when the M- mode results are normal. A NEW DIMENSION AT TMRMC Drs. Allee, Britt, McKenzie and Tedrick and perhaps others had privileges at TMRMC authorizing them to interpret M-mode echocardiograms, when the hospital acquired two dimensional Varian equipment in 1979. Unlike Dr. Britt, Doctors Allee, McKenzie and Tedrick had not trained with two dimensional technology, but "the doctors that were already there reading M-mode were, to some extent, grandfathered in and they learned as we went along," (T. 39), originally by experimenting at no charge to patients. Rose Claire Caparello and Diane Nichols, both registered nurses, produced the tapes and graphs for medical staff. A sample videotape lasted 3 minutes 12 seconds, with only the final 20 seconds devoted to the apical four- chamber view. These technicians made studies from different "windows" in a standard sequence, but each had- and has-her own standard. For Ms. Caparello, it is short axis, long axis, apical four chamber. For Ms. Nichols, it is long axis, short axis, apical four chamber. Aside from the apical four-chamber view and the less common and more difficult parasternal four chamber view, parts of all four chambers are visible in subcostal long axis views. Dr. Britt agrees that a "four-chamber view" implies "that the four chambers are being seen simultaneously." Petitioner's exhibit No. 2, p. 76. About 30 percent of the time the four-chamber view is too obscure to record, a fact which the technician ordinarily makes a note of. If everything preceding the four-chamber view has been apparently normal, the technician may forego a four-chamber view. By the fall of 1981, a routine was in place at TMRMC. On doctor's orders, the technician produced M-mode echocardiograms and, in most cases, videotapes, as well. The technician placed a transducer on the chest at different points to obtain several views, unobstructed by lung or bone, of each patient's heart, and to make graphs and videotapes, which a physician later interpreted. Each videotape held several patients' studies; views of one patient's heart began at or near where another's left off. In recording a new study, the technician might record over the tail end of the last "a hundredth of a second or something." (T. 488) Videotapes were identified, originally by date, then simply by number, and, for each study, a "counter number" indicated the distance in feet from the beginning of the tape to the beginning of the study. Logbook entries recorded the patient's name, number, room number, physician's name and the tape and counter numbers. Petitioner's Exhibit No. 5. "On rare occasions . . . incorrect numbers may have been put down." (T. 488-489) At first index cards listing the tapes' contents were inserted along with each cassette into its carton, then the technicians began indexing directly on the boxes in which tapes were stored. Until the videotape had been read in its entirety, it remained on a shelf with as many as half a dozen or so others. The technicians prepared worksheets, which they attached to each M-mode echocardiogram. Worksheets listed the referring physician, the physician who was to render the interpretation, the diagnosis or what was being looked for, and indicated whether a real-time study had also been done, and, if so, where it could be found. Cardiologists had to write separate reports for M-mode and real time studies, in order for TMRMC to receive reimbursement from certain third party payors. Hospital policy required that studies be read within 24 hours, but did not impose any other requirements. In 1981 and until last year, TMRMC billed $195 for each M-mode echocardiogram and $260 for both M-mode and real time studies. During this period and to the time of hearing, physicians billed $46 to interpret an M-mode echocardiogram and $54 to interpret a real time study. Because of staff and equipment the hospital furnishes, a cardiologist spends fifteen minutes or less on even the most demanding case, and spends less than ten minutes on cases in which both M-mode and real time studies have been done, unless test results are unusually complicated. Until recently, certain cardiologists provided the laboratory blank report forms already signed. Then, as now, a typist fills in the report forms, transcribing from dictation the doctors leave on a TMRMC Dictaphone, At the time of hearing, reports were no longer being signed before they had been completed. The cardiologists fit their visits to the laboratory around office appointments and other commitments. Studies were also checked out to physicians' offices. If a doctor overlooks a real time study, as sometimes happens, hospital employees let him know, so he can make arrangements to view the tape, and write a report. If a technician discovers that the physician has interpreted the wrong study, as also happens sometimes, she lets the physician know. A report may simply read "grossly normal." For a fee, the hospital handles billing for cardiologists who interpret echocardiograms. ON THE BLINK On October 26, 1981, Ms. Caparello performed echocardiographic studies first on Barbara Hunter, an out-patient in Dr. Britt's care, then on one of Dr. St. Petery's patients, and then on one of Dr. Tedrick's patients. The following day the same videotape was used in an attempt to record a study on a fourth patient. Shortly afterward, Dr. Tedrick reported that he had been unable to get an image when he played the videotape at the counter number the worksheet specified for the study of his patient done the previous day. Ms. Caparello ran the tape from the beginning, and found that it was blank. She tried but was unable to record anything on the videotape until she switched video cassette recorders. Dr. Tedrick "decided just to go with the M-mode." (T. 95) When Ms. Caparello called Dr. St. Petery to report what had happened, he asked that the study on his patient be redone. Before she telephoned Dr. Britt, she came across a report on Barbara Hunter in Dr. Britt's handwriting "a report on both the M-mode and 2-D study," (T. 96), viz.: Petitioner's Exhibit No. 4. After telling others in authority at TMRMC, and on their advice, Ms. Caparello raised the matter with Dr. Britt who said, "Well, I must have picked up the wrong tape," (T. 97), and told her not to bother redoing the study. Dr. Britt did not say, "Well, do you want to repeat it and I will redictate it." Petitioner's Exhibit 2, p. 54. On Barbara Hunter's M-mode graph, Dr. Britt wrote "MVP" signifying mitral valve prolapse or spooning. Dr. Britt read the Hunter M-mode echocardiogram but he never saw a videotape of Barbara Hunter's heart because none existed. It is highly unlikely that he looked at the beginning of the wrong videotape. Barbara Hunter "had a very young, healthy heart," (T. 98), in sharp contrast to the heart depicted at the beginning of the preceding videotape which had many abnormalities including an artificial mitral valve and left ventricular enlargement. The man's heart studied on October 15, 1981, and depicted at the beginning of the next preceding videotape was "a very thick, sluggish heart." (T. 98) NO REAL TIME STUDY On January 5, 1981, Ruby Lawrence had an echocardiogram done. Ms. Caparello and Ms. Nichols conferred and decided to do M-mode only, they felt that her heart was "perfectly normal." (T. 128) Although Dr. Webster had ordered the test, it fell to Dr. Britt to read the results. With respect to Ruby Lawrence, Dr. Britt dictated the following: Dictation on Ruby Lawrence: M-mode echocardio- grams: Mitral valve shows normal E-F slope, slightly increased echoes in and about the anterior leaflet probably representative of myxomatosis valve with redundancy rather than true aortic insufficiency. There is bowing of the posterior mitral valve leaflet in mid- to-late systole of greater than two millimeters consistent with mitral valve prolapse. Posterior mitral valve leaflet moves well. Slight increased echos are seen in and about the posterior mitral valve leaflet and annulus of questionable consistency with calcification in the annulus; however, there is no restriction of the motion of the posterior leaflet. Aortic roots, valve 3-cusp valve good undulation. Left atrium is normal in size. Inter ventricular septum, walls, normal motion pattern, normal thickness. Tricuspid valve not seen. No pericardial effusion seen. Echocardiogram is consistent with mid-to-late prolapse and other mitral valve leaking into the left atrium consistent with Barlows syndrome. This may also be a source of recurrent emboli. Suggest anti-platelet therapy. Real-time echocardiogram: Short axis view of the aortic valve shows no evidence of restriction of motion, no evidence of IHSS represented by premature closure and reopening. Short axis view of the mitral valve shows no evidence of stenosis, papulary muscles have normal motion pattern. Long axis view shows left atrium left ventricle to be of normal size or a slightly small left ventricular cavity. The anterior leaflet of the mitral valve does occasionally kiss the septum. Again there is spooning of the posterior leaflet into the left atrium consistent with mitral valve prolapse of a myxomatosis valve. No IHSS is seen. Four-chamber view shows normal A-V valve relationship. Echo- cardiogram is remarkable for findings of myxomatosis mitral valve prolapse, which may very well be the source of recurrent emboli in this patient. Suggest anti-platelet therapy." (T. 134-135) On a form entitled "CARDIAC REAL-TIME SECTOR SCAN REPORT," at the bottom of which was the stamped signature, "Earl B. Britt, M.D." a hospital employee dutifully transcribed the last paragraph Dr.Britt dictated. Petitioner's Exhibit No. 6. When Ms. Caparello brought this to the attention of hospital authorities, Dr. Harrison asked her to examine laboratory files on Dr. Britt's patients and suggested that she "set up a controlled situation." (T. 144) Dr. Britt testified that he did not know for a fact that he reviewed the real time study on this patient, "[b]ecause [he] ha[s] no way of knowing of the display data on a screen that [he] ha[s] seen that had Ruby Lawrence's name on it or had some means of identifying Ruby Lawrence to correlate the findings of the information displayed as to what the findings of the echo report said." Petitioner's Exhibit No. 2, p. 51. Dr. Britt never reviewed a real time videotape of Ruby Lawrence's heart, because none was ever recorded. THE EMPTY WEDGE Addie Allen's was the first heart depicted on videotape No. 79 on January 18, 1983. She was one of Dr. Britt's patients and her heart appeared normal. Ms. Caparello removed tape No. 79 from the recording machine, put the videotape in its case, taped the case shut, placed it on a shelf so that its number could not be seen, and balanced a pencil on it. The next morning, Ms. Nichols began another videotape, which she also numbered 79, with a segment less than a minute long of a blank wedge, the two-dimensional format sans patient, and indexed this part of the tape as a real time study of Addie Allen. The first patient on the tape after the specious Addie Allen segment was a child in Dr. St. Petery's care who had significant abnormalities. Over the next weekend, Dr. Britt dictated the following: "Dictating M-mode echocardiogram study on Ms. Addie Allen: Mitral valve normal EF slope. Increased "B" point consistent with increases left ventricular end diastolic pressure. Posterior mitral valve leaflet, no evidence of mitral valve prolapse. No aortic stenosis. Pulmonic valve, tricuspid valve not seen. Left ventricle: Normal thickness, good wall motion. Right ventricular outflow tract normal size. Left atrial view normal size. There is a minimal pericardial effusion seen posteriorly of no hemodynamic significance. Echocardiogram shows no evidence of valvular abnormality or hypertrophic changes of the septum or left ventricular posterior wall. No echocardiographic findings to suggest cause of patient's chest pain. Real-time echocardiogram: Short axis view of the aortic valve shows non-restriction of its leaflets. Short axis view of the mitral valve shows no restriction of its leaflets. No evidence of aortic insufficiency. Long axis view of the left ventricle shows no IHSS or mitral valve prolapse. 4-chamber view shows normal AV valve relationship. No segmental wall motion abnormality. Echocardiogram is grossly normal." (T.160-161) Later a technician found the first tape No. 79, with the videotape record of Addie Allen's heart, which did not include an apical four-chamber view, still in its case, pencil and scotch tape intact. PAST REPORTS EXAMINED As a result of searching laboratory files for reports on which nonexistent four-chamber views were discussed, a group of Dr. Britt's cases was assembled. As it happened, each case in the group was that of a person with a normal heart. Between October of 1979 and December of 1982, Dr. Britt rendered reports on 1187 M-mode echocardiograms and 882 two dimensional, real time echocardiograms. During that time, he never complained of an inability to locate any study. Several knowledgeable physicians examined this collection, many of whom testified in person or on deposition with respect to the cases. In several instances, including the cases of Lizzie Davis, Jordan Thompson, Mahala Bacon, Sonja Jackson, Mabel Hill, James Harris, Mary Parks, Lillian Haygood, and Mary Hartsfield, Dr. Britt never reported seeing four-chamber views, although he discussed attributes all four chambers shared. In other instances, like the cases of Evelyn Edenfield and Barbara Baggett, reports were ambiguous on the existence of four-chamber views. But, in the cases of Shelly Robinson, Lillie Mae Moore, Laura Brown, Jimmy Lee Elliot, Sarah P. Jones, Carol Scarborough, Mozell Lewis, Luceal Wilson, Lula Davis, Fred Blackshear, Laura Brown, T. C. Hudson, Susan Hampton, Eloise Williams, Cecilia Beckwith and Everett Fleming, Dr. Britt reported seeing four- chamber views in real time studies even though the real time studies did not include four-chamber views. The study following Shelly Robinson's included a four-chamber view, as did the studies preceding those of patients Moore, Jones, Scarborough, Wilson, Davis, Blackshear, Hudson and Williams. In addition to noting the absence of certain four-chamber views, some of the cardiologists who reviewed real time studies on which Dr. Britt reported disagreed with him about what some of the studies showed. Reporting on studies or aspects of studies never performed amounts to a failure to practice medicine with the level of care and skill which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. DOCTORS CONFER Charles Holland was chairman of the medical staff at TMRMC in January of 1983. He met with Dr. Britt, Dr. Harrison and Mr. Mustian and told Dr. Britt of the allegations against him. Dr. Britt asked to see the tapes in question. The same persons attended a second meeting the following day, and soon thereafter a third meeting, which Dr. Brickler also attended. At the last meeting, "Dr. Britt brought out the fact that a mistake had been made" (T. 442) and offered "to make amends for what had happened." (T. 442) POSTHEARlNG SUBMISSIONS CONSIDERED Both parties filed pleadings posthearing containing proposed findings of fact that have been considered in preparation of the foregoing. To the extent that the proposed findings of fact have not been adopted in substance, they have been deemed cumulative, subordinate or immaterial; and to the extent proposed findings conflict with the foregoing they have been rejected as unsupported by the weight of the evidence.
Recommendation In petitioner's proposed recommended order, petitioner asks for a license suspension of thirty days, followed by a probationary period, and imposition of a fine of two thousand dollars. In view of this and in light of the foregoing, it is RECOMMENDED: That petitioner suspend respondent's license for thirty (30) days and impose an administrative fine in the amount of two thousand dollars ($2,000.00). DONE and ENTERED this 27th day of March, 1985, in Tallahassee, Florida. ROBERT T. BENTON II Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of March, 1985.
The Issue The issue is whether Petitioner engaged in a pattern or practice of overutilization as alleged in the Notice of Intent to Revoke Certification and Impose Penalties Pursuant to section 440.13, Florida Statutes ("Notice of Intent") dated April 12, 2012, and, if so, what penalty should be imposed on Petitioner.
Findings Of Fact Background Facts The Department is the state agency responsible for certifying health care providers who provide injured workers with medical services pursuant to section 440.13, Florida Statutes. Petitioner, Harry M. Koslowski, M.D., is a Florida- licensed physician. Dr. Koslowski is a neurologist and is board certified in neurorehabilitation. He is the admitting neurologist at Brooks Rehabilitation Hospital in Jacksonville, is affiliated with Specialty Hospital in Jacksonville, and lectures to residents at Shands Hospital Jacksonville. Dr. Koslowski's practice focuses on rehabilitation and pain management for difficult patients. Dr. Koslowski stated, "I see the worst of the worst where other doctors have given up." Dr. Koslowski is a "certified health care provider" as defined in section 440.13(1)(d), meaning that the Department has certified him to provide treatment to injured workers. As a certified health care provider, Dr. Koslowski is eligible to receive reimbursement for authorized medical services rendered to injured workers. Section 440.13(8) requires workers' compensation carriers to report all instances of overutilization to the Department. Upon receipt of such a report, the Department must make a determination whether a pattern or practice of overutilization exists. Section 440.13(11)(c) places exclusive jurisdiction with the Department "to decide any question concerning overutilization under subsection (8)." Upon a determination of overutilization (or any other violation of chapter 440), the Department is authorized to impose an array of penalties, including administrative fines and the decertification of the health care provider. § 440.13(8)(b) & (13), Fla. Stat. In a letter to Eric Lloyd, the Department's program administrator, dated March 5, 2010, Mark S. Spangler, the attorney for Memorial Medical Center ("Memorial") and its workers' compensation carrier USIS, reported overutilization by Dr. Koslowski in regard to his treatment of P.T., a registered nurse employed by Memorial Medical Center. Mr. Spangler's letter described four peer-review opinions obtained by USIS, all of which agreed that the services provided by Dr. Koslowski to P.T. constituted overutilization. The Department conducted an investigation of the reported overutilization. Mr. Lloyd testified that when a carrier's peer-review reports contradict the reports or opinions of a health care provider rendering medical services, the Department requests an opinion from an expert medical advisor ("EMA"). Section 440.13(9) authorizes the Department to contract with an EMA to provide peer review or expert medical consultation, opinions, and testimony in connection with resolving disputes concerning "reimbursement, differing opinions of health care providers, and health care and physician services rendered under this chapter, including utilization issues." The Department hired Michael Yaffe, M.D., to provide an expert advisory opinion. Dr. Yaffe is a board-certified neurologist and a certified EMA. Dr. Yaffe completed a records review and issued a written report to the Department. Dr. Yaffe's report, dated September 11, 2011, concluded that aspects of Dr. Koslowski's treatment of P.T. were not medically necessary and appropriate. On April 12, 2012, the Department issued the Notice of Intent, quoted at length in the above Preliminary Statement. The injured worker, P.T., is a registered nurse who has retired since the events relevant to this proceeding. She worked for many years at Memorial. P.T. sustained a work- related injury by accident when she developed a non-healing ulceration on her right forearm related to a tuberculosis ("TB") tine test administered on November 14, 1985. USIS accepted compensability of the accident and has provided extensive remedial care and medical treatment pursuant to section 440.13. Medical treatment of P.T.‘s right arm P.T.'s medical history subsequent to the November 14, 1985, incident has been complex. She has received treatment from dozens of health care providers, including mental health professionals. Earl H. Eye, M.D., an internist who is board certified in infectious diseases, took over as P.T.'s primary physician in December 1991 and coordinated her treatment until August 2006. Dr. Eye maintained an infectious disease practice from 1975 to 2009. Dr. Eye testified that P.T. "just about gave me gray hair trying . . . to get the wound on her arm healed." Dr. Eye "tried virtually all the approaches that I could think of." He further described his multiyear treatment of P.T. as follows: This is one of the most difficult cases that I can ever recall taking care of. I spent more time and more effort on this -- this young woman -- than virtually all the other patients that have been through my practice. P.T. gave physicians a history that included her having been treated for renal TB, but nothing in the written medical record confirmed that treatment. Cultures of her urine indicated sterile pyuria, which are associated with TB but also have other causes. Dr. Eye testified that he could never confirm that P.T. had TB in the past, and that he was certain she did not have active TB while he was treating her. Though there was no indication of active TB, the skin on P.T.'s forearm at the site of the tine test broke down and would not completely heal. Dr. Eye's treatment of P.T. was extensive and exhaustive. He met with P.T. in his office roughly once a month for many years. Dr. Eye and the physicians to whom he referred P.T. attempted many treatments for her wound: intravenous antibiotics, steroids, excision, multiple skin grafts, more than 30 debridements, nerve graft surgery, whirlpool therapy, hyperbaric chamber treatment, the application of platelet-derived growth factors, fungal and yeast treatments, sleep apnea treatments, pedicle flap surgery, physical therapy and occupational therapy. Dr. Eye's records indicate a frustrating pattern of improvement in the wound until it was nearly healed, followed by setbacks. Dr. Eye concluded that the reaction to the TB tine test had sensitized the affected area of P.T.‘s arm, causing her immune system to attack and kill the cells, defeating all efforts to heal the wound.2/ The failure of the wound to heal over a period of years led to suspicions that P.T. might be self-inflicting harm by introducing bacteria into the wound. In 1994, Dr. Eye noted, "Hopefully [P.T.] is not inducing these types of problems in her arm." However, Dr. Eye ultimately was convinced that P.T. presented a complex, perplexing problem rather than a case of self-inflicted damage. On March 4, 2004, Dr. Eye noted, ?Some have tried to blow her off as a self-inflicted but we have never seen evidence of that.? Dr. Eye testified that he sent P.T. to Dr. Atul Shah, a board-certified psychiatrist, to "make sure" that there was not a psychological component to P.T.'s condition. Dr. Shah reported back to Dr. Eye that in his opinion P.T. was not causing injury to herself. In an August 6, 1991, report to a claims examiner, Dr. Shah stated that he "entertained the possibility of malingering," but concluded that "I have strong doubts that the wound is caused intentionally or perpetuated by conscious factors " The medical records indicate that Dr. Shah saw P.T. more than 150 times from February 1991 through February 1998. P.T. also treated with psychologist Kelly M. Boswell 269 times from April 1997 through January 2008. Though P.T. was diagnosed with numerous psychological problems, including pain and depression caused by her forearm wound, neither Dr. Shah nor Dr. Boswell believed that there was any self-inflicted harm involved in the case. In June 1998, Dr. Boswell referred P.T. to Ron Kirsner, M.D., a psychiatrist, for Meridia therapy. Dr. Kirsner's notes from his initial meeting with P.T. indicate that she told him her initial consultation with Dr. Shah was for "Munchausen's like syndrome" in relation to the unhealing ulcer on her right arm. Dr. Kirsner saw P.T. 72 times between June 1998 and December 2007. In a note dated March 9, 2001, summarizing his coordinated care meeting with a nurse case manager from USIS, Dr. Kirsner wrote: "I mentioned that I do not suspect Munchausen's." Indeed, though the concern was raised at times during more than twenty years of treatment, neither Dr. Eye nor any of the 40 other treating providers listed in the records ever concluded that P.T. was engaged in self-inflicted harm. In light of subsequent opinions offered by physicians who reviewed only the paper record, it is important to keep in mind that no physician who met with and treated P.T. believed that she was sabotaging her wound treatment. Dr. Eye testified that the possibility of self-harm was not overlooked in P.T.'s treatment, and that appropriate steps were taken. In a December 19, 1994, note, Dr. Eye stated that a referring physician at Duke University told him that ?after discussion and evaluation they feel that there is very likely a component of self-induced problems with this.?3/ The Duke physician recommended a psychiatric evaluation. Dr. Eye‘s note acknowledged that a ?more aggressive stance? might be called for and that factitious involvement ?has to be explored as one of the options.? Dr. Eye testified that in light of the Duke consultation, Dr. Francis Ong, who performed several surgical procedures on P.T., placed a cast on her arm following one skin graft in order to prevent any possibility of her tampering with the wound or retarding the healing process. Dr. Eye testified that ?when the cast came off, this graft had broken down and it opened back up again.? It should be noted that Dr. Eye was testifying from memory and that there is no documentary evidence indicating that the wound worsened while in the cast. On April 5, 1995, Dr. Ong performed a skin graft on P.T.‘s right forearm and applied a short arm cast to the arm. On April 18, 1995, Dr. Ong debrided the wound and reapplied the cast. On April 24 and May 10, 1995, Dr. Ong debrided the wound and applied grafts. Dr. Eye‘s notes for an April 24, 1995, visit with P.T. state that ?[P.T.] had her cast taking [sic] off by Dr. Ong. There is an area about the size of a dime that looks necrotic. The rest of the graft looks like it has taken.? On June 22, 1995, Dr. Ong noted, ?She has finally healed. We took out some sutures trying to come out. She is healing pretty well. We will see her as needed.? When asked why he did not believe that P.T. was engaging in factitious behavior, Dr. Eye testified as follows: I never saw evidence, and I‘m pretty familiar with people who, shall we say, are trying to fake it and I‘m very familiar with the signs and P.T. never showed any of that. Here was a woman who was trying to go on with her life, who was trying to continue to work every day, who was trying to take care of her family, who was trying to get back, and just all she wanted was to resume her life and not have to fool with this. And –- and we tried every way we could to help her achieve that goal, but I never sensed at any point in time that she was doing this. Plus we -– we kind of tested it a couple times, if you recall. We -- we did a graft and put a cast on her. Now, there‘s no way in hell because there‘s no sign she drilled through the cast that she could have gotten to the wound to break it down. We sent home care to her home for I think a month and a half and dressed it every day or whatever day their interval was. They didn‘t see any evidence that she had done anything to it. It didn‘t -- it didn‘t heal. So we made concerted efforts both -- you know, while I didn‘t believe, I said, okay, let‘s -- let‘s be skeptical. Let‘s -- let‘s go for the benefit of the doubt. We‘ll check it out, see, and even when we checked it out, it didn‘t matter. * * * The wound that we‘re seeing is -- is a very, I‘d have to say almost unique. I‘m not sure I‘ve ever seen a wound like this before.4/ Now, I‘m familiar with people who are faking it, I‘m familiar with people who induce wounds, and when they scratch, they leave scratch marks around the wound, the end of the wound is a tapered down, smooth edge. They dig underneath. You see -- you see irregularities in the -- underneath it. This wound was heaped up, it was gray around the margin, it was undermined. You could pick up the edge of the skin. So if you‘re trying to do it like this (demonstrating), you would have torn that edge off. Okay. And the bottom was -- was flat. You saw tendons, you saw muscle, you saw stuff down there, and -- and, you know, I don‘t care how -- how dedicated you are, you don‘t stick your finger in those structures. . . Because that would hurt like a -- that would be very painful. In conclusion, Dr. Eye agreed with the statement that ?physically . . . there was no conceivable way that she could have self-inflicted this wound.? Bruce Steinberg, M.D., an orthopedic surgeon who specializes in treating the upper extremity, treated P.T. for approximately one year, from July 1995 through August 1996. Dr. Steinberg testified extensively concerning his findings of clawing and spasticity in P.T.‘s right small and ring fingers, and his decision to refer P.T. to Dr. Koslowski5/ for Botox injections that might ease the spasms sufficiently to allow for tendon transfer surgery or, perhaps, ease them enough to forego surgery altogether. Dr. Steinberg noted that he has performed over 10,000 surgeries and seen over 60,000 patients, and P.T. was the only one he has seen in her condition. When asked whether the condition he observed could have been self-produced by the patient, Dr. Steinberg responded: I‘m insulted by even the question. This lady was the real deal. She went through multiple surgeries before seeing me. She had flaps performed. I don‘t think she faked any of this. I don‘t think it‘s possible to do so, and the posture that she‘s maintaining is not one you can do without having a deficit of some sort. As noted above, Dr. Eye was the physician who coordinated the care of P.T. among many doctors and through many courses of diagnostic testing and treatment. Dr. Eye referred to himself as the ?quarterback,? the necessary central observer of what all the other health care providers were doing for P.T. On March 17, 1995, Dr. Eye noted the possibility of sending P.T. to a ?physiotherapist? such as Dr. Koslowski for an evaluation of the pain and spasms in her fingers. Dr. Eye testified that he sent P.T. to Dr. Koslowski ?for treatment, not for diagnosis.? Dr. Eye was supervising all the testing on P.T., and did not want Dr. Koslowski to order duplicative blood work. Dr. Eye testified that ?all I asked him to do was do the treatment.? Dr. Eye did want Dr. Koslowski to determine whether to continue P.T. on baclofen for her spasms, because P.T. had reported the medication made her drowsy. On March 29, 1995, Dr. Koslowski first saw P.T., noting ?right ulnar neuropathy? as the reason for the consultation. On March 30, 1995, Dr. Koslowski performed electromyography (?EMG?) and nerve conduction studies on P.T., finding ?signs of Wallerian degeneration involving the right ulnar nerve distal to the ulcer with the proximal part of the nerve also starting to be affected, with evidence of denervation potentials and decreased recruitment at the flexor carpi ulnaris.? He concluded that the study was consistent with right ulnar neuropathy and noted that it was ?much worse? than a study conducted by another doctor in 1993. Dr. Koslowski prescribed Ativan (lorazepam) 5 mg three times per day ?as tolerated,? and told P.T. to discontinue the baclofen. Dr. Koslowski next saw P.T. on May 10, 1995, which was the same date as one of Dr. Ong‘s debridements following the placing of the cast on P.T.‘s arm. Dr. Koslowski noted that P.T.‘s skin graft appeared to be taking well and that P.T. reported the spasm was much better since she started on the Ativan. Dr. Koslowski noted that P.T. was referred to Dr. Steinberg for a surgical evaluation to determine whether she could have a ?nerve transposition of the median nerve to the ulnar nerve.? Dr. Koslowski increased P.T.‘s Ativan to 1 mg twice per day. Dr. Koslowski‘s records indicate that he did not see P.T. again until May 22, 1996. In the intervening year, the wound on P.T.‘s right arm completely healed for the first time. On September 11, 1995, Dr. Eye wrote the following note, in relevant part: [P.T.]‘s arm has healed, has been so for a month. No breakdown. The wound looks good. There is contraction scarring in the area. She has lost some use of the lateral portion of her hand and weakness. There is consideration for possible tendon transfer. My thoughts are in this particular situation I would be extremely reluctant to do anything to break the integrity of the skin, particularly if it is anywhere close to the area where we have had such a terrible time trying to get it to heal. We will go ahead and symptomatically treat for other problems as they occur. The next record of P.T. visiting Dr. Eye‘s office is dated May 20, 1996. During the interim, P.T. continued to see Dr. Shah, the psychiatrist. Dr. Shah or his associate treated P.T. 45 times in 1997 and 36 times in 1996. In June 1995, P.T. went to the Hand Clinic at Methodist Medical Center to obtain a protective splint for her right forearm. On July 26, 1995, P.T. paid her first visit to Dr. Steinberg, the orthopedic surgeon, who noted that P.T. presented with a complaint poor function of her right hand secondary to weakness and clawing, as well as decreased sensation in the small and ring fingers. Following a physical examination, Dr. Steinberg recorded the following impression: ?Right upper extremity ulnae nerve paralysis with clawing of the small and ring fingers. In addition she has spasticity and contracture of the flexor tendons to the ring and small fingers of the right hand.? He recommended the following plan: I recommend first a thorough course of therapy to see if the spasms and adhesions of her flexor tendons to the small and ring fingers could be overcome. After a through [sic] discussion with [P.T.], I have indicated to her that if with therapy, the spasms and clawing of the small and ring fingers could be passively corrected, then an intrinsic mechanism reconstruction using the extensor carpi radialis longus would benefit to regain active extension at the PIP and DIP joints of the ring and small fingers while also maintaining flexion block at the metacarpal phalangeal joints. In addition to tendon transfer for adductor function would also be a secondary consideration to increase strength of her pinch. Certainly I would not consider a tenolysis of these flexion tendons since this would need to be done at the level of the flap which in the last 2 months has for the first time healed over the last few years. P.T.‘s first follow-up visit with Dr. Steinberg was on September 18, 1995. Following an examination, Dr. Steinberg recommended that P.T. continue ?aggressive therapy? and return for reevaluation in two months, at which time Dr. Steinberg would consider ?surgical intervention in the form of tendon transfer.? P.T. returned on November 17, 1995, at which time Dr. Steinberg noted improvement but also noted ?evidence of quite a bit of spasm.? He wrote that P.T. was still not ready for the tendon transfer procedure. Dr. Steinberg again advised P.T. to continue therapy and return in two months for reevaluation. P.T. returned to Dr. Steinberg‘s office on February 12, 1996 for her reevaluation. Dr. Steinberg noted that she was still having ?marked spasms of the right ring and small fingers.? He wrote that he could not recommend a surgical procedure with the level of spasms she was experiencing. Dr. Steinberg referred P.T. to Dr. Koslowski to recommend an antispasmodic medication, and concluded as follows: She will follow up with us in two months. At that point, depending on how she is doing with both therapy and also with medication she is taking will determine if, in fact, treatment with a tendon transfer is warranted. P.T. returned to Dr. Steinberg‘s office for reevaluation on April 17, 1996. In the notes for this visit, Dr. Steinberg wrote: ?Dr. Koslowski has been attempting to obtain approval for a bio-tox injection to see if this will resolve her spasms. I am in full agreement with [P.T.] receiving this treatment.?6/ Dr. Steinberg testified that his initial objective in the therapies he ordered for P.T. was to determine whether the condition in P.T.‘s hand was contracture or spasm. After several months of therapy, during which P.T. showed limited progress, Dr. Steinberg was nearly convinced that the condition was spasm. He recommended the Botox treatment in order to definitively establish that P.T. had spasm and, if so, whether the spasm could be overcome sufficiently to permit the long-term solution of a surgical procedure. Dr. Steinberg explained the Botox strategy as follows: Well, we know Botox is a temporary treatment, and the idea here was to do a Botox injection to see if indeed there was [neurological stimulation] that was causing the muscles to fire. And if you can arrest that by basically paralyzing that or turning off that input of electrical stimulation or nerve stimulation, you may resolve the spasm. And if that were the case, you either have an approach to go after the nerve itself or you could go after muscles, and/or if it relaxed in a long-range process the muscle spasm, and sometimes we see that, then you can do tendon transfers. And/or lastly, the injection itself may lead to the ability for the patient to overcome the spasms and actually have better function and not require any surgery. On May 20, 1996, P.T. visited Dr. Eye‘s office for the first time since September 1995. Dr. Eye noted that P.T.‘s arm wound continued to be completely healed, but that she had severe nerve damage in the hand. Dr. Eye wrote the following concerning P.T.‘s proposed course of treatment: Dr. Koslowski would like to inject botulism and to paralyze the nerve and then have her see Dr. Steinberg who will do some tendon grafting. She brings with her some articles about this. She has done some research and she wanted to get our opinion. She was advised that this had been used in cases in the past, mostly with torticollis and some with multiple sclerosis and some lazy eye syndrome of the eye. There has never been cases [sic] where there has been a systemic infection of the botulism. She was advised that we have no problems with her undergoing this. Although we would not like them to inject directly into the wound or make an incision directly into the old [illegible]. She is aware of this. She is going to go along with the procedure and will keep us post [sic] as to the outcome. On May 22, 1996, P.T. returned to Dr. Koslowski‘s office. Dr. Koslowski noted that P.T. was still experiencing spasms and rated her pain at 3-4 on a scale of 10. He ordered her to continue taking her present medications: Dantrium, a muscle relaxant, 400 mg per day; Valium, 5 mg at bedtime; and Lortab (acetaminophen and hydrocodone), 7.5 mg per day. Dr. Koslowski also noted that P.T. would return in two weeks for a Botox injection over the flexor aspect of the flexor ulnaris. On June 5, 1996, P.T. returned to Dr. Koslowski‘s office with right ulnar nerve neuropathy with spasms in the small and ring fingers. She rated her pain at 7 on a scale of 10, and had discontinued all her medications except Lortab. Dr. Koslowski noted as follows: Under EMG guidance, I inserted a needle into the flexor carpi ulnaris, and flexor digitorum profundis and after the injection, the EMG activity decreased dramatically. I injected approximately 15 units in each muscle. She tolerated the procedure well. Dr. Koslowski instructed P.T. to report her condition in two days, and to set a follow-up visit in three months. She was to hold off on any medications and to contact Dr. Steinberg for future treatment. On June 19, 1996, P.T. returned to Dr. Steinberg‘s office for an evaluation. Dr. Steinberg found that the Botox injections ?improved her spasms tremendously and now she is able to fully extend her digits.? He also noted that P.T. had some underlying weakness of the digits. Dr. Steinberg instructed P.T. to return after she had been off the toxin for at least six weeks for an evaluation of possible tendon transfer surgery. Dr. Steinberg next saw P.T. on August 28, 1996, nearly three months after her Botox injection. Dr. Steinberg noted that the spasm in P.T.‘s hand had improved considerably but seemed to be recurring. He recommended that she continue with occupational therapy to strengthen the hand. Dr. Steinberg‘s notes concluded as follows: I am concerned that her hand spasm is a dynamic changing event, and I am unable to predict exactly where it will end up. Therefore, timing tendon transfers is difficult. She will be seeing Dr. Koslowski and consideration of another botulism toxin will be undertaken. I will see her back in three months, and I will still be attempting to time the tendon transfer procedure. Despite the anticipatory tenor of Dr. Steinberg‘s note, P.T. never returned to Dr. Steinberg‘s office. P.T. returned to Dr. Koslowski‘s office on September 4, 1996. She told Dr. Koslowski that the first Botox injection lasted for two months, leading him to conclude that he had not given her enough of the Botox. Dr. Koslowski wrote that the drug representative told him that he should have administered 120 total units instead of the 30 units that he used on P.T. On September 11, 1996, Dr. Koslowski dispersed 200 units of Botox between the carpi ulnaris and flexor digitorum profundus muscles. He directed P.T. to follow up in three months or sooner if she found no significant relief from the injections. The medical records indicate that P.T. did not visit any medical provider other than Dr. Shah, the psychiatrist, between September 11, 1996, and February 25, 1997. On February 25, 1997, P.T. returned to Dr. Eye‘s office. Dr. Eye noted: ?[P.T.] comes in today after 18 months of arm healing, looking good. She developed the onset of vesicles followed by the breakdown and now approximately 5 to 6 mm ulcer with necrotic tissue and eschar. This appears to be almost similar to her previous problems, interestingly it occurred in the grafted area.? Dr. Eye decided to immediately treat this ulcer aggressively, ?to head this off before it gets large.? He planned to treat P.T. with a hyperbaric oxygen sleeve and Vibratabs (doxycycline), and to ramp up to debridement and full hyperbaric if she did not respond rapidly. P.T. was initially unable to obtain hyperbaric treatment due to equipment problems at the medical facility. On April 1, 1997, Dr. Eye noted that P.T. had commenced the hyperbaric treatment and was on Vibratabs but that the ulcer had enlarged and looked ?angry and undermined.? Dr. Eye wrote: ?We are very distraught that after all of the work and time and the final healing, we now have a breakdown that appears to be enlarging again and resuming her previous course.? He suspected ?some sort of autoimmune phenomenon we are not able to identify at this time.? Throughout the remainder of 1997, Dr. Eye continued to treat P.T.‘s wound. As in the previous rounds of treatment, the wound would appear to be healing but then would refuse to completely close. On July 16, 1997, P.T. returned to Dr. Koslowski complaining of pain at a score of 8 on a scale of Dr. Koslowski prescribed medications and said that he would consider doing a Botox injection once the ulcer was healed. In November 1997, P.T. returned to Dr. Ong, who began performing debridements and skin grafts. P.T. began complaining of pain in the arm. On January 16, 1998, Dr. Ong performed an abdominal pedicle flap, which became infected. By March 1998, the infection appeared to be under control and the flap was beginning to heal. However, by April, the progress of the infection had reversed and the wound was enlarging. Dr. Ong performed debridements of the necrotic skin on the wound on May 5 and 26, June 16 and 30, July 8 and 28, and August 5, 1998. On July 21, 1998, P.T. had her first appointment with Shirley Hartman, M.D., a Jacksonville family-practice physician. The record is unclear as to who referred P.T. to Dr. Hartman. P.T. continued to see Dr. Hartman until at least early 2008, receiving acupuncture and medications for arm pain and other treatments designed to improve her diet and general health. P.T. saw Dr. Hartman very frequently, twice per week at times over her long course of treatment. Dr. Eye‘s medical records do not mention Dr. Hartman by name but do clearly indicate Dr. Eye‘s awareness that P.T. was receiving acupuncture, noting several times that the acupuncture appeared to work well in conjunction with the Botox treatments to control P.T.‘s pain. In his deposition for this case, Dr. Eye indicated that he was aware of Dr. Hartman as P.T.‘s ?family physician.? Dr. Hartman‘s medical notes indicate an awareness of the treatments being undertaken by Dr. Eye, Dr. Koslowski, and Dr. Ong. In her initial visit, P.T. gave Dr. Hartman a lengthy history, including that of the wound on her right arm and her spasms. Dr. Hartman outlined a plan to boost P.T.‘s immune system and correct her reported chronic constipation through diet modifications. By July 13, 1998, Dr. Eye was concerned with the regression in P.T.‘s wound, and again voiced the belief that P.T. was suffering from ?some sort of autoimmune reaction.? On September 15, 1998, Dr. Eye conferred with Dr. Ong concerning P.T.‘s lack of progress. Dr. Eye noted that P.T. ?continues to be an enigma as to the reason for the failure to respond and heal.? On September 22, 1998, Dr. Ong performed another debridement. On September 24, 1998, P.T. returned to Dr. Koslowski complaining of the severe pain in her arm. Dr. Koslowski noted that P.T. was developing flexor spasms in her wrists. He agreed to perform Botox injections and did so on September 29, 1998. Dr. Koslowski‘s notes described the procedure as follows: After isolating each muscle via EMG needle reading, the patient had the following muscles injected with botulinum toxin: right flexor carpi ulnaris, right flexor digitorum, right profundus, right flexor digitorum superficialis, right third and fourth lumbricales, right deep muscle of the abductor pollicis brevis and right abductor digiti minimi with a total amount of 300 units utilized. The patient tolerated the procedure well. Relaxation of the right thumb and first right three digits was immediately apparent to visual exam. Patient stated her ?right forearm area felt much less heavy and tense.? P.T. visited Dr. Eye‘s office on September 30, 1998. Dr. Eye noted that the Botox injections had given her relief from spasms.7/ His note was otherwise despairing as to the condition of the wound itself, which had an enterococcus infection that was proving resistant to antibiotics. Dr. Eye noted, ?We will await the results of her current attempts at therapy and make modifications if appropriate, since we have tried almost everything. I do not have a specific thing to try. We suggest she might consider watching [sic] with detergent solution which would kill the organisms.? P.T. had a follow-up visit with Dr. Koslowski on October 13, 1998. Dr. Koslowski noted that she was having less spasticity in her hand but that she was feeling ?a neural-type of pain going into her pinkie along the ulnar aspect of the hand? that she rated 8 on a scale of 10. He noted decreased tone in the small and ring fingers, though she was able to move the ring finger almost completely in extension. The small finger remained flexed but could be extended slightly. He continued P.T.‘s Neurontin prescription with an increased dosage, and started her on Darvocet as needed for pain. On October 21, 1998, Dr. Ong performed an excision and abdominal rotation flap on P.T.‘s right forearm that included some repair of a nerve that had been damaged in a previous debridement. On October 27, 1998, Dr. Koslowski saw P.T. She stated that she was not having spasms and was having minimal pain.8/ Dr. Koslowski made no changes in her medications. On November 9, 1998, Dr. Eye expressed some encouragement at the results of Dr. Ong‘s surgery, noting that the nerve repair had lessened the pain and that the wound itself appeared ?much improved.? On December 2, 1998, Dr. Eye wrote that the graft ?did not take? and was removed. The wound was 2.5 by 2 cm in diameter. Dr. Koslowski saw P.T. on December 11, 1998. P.T. reported that the spasms were beginning to increase but that she was ?doing pretty well? overall.9/ He noted increased tone in the flexor of the small and ring fingers and that P.T. was able to extend it passively and ?slightly actively.? On December 22, 1998, Dr. Ong reported that the wound was healing well. On January 11, 1999, Dr. Eye wrote that P.T.‘s wound was ?doing great? and that the area was completely healed. However, Dr. Eye also noted that P.T. was having night sweats and that her weight had gone from 123 pounds to 109 pounds since March 1998.10/ P.T. denied any other new symptoms or any changes that occurred when the night sweats began two months previously. Dr. Eye ordered labs, a chest x-ray and an abdominal CT scan to find the cause of the night sweats.11/ On January 4, 1999, P.T. reported to Dr. Hartman that her spasms were ?okay.? Dr. Hartman was trying P.T. on Flexeril (cyclobenzaprine), a muscle relaxant, and noted that it appeared to work for P.T. without causing daytime drowsiness. Dr. Koslowski saw P.T. again on January 12, 1999, and noted that she was still receiving significant relief from the Botox. He advised P.T. to return for Botox injections ?when she needs it or if the spasticity gets severe.? Dr. Koslowski anticipated a follow-up visit in three months. On February 1, 1999, P.T. returned to Dr. Eye to go over the lab work he ordered on her last visit. The labs and the CT scan indicated nothing irregular, but P.T. continued to complain of night sweats in which her temperature would spike as high as 102 degrees. Her arm remained completely healed, and Dr. Eye advised against Dr. Ong performing a proposed ulnar nerve graft while she was running fevers. Dr. Eye noted that P.T.‘s weight had stabilized. By February 19, 1999, Dr. Eye found much improvement in P.T., both as to her hand and the night sweats. The wound was healing, her symptoms were improving, and Dr. Ong was beginning to plan a nerve transplant. Dr. Eye continued to express pessimism as to P.T.‘s overall prognosis, noting that ?we had this wound heal in the past only to have it break down later, so I do not feel comfortable that we have a cure at this time.? Dr. Eye advised P.T. to return in two months. On March 31, 1999, Dr. Ong performed the nerve transplant, harvesting the sural nerve from P.T.‘s right leg and transferring it to the ulnar nerve. Dr. Ong reported that P.T. tolerated the procedure well. In a follow-up visit on April 6, 1999, Dr. Ong noted only minimal bruising and no infection. P.T. visited Dr. Hartman on April 7, 1999. Dr. Hartman noted spasms in P.T.‘s right hand, especially on the ulnar side. P.T. reported that the Flexaril helped with the spasms. On April 12, 1999, P.T. returned to Dr. Koslowski‘s office. Dr. Koslowski noted that P.T. now had a splint on her arm following the nerve graft. Upon examination, Dr. Koslowski noted some decreased tone in the ulnar distribution of the hand.12/ Dr. Koslowski advised P.T. to follow up in six months unless otherwise necessary, and at that time they would consider a new round of Botox injections. He prescribed 30 Valium, 5mg, one tablet at bedtime. P.T. saw Dr. Hartman on April 14, 1999, and reported the results of her appointment with Dr. Koslowski on April 12. Dr. Hartman noted that P.T.‘s spasms were less severe than she had seen them in the past, but still threatened to injure the nerve during her post-operative recovery. P.T. visited Dr. Eye on April 30, 1999. He remarked that everything was healed from the surgery ?except for one small area that is a little less than a cm in diameter.? P.T. understood that it would take a long time for the nerve to regenerate. After visits to both Dr. Ong and Dr. Eye in early June 1999, P.T. did not visit either of them again until November 1999. P.T. continued to see Dr. Hartman for acupuncture and electrical stimulation on a regular basis during this period. On September 28, 1999, P.T. visited Dr. Koslowski and requested a repeat of the Botox treatment in her right hand. Dr. Koslowski noted that P.T. reported spasm in the right hand in the distribution of the median nerve. Dr. Koslowski performed a physical examination, noting increased hypertonicity in the small and ring fingers, and scheduled P.T. to return in two weeks for Botox injections. On October 12, 1999, Dr. Koslowski administered 400 units of Botox to the following muscles: the right flexor digitorum superficialis, right flexor digitorum profundus, flexor carpi ulnaris, opponens digiti minimi, third and fourth lumbricales, third and fourth volar interossei, third and fourth dorsal interossei, adductor pollicis, and abductor digiti minimi. He advised P.T. to follow up on an as-needed basis. On October 28, 1999, P.T. reported to Dr. Hartman that she had experienced no significant spasms since her most recent Botox treatment. In the notes from a visit with P.T. on November 9, 1999, Dr. Eye stated that P.T. reported ?significant pain relief with the Botulism injections.? He also noted that P.T. had recently been diagnosed with Lyme disease and Bell‘s palsy. On November 16, 1999, P.T. reported to Dr. Hartman that she was still doing well on the Botox. She was having spasms but they were much milder than before the treatment. P.T. reported that she was now able to sleep through the night. On December 21, 1999, P.T. reported an increase in the severity of the spasms after she had put her arms out to break a fall. On January 26, 2000, Dr. Hartman noted that the spasms were doing better through the use of a combination of Flexaril and Baclofen, a muscle relaxer. On February 11, 2000, P.T. presented to Dr. Eye having gone through a series of stressful personal events (the death of her father-in-law and of a good friend, and her adopted daughter giving birth to a child with deformities) and with the wound on her arm having increased in size. Dr. Eye called for the wound to be cultured, but remained convinced that ?the underlying problem is not bacterial. She gets secondary bacterial infections but there is still something that causes the beginning of the breakdown. Stress certainly could have affected it this time.? On February 23, 2000, P.T. visited Dr. Koslowski and reported to him that the spasms were much better thanks to the Botox injections. P.T. requested pain medications. Dr. Koslowski prescribed 75 tablets of Darvocet-N 100, one tablet three to four times a day as needed for pain, with three refills. This was the last time Dr. Koslowski saw P.T. until January 12, 2001. Dr. Eye continued to treat the wound through March and April 2000, with poor results. On April 4, 2000, he wrote, ?I am at a loss at this point as to further procedures.? Despite continuous antibiotic treatment, bacteria remained in P.T.‘s wound. On April 24, 2000, ?the arm suddenly got much worse. The ulcer spread.? Dr. Eye noted, ?I have tried all measures, this ulcer essentially defies simple solutions. We have tried almost everything and sent her to 3 referral centers with no suggestions.? On May 1, 2000, Dr. Eye noted that despite treatment with Cipro, the ulcer was rapidly enlarging. Dr. Eye discussed with P.T. the possibility of arm amputation, as all concerned were ?becoming very discouraged about trying to salvage the arm.? P.T.‘s condition continued to wax and wane in this fashion through the remainder of 2000. Certain treatments such as intravenous antibiotics would arrest the growth of the ulcer or even commence healing. By July 27, Dr. Eye reported that the wound was nearly healed. On August 8, he wrote that it was ?completely healed.? By September, however, the wound had relapsed and Dr. Eye was resigned that treatment would have to continue ?probably indefinitely.? The wound again improved through November and December, but never quite healed. P.T. consistently complained of pain in the arm. P.T. also saw Dr. Hartman on a regular basis through the remainder of 2000, continuing the electrical stimulation and acupuncture. Through most of the year, P.T.‘s spasms seemed to be more or less controlled by the combination of Flexaril and Baclofen. On October 28, 2000, Dr. Hartman received the results of P.T.‘s thyroid testing, which indicated hypothyroidism. Dr. Hartman prescribed a thyroid extract. In September and October, P.T. regularly complained to Dr. Hartman about pain in the arm. Dr. Hartman prescribed a transcutaneous electrical nerve stimulation (?TENS?) unit for P.T.‘s home use. P.T. reported that it was effective in alleviating the pain from spasms that woke her up at night in October and November. However, on December 4, P.T. complained to Dr. Hartman of ?knife-like? pain shooting down her forearm. On January 2, 2001, Dr. Hartman noted that the spasms were ?pretty intense.? The TENS unit was helpful but not enough to alleviate the pain. On January 16, 2001, Dr. Hartman noted that the ?spasms [are] back with a vengeance.? P.T. returned to Dr. Koslowski on January 12, 2001, complaining of the spasms in her right arm. P.T. reported ?that the injections worked for approximately one year.? P.T. mentioned that she was also given acupuncture treatments and believed they helped in conjunction with the Botox. P.T. reported that she was not taking any pain medication and requested that Dr. Koslowski prescribe something for pain. Dr. Koslowski‘s examination indicated increased spasm in the flexor aspect of the right hand. He prescribed Lortab for pain and scheduled a follow-up visit for administration of Botox. On February 3, 2001, P.T. told Dr. Hartman that the Botox treatment had been delayed pending approval by USIS. P.T. told Dr. Hartman that the spasms were so bad they woke her up at night and she could do nothing but pace the floor. P.T. stayed home from work one day because she could not use her right arm. On February 14, 2001, Dr. Koslowski performed the Botox procedure on P.T. The amount of Botox used and the placement of the injections were identical to those of the October 12, 1999, procedure. See Finding of Fact 68, supra. P.T. did not return to Dr. Koslowski‘s office until June 3, 2003. On February 14, 2001, Dr. Ong performed a debridement of the wound on P.T.‘s right arm. Vacuum Assisted Closure (?VAC?) therapy was used on P.T.‘s arm in the effort to promote healing and reduce infection. She showed some improvement, but the therapy was not entirely successful. On March 27, 2001, Dr. Eye noted a new infection and the possibility of returning to the IV antibiotic regime. He wrote, ?We are puzzled how she can continue to get organisms in the wound in the face of sterile technique in VAC.? He also noted that her ?arm spasm and pain continue,? though this was only six weeks after her Botox injections. Dr. Eye finally noted some improvement on April 23, 2001, but only after a course of IV Rocephin (ceftriaxone) in addition to the VAC therapy. On May 23, 2001, in noting continued improvement, Dr. Eye wrote that in the future, ?we will simply just give the antibiotics as our first course of therapy to resolve it.? In visits to Dr. Hartman on February 28, March 29, and April 9, 2001, P.T. reported that the spasms were gone since her most recent Botox treatment. On April 23, 2001, P.T. told Dr. Hartman that the spasms had returned but were ?not too bad.? P.T. conceded that the spasms were waking her up at night. The spasms improved somewhat during May, but by June 4, 2001, P.T. was reporting that the Botox was ?wearing off fast.? Through the remainder of 2001, Dr. Hartman was able to control the spasms fairly well with Klonopin (clonazepam), an antianxiety/anticonvulsant medication with muscle-relaxant properties. On August 24, 2001, Dr. Ong performed an excision and skin graft on the ulcer. On September 4, 2001, Dr. Eye reported that the graft showed degeneration and appeared infected. Dr. Ong‘s reports indicated his opinion that P.T. was showing improvement, but Dr. Eye disagreed. On September 18, Dr. Eye noted that the wound appeared larger than it was before the graft. By September 25, Dr. Eye was coming to agree with Dr. Ong that the wound was healing, though his notes during this period also reference concerns about the overall condition of P.T.‘s arm. After a November 2, 2001, appointment, Dr. Eye noted ?further signs of nerve damage with loss of function of the hand. She has thenar eminence wasting consistent with an ulnar neuropathy.? Dr. Eye‘s notes in November and December 2001 make reference to P.T.‘s inability to get in to see Dr. Koslowski for further Botox injections. On January 17, 2002, Dr. Hartman noted that P.T.‘s spasms were becoming ?bothersome.? On January 24, 2002, Dr. Eye noted that P.T.‘s condition is getting worse and that amputation of the arm would be the likely outcome. Though Dr. Eye noted that P.T. was ?seeing Dr. Koslowski for injection,? P.T. in fact continued to be unable to get the injection from Dr. Koslowski for reasons not made clear in the record. Dr. Eye referred P.T. to Michael T. Pulley, M.D., Ph.D., a board-certified physician in the fields of neurology and clinical neurophysiology who was an associate professor of neurology at the University of Florida and Shands in Jacksonville. On January 28, 2002, Dr. Pulley performed an initial neurological examination on P.T. and concluded she was ?an excellent candidate for continued botulinum toxin injections since these have worked well in the past. I will see her back to do those injections and plan to use a total of 200 units.? On February 4, 2002, Dr. Pulley performed the Botox injections. He injected the following muscles in her right arm: flexor digitorum profundus ulnar head, 50 units; flexor digitorum superficialis, 20 units; flexor digitorum profundus median head, 10 units; lumbrical #2, 10 units; flexor carpi ulnaris, 30 units; and abductor pollicis brevis, 15 units. Dr. Pulley‘s notes stated that he would see P.T. in a follow-up visit in one month to assess the effectiveness of the injections, but his records do not indicate that such a visit occurred. On February 12, 2002, Dr. Hartman noted that the Botox treatment had resolved the spasms that were keeping P.T. awake at night. On February 15, 2002, Dr. Eye noted that P.T. reported improvement in the pain she was feeling in the arm. On March 14, 2002, Dr. Eye noted remarkable improvement in the healing of the wound, which he attributed to hyperbaric treatments accompanied by IV Rocephin. His plan was to continue periodic hyperbaric treatments even after the wound healed, in order to keep it healed. Dr. Eye also noted that P.T. reported that when working, she was forced to leave the hospital and change her dressings and take her IV antibiotics in her car because ?some woman there fears that it is =catching.‘? On April 4, 2002, Dr. Eye noted that the healing process was proceeding well but that P.T.‘s arm pain was so bad it woke her up at night. He also noted a significant decrease in the size of her right arm. Dr. Eye stated that P.T. would be continued on IV antibiotics until the wound healed. On June 20, 2002, Dr. Eye wrote the following: Someone recently indicated she was at maximal medical benefit. This is completely erroneous. We have even had her healed in the past only to break down and continue to have problems. She is developing progressive nerve damage in the arm. In my view there may be no date of maximal medical improvement for [P.T.] with a chronic persistent problem. In our opinion this will be a lifelong remaining problem. Ultimately the solution may well be an amputation at which point she would have reached maximal medical improvement but only then. She voices no other new complaints. The pain in the arm continues to be present. On July 11, 2002, P.T. returned to Dr. Pulley for a repeat Botox injection.13/ This time, Dr. Pulley injected 135 units into the following muscles of P.T.‘s right arm: flexor digitorum profundus ulnar head, 95 units; flexor carpi ulnaris, 50 units; flexor digitorum superficialis, 50 units. On this occasion, the anticipated follow-up visit occurred, on August 7, 2002. P.T. reported that things were going very well and she was able to sleep through the night.14/ Dr. Pulley performed an examination and concluded that P.T. had ?definite weakness? in her right arm. He noted: ?It is not clear how much of this is due to the ongoing ulnar nerve injury and how much is due to the botulinum toxin. In any event, she feels that this is a very good outcome.? This was P.T.‘s final visit to Dr. Pulley. After seeing P.T. on September 26, 2002, Dr. Eye noted that the ulcer was not healing and that P.T. was now beginning to lose functional use of the hand. Dr. Eye raised the possibility of amputation with prosthesis, but P.T. did not want to discuss the subject. P.T. voiced that she had only ?modest? pain in the arm. Dr. Eye continued to see P.T. once or twice per month for the rest of 2002 and early 2003 with the same pattern of improvement on the margins, then setbacks, such that the wound never completely healed.15/ On November 11, 2002, Dr. Eye remarked on the ?waxing and waning of the ulcer? and on his constant search on the internet for some new treatment he might try to resolve P.T.‘s case. On January 6, 2003, Dr. Hartman noted that the Botox appeared to be wearing off and the spasms were back in P.T.‘s right arm. On January 21, 2003, Dr. Hartman noted that the spasms were not yet ?terrible? and that the plan was to wait until the spasms worsened to get the Botox treatment. On March 3, 2003, Dr. Eye noted that his own recommendation would be to amputate the arm, but that P.T. wanted to keep it. Dr. Eye‘s notes on several occasions speak approvingly of the Botox injections P.T. received for the pain in her arm. His notes of May 15, 2003, state that P.T. plans to return to Dr. Koslowski for treatment. On June 3, 2003, P.T. returned to Dr. Koslowski for the first time since February 14, 2001. P.T. reported that she had received Botox injections from Dr. Pulley during the interim, and that the most recent injection had ?lasted? for about eleven months. Dr. Koslowski‘s physical examination found ?the intrinsics of her hand were spastic with finger flexion, especially in the ulnar aspect of the hand.? He found that the flexion was severe enough to cause ?spasticity? and that she had a very difficult time opening her hand. Dr. Koslowski prescribed Lidoderm patches; 60 Oxycontin, 5 mg, one tablet twice a day as needed, and a follow-up visit after his office obtained the Botox for P.T.‘s injections. Through May and early June, Dr. Hartman noted that the spasms had been worsening. On June 12, 2003, Dr. Hartman noted that P.T.‘s spasms were ?outrageous,? affecting her night and day. She noted that P.T.‘s wound seemed a little deeper than on her previous visit, and that the spasms ?seem to rip it up.? On June 18, 2003, Dr. Koslowski performed the Botox injections on P.T. The amount of Botox used and the placement of the injections were identical to those of the October 12, 1999, and February 14, 2001, procedures. See Findings of Fact 68 and 75, supra. Dr. Koslowski‘s notes indicate that P.T. was to come in for a follow-up in one month, but in fact she did not return until October 30, 2003. P.T. visited Dr. Eye on July 3, 2003. Dr. Eye noted that the wound was down 4-5 mm but that P.T. intended to stop the hyperbaric treatments because she could no longer stand being in the confined space. Dr. Eye further noted that P.T.‘s pain had ?dramatically improved with the Botox injections.? P.T. visited Dr. Hartman on July 29, 2003, and reported some spasms in her right, small finger. Dr. Hartman noted that the finger was apparently ?not touched by Botox.? The three adjacent fingers were not spasming. On August 25, 2003, Dr. Hartman noted that P.T.‘s wound had re-opened for ?no particular reason.? On October 26, 2003, Dr. Eye noted that P.T. was having more muscle spasms than before and that she was scheduled to receive Botox from Dr. Koslowski. He wrote, ?It has been 3 months since her last Botox injection. Usually they last a little longer.? On October 27, 2003, Dr. Hartman noted that the spasms were ?awful today. Back with a vengeance.? She found that the spasms had broken down two areas of the wound. On October 28, 2003, Dr. Hartman wrote, ?Needs spasm relief!? On October 30, 2003, P.T. returned to Dr. Koslowski‘s office. She told him that the Botox injections only worked for a couple of months this time. Dr. Koslowski‘s physical examination revealed some spasms in the ulnar nerve distribution with a claw hand.16/ Dr. Koslowski‘s notes indicate a plan to increase the amount of Botox to 600 units for the next series of injections. On November 14, 2003, Dr. Hartman noted that the Botox was still not available to P.T. She therefore performed a series of trigger-point injections of lidocaine with the goal of preventing the spasms from further breaking down the wound. On November 18, 2003, Dr. Eye noted that the wound had almost completely healed, but the spasms had broken it down again. The pain from the spasms was such that P.T. could not sleep at night. Dr. Eye indicated that he had spoken to Dr. Koslowski, who had said there was a delay in obtaining Botox. Dr. Eye prescribed Percocet for the pain until she could receive the Botox injection that would ?resolve the symptoms.? On November 20, 2003, Dr. Koslowski injected 600 units of Botox into the muscles of P.T.‘s right arm. Though the amount was increased, the placement of the injections was the same as in the immediately previous three sessions. See Finding of Fact 68, supra, for a list of the muscles injected. Dr. Koslowski noted that follow-up would be done on an as-needed basis. On December 15, 2003, Dr. Hartman noted that P.T.‘s pain was better since the Botox injection. P.T. also reported ?amazing pain relief? from the trigger-point injections of lidocaine. P.T. visited Dr. Eye on January 6, 2004. She reported to Dr. Eye that the Botox was helping to keep the arm pain somewhat in check, and that she was still able to use the hand. At this point, Dr. Eye had given up on a lasting solution for the wound on P.T.‘s arm: ?Clearly it waxes and wanes on its own parameters. Nothing we are doing seems to be making any difference. I think symptomatic treatment is the only solution for now. We still have not run across a previous description of a similar wound.? On February 10, 2004, Dr. Eye noted that the ulcer had grown and had purulent drainage. The type of pain P.T. was reporting was more consistent with infection than the type of neuropathic pain addressed by Dr. Koslowski‘s Botox treatments. P.T. had been using detergent soaks on the wound, and Dr. Eye now suggested raw honey, ?which has been reported to have a dramatic antibacterial property.? Dr. Eye told P.T. that he had heard of ?some type of special grafting procedure in Boston? for which he would be happy to send her. On February 17, 2004, Dr. Hartman performed a series of trigger-point injections with bupivacaine. On March 4, 2004, P.T. presented to Dr. Eye with a clean wound, which he attributed to ?antibacterial? and ?osmotic? effects of the honey. P.T. reported pain in the arm, described by Dr. Eye as ?neuropathic.? She is still taking Percocet to sleep and reported that the pain was so bad she could not use the computer at work. P.T. was to make an appointment to see Dr. Koslowski. On April 1, 2004, P.T. saw Dr. Koslowski. P.T. rated her pain as a 5, ?where 0 is no pain and 10 is the worst pain imaginable.? P.T. told Dr. Koslowski that the pain had started within the last week. She also stated that Botox was working very well on her. Dr. Koslowski gave P.T. samples of Trileptal (oxcarbazepine), an anti-seizure medication that has been used off-label for neuropathic pain. He instructed P.T. to let him know if it helped. If it did, his office would call in a prescription for her. Dr. Koslowski also signed a medical authorization for P.T. to be excused from work from March 29 until April 5, 2004. A nurse‘s note in Dr. Eye‘s records, dated April 6, 2004, states that P.T. reported that she was told by Dr. Koslowski that he could not perform a nerve block due to the open wound on P.T.‘s arm. Dr. Eye told P.T. that Dr. Koslowski may consider Botox instead. P.T. stated that she would discuss the matter with Dr. Koslowski. On April 12, 2004, P.T. saw Dr. Eye, who noted that she had been ?in severe pain for the last several weeks. Her husband says she is up almost all night. She can‘t sleep. The Percocet is not doing the job. We are going to add Fentanyl patch. She got Botox but it has not made a significant difference.? In fact, P.T.‘s most recent Botox treatment had been on November 20, 2003. Dr. Eye noted that he would try to get P.T. in to see Dr. Ong the next day. On April 13, 2004, P.T. visited Dr. Ong, who noted the ulcer with ?a lot of necrosis? and a need for debridement. P.T. was in a great deal of pain from the infection. Also on April 13, 2004, P.T. visited Dr. Hartman, who noted that the nerve was exposed under the ulcer and that P.T. was ?in awful pain.? Her ring and small fingers ?feel like in a vat of boiling oil.? P.T. reported that she had not been able to work for two weeks. Dr. Hartman administered a series of trigger-point injections with bupivacaine. On April 16, 2004, Dr. Ong performed a debridement and rotation skin flap on P.T.‘s wound, and applied a wrist splint. On April 22, 2004, Dr. Eye placed her on IV antibiotics, in light of the failure of previous skin flaps. On May 10, 2004, P.T. visited Dr. Eye, who noted that ?her arm looks better than it has in years.? P.T. reported that the pain was gone as soon as the surgery was performed. Dr. Eye decided to keep P.T. on IV antibiotics ?until this thing is pretty much healed.? By early June, the ulcer again appeared to be increasing in size, though P.T. still reported dramatic improvement in her pain since the graft. On July 27, 2004, Dr. Eye noted that the wound ?almost appears to have healed and filled in. The pain in the arm is dramatically better.? Dr. Eye‘s prognosis remained guarded, however, because the medical team had healed the wound in the past only to have it break down once treatment stopped. P.T. saw Dr. Koslowski on August 12, 2004. P.T. rated her pain at a 2 or 3 on a scale of 10. Dr. Koslowski noted hypalgesia at the ulnar distribution of the right hand and severe spasms in the flexor aspect of the hand. He discussed the treatment options with P.T. and they agreed that Botox was the preferred choice. Dr. Koslowski ordered 600 units of Botox and hoped to administer it to P.T. within the next three weeks. On August 18, 2004, Dr. Hartman noted that P.T.‘s Botox was on order. P.T. reported that her spasms were not ?horrible,? but the botox will be a ?welcome relief.? On September 14, 2004, Dr. Koslowski injected 600 units of Botox into the muscles of P.T.‘s right arm. The placement of the injections was the same as in the immediately previous four sessions, except that on this occasion Dr. Koslowski did not inject the adductor pollicis. See Finding of Fact 68, supra, for a list of the muscles injected. Dr. Koslowski noted that follow-up would be done on an as-needed basis. On October 4, 2004, Dr. Eye noted continued improvement in the wound. He noted that P.T. had continued to work through almost all of her illness, which he found ?somewhat amazing.? Dr. Eye also noted the following: I spoke with Dr. Koslowski who is taking a more aggressive approach to keeping the area botulized to resolve the pain. There is some data that this may improve wound healing and in fact appears to be somewhat effective to this point. We remain skeptical, however, if it shows long term affects [sic] but certainly I am willing to try. We have tried every measure known without significant improvement or results. P.T.‘s wound continued to progress toward healing until her arm was injured in a car accident in December 2004, or January 2005. On January 18, 2005, Dr. Eye noted a ?small breakdown? in the wound. On January 25 and February 14, 2005, Dr. Hartman performed a series of trigger-point injections for pain. The wound remained open as of March 17, 2005, and Dr. Eye advised P.T. to resume the application of raw honey and to protect the wound as much as possible. Dr. Eye noted, ?The peripheral neuropathy is under much better control with the Botox. She is able to use her hand to some degree.? Dr. Eye advised P.T. to ?continue to follow up with her necessary Botox to control the pain neuropathy.? On May 11, 2005, P.T. returned to Dr. Koslowski to request Botox injections. Dr. Koslowski‘s physical examination revealed spasms in the right flexor on the ulnar aspect of the hand, as well as some spasm in the medial aspect. He indicated that he would order 600 units of Botox, ?to be injected at a later date when payment is received.? On June 1, 2005, Dr. Hartman noted that P.T.‘s arm had been spasming for two weeks. On June 2, 2005, Dr. Hartman performed a series of trigger-point injections with bupivacaine. On June 8, 2005, Dr. Koslowski injected 600 units of Botox into the muscles of P.T.‘s right arm. The injections were placed in the following muscles: flexor digitorum superficialis; flexor digitorum profundus; flexor carpi ulnaris; opponens digiti minimi; third and fourth lumbricales; third and fourth volar interossei; third and fourth dorsal interossei; adductor digiti minimi; and ?the deeper version of the flexor pollicis brevis muscle and adductor pollicis.? Dr. Koslowski advised P.T. to call in one week to tell him the benefit of the injections and to follow-up in six months to repeat the procedure. Dr. Eye‘s notes for visits from P.T. on June 28 and October 3, 2005, indicate that P.T.‘s wound is doing relatively well and that the Botox treatments have been effective in helping to control the pain in her right arm. On December 27, 2005, Dr. Eye noted that the wound had broken open again. He wrote that multiple attempts to treat it with antibiotics had failed and he would not pursue that route again. P.T. was to continue the program of topical treatment and return in three months or sooner if the problem worsened. On January 24, 2006, P.T. visited Dr. Koslowski‘s office along with her USIS case manager. After Dr. Koslowski explained the purpose and preferred frequency of the Botox treatments, they decided that P.T. would receive Botox treatments every six months. Dr. Koslowski injected 600 units of Botox into the muscles of P.T.‘s right arm. The placement of the injections was the same as in the session of June 8, 2005. See Finding of Fact 138, supra. P.T. visited Dr. Eye‘s office on March 27, 2006. Dr. Eye noted that P.T.‘s ulcer had relapsed and was ?now as big as ever despite all the efforts put into it.? He suggested that P.T. consider natural alternatives to treating the wound because ?conventional treatment of all types has failed.? Dr. Eye suggested that P.T. return in two to three months. On May 18, 2006, P.T. visited Dr. Koslowski. She stated that the spasms had not yet increased but that she wanted to set up the next Botox treatment in order to preempt their onset. Dr. Koslowski conducted an uneventful physical examination and instructed P.T. to return in one month unless otherwise necessary. On June 13, 2006, P.T. visited Dr. Eye, who noted that the ulcer continued to increase in size. They debated whether to resume hyperbaric treatments or skin grafts, but P.T. expressed a preference to ?hang on? with the topical treatments. On July 7, 2006, P.T. called in to Dr. Koslowski‘s office complaining of spasms in her little finger that had been ongoing for about one week. Dr. Koslowski told P.T. that he would advise the case manager of the need to order Botox for injections ?in the very near future.? On August 16, 2006, Dr. Koslowski injected 600 units of Botox into the muscles of P.T.‘s right arm. The placement of the injections was the same as in the session of June 8, 2005. See Finding of Fact 138, supra. Dr. Koslowski advised P.T. that he would follow up with further Botox injections in six months. On August 22, 2006, P.T. reported to Dr. Hartman that the Botox injections had greatly decreased the spasms. Dr. Hartman recommended that trigger-point injections be performed for neuropathic pain a few months after the administration of Botox. On August 24, 2006, P.T. visited Dr. Eye, who noted that the ulcer has been ?quiet? and well controlled with topical medications. He noted that P.T. had not needed IV antibiotics in two years and was off all oral antibiotics as well. Dr. Eye also noted that the recent Botox injection for pain helped her. He advised P.T. to continue with the current program and to return in four months. This was P.T.‘s last visit with Dr. Eye. She was formally discharged from his practice in January 2007. On October 26, 2006, Dr. Hartman performed a series of trigger-point injections in P.T.‘s right upper arm and forearm. On March 13, 2007, P.T. returned to Dr. Koslowski‘s office complaining of spasms in her right hand and requesting Botox injections. Dr. Koslowski agreed to perform the injections as soon as he could obtain 600 units of Botox. Two months passed before the Botox could be obtained. On April 16, 2007, P.T. asked Dr. Hartman to take over as her primary care physician for her workers‘ compensation-related injury. Dr. Hartman agreed to do so. On May 14, 2007, Dr. Koslowski injected 600 units of Botox into the muscles of P.T.‘s right arm. The placement of the injections was the same as in the session of June 8, 2005. See Finding of Fact 138, supra. Dr. Koslowski advised P.T. that he would follow up with further Botox injections in six months, unless otherwise necessary. He also told her that he would like to order the Botox now so that he would have it by the time P.T. was ready for her next series of injections. On November 26, 2007, Dr. Hartman noted that the spasms were beginning again and that sufficient time had passed to initiate the process of obtaining Botox injections.17/ On February 11, 2008, P.T. presented to Dr. Koslowski with spasms in the ulnar distribution of her right hand. She stated that she had begun experiencing the spasms within the past week or two. She rated her pain at 7 or 8 on a scale of Dr. Koslowski‘s physical examination noted spasms, but not as bad as P.T. had experienced in the past. Dr. Koslowski planned to inject P.T. with Botox as soon as it could be obtained. Dr. Koslowski performed the Botox injections on March 26, 2008. The placement of the injections was the same as in the session of June 8, 2005. See Finding of Fact 138, supra. On February 5, 2009, P.T. presented to Dr. Koslowski with spasms in her right hand and rated her pain at 6 to 7 on a scale of 10. Dr. Koslowski‘s physical examination noted ulnar nerve malformation with spasm in the index finger and flexion spasm in the ring finger, which P.T. reported as having started about a week and a half ago. On March 17, 2009, Dr. Koslowski performed Botox injections on P.T. The placement of the injections was the same as in the session of June 8, 2005, see Finding of Fact 138 supra, except that on March 17, 2009, Dr. Koslowski did not record an injection into the flexor digitorum superficialis. The March 17, 2009, visit was P.T.‘s last recorded visit to Dr. Koslowski‘s office. P.T.‘s treatment by Dr. Boswell and Dr. Kirsner As noted at Finding of Fact 17, supra, P.T. saw psychiatrist Dr. Atul Shah from February 1991 through February 1998. In April 1998, P.T. began seeing Kelly M. Boswell, Ph.D., a psychologist practicing in Atlantic Beach. P.T. continued to see Dr. Boswell throughout the time period relevant to this proceeding. Dr. Boswell‘s treatment is dealt with separately because it did not bear directly on Dr. Koslowski‘s treatment and because the record does not indicate that there was any coordination between Dr. Boswell and Dr. Eye or the other physicians working in conjunction with Dr. Eye. To the contrary, Dr. Boswell‘s records indicate that P.T. insisted that Dr. Boswell not share with her other health care providers certain information P.T. confided in their sessions. P.T. was referred to Dr. Boswell by Donna Spanzo, an ARNP associated with Dr. Shah whom P.T. had been seeing for about one year. On April 27, 1998, P.T. reported to Dr. Boswell a history of bulimia nervosa since age seven and daily purging at the present time. P.T. felt obsessed with her weight, which Dr. Boswell observed to be within normal limits. P.T. reported that she had taken Prozac ?for years.? She reported ?bad memories? of domestic abuse or violence that she was not ready to discuss. Dr. Boswell gave P.T. a provisional DSM-IV Axis I diagnosis of eating disorder NOS and dysthymic disorder secondary to the eating disorder. In June 1998, Dr. Boswell referred P.T. to a Jacksonville psychiatrist, Dr. Ron Kirsner, for the purpose of commencing Meridia therapy in conjunction with her treatment with Dr. Boswell. Meridia (sibutramine) is an appetite suppressant (since withdrawn from the U.S. market) used in the treatment of obesity. In his medical notes, Dr. Kirsner wrote that both P.T. and Dr. Boswell believed that P.T.‘s depression was ?probably secondary to or at least contributed significantly to her inability to control her bulimia.? Dr. Kirsner explained that Meridia would be used in P.T.‘s case ?to help her experiment with the feeling of satiety.? On July 8, 1998, P.T. reported to Dr. Boswell that she had vomited blood during the last week. At Dr. Boswell‘s insistence, P.T. agreed to undergo a physical. Dr. Boswell recommended Dr. Graciela Diez-Hoeck, a Jacksonville internist.18/ On July 15, 1998, P.T. reported to Dr. Boswell that she was ?down to purging every other day.? Dr. Boswell noted that P.T. ?still refuses to let me? consult with Dr. Eye. On August 25, 1998, P.T. admitted to Dr. Boswell that she had canceled her appointment with Dr. Diez-Hoeck. P.T. did agree to tell Dr. Hartman about her bulimia. One of the chief issues raised by P.T. with Dr. Hartman during this early part of her treatment was chronic constipation, for which Dr. Hartman tried a number of approaches. However, there is no mention of bulimia in Dr. Hartman‘s medical records for this time period. In her September 1998 sessions with Dr. Boswell, P.T. expressed her ?grief and anger? over the loss of function in her arm. She also expressed her inability to directly communicate her fears to her treating physician regarding proposed surgical procedures, and her fear of being perceived as a ?wimp.? P.T. promised to be more open with her physicians. On October 4, 1998, P.T. discussed her frustration at the failure of her wound to heal, as well as her tendency to be hard on herself and not reach out to others for comfort. On October 5, 1998, Dr. Kirsner suggested that P.T. start taking an antidepressant to ?elevate [her] mood and restore hope.? He prescribed Serzone (nefazodone) twice daily in increasing dosages over three weeks. On October 13, 1998, P.T. complained of her struggle with chronic pain. Dr. Boswell reiterated her insistence that P.T. tell her physician the status of her eating disorder. Dr. Boswell noted that P.T. was very resistant but understood that she needed to make a decision before her next weekly session or Dr. Boswell would stop seeing her. At the next session, P.T. reported that she had made an appointment to see Dr. Diez-Hoeck on the day before Thanksgiving, and P.T. gave permission for Dr. Boswell to communicate with Dr. Diez-Hoeck about her case. Through November 1998, P.T. was reporting progress in the healing of her arm and the fact that she was purging much less. However, her wound began to worsen in early December. On December 15, 1998, P.T. expressed her frustration at the failure of her arm to heal and reported to Dr. Boswell that she had purged four times in the last week. They discussed the idea that purging was a way of expressing distress and anger toward her body as well as a way to discharge anxiety. Also on December 15, Dr. Kirsner noted that he had spoken with Dr. Boswell and they were both concerned that P.T. was losing too much weight on Meridia, that blood work needed to be done, and that P.T. had still not told her other physicians about her bulimia. Dr. Kirsner wrote that he had ?set a limit today? by telling P.T. that he would not refill her Serzone or Meridia until he had seen blood studies for her. On December 30, 1998, Dr. Boswell noted that P.T.‘s blood work was done and her values were within normal limits. On January 7, 1999, Dr. Kirsner began hypnotherapy with P.T., which P.T. reported to Dr. Boswell was proving helpful. P.T. continued to receive hypnotherapy from Dr. Kirsner throughout his treatment of her, and she began practicing self-hypnosis and positive visualization techniques that Dr. Kirsner taught her during their sessions. Starting on December 30, 1998, and continuing through later sessions, Dr. Boswell began exploring with P.T. the stresses of her job and P.T.‘s fear of leaving it. P.T. complained repeatedly of fatigue, and Dr. Boswell stressed the importance of resting rather than constantly trying to fight through the fatigue. On January 27, 1999, P.T. reported to Dr. Boswell that her wound was doing better but that she was having painful spasms in her right arm. Dr. Boswell continued to press the importance of taking in sufficient calories and maintaining a balanced diet. Dr. Boswell laid out a specific eating plan for P.T. to follow. P.T. indicated receptiveness, but appeared to Dr. Boswell to be generally resistant to eating a sufficient amount of protein and fat. Over the next month, P.T. reported that she followed the diet and felt less fatigued, though she also commented that she felt like ?the doughboy.? Dr. Boswell weighed her to demonstrate that P.T. had actually lost weight. On February 17, 1999, Dr. Boswell noted that P.T.‘s arm was completely healed and that P.T. was beginning to make the ?mind-body connection? and to feel empowered as regards her own health. On February 24, 1999, Dr. Boswell noted that P.T. was ?very upset due to receiving news that infection in arm is back. Getting advice to reopen wound and go on IV antibiotics.? This note is odd because nothing in Dr. Eye‘s notes for this time period indicate any problem with the healing of P.T.‘s arm. See Dr. Eye‘s note for February 19, 1999, discussed at Finding of Fact 66, supra. In fact, P.T. was doing so well that Dr. Eye and Dr. Ong were beginning to plan a nerve transplant. Also on February 24, 1999, P.T. reported to Dr. Kirsner that a Gallium scan showed an infection in her arm and that she was going to undergo an incision and drainage procedure. On February 16, 1999, Dr. Hartman had noted, ?Arm wound really good!? Dr. Eye‘s note for February 19, 1999, states: ?We did a Gallium scan, nothing could be found. At this point we are not going to pursue further. We feel that antibiotics on an empirical basis is not further indicated.? On this date, P.T. was clearly misleading Dr. Boswell and Dr. Kirsner as to the condition of her arm. On March 22, 1999, P.T. reported to Dr. Boswell that she was apprehensive about ?upcoming surgery to address signs of infection -- graft nerve.? The surgery performed on March 31, 1999, by Dr. Ong was a nerve transplant, unrelated to any infection. On April 14, 1999, P.T. gave Dr. Kirsner a description of the surgery that included the excision of ?infected pockets? in the arm. Dr. Ong‘s surgical notes make no mention of infection and specifically state that P.T. was not given any kind of antibiotic at the time of surgery. On April 27, 1999, P.T. reported to Dr. Boswell that her arm was worse and an ulceration was developing. This concern was not reflected in the medical notes of Dr. Eye or Dr. Ong. On April 26, 1999, Dr. Hartman did note that P.T.‘s wound looked ?weepy? and her suspicion of a yeast infection, but she did not prescribe anything more than a change in the method of dressing the wound. On May 5, 1999, P.T. reported to Dr. Boswell that her arm was infected. Dr. Eye‘s medical notes for April 30, 1999, note that the surgical site ?looks clean. There is no purulent drainage.? On May 17, 1999, Dr. Hartman noted that the wound was draining a bit but she did not prescribe an antibiotic. By June 2, 1999, Dr. Hartman noted that the wound ?looked good.? On June 9, 1999, P.T. reported to Dr. Kirsner that she was taking Sporanox (itraconazole) for the yeast infection in the wound. In fact, Dr. Hartman had prescribed Sporanox for P.T.‘s night sweats on March 17, 1999. On April 14, 1999, P.T. also reported to Dr. Kirsner that she had recently been binging and purging. On April 21, 1999, P.T. reported to Dr. Boswell that she felt ?sluggish and fat.? On May 5, 1999, P.T. reported to Dr. Kirsner that she had a hard time controlling her bulimia because it provided ?stress relief.? On May 12 and 19, 1999, P.T.‘s sessions with Dr. Boswell focused on her need to seek less stressful work. P.T. described herself as in a ?funk? because of her job, her husband‘s poor health, and her frustration with the healing process of her arm. On June 2, 1999, P.T. reported to Dr. Boswell that she felt depressed due to her arm getting worse. Dr. Eye‘s notes of the same date state the wound looked clean, with ?just a superficial ulceration at the area of the graft site.? Dr. Eye wrote that he would see P.T. ?in a few months? if nothing changed for the worse. In response to P.T.‘s reported depression, Dr. Boswell told P.T. that she needed to reduce her hours or quit her job altogether because it required her to get up at 3 or 4 a.m. and work late. P.T. was still struggling with the idea of being thought a ?wimp? if she could not maintain her work schedule. On June 9, 1999, P.T. discussed with Dr. Boswell the connection between her exhaustion from overwork and her purging. On June 9, 1999, P.T. reported to Dr. Kirsner that she was getting her work assignment changed from triage to the less stressful position of anesthesia screening. On June 22, 1999, P.T. told Dr. Boswell that the change in job positions should be accomplished by mid-July. P.T. reported starting the new position on July 15, 1999. On July 20, 1999, P.T. reported to Dr. Boswell that work was going well but that her arm wound was getting larger and draining. The records give no indication that P.T. reported her concerns to Dr. Eye. Dr. Boswell noted the connection between sleep and nutrition, and stated that she wanted to get P.T. on to a more normal sleep pattern before aggressively ?pushing? on food. On August 4, 1999, P.T. reported to Dr. Boswell that the pain in her arm woke her up every night, and she would get up and take a shower to relieve the pain. They discussed P.T.‘s options for dealing with pain, and P.T. expressed her fear of becoming addicted to narcotics. On August 18, 1999, P.T. and Dr. Boswell discussed going to Dr. Koslowski to ask about a TENS unit or a nerve block for her pain. On September 1, 1999, P.T. reported that she had made an appointment with Dr. Koslowski. On September 8, 1999, P.T. reported to Dr. Boswell that Dr. Hartman had prescribed Klonopin for the pain from the spasms. On September 13, 1999, Dr. Hartman prescribed dicloxacillin and Diflucan (fluconazole) for an infection in P.T.‘s arm wound. P.T. reported to Dr. Boswell on September 9, 1999, that the arm had developed pseudomonas and that she then had an allergic reaction to the antibiotic. Dr. Hartman‘s medical notes do not mention an adverse reaction to the antibiotic. On September 29, 1999, P.T. discussed with Dr. Boswell her depression and anxiety regarding her fears that her arm would never get better. On October 5, 1999, P.T. reported to Dr. Boswell that her arm was getting worse. She was now having spasms during the day as well as at night, but felt hopeful because she would be getting Botox injections from Dr. Koslowski on October 12. P.T. also reported that she was binging more, which Dr. Boswell related to exhaustion from the constant struggle to sleep through the night. On October 13, 1999, P.T. reported to Dr. Boswell that she received the Botox injections on the previous day, that they should take effect within one week, and that they should provide some level of relief from spasm for the next seven months. Dr. Boswell was hopeful that the injections would help P.T.‘s insomnia. On October 29, 1999, P.T. reported to Dr. Kirsner that the Botox injections had taken away 80 percent of the arm spasms and that she was now sleeping through the night. On January 2, 2000, P.T. reported to Dr. Boswell that her arm had worsened and that her work environment ?is quite stressful.? P.T.‘s sleep was becoming inconsistent again. Dr. Boswell directed P.T. to observe her home environment for causes of stress. On February 22, 2000, P.T. reported to Dr. Boswell that her arm was infected again and she was now purging daily. Dr. Boswell‘s notes do not mention any of the obvious stressors set forth in Dr. Eye‘s note of February 11, 2000: P.T.‘s father-in-law and a good friend had died, and P.T.‘s adopted daughter had given birth to a child with deformities. See Finding of Fact 78, supra. On February 23, 2000, P.T. related all of these traumatic events to Dr. Kirsner.19/ On April 6, 2000, Dr. Boswell noted that P.T. was sleeping better thanks to resuming her Klonopin prescription and had succeeded in reducing her purging to five days per week. P.T.‘s immediate goal was to maintain the regimen of not purging two days per week. P.T. continued to struggle with ?feeling fat? and with maintaining her morale regarding the condition of her arm. On May 31, 2000, P.T. reported to Dr. Boswell that her wound ?looks better, but it hurts like crazy.? P.T. spoke to Dr. Boswell about her continuing reluctance to take any sort of addictive substance. On June 14, 2000, P.T. told Dr. Boswell that she was sleeping better and had not purged in a week. P.T. resolved that she would not purge until her arm healed. On June 28, 2000, Dr. Boswell noted that P.T. was still not purging and had progressed sufficiently to commence a nutritional rehabilitation program to be medically overseen by Dr. Hartman. Dr. Hartman‘s contemporaneous medical notes make no mention of such a plan, even though Dr. Hartman continued to treat P.T.‘s constipation via diet. Dr. Boswell‘s medical notes indicate an ongoing discussion with P.T. about contacting Dr. Hartman for consultation on diet and related areas such as P.T.‘s adrenal insufficiency. By August 2, 2000, Dr. Boswell appeared to be in contact with Dr. Hartman, if not directly then using P.T. as an intermediary. Dr. Boswell understood that Dr. Hartman believed P.T.‘s chronic constipation was a major source of her wound- healing difficulty. Dr. Boswell noted that she would send some suggested articles on constipation to Dr. Hartman and would suggest some further tests to run on P.T. Again, Dr. Hartman‘s notes are silent as to consultations with Dr. Boswell. As noted at Finding of Fact 81, supra, P.T.‘s wound relapsed in September 2000. On September 5, 2000, she complained to Dr. Boswell of spasms in her arm and a sense of fatigue from the lack of sleep caused by the pain.20/ On September 19, 2000, P.T. reported to Dr. Boswell that Klonopin was not helping as much as it used to, and that she was very concerned about becoming dependent on analgesic or anxiolytic drugs. They discussed how P.T.‘s fear of developing a ?disability persona? was keeping her from taking the steps necessary to heal. Dr. Boswell discussed the matter with Dr. Kirsner, relaying her concern that P.T. was being ?stoic.? Dr. Kirsner discussed with P.T. the criteria for addiction, which include the continued use of the drug despite negative consequences. P.T. told Dr. Kirsner that she had a prescription for Lortab from Dr. Eye, but that it ?hypes me up.? Dr. Kirsner started P.T. on MS Contin, time-released morphine sulfate. On September 26 and again on October 3, 2000, P.T. reported to Dr. Boswell that she was unable to take MS Contin during the workweek because she had to wake up early. After obtaining a medical work-release note from Dr. Hartman, P.T. was able to take the MS Contin. On October 10, 2000, P.T. reported to Dr. Boswell that she felt much better after taking time off and being able to sleep through the night on the MS Contin. However, when she went back to work in early December 2000, P.T. reported that the pain was an 8 on a scale of 10 by the end of the day because she was unable to take the MS Contin. On December 5, 2000, P.T. reported to Dr. Kirsner that she was ?in a fog? when she took MS Contin and so could only take it when she went home from work. Dr. Kirsner believed that the dosage prescribed could not cause the effects described by P.T. and that she was just ?squirrely? about taking it while working for fear of making a mistake. They discussed various clinical options before settling on adding Provigil (modafinil) to the MS Contin in order to improve P.T.‘s alertness on the job. On December 13, 2000, P.T. reported to Dr. Boswell that she was sleeping much better thanks to the new drug regime. On January 9, 2001, Dr. Boswell noted that P.T. had stopped taking her pain medications due to her husband‘s concerns about addiction.21/ P.T. admitted to Dr. Boswell that she had not told her husband ?the whole story? regarding the rationale for taking pain control medications. P.T. agreed to bring her husband in to meet with Dr. Boswell. On January 16, 2001, P.T. told Dr. Kirsner that taking the MS Contin twice a day was helping her a lot. Dr. Kirsner queried as to why she waited until 3 p.m. to take her first dose, and P.T. replied that ?it would be too easy to fall into? taking three doses per day and that she considered sticking to twice per day a ?victory.? Dr. Kirsner attempted to explain that taking three doses per day would increase her functioning and free up her mental energy for pursuits ?more fruitful than fighting pain off.? He further told her that her current dosage of MS Contin was the lowest available and that she could not become sedated on a 15 mg dose of MS Contin taken with Provigil. P.T. also told Dr. Kirsner that her husband was not supportive regarding her need to take chronic pain medications, and that she had been purging three times per week since Christmas. On January 23, 2001, P.T. reported to Dr. Boswell that taking the pain meds three times per day as prescribed made her feel better and did not adversely affect her performance at work. P.T. committed to maintaining her medication regime for at least one week. P.T. also indicated that she was planning to get a Botox injection for the spasms in her right arm. On January 30, 2001, P.T. reported to Dr. Boswell that her wound had grown and deepened, and that the spasms were ?very bad.? Her pain was improved by following her established medication regime, but the spasms continually woke her up at night. Dr. Boswell suggested that P.T. consult with another neurologist because of Dr. Koslowski‘s apparent difficulty in securing Botox. On February 6, 2001, P.T. reported to Dr. Boswell that Dr. Eye believed the wound was ?gangrenous.? Dr. Eye‘s medical note for February 3, 2001, does not mention ?gangrene? but certainly shows alarm, describing the wound as having become more necrotic, widened, looking ?meaner? and in need of debridement. P.T. reported to Dr. Boswell that Dr. Koslowski‘s office was still unable to schedule the Botox injections. P.T. agreed to Dr. Kirsner‘s suggestion that the dosage of her MS Contin should be increased to a level sufficient to address her increased pain without causing sedation. On February 13, 2001, P.T. reported to Dr. Boswell that the pain was so bad that she had to leave work. She reported that the MS Contin helped her sleep at night but did not control the pain during the day because P.T. reduced the dose because she was determined to stay alert. Dr. Koslowski performed the Botox procedure on February 14, 2001. One week later, P.T. reported to Dr. Boswell that the Botox had stopped the spasms but not the pain. The pain in P.T.‘s forearm was at its worst when she was changing the dressing on the wound. P.T. was unable to return to work because of the protocol regarding changing dressings on the wound with the VAC device. Dr. Kirsner prescribed immediate- release morphine sulfate for use during dressing changes. The complaints of pain and difficulty sleeping persisted through March 2001. On April 3, 2001, P.T. confided to Dr. Boswell that some of her episodes of ?purging? were actually uncontrolled vomiting from nausea. On March 9, 2001, Dr. Kirsner recorded notes from his meeting with Joelle Crahay, the independent nurse case manager coordinating care with USIS. Dr. Kirsner told Ms. Crahay that P.T. was reluctant to increase the dosage of her pain medications as recommended. He described how P.T.‘s wound had closed in December 2000, then returned from a vacation with the wound infected and much worse. Dr. Kirsner ?mentioned that I do not suspect Munchausen‘s?22/ and doubted the existence of any kind of dissociative disorder. Dr. Kirsner noted that he supported P.T. working. In a medical note written on March 14, 2001, Dr. Kirsner again stated that he recommended ?return to work!? In another note on the same date, he indicated that he had told Ms. Crahay that it would be psychologically healthy for P.T. to go back to work. On March 27, 2001, Dr. Kirsner noted that P.T. was motivated and wished she could go back to work. Dr. Kirsner agreed that working would be psychologically helpful, but only if P.T. were placed in a position that did not stress her right hand. On April 17, 2001, P.T. reported to Dr. Boswell that she was ?confused? by messages she was getting from Ms. Crahay to the effect that Dr. Kirsner was recommending that she return to work. Dr. Boswell noted that she felt strongly that working was interfering with P.T.‘s healing and that her mental status on MS Contin was ?questionable.? P.T. feared losing workers‘ compensation and was apprehensive about challenging Ms. Crahey‘s decisions despite her fears of working while in a great deal of pain and/or under sedation from pain medications. P.T. agreed to have Ms. Crahay call Dr. Boswell to discuss the issue of returning to work. In mid to late April 2001, P.T. returned to work. On April 24, she reported to Dr. Boswell that she was having a hard time juggling the demands of work with having to arrange for dressing changes and taking IV antibiotics. The pain of the dressing changes in particular made it hard for her to function. P.T. expressed ambivalence because she wanted to work but was struggling to heal and feared she would lose her workers‘ compensation benefits if she stopped working. On May 1, 2001, P.T. told Dr. Boswell that she was being moved to a more stressful job when she already felt overstressed. On May 24, 2001, P.T. reported to Dr. Kirsner that going back to work helped her mental health at first, but now she felt she was carrying the stress home with her. In June and July 2001, dietary, purging and fatigue issues were at the forefront of Dr. Boswell‘s concerns. P.T.‘s medications appeared to be holding her pain mostly in check, though Dr. Boswell remained concerned about sedation. P.T. was anxious and demoralized over Dr. Eye‘s recommendation that she have further surgery on her arm. P.T. reported to Dr. Kirsner that her bulimia was worse. She felt out of control, craved sweets, and reported on July 9 that she was purging four or five times per week. P.T. felt guilty about her lack of control over her bulimia, but also confessed to Dr. Kirsner that she felt a sense of relief when she purged. On September 7, 2001, two weeks after Dr. Ong performed an excision and skin graft, P.T. told Dr. Kirsner that she wanted to find and consult with a ?national expert? on wound care. Dr. Kirsner agreed that she should undertake the research to find such an expert, both in the interest of healing her arm and to give P.T. a sense of control over her treatment. They discussed how she should go about finding the expert. After her August 24, 2001, surgery, P.T. was out of work for the remainder of the year due to the healing process of her arm followed by health complications from the heavy doses of IV antibiotics that Dr. Eye prescribed. P.T. expressed to Dr. Boswell her anxiety, guilt, and depression over not working. She understood that she felt better when not working, but felt that she was letting people down by staying at home. On November 6, 2001, P.T. reported to Dr. Boswell that Dr. Eye had suggested total disability. P.T. was reluctant to give up on working because she feared a loss of identity and lack of structure in her life. P.T.‘s husband, M.T., accompanied her to Dr. Boswell‘s office on December 4, 2001. M.T. told Dr. Boswell he believed P.T. was overmedicated. P.T. seemed clumsy, ?out of it,? and had extreme difficulty sleeping at night. They discussed referring P.T. to a pain specialist. On January 25, 2002, P.T. reported to Dr. Kirsner that M.T. objected to her use of narcotics to manage her pain. P.T. was tearful and asked Dr. Kirsner, ?What else can I do?? Dr. Kirsner offered to meet with M.T. to discuss his fears and educate him on the proper use of opioids. Dr. Kirsner also discussed the fact that P.T.‘s functional capacity was greater when she was taking MS Contin than when she wasn‘t, and the fact that the opposite is usually true for addicts. On February 28, 2002, P.T. reported to Dr. Kirsner that M.T. had ?backed off? his objections to opiate analgesics. P.T. returned to work on February 25, 2002, three weeks after her initial Botox treatment with Dr. Pulley. See Finding of Fact 96, supra. She started by working five hours per day, three to four days per week. Dr. Kirsner was required to send a letter to P.T.‘s nurse manager at Memorial certifying that the medications he was prescribing would not interfere with P.T.‘s job performance. P.T. reported to both Dr. Boswell and Dr. Kirsner, as she did to Dr. Eye, that some of her coworkers objected to her changing her dressings and taking IV antibiotics in the hospital. She therefore had to go to her car to perform these activities, which added to her stress. Through late March and early April, P.T. and Dr. Boswell discussed her need to find a new job. In May 2002, Dr. Boswell noted that P.T. continued to struggle with binging and purging. Dr. Boswell urged, not for the first time, that P.T. get inpatient treatment for her eating disorder. There were two perpetual obstacles to such a plan. First, P.T.‘s other medical problems prevented her from taking such a single-minded approach to her bulimia. Some facilities would not accept a patient who was taking IV antibiotics or having hyperbaric treatments. Second, P.T. blanched at the expense of an inpatient program out of fear that her workers‘ compensation probably would not cover it. On July 1, 2002, P.T. told Dr. Boswell that she felt very anxious about Dr. Eye‘s suggestion that her arm might need to be amputated. On July 2, 2002, Dr. Kirsner prescribed Neurontin for spasms in P.T.‘s right hand. On July 11, 2002, P.T. received her second set of Botox injections from Dr. Pulley. There is no indication in the medical notes that she discussed the Botox injections with either Dr. Boswell or Dr. Kirsner. On July 22, 2002, P.T. reported to Dr. Kirsner that her pain was much better than on her last visit in June. On September 2, 2002, P.T. reported to Dr. Boswell that the wound in her arm was growing again and she did not know why. On September 6, 2002, Dr. Boswell noted P.T.‘s anxiety over Dr. Eye‘s once more suggesting amputation to P.T. On September 10, 2002, P.T. expressed her distress over the reversal in the condition of her arm. On September 19, 2002, P.T. told Dr. Boswell that she was considering giving up the hyperbaric treatments because of the extreme claustrophobia she felt in the chamber. P.T.‘s condition remained more or less unchanged through the remainder of 2002. She worked on her eating disorder, showing some amenability to Dr. Boswell‘s suggestion of inpatient treatment but continuing to find logistical reasons not to pursue it. P.T. had pain in the arm, especially during dressing changes, but expressed to Dr. Boswell her reluctance to use narcotic medications. P.T.‘s problems with the hyperbaric chamber increased to ?overwhelming dread,? which Dr. Kirsner attempted to address with clinical hypnosis from December 2002 through January 2003. During the first quarter of 2003, Dr. Boswell pushed the idea of P.T.‘s seeing a clinical nutritionist, as she continued to believe that many of P.T.‘s health problems were nutrition related. P.T. resisted seeing a nutritionist or a new physician because she feared the idea of being weighed. Dr. Boswell promised to ?run interference? for P.T. on this issue. On May 14, 2003, P.T. reported to Dr. Kirsner that she had discontinued the hyperbaric treatments. P.T. was frustrated by the feeling that ?my arm was becoming my life.? On May 22, 2003, P.T. complained to Dr. Boswell that she felt overwhelmed by the lack of progress with the arm wound. On June 5, 2003, P.T. reported to Dr. Boswell that the pain was worsening and she was attempting to arrange a Botox treatment with Dr. Koslowski. On June 12, 2003, P.T. reported to Dr. Boswell ?distress due to significant pain.? P.T. reported that she was ?still unable to get Botox -- due to trouble with paperwork.? Dr. Boswell urged P.T. to communicate the urgency of her situation to Dr. Koslowski‘s office, rather than ?minimizing the level of her distress (as she tends to do).? On June 26, 2003, P.T. and Dr. Boswell continued to discuss her pain and the difficulty of getting Botox. (P.T. had received Botox injections from Dr. Koslowski on June 18, 2003.) Dr. Boswell broached the idea of P.T.‘s seeing an ARNP associated with Dr. Boswell‘s practice who specialized in non-narcotic pain management. Dr. Boswell‘s notes for her sessions with P.T. from July 3, 2003, through September 24, 2003, were accidentally destroyed by her transcriptionist. The following is Dr. Boswell‘s summary of her recollection of those sessions: In the beginning of July [P.T.] experienced significant relief from receiving Botox injections to the injured arm. The focus of therapy remained on lifestyle issues: getting enough sleep, eating well, and avoiding stress as much as possible. These efforts were in the interest of keeping pain and eating disorder symptoms under control. The summer was relatively uneventful, and [P.T.‘s] eating disorder symptoms were well- contained (i.e., no purging, but persistent body-image disturbance and dissatisfaction). In the beginning of September, [P.T.] was still doing well, continuing with her studies at UNF, and went to Puerto Rico with her husband. She returned in the middle of September. Around that time, [P.T.] began to focus on the weight she had gained (about 10-15 lbs), which still left her well within a healthy range, but was distressing to her. In addition, the pain in her arm again became significantly worse, although not as bad as in the early summer. On October 1, 2003, P.T. reported to Dr. Boswell that she had been purging twice a day, after a significant period of being asymptomatic with bulimia. P.T. stated that she felt ?clearer and a little euphoric.? Dr. Boswell noted that she was working on obtaining clearance from USIS to enroll P.T. in the eating disorders program with her nutritionist. On November 13, 2003, P.T. reported to Dr. Boswell that she had been approved for one session with the nutritionist and could be approved for more depending on the nutritionist‘s recommendations. On December 17, 2003, P.T. reported feeling ?very comfortable? with Jeanne Montross, the ARNP pain specialist. On January 23, 2004, P.T. reported that her treatment with Ms. Montross was going very well ?in that the Lidocaine patches are providing quite a bit of analgesic relief during the daytime, but not so much at night.?23/ However, on January 12, 2004, P.T. had reported to Dr. Kirsner that she found it difficult to distract herself from the ?ever present? pain in her arm. Through February and early March 2004, P.T. complained to Dr. Boswell of her difficulty in following the nutritionist‘s recommendations because the plan entailed ?too much food.? On March 16, 2004, Dr. Boswell noted that P.T. was ?beside herself with pain.? On March 23, 2004, Dr. Boswell noted her concern that P.T. ?may be becoming worn out by chronic pain syndrome? and thus become demoralized regarding the other aspects of her care. On April 5, 2004, P.T. reported that she was very down due to disabling pain. She denied suicidal ideations, but admitted to feeling despondent. Dr. Boswell urged P.T. to take some time off work to rest and recuperate, because in her current state she was ?too exhausted to see things clearly.? On May 4, 2004, two weeks after Dr. Ong performed a debridement, P.T. reported to Dr. Boswell that she felt somewhat better but was still struggling with the pain. In May and June 2004, Dr. Boswell‘s notes indicate that P.T.‘s main preoccupation was with her husband, who had open heart surgery. From August through September, Dr. Boswell‘s notes indicate that her sessions with P.T. mainly focused on dietary concerns. On October 6, 2004, P.T. reported to Dr. Boswell that her pain was better since her September Botox injections, but that it still sometimes woke her up at night. In October and November 2004, P.T.‘s chief preoccupation was dealing with a subpoena she had received from the attorney for the workers‘ compensation carrier. She and her husband argued over whether she should hire an attorney. Dr. Boswell urged P.T. to disregard her husband‘s advice and obtain counsel. In November, P.T. was reporting that she was purging about once a week. By December 9, she was purging four times per week and refusing to go further with the dietary program. Dr. Boswell contemplated terminating P.T. as a patient but decided such an action would be counterproductive to P.T.‘s health. In December 2004, P.T. was reporting that her pain was ?extreme? and ?debilitating.? In January 2005, P.T. reported to Dr. Boswell a general worsening in her arm without an apparent cause. The conflict with her husband over whether to hire a lawyer was a stressor on P.T. during January and February 2005. Dr. Boswell offered to speak with M.T. about the question. Dr. Boswell also continued to press P.T. on the need to address her dietary program. On March 17, 2005, P.T. agreed to see the nutritionist again. P.T. met with the nutritionist on March 31. On April 14, 2005, P.T. reported that she was doing well with the nutrition plan. Dr. Boswell discussed with her the importance of not giving in to denial about her problem and noted that P.T. felt a lot of shame about being a woman over 50-years old with bulimia. P.T. continued working on the program through the summer of 2005 and seemed to be gaining control over her eating disorder. On October 24, 2005, P.T. complained to Dr. Boswell that her arm was getting worse and the wound was increasing in size. On November 7, 2005, P.T. complained of painful spasms, and that P.T. was attempting to ?get Botox worked out for pain relief.? P.T. continued to complain of spasms on November 21, 2005, and Dr. Boswell noted that she ?needs to get Botox.? On December 19, 2005, Dr. Boswell noted that P.T. was ?very stressed due to pain.? P.T. received Botox injections from Dr. Koslowski on January 24, 2006. On January 31, 2006, P.T. reported to Dr. Boswell that the pain was better and that she was beginning to plan for her imminent retirement. By March 28, 2006, P.T. was reporting to Dr. Boswell that the pain in her arm had increased significantly. On May 9, 2006, P.T. reported that her arm wound was deeper and wider. The pain was ?not unbearable? but was sufficient to ?take all the fun out of life.? On June 1, 2006, Dr. Kirsner noted his agreement with Dr. Boswell that P.T. should be taking opiates for her arm, and prescribed immediate release morphine (?MSIR?), 15 mg, two to five per day as needed. P.T. reported that she used the MSIR mainly when dressing the wound. On June 21, 2006, P.T. reported to Dr. Boswell that she was doing much better overall since her retirement, but the pain in her arm was still significant. P.T. received Botox injections from Dr. Koslowski on August 18, 2006. P.T.‘s reports to Dr. Boswell indicate that her arm remained more or less stable for the remainder of 2006. By early 2007, P.T. was feeling stress caused by subpoenas served by the lawyer for USIS to her health care providers, exacerbated by Dr. Eye‘s decision, under pressure from USIS, to terminate her as a patient in his practice. Her arm wound appeared to Dr. Boswell to be deteriorating. On March 7, 2007, Dr. Boswell noted her concern that P.T.‘s arm needed medical care but USIS had yet to assign a new doctor. On March 28, 2007, Dr. Boswell noted that P.T. was going to the Mayo Clinic for care but was not certain the physician would take the case. On March 30, 2007, P.T. saw Dr. Richard J. Presutti at the Mayo Clinic. After examining P.T., Dr. Presutti saw no evidence of an active infection and recommended that P.T. continue with her current medications and seek care at a chronic wound care facility, a service not offered by Mayo. On April 4, 2007, Dr. Boswell noted that P.T. was in pain and attempting to set up an appointment with Dr. Koslowski to receive Botox injections, as well as trying to find a new doctor to take the place of Dr. Eye. On May 10, 2007, P.T. reported to Dr. Boswell that she was having pain from nerve spasms but that she would be getting Botox soon. On May 14, 2007, Dr. Koslowski administered his last series of Botox injections to P.T. On May 23, 2007, Dr. Boswell noted that P.T. was doing well and that the spasms had subsided since she received the Botox injections. Utilization Review Medical Summary Before addressing directly the peer reviews that USIS commissioned as to Dr. Eye‘s treatment of P.T., it is necessary first to examine the ?Utilization Review Medical Summary? (the ?Summary?), a 218-page document prepared by Mr. Spangler, the attorney for USIS. This examination is necessary because at least one of the peer reviewers, Mark J. Upfal, M.D., M.P.H., expressly stated his partial reliance on the contents of the Summary. Other reviewers such as Fernando Miranda, M.D., and Brian D. Wolff, M.D., also appear to have primarily relied on the Summary without stating as much in their reports. The medical record in this case is daunting, as one might suspect given that the Summary alone runs to 218 single- spaced pages. There are 41 listed providers who treated P.T. at some point between 1985 and 2008. There are 1,826 pages of provider medical records (many of which are handwritten and some of which are virtually illegible), 878 pages of reports from home health visits, and 551 pages of diagnostic reports. These numbers do not include billing records, patient ledgers, and prescription records, all of which are also included in the record. It is understandable that busy physicians engaged to provide peer review reports would wish to read a reliable summary rather than wade through the mass of documents forming the medical record in this case. However, if the summary proves to be unreliable, then the basis of the peer review report is also called into question. In this case, the Summary has proven to be a seriously flawed document, riddled with errors of commission and omission. Without speculating as to the reasons for these errors, the undersigned will note those most pertinent to this case, i.e., the many times that statements about Botox treatment appearing in provider medical notes have failed to survive the transition into the Summary or have been garbled in translation, and the many times that P.T.‘s complaints of pain and spasm in her right arm are not mentioned in the Summary.24/ The errors in the Summary have the effect of minimizing the severity of the pain and spasms in P.T.‘s right arm and the apparent effectiveness of the Botox treatments in addressing that pain and allowing P.T. to use her right hand. No expert relying solely on the Summary could come away with a complete picture of P.T.‘s condition and treatment. Dr. Eye‘s note of May 20, 1996, regarding Dr. Koslowski‘s proposed course of treatment is quoted at Finding of Fact 38, supra. The Summary states that ?Dr. Eye opined that there was no documented case of a tendon transfer in this situation,? where the note is clearly dealing with P.T.‘s concerns regarding Botox. Dr. Eye was actually telling P.T. that there has never been a case in which a patient was systemically infected by Botox injections. The Summary continues in the following bizarre fashion: ?Tendon transfer was used to treat multiple sclerosis, torticollis and lazy eye syndrome.? Again, it is plain that Dr. Eye‘s reference was to Botox treatments, not the proposed tendon transfer. On January 27, 1999, P.T. reported to Dr. Boswell that she was experiencing painful spasms in her right arm. The Summary entry for this date does not mention the spasms. On August 18, 1999, Dr. Boswell noted that P.T. had returned from vacation feeling better, though still troubled by arm pain. Dr. Boswell suggested that P.T. ask Dr. Koslowski about a TENS unit or a nerve block. The Summary entry for this date mentions nothing about arm pain or Dr. Koslowski. Dr. Boswell and P.T. again discussed obtaining a TENS unit from Dr. Koslowski on August 25, 1999. Again, the Summary entry ignored this note. On September 8, 1999, P.T. reported to Dr. Boswell that the spasms in her arm were waking her up at night and that Dr. Hartman had prescribed Klonopin for the pain. The entire Summary entry for this date reads as follows: ?On 09/08/99, the claimant discussed her job stresses and sleep interruptions.? The Summary entry for September 22, 1999 reads, ?On 09/22/99, the claimant discussed her diet.? Dr. Boswell‘s notes for that date deal solely with P.T.‘s discouragement over the status of her wound. Dr. Boswell‘s notes for September 29, 1999, state that P.T. discussed her fear that her arm would never get better. Dr. Boswell noted that P.T. was going to Dr. Koslowski for Botox and felt that the Klonopin was helping. P.T. discussed her sleep cycles and dealing with the chronic pain that kept her awake. Dr. Boswell noted dysphoria and anxiety regarding the status of her arm, as well as some concern P.T. had about a small weight gain due to an increase in her caloric intake. The Summary entry for this date reads as follows, in its entirety: ?On 9/29/99, the claimant weight [sic] 111 pounds and was concerned about her weight gain.? Dr. Boswell‘s notes for October 13, 1999, include the following: ?Got Botox injections -- should be working [within] 1 wk, lasts for 7 mos. Feels hopeful [about] it. This should help [with] insomnia.? The Summary entry for this date reads as follows, in full: ?On 10/13/99, the claimant discussed her anxieties.? Dr. Hartman‘s notes for October 28, 1999, state that P.T. had experienced only rare, light spasms since her Botox injections on October 12. The Summary entry for this date makes no mention of this portion of the notes. Dr. Hartman‘s notes for November 16, 1999, state as follows: ?Still doing well on Botox. Spasms still but nothing like they were. No longer wakens her in nite.? The Summary entry for this date makes no mention of this portion of the notes. In her note for September 5, 2000, Dr. Boswell recorded three bullet points: ?1. =My arm has been bothering me a lot.‘ Spasms – neural -- could be nerve regeneration; 2. Started yoga -- enjoying it a lot; 3. Struggling [with] weight gain.? The Summary entry for this date reads as follows, in full: ?On 09/05/00, the claimant reported she went to yoga class and struggled with her weight gain.? For unexplained reasons, the Summary included the second and third bullet points but not the first. On January 18, 2001, Dr. Eye noted as follows: ?She‘s been to see Dr. Koslowski because of the increased pain and spasm and he does want to do another Botox injection. She‘s had a good response from those in the past, so that‘s certainly a consideration.? The Summary entry for this date does not mention this note. On February 20, 2001, Dr. Kirsner noted that P.T. had Botox injections within the past week, and that the injections had eliminated her spasms but not the pain in her right forearm. The Summary entry for this date does not mention the Botox treatment. On February 28, 2001, Dr. Hartman noted, ?No spasms!? since P.T.‘s February 14 Botox treatment. The Summary entry for this date makes no mention of Botox treatment or spasms. On March 29, 2001, Dr. Hartman noted, ?Spasms gone since Botox.? (Emphasis added.) The Summary entry for this date states that P.T. ?had fewer spasms after the Botox injection.? (Emphasis added.) On April 9, 2001, Dr. Hartman continued to note the absence of spasms since P.T.‘s most recent Botox treatment. The Summary for this date is silent on that point. On December 5, 2001, Dr. Eye emphatically noted, ?She needs to get back with Koslowski for her Botox injection.? The Summary entry for this date does not mention this statement. On February 12, 2002, Dr. Hartman noted that the Botox injections P.T. received from Dr. Pulley on February 4 had ?resolved nite spasm.? The Summary entry for this date states that P.T. recently had Botox but does not mention the result. On July 29, 2002, Dr. Hartman noted that P.T. had received Botox injections two weeks ago, resulting in decreased spasms. The Summary entry for this date is silent as to the injections or the result. On October 17, 2002, Dr. Eye noted that P.T. ?continues to get her Botox injections for the pain and spasms of the hand.? On November 11, 2002, Dr. Eye again noted that P.T. ?continues to get her Botox for pain and spasm control.? The Summary entries for these dates make no mention of these statements. On June 12, 2003, Dr. Hartman noted that P.T. was suffering from ?outrageous spasms? and had seen Dr. Koslowski the previous week. Dr. Hartman further noted that P.T.‘s wound had become a little deeper and that the ?spasms seem to rip it up.? The Summary entry for this date mentions the spasms but not their apparent effect on P.T.‘s wound. On July 3, 2003, Dr. Eye noted as follows: ?The pain has dramatically improved with the Botox injections . . . She is doing better with the Botox injections, which are done very [sic] 4 to 8 months.? The Summary entry for this date merely states that ?the claimant continued Botox injections.? Dr. Boswell‘s summary of her recollections of the sessions between July 3 and September 24, 2003, the notes of which were lost by the transcriptionist, are set forth in Finding of Fact 219, supra. The first item noted in the summary was P.T.‘s having experienced ?significant relief? from receiving Botox injections on June 18, 2003. The Summary entry for the lost sessions does not mention the Botox treatment. The Summary entry for Dr. Kirsner on December 1, 2003, states that ?the claimant reported spasms, requests for Botox injections.? In fact, P.T. told Dr. Kirsner that it had been difficult getting Botox, but now that she had had the injections on November 20, 2003, the spasms in her right arm were better. On April 6, 2004, Dr. Eye‘s nurse noted that P.T. called to say that Dr. Koslowski could not perform a nerve block because of the open wound in her arm. Dr. Eye told P.T. that Dr. Koslowski might consider Botox instead of the nerve block, and P.T. stated that she would discuss it with Dr. Koslowski. The Summary entry for this date states as follows: ?Dr. Koslowski called to report he was unable to do nerve blocks due to the open wound. Dr. Eye advised him to use Botox.? The Summary misconstrues a conversation between P.T. and Dr. Eye as one between Dr. Koslowski and Dr. Eye, and further misconstrues a suggestion made by Dr. Eye to P.T. as direct advice from Dr. Eye to Dr. Koslowski. On April 12, 2004, Dr. Eye noted that P.T. had been in severe pain for several weeks and the Botox ?has not made a significant difference.? See Finding of Fact 125, supra, for details. In fact, P.T. had not received Botox since November 20, 2003. The Summary entry for this date notes Dr. Eye‘s statement that Botox had not made a significant difference, but fails to note that it had been nearly five months since P.T.‘s last Botox treatment. On October 4, 2004, Dr. Eye noted at some length a discussion he had with Dr. Koslowski about taking a ?more aggressive approach? to using the Botox. The note is quoted at Finding of Fact 134, supra. The Summary entry for this date is entirely silent as to Dr. Eye‘s notes on this discussion. On December 7, 2004, Dr. Eye noted that P.T.‘s pain was ?much better controlled? with the regular Botox injections. The Summary entry for this date does not mention this note. On March 17, 2005, Dr. Eye noted, ?The peripheral neuropathy is under much better control with the Botox. She is able to use her hand to some degree... She is to otherwise protect the wound as much as possible, continue to follow up with her necessary Botox to control the pain neuropathy.? The Summary entry for this date makes no mention of Botox treatments. On June 28, 2005, Dr. Eye noted, ?Recently she has had increasing pain in the arm. Botox has helped.? The Summary entry for this date mentions the arm pain but not the Botox. On December 27, 2005, Dr. Eye noted, ?[P.T.] comes in today. She had done relatively well. Recently she has had more pain with the arm. She is working with Dr. Koslowski for possible Botox. This seems to be very effective.? The Summary entry for this date makes no mention of Dr. Koslowski or Botox. On August 24, 2006, Dr. Eye noted that P.T. had recently received a course of Botox injections that helped her pain. The Summary entry for that date is silent as to the Botox injection. The above 30 instances of the Summary‘s failure to mention P.T.‘s Botox treatments, her physicians‘ clear endorsement of the continued treatments, or the positive effects of those treatments are not intended to be inclusive. These were simply examples noted by the undersigned while reviewing the medical record in this case. There were, of course, many physician notes concerning pain, spasms, and Botox treatments that were accurately recounted by the corresponding Summary entries. However, the pervasiveness of the errors and omissions leads to the finding that the Summary is not a reliable document, and could not serve as the basis for an expert opinion regarding Dr. Koslowski‘s level of care. Peer reviews of Dr. Eye‘s treatment The large financial outlay for P.T.‘s workers‘ compensation care led to the utilization review investigation by Mr. Spangler on behalf of Memorial and USIS. The investigation initially focused on Dr. Eye, the ?quarterback? of the team of physicians who treated P.T.‘s wound over the years. The record contains four peer review reports that Mr. Spangler obtained from physicians as to whether Dr. Eye‘s treatment was reasonable and medically necessary as it related to the November 14, 1985, accident, and whether Dr. Eye‘s treatment was excessive in frequency and duration as it related to the accident. These reviews were based on medical records provided to the physicians by Mr. Spangler. There is no indication in the record as to how many physicians Mr. Spangler solicited in order to obtain the four reports that he included in his submission to the Department. Mark J. Upfal, M.D., submitted a medical record review dated September 16, 2005. The review was updated on May 30, 2007. Dr. Upfal was a fellow of the American College and Occupational and Environmental Medicine, had a master‘s degree in public health, and was board certified in occupational medicine. Dr. Upfal worked at Detroit Receiving Hospital in Michigan. The stated purpose of Dr. Upfal‘s review was ?to address the relationship between [P.T.‘s] employment at Memorial . . . and her development of a chronic ulcer of the right forearm, with failure of wound healing and chronic infection.? Dr. Upfal stated that his report was based on a review of the Summary, as well as additional documents provided by the workers‘ compensation carrier ?per my request for additional documentation.? In his report, Dr. Upfal states as follows: Numerous physicians who have evaluated and treated [P.T.] over the years have been unable to explain the two decade persistence of this lesion on the basis of pathophysiological mechanisms. Many physicians have opined that this is likely the result of a factitious disorder in which [P.T.] has caused a failure to heal through self-inflicted manipulation of the wound. This kind of interference with healing has been known to occur in the face of psychiatric disturbances. In fact, this is by far the most likely explanation. The preponderance of evidence supports this explanation, and it is my opinion that within a reasonable degree of medical certainty, there is no other viable medical explanation. (Emphasis added.) As noted at Finding of Fact 19, supra, none of the 40 or so providers who treated P.T. over the years ever ?opined that this is likely the result of a factitious disorder.? Some providers naturally suspected that P.T. may have been manipulating her wound, and some such as Dr. Shah were consulted to confirm or rule out that hypothesis. Invariably, the providers came to the conclusion that P.T. was, as Dr. Steinberg put it, ?the real deal.? The underscored statement by Dr. Upfal is at variance with the medical record. At other places in his report, Dr. Upfal more accurately states that physicians ?have wondered whether or not this might be a factitious disorder,? and that ?there is suspicion articulated by some physicians? regarding P.T.‘s possible manipulation of the wound. Dr. Upfal does not mention that those physicians concluded that their suspicions were unfounded. He credits the suspicions but not the subsequent inquiries that laid those suspicions to rest. Dr. Upfal concluded that a factitious disorder was ?the most viable explanation in the absence of a systemic or specific dermatological disorder, and in the absence of other widespread disease or other non-healing wounds, to explain the decades of failed healing.? He recommended a consultation with a plastic surgeon and an independent psychiatric evaluation ?to assess her overall tendency toward self-inflicted health problems? and to provide an opinion as to the adequacy of the psychiatric treatment P.T. had received to date. Eugene Truchelut, M.D., submitted a peer review report dated January 16, 2006. Dr. Truchelut‘s report indicates that he was a Diplomate of the American Board of Internal Medicine and practiced in Orlando. Dr. Truchelut stated that he reviewed ?seven bound volumes of extensive records,? and his recitation of the history of Dr. Eye‘s treatment of P.T. indicates that he thoroughly reviewed at least those medical records and notes pertaining directly to Dr. Eye. Dr. Truchelut came to the following conclusions: fter review of the aforementioned records from Dr. Eye, it appears that treatment of the claimant by him would be considered both reasonable and medically necessary as related to the incident of November 1985, from the initial visit in December 1991, until August 1995, when the claimant‘s wound was described as completely healed. Subsequent treatment of the claimant by him would not be reasonable and medically necessary, but would be excessive in frequency and duration, as related to the incident of November 1985. Dr. Eye‘s records in August 1995 and 1996 document that the original skin ulcer was healed, and not present until a new lesion was seen in February 1997. There is no evidence from these records that whatever caused the skin injury at that time (and intermittently, again at future dates) was related to the alleged incident after the tine test in November 1985. While there is some evidence that the claimant suffered from a long-term eating disorder and had chronic issues of nutritional deficiencies, there is no clear evidence of an underlying systemic disease as a result of the incident in 1985. In addition, I note that healing of the wound in 1995 was confirmed by Dr. Francis Ong, a plastic surgeon who treated the claimant concurrently. Crucial to Dr. Truchelut‘s conclusion is the fact that P.T.‘s wound was completely healed in August 1995, and that any further treatments to P.T. were therefore unrelated to her workers‘ compensation injury. He apparently disregarded, or found irrelevant, the ?severe nerve damage? noted by Dr. Eye on May 20, 1996, the hand weakness and clawing for which P.T. first sought treatment from Dr. Steinberg on July 26, 1995, and the neuropathic pain for which P.T. was treated by Dr. Koslowski during the interim when the wound‘s surface was healed. Edward M. Neff, M.D., a Miami physician, submitted a peer review report dated February 28, 2006. Dr. Neff‘s credentials are stated to be board certification in internal medicine and cardiology. Dr. Neff also states that he is a Fellow of the American College of Cardiology. Dr. Neff‘s report is problematic in several respects. The report is short, sketchy, and includes factual statements that have no apparent support in the record. Dr. Neff writes, ?In May 1989, [P.T.] was diagnosed with a =factitial ulcer.‘? Dr. Neff does not state who made this diagnosis. A diligent search of the medical records reveals no such statement. However, such a statement is found in Mr. Spangler‘s Summary, without attribution to a physician or other documentary support. This indicates that Dr. Neff was relying on the flawed Summary rather than the actual medical records. Dr. Neff also states, ?At various times during her illness, several physicians thought that the ulcer was factitious in origin.? Here, Dr. Neff merely a restates Dr. Upfal‘s misstatement of the medical record. Physicians expressed suspicions, but no physician who treated P.T. ever concluded that her ulcer was factitious in origin. Dr. Neff concludes that the initial treatments provided by Dr. Eye were appropriate, reasonable, and medically necessary ?until June of 1987.? This is an interesting statement, given that Dr. Eye did not begin treating P.T. until December 1991. Dr. Neff states, ?From a medical standpoint, there is no reason why [P.T.‘s] ulcer should not have healed by June of 1987.? Dr. Neff provides no reason for his selection of June 1987. Prior to stating his conclusion, Dr. Neff did not mention June 1987 in his report. Because Dr. Neff was not a witness in this proceeding, there was no opportunity to ask him why he selected June rather than April, May, or July 1987. Nothing about Dr. Neff‘s peer review report inspires confidence in the reader that this physician seriously examined the medical record or arrived at an independent conclusion regarding Dr. Eye‘s treatment of P.T. Finally, Charles M. Callahan, M.D., of Vero Beach filed a peer review report that was undated but bears a fax date of November 14, 2006. Dr. Callahan‘s report states that he is board certified in infectious disease and tropical medicine. Dr. Callahan‘s report is dense, detailed, and indicates a serious engagement with the complexities of P.T.‘s case. Following a lengthy, meticulous examination of P.T.‘s treatment, focusing on Dr. Eye but not neglecting the work of various other medical providers, Dr. Callahan reached the following conclusions: It is my belief that Dr. Eye‘s treatments from 1991 until 1995 were reasonable. The patient had multiple episodes of wound infection, and the pathogens that were isolated were appropriately treated. There were several biopsies made, imaging studies performed, and serial cultures taken. Unfortunately, the patient was managed with prolonged courses of IV antibiotics complicated by bacterial overgrowth, candidiasis, lymphocytopenia, anemia, vertigo and dizziness, and renal insufficiency. The patient also had complications of IV catheter infections requiring their removal. Almost without exception, these pathogens (that were isolated) could have been treated with oral antibiotic therapy. Furthermore, restrictive treatment methods were only utilized twice (the cast in 1995 and the VAC in 2001). Further attention to the patient‘s weight loss (especially in 1999) would have been extremely important. Further attention to the patient‘s psychiatric diagnosis, anemia, bingeing and purging, and suppressed TSH [thyroid- stimulating hormone] would have also been important in wound healing. The patient‘s chronic smoking and the implications of a non-healing wound would have been extremely important. The patient also received IVIG [intravenous immunoglobulin] with questionable indication and benefit. There are serial documentations in the chart (over seven times) regarding the possibility of factitious disorder. Multiple outside consultants addressed this as a significant possibility. It would have been appropriate and expedient to have either hospitalized the patient or limited the access of the patient to the wound to see of the patient‘s wound would heal with appropriate therapy. With regards to the question of medically necessary and reasonable, up until 1995 the treatments were mostly medically necessary and reasonable. There were a few exceptions which I have previously listed, but these are probably not relevant in the overall context of a very difficult and chronic wound in a very difficult patient. However, when the patient‘s wound recurred in 1997 (for very unclear reasons almost 18 months after closure), the possibility of a factitious disorder must have been employed. Furthermore, the patient‘s continued smoking, dietary issues, psychiatric issues (bulimia and bingeing and purging), as well as her prior history would have required addressment. Failure to address and acknowledge these multiple documented episodes in a patient with no clinical explanation for her recurrent wound is not reasonable and most likely led to overutilization. . . . The most likely reasons for the patient‘s failure to heal were a combination of chronic tobacco use, malnutrition secondary to self-infliction from bingeing and purging, and a propensity for manipulation of the wound through a factitious disorder that remained undiagnosed. Therefore, the ongoing treatment rendered by Dr. Eye would not be considered reasonable or medically necessary as it relates to the November 14, 1985, accident. Dr. Callahan‘s review fairly criticizes several aspects of Dr. Eye‘s treatment. In a portion of his report not quoted above, Dr. Callahan notes that P.T.‘s arm was placed in a cast for two months in 1995 and that during that time the wound decreased in size to less than 2 cm. Dr. Eye took the wound‘s failure to heal completely as an indication that P.T. was not manipulating it; Dr. Callahan seems to take the opposite view that the marked improvement in the wound while casted indicates at least grounds to suspect that P.T. was engaged in self-harm. Dr. Callahan is correct that hospitalization of P.T. would have definitively answered the question of wound manipulation. Dr. Callahan reasonably doubts Dr. Eye‘s medical judgment that there was insufficient cause to further pursue the issue. In some respects, Dr. Callahan‘s opinion is unfair to Dr. Eye. Dr. Callahan, in reviewing the entire medical record, is charging Dr. Eye with a level of omniscience that Dr. Eye did not in fact possess. Dr. Callahan does not take into account the fact that P.T. actively prevented Dr. Eye from obtaining a complete and accurate understanding of her eating disorder by forbidding Dr. Boswell to consult with Dr. Eye. P.T.‘s weight fluctuations were clues that Dr. Callahan rightly suggests that Dr. Eye should have pursued more aggressively. However, Dr. Eye‘s failure to thoroughly investigate P.T.‘s weight fluctuations does not equate to a failure to act on actual knowledge of P.T.‘s eating disorders, which Dr. Callahan‘s critique seems to imply. The Werner report Apparently based on Dr. Upfal‘s suggestion that P.T. undergo an independent psychiatric evaluation, USIS hired Tonia Werner, M.D., an assistant professor in the Division of Forensic Psychiatry at the University of Florida‘s Department of Psychiatry, to perform a review of P.T.‘s medical records followed by an in-person evaluation of P.T.25/ Dr. Werner wrote that the purpose of her evaluation was to ?determine what role, if any, mental illness plays in preventing [P.T.‘s] ulcer from healing.? Dr. Werner‘s report attested to having reviewed the entire medical record, but it naturally focused on P.T.‘s mental health providers. The report listed 47 providers ?sources of data,? but expressly discussed only 15 of those, presumably because they were considered the most significant sources of information. As one would expect, the report went into some detail regarding the medical records of Dr. Shah, Dr. Boswell, and Dr. Kirsner, the mental health providers who treated P.T. over the course of a number of years. However, the report also discussed the peer-reviews of Dr. Upfal, Dr. Neff, Dr. Truchelut, and Dr. Callahan. None of these physicians had first-hand knowledge of P.T. They had merely reviewed the medical records, with varying degrees of completeness and comprehension. Dr. Werner‘s report also appears to cherry-pick notes from other providers that are consistent with the notion that P.T. was engaging in self-harm. Providers who noted suspicions of factitious disorders receive special attention in Dr. Werner‘s report, whereas the records of Dr. Eye, Dr. Steinberg, Dr. Ong, Dr. Pulley, and Dr. Koslowski do not merit mention. In discussing Dr. Kirsner‘s records, the Werner report states, ?Dr. Kirsner documented [P.T.] has having [sic] a =Munchausen‘s-like‘ syndrome for an unhealed arm ulcer.? This is a misrepresentation of Dr. Kirsner‘s records. The passage that the Werner report references is Dr. Kirsner‘s recitation of P.T.‘s medical history, in which Dr. Kirsner stated that P.T. was initially sent to Dr. Shah because there were suspicions of a ?Munchausen‘s like syndrome.? Dr. Kirsner did not ?document? that P.T. had such a syndrome. In fact, Dr. Kirsner expressly stated that he did not suspect P.T. of having such a syndrome. See Findings of Fact 18 and 202, supra. Dr. Werner concludes with a DSM-IV Axis I psychiatric diagnosis that includes ?Malingering? and ?Factitious Disorder with combined psychological and physical signs and symptoms,? in addition to ?Major Depressive Disorder, moderate, recurrent, currently in remission,? ?Eating Disorder NOS,? ?Anxiety Disorder NOS,? and ?Nicotine Dependence.? Interestingly, a neuropsychological evaluation undertaken by psychologists at the University of Florida at Dr. Werner‘s request found that P.T.‘s results on the Minnesota Multiphasic Personality Inventory, Second Edition, were ?essentially normal with no elevations on any of the clinical scales.? Peer reviews of Dr. Koslowski‘s treatment Dr. Eye was not reported to the Department by USIS because he agreed to withdraw from the case. Dr. Eye testified, ?I was threatened would be a nice way to put it. Somebody came and said if I didn‘t voluntarily withdraw from this case, they were going to challenge all our charges. And while I would have been willing to go ahead with it, I had partners who voted not to do so, and being part of a group, it didn‘t leave me much choice.? No action was taken against Dr. Eye or any of his physician partners who provided treatment to P.T.26/ After securing Dr. Eye‘s withdrawal from P.T.‘s case, USIS focused its attention on Dr. Koslowski‘s treatment and sought opinions from neurologists concerning the appropriateness of the Botox treatments administered by Dr. Koslowski. John R. McCormick, M.D., submitted a records review dated May 29, 2008, and an addendum dated December 19, 2009. Dr. McCormick also testified via deposition in this proceeding. He is board certified in neurology, licensed to practice in the state of Florida, and is a fellow of the American Academy of Neurology. Dr. McCormick testified as an expert in neurology, without objection. Following the pattern of the previous reports, Dr. McCormick‘s review of the record emphasized the suspicions of various physicians that P.T.‘s injury was factitious, and mostly failed to note when a physician opined that P.T. was not engaged in manipulative or Munchausen‘s-like behavior.27/ Regardless of his choices of emphasis, Dr. McCormick‘s recitation of the record is mostly accurate. In one notable exception, Dr. McCormick states that Dr. Eye ?was quite concerned about the idea of [Botox] injections and warned [P.T.] about this. Nonetheless, she elected to go along with the procedure, in his words.? Dr. McCormick here grossly mischaracterizes Dr. Eye‘s medical notes from May 20, 1996. See Finding of Fact 38, supra. Dr. Eye was actually assuaging P.T.‘s concerns about systemic infection from the Botox injections. Dr. Eye expressly stated to P.T. that he had ?no problems with her undergoing this.? His only concern was that the Botox injections not be made directly into the ulcer site on P.T.‘s right arm. Dr. McCormick is critical of Dr. Koslowski‘s examination methods and the completeness of his records. He seems convinced that P.T. is manipulating the September 24, 1998, examination, because Dr. Koslowski‘s description of her symptoms suggests a ?factitious attempt to produce the appearance of paralysis in all muscles of the hand.? Rather than commence Botox injections, Dr. Koslowski should have gotten an occupational therapist involved in his treatment to manage the nerve injury with exercise. Most damningly, Dr. McCormick concludes that Dr. Koslowski does not understand ?the clinical and pharmacologic features of Botox.? This conclusion is based on two notes entered by Dr. Koslowski on September 29, 1998, and February 14, 2001. In the earlier note, Dr. Koslowski wrote that after the Botox injections, ?Relaxation of the right thumb and first right three digits was immediately apparent to visual exam.? In the later note, Dr. Koslowski stated that P.T. ?almost had complete relaxation as well, with the injections.? Dr. McCormick states: ?This medication is a toxin which acts at the neuromuscular function level and takes several weeks to produce a response. Not only is he treating a condition that would not be expected to respond to Botox, but he is getting a response which is physiologically and pharmacologically impossible to attain under any circumstances.? After completing his record review, Dr. McCormick stated the following opinion in concluding his report: The diagnosis of an ulnar nerve injury defines a lower motor neuron event, and as such does not induce spasm, spasticity or dystonia. The repair of an ulnar nerve does not induce any of the above either. When the nerve is damaged, the fibers cease to function, and with that the nerve supply to the muscles decreases. In other words, it is a denervation of the supplied muscles and they become wasted, atrophic and weak. The tone in these muscles, by definition, MUST be decreased, since it is a lower motor neuron injury. Only an upper motor neuron lesion can produce ?spasticity? as Dr. Koslowski described. She does not have an upper motor neuron injury and, hence, does not have spasticity. Botulinum toxin works at the level of the nerve and muscle junction to produce a ?chemical denervation? of the nerve, essentially mimicking nerve damage producing motor deficit. The administration of botulinum toxin to muscles supplied by a nerve which is already denervated has absolutely no pathophysiologic basis. The effect is only to produce additional weakness. Another extremely important observation in this case is the alleged response time from the time of injection to the benefit of relaxation as reported by the claimant and observed by Dr. Koslowski. On at least two occasions Dr. Koslowski described an immediate effect of relaxation following the injections. This response is impossible to achieve from any known mechanism of action of botulinum toxin. The toxin requires at least a couple of weeks to produce the effect of denervation and has absolutely no immediate effects. This response should have set off immediate ?red flags.? Since there is no physiologic mechanism to describe her bizarre response to the toxin, she clearly was actively distorting her examination in order to obtain invasive treatment. Dr. Koslowski‘s failure to provide adequate neurologic examination, never accurately recording the motor function in her hands muscles [sic] he was injecting, is a huge oversight. Furthermore, over the many years he treated her, he used various terms, including spasms and spasticity interchangeably, it seems. This is totally inappropriate and represents an egregious variance from accepted neurologic practice, but does provide some insight into his lack of precision when describing her neurologic condition. Whether he was ever aware of the circumstances and concerns regarding the failure of her ulcer to heal, and the numerous references to possible factitious, self-induced injury is not reflected in any of his notes. These notes are all cursory and inadequate as far as describing her neurologic status. I have extensively reviewed the neurologic literature seeking any indication for the use of botulinum toxin to treat an ulnar neuropathy and have failed to find any references to such. I have spoken to neurologists who administer botulinum toxin seeking answers to this same question and have been told that there is no indication at all for the use of botulinum toxin in a peripheral nerve injury, for it only serves to denervate the nerve further and produce additional weakness. It is important to recognize that a flexion contracture will not respond to botulinum toxin, and it would seem that [P.T.] may have developed some degree of flexion contracture. By the same token, she may have been fabricating the appearance of a flexion contracture. The treatment of this type of nerve injury is to continue home stretching and strengthening exercises to maintain the range of motion of the muscles. As a registered nurse, she was well aware of this, yet she continued to ignore the essentials of care. I have reviewed the IME reports of the physicians, and find them extremely well- documented and appropriate. This lady has, in my opinion, classic Munchausen‘s syndrome in many, if not all aspects. She has duped the medical profession over and over and has managed to obtain extensive medical care for what in all probability began as a relatively minimal condition. She has two MMPI studies which are reported as not particularly abnormal, and this, again, is a manipulated response. She has extensive medical experience and knows what answers MMPI testing requires, in all likelihood. Munchausen‘s features of manipulation and care-seeking will continue, but it is important to recognize that it is not related to the industrial accident, and in my opinion, will probably require aggressive psychiatric management. These individuals are extremely refractory to treatment, and in her case this has gone on so long that it has become part of her daily life. Beginning with the last quoted paragraph, it is important to keep in mind that Dr. McCormick is a neurologist, not a psychiatrist. Dr. McCormick himself testified that ?I‘d sooner defer that to the psychiatrists? when the implications of P.T.‘s psychiatric condition was broached. Nonetheless, he is able to diagnose Munchausen‘s syndrome in P.T. from a review of the medical records, without ever laying eyes on P.T., whereas Dr. Shah and Dr. Kirsner, both psychiatrists, and Dr. Boswell, a psychologist, extensively treated P.T. for nearly 20 years and were somehow unable to reach that diagnosis. Similarly, the University of Florida Ph.D. psychologists who administered the MMPI to P.T. in July 2007 were unable to detect her manipulation of the test, but Dr. McCormick, without benefit of any of the testing data aside from the one and one-half page final evaluation, was able to sniff out P.T.‘s fakery. Dr. McCormick knows that P.T. manipulated a May 5, 1989, MMPI test, though the medical record contains only a scoring sheet with some conclusory descriptions and does not indicate who administered and/or interpreted the test. Indeed, it appears that P.T. was able to ?dupe? the entire medical profession for decades, but she could not fool Dr. McCormick.28/ Dr. McCormick‘s diagnosis of Munchausen‘s syndrome conveniently allows him to disregard contrary information in the medical record. All of P.T.‘s subjective reports of pain in her arm or relief from the Botox injections may be ignored as manipulations of her duped medical providers. P.T.‘s essentially normal MMPI testing would appear to constitute evidence contrary to a conclusion of a mental disorder, but Dr. McCormick assumes that P.T.‘s normal MMPI is actually additional evidence of Munchausen‘s. Dr. McCormick‘s testimony raises a question as to the extent to which his opinion was based on his own independent review of the medical record and how much was based on the earlier reports discussed at Findings of Fact 268-291, supra. Dr. McCormick testified that ?so many of her physicians and her psychiatrists have felt that this problem is a self-generated problem and is psychiatric in origin. It‘s factitious.? As has been discussed at length in this Recommended Order, none of P.T.‘s regular medical providers ever concluded that her wound was factitious.29/ Only the experts employed by USIS to review the paper record have stated as fact that P.T.‘s physicians concluded that her problem was factitious. Dr. McCormick could not have come by his statement from the medical record alone. In his testimony, Dr. McCormick was hesitant to opine that Dr. Koslowski‘s alleged failure to consider P.T.‘s psychiatric condition and the possibility of self-harm constituted a violation of the standard-of-care. Dr. McCormick stated that it was difficult to make such a judgment because P.T. ?was not forthcoming as far as what she was doing.? He stated that the ?bottom line is that it is our responsibility as a provider to get this information; however, we need to get it,? but Dr. McCormick offered no real strategies for how a practitioner goes about obtaining a complete and accurate history from a recalcitrant patient who has instructed her other providers not to cooperate. Like Dr. Callahan‘s critique of Dr. Eye, Dr. McCormick‘s report criticizes Dr. Koslowski for failing to act on information that was not available to him. Dr. McCormick conceded that Dr. Koslowski could not simply ignore P.T.‘s persistent complaints of pain, but he then stated that the pain had to be considered ?in the perspective of her underlying psychiatric problems and not treat her for a purported physical problem without addressing the underlying, huge underlying psychiatric problem.? Like Dr. Eye, Dr. Koslowski was intentionally kept in the dark by P.T. as to the extent of her psychiatric difficulties and treatment. More pertinent to his area of expertise, Dr. McCormick opined that Botox therapy was not indicated for ulnar neuropathy, which should not produce muscle spasms. Dr. Koslowski initially performed a ?poor examination of the hand,? focusing only on the peripheral nerve without detailed muscle testing. Even if the focus is on the ulnar nerve, it‘s ?only normal? to also examine the radial and medial nerves in order to verify they are not also problematic.30/ ?[T]he impression was ulnar neuropathy with spasm, rule out some type of dystonia, although he didn‘t describe any dystonic symptoms.? Dr. McCormick stated that it was unusual to find muscle spasms associated with ulnar neuropathy, and concluded as follows: I have no idea why Botox would be given for an ulnar neuropathy. There‘s no rationale for it. You have a neuropathy, you have decreased tone. Really, it doesn‘t justify the use of botulinum toxin. I went to the American Academy of Neurology Guidelines for the use of Botox, and nowhere in there is Botox indicated for any type of a peripheral neuropathy. I mean, the way Botox works is it‘s a toxin. It works at the neuromuscular junction and it interferes with the transmission of nerve impulses from the nerve to the muscle so that it weakens the muscle. We use to in dystonia. He was —- he did mention dystonia, which she doesn‘t have dystonia, from all the rest of his reports. You can use it to weaken the muscle. For example, if you have a violinist who has dystonic fingers in his left hand or her left hand so that when she goes to play the violin, she gets writer‘s cramp or violinist‘s cramp. That can be treated with Botox. That‘s the purpose of it, is to treat an overactive muscle. The purpose of Botox is not to treat a muscle that is weak because of damage to the nerve. It can only make it weaker and it can only aggravate the problem. The objection that Dr. Koslowski was injecting the Botox not so much to treat the muscle as to provide pain relief was of no moment to Dr. McCormick because he clearly did not believe her subjective reports of pain, did not believe she was actually suffering muscle spasms, and did not believe the reported relaxation she experienced immediately after receiving the injections on two occasions. Dr. McCormick did not believe that Botox would be a proper treatment for any pain that P.T. may have been experiencing. Dr. McCormick gave special critical attention to Dr. Koslowski‘s use of the term ?spasticity? to describe P.T.‘s symptoms: There‘s nothing here to indicate —- anywhere in this history to indicate that this is a lady who has spasticity . . . Spasticity is abnormal motor function due to increased tone in the muscles . . . [I]n her case, it would be an upper spinal cord problem or a problem with the brain . . . [H]er problem is a peripheral problem. It‘s a peripheral nerve problem. It‘s not a spinal cord problem, it‘s not a brain problem, and I‘m not sure why he chose that terminology of spasticity because it‘s just not consistent with the way a neurologist thinks. . . [S]pasticity is the central nervous system. It‘s the brain with the spinal cord. Once your nerve leaves the spinal cord, it becomes a peripheral nerve, and damage to the peripheral nerve cannot be accompanied by spasticity. It‘s caused by weakness. . . If you think of cerebral palsy, for example, in which the hand and the arm are drawn up and the leg is stiff, that‘s a classic example of spasticity. Dr. McCormick pointed out that American Academy of Neurology and FDA guidelines for the use of Botox apply only to spasticity, not to any other condition, and that by definition P.T. could not have been suffering from spasticity. Dr. McCormick conceded that another board-certified neurologist, Dr. Pulley, had also treated P.T. with Botox. He ?was surprised to see that? in the medical record, but otherwise did not offer an opinion on Dr. Pulley‘s treatment. Dr. McCormick conceded that Dr. Pulley also used the term ?spasticity? in describing P.T.‘s symptoms. Dr. McCormick conceded that Dr. Eye was the primary treating physician, that Dr. Eye conducted all manner of tests and treatments on P.T. concurrent with Dr. Koslowski‘s treatment, and that Dr. Eye was also concerned about the spasms in P.T.‘s fingers. Dr. McCormick conceded that other physicians, including Dr. Eye, consistently referred to P.T.‘s ?spasms? as a problem in her treatment. Finally, Dr. McCormick conceded that Dr. Eye was well aware of the Botox treatments P.T. was obtaining from Dr. Koslowski. Fernando Miranda, M.D., submitted a records review dated May 19, 2008, and an addendum dated June 16, 2008. Dr. Miranda also testified via deposition in this proceeding. Dr. Miranda is board certified in neurology and licensed to practice in the state of Florida. Dr. Miranda testified as an expert in neurology, without objection. Dr. Miranda‘s May 19, 2008, records review provides as follows: In this review of records, the patient appears to have been working for Memorial Hospital Medical Center as a nurse, when she was exposed to tuberculosis. There are extensive narratives in the chart describing how many specialists have thought that this exposure could not have resulted in some of the claims by this worker, who states not only an ulcerated lesion on the right forearm but also a kidney abscess, which she states was secondary to tuberculosis as well. This particular wound on the right upper extremity has been opined by many individuals to be secondary to self- infliction opposed to tuberculosis. However, the patient, on March 29, 1995, presented as a referral from Dr. ?Ay [sic] to Dr. Koslowski, who noted that the patient had developed ?tuberculosis, blisters, and ulcerations of the right forearm.? Dr. Koslowski also opines that she has an ulnar nerve paresis. Dr. Koslowski sent her for a graft of the ulnar nerve and Dr. Steinberg on the opined [sic] on the nerve transposition of the median to the ulnar nerve. She was treated with muscle relaxants, including Dantrium, Valium, and pain medication, which was Lortab. The patient was given a Botox injection as early as 06-05-96 and this was to the flexor carpi ulnaris and flexor digitorum profundus, in the territory of the ulnar nerve. This was secondary to spasms of these muscles. Since then, the patient has received as many as 13 injections at 13 separate sites. The injections go through 2007, according to records. The predominant complaint was one of pain and spasm, and the patient was described as having a claw-hand. However, which sounds interesting, is the fact that claw-hand is usually caused by weakness of the flexor carpi ulnaris, flexor digitorum profundus, of the ring and little fingers, as well as the intrinsic hand muscles. These are apparently the muscles that Dr. Koslowski is injecting. It is also unclear why this patient has the spasms. Spasticity is certainly a central nervous system phenomenon and not a peripheral nervous system phenomenon. As far as the Neurological opinion goes, I would feel not at ease in having one of the basic concepts clear, which is, what is it that Dr. Koslowski is actually treating? Dr. Miranda‘s June 16, 2008, addendum reads as follows: This is further clarification of my opinion rendered on May 19, 2008. As I stated on page two, spasticity is a central phenomenon of the brain, and no [sic] a peripheral nervous system phenomenon. Claw-hand is usually caused by weakness of the flexor carpi ulnaris and flexor digitorum profundus. Further weakness would be caused by Botox injection. It is my opinion, given the records reviewed by me, that Dr. Koslowski‘s treatment is not in accordance with the diagnoses offered and previously described, which are consistent with an ulnar nerve impairment. The spelling of Dr. Eye‘s name in the May 19, 2008, report leads to the inference that Dr. Miranda dictated the report and never read the finished product. In any event, these reports are brief, conclusory, and of little assistance to the fact finder. When read in light of Dr. Miranda‘s deposition testimony, his reports become useless. In his testimony, Dr. Miranda stated that he spent one and one-half hours reviewing the medical records in this case. This was not enough time to do more than skim the 218-page Summary prepared by Mr. Spangler, let alone read the thousands of pages in the actual record. The opinions he offered were based only on broad generalities regarding spasticity and claw-hand; they could not have been based on any genuine understanding of P.T.‘s condition.31/ In reading whatever portion of the record he bothered with, Dr. Miranda came away with the idea that Dr. Koslowski billed USIS $1.5 million for the Botox injections he administered to P.T. When counsel for Dr. Koslowski presented him with an opportunity to correct himself, Dr. Miranda instead dug the hole deeper: Q. Okay. Approximately how many —- I‘m not asking you to count all the instances, but approximately how many times did Dr. Koslowski administer Botox? A. I don‘t remember right now offhand. I would have to re-review the records for that. Q. Well, if it was $1.5 million, I mean, we would be talking about literally hundreds of administrations of Botox, wouldn‘t we? A Well, it depends. The Botox, I don‘t remember how much it was in 2008, but I can tell you that right now it‘s about $500 for a hundred units. And so, if he administered a hundred units times two, that would that would be a thousand dollars, plus the administration fee that he charged was $2,400. So we‘re talking about $3,500. So the way to do the math is divide, you know, $1.5 million by 3,500. $1.5 million was actually the total workers‘ compensation payout to all of P.T.‘s medical providers over the course of twenty-plus years of treatment, according to Mr. Spangler‘s cover letter to Dr. Miranda. Only the most careless misreading of that letter would lead one to attribute all of those costs to Dr. Koslowski, whose actual share of the total, according to Mr. Spangler‘s Summary, was $54,200, including $24,230 in charges for Botox injections. The Summary states that Dr. Koslowski made a total of 89 Botox injections to P.T.‘s right hand between June 5, 1996, and May 14, 2007. P.T. received two more series of injections from Dr. Koslowski after May 14, 2007. Assuming that each session involved a dozen injections,32/ then the total number of injections would be 113.33/ If one indulges in Dr. Miranda‘s math, dividing $1.5 million by $3,500 to arrive at a total of 428.57 injections, one would conclude that in the course of the fourteen occasions in which Dr. Koslowski administered Botox to P.T. between 1996 and 2009, he made an average of 35.7 injections per session. That the numbers cited in his testimony did not immediately strike Dr. Miranda as ludicrous renders his credibility as an expert witness nugatory.34/ Dr. Miranda‘s substantive medical testimony generally followed that of Dr. McCormick, including the criticism of Dr. Koslowski‘s use of the term ?spasticity? to describe a condition not proceeding from the central nervous system. There was one notable exception: Dr. Miranda opined that Dr. Koslowski would have been medically justified in administering Botox on one or two occasions, but not for the ten or so years that he continued to treat P.T. in this fashion. Dr. Miranda explained his reasoning as follows: [F]or a peripheral nerve damage, most peripheral nerve damages are recoverable in a period —- and this is the piece of information that you may not know, that the peripheral nerves grow at a rate of one millimeter to three millimeters per day. The younger the patient, the more likelihood that the peripheral nerve is going to regenerate, unless there is an underlying disorder like diabetes in which it becomes very abnormal, sometimes low growth, and sometimes not particularly in an organized fashion. When I say it‘s reasonable to assume that this patient, if she were to have had an ulnar problem causing her claw hand, for a peripheral —- let me underline the word ?peripheral? nervous system involvement because there is no evidence again of a brain involvement —- one would postulate that it would take about a year to grow from the elbow down into the hand, the ulnar nerve. So if that were the case, knowing that each Botox injection lasts between four and eight months, it would be reasonable to assume by the time you‘re giving the second injection, that would be all that one needs. Based on a reading of the entire medical record, it is apparent that Dr. Miranda‘s general statements as to the regeneration rate of the ulnar nerve would likely be overly optimistic in P.T.‘s case.35/ In any event, Dr. Miranda‘s reasoning seems to assume that the Botox injections did offer relief to P.T.‘s claw-hand condition and were therefore an acceptable treatment until such time as the ulnar nerve could be expected to regenerate and naturally relieve P.T.‘s symptoms. However, the undersigned is hesitant to give any credit to the opinions expressed by Dr. Miranda in his testimony, given the casual sloppiness of his reports. Finally, Brian D. Wolff, M.D., submitted a records review dated June 24, 2008, and an addendum dated November 22, 2009. Dr. Wolff‘s letterhead states that he is a board- certified neurologist practicing in Naples. Dr. Wolff did not testify at the hearing, and his report is being considered as a hearsay document over the objection of Dr. Koslowski. Dr. Wolff‘s report essentially repeats the opinion of Dr. McCormick, though he also appears to labor under the false impression that Dr. Koslowski36/ billed some exorbitant amount of money for the Botox injections. It is unclear how long Dr. Wolff spent reviewing the medical records. His report goes into very little detail regarding the records of any provider other than Dr. Koslowski, and his notations regarding Dr. Koslowski indicate primary reliance on Mr. Spangler‘s Summary rather than Dr. Koslowski‘s actual medical notes. Like Dr. McCormick, this neurologist is able to make the psychiatric diagnosis of ?factitious disorder/Munchausen syndrome? within a reasonable degree of medical certainty based upon an online medical dictionary definition of the term37/ and a few citations from the record regarding provider suspicions of wound manipulation. Dr. Wolff went farther than any other reviewer in stating his opinion that P.T. never suffered a work- related injury at all. Given that Dr. Wolff did not testify and his opinions could not be subjected to cross-examination, Dr. Wolff‘s report is of little assistance to the undersigned‘s ultimate determination in this case.38/ Expert Medical Advisor‘s report As part of its own investigation in this case, the Department hired Michael Yaffe, M.D., to provide an expert advisory opinion. As noted at Finding of Fact 7, supra, Dr. Yaffe is a board-certified neurologist and a certified EMA who completed a record review and issued a written report to the Department. Dr. Yaffe's report, dated September 11, 2011, concluded that aspects of Dr. Koslowski's treatment of P.T. were not medically necessary and appropriate. Dr. Yaffe testified via deposition as an expert in neurology and as an EMA under chapter 440, Florida Statutes, without objection. Dr. Yaffe‘s written report is puzzling. It is less a narrative than a seemingly random stroll through P.T.‘s medical record followed by a general description of the proper uses of Botox. Dr. Yaffe‘s report dwells the longest on Dr. John Drewniany, a hand surgeon whom USIS hired to perform a consultation in March 2002, and who examined P.T. once. The long first paragraph of Dr. Yaffe‘s report recites Dr. Drewniany‘s history and physical examination of P.T. in detail, which would not be remarkable except for the fact that Dr. Yaffe‘s report includes no more than two sentences about any other medical provider. Dr. Drewniany concluded that the prognosis for P.T.‘s right arm was poor and recommended against surgical options. He also mentioned that ?one must consider the fact of a possible factitious problem? as regards the failure of the right arm wound to heal. Dr. Yaffe included this statement in his report. As to P.T.‘s other medical providers, the discussion portion of Dr. Yaffe‘s report mentioned only Dr. Steinberg, Dr. Kirshner, and Dr. Boswell. As to Dr. Steinberg, the report noted only that on June 26, 1996, he ?commented that Botox injection helped the spasms of the claimant. She was able to extend her fingers.? As to Drs. Kirsner and Boswell, the report noted only that they ?had been involved in assessing this patient for a long-term eating disorder (bulimia).? Dr. Yaffe‘s report also contains the following paragraph: Dr. Mark J. Upfal, M.D., Occupation Health [sic] in his note of September 16, 2005, having reviewed records again raised the question of probably self-inflicted interference with the wound-healing process. Dr. Upfal stated that he believed that Botox injections should be discontinued as they would be of no benefit and possibly potentially harm the claimant. This quote is curious on two counts. First, it appears designed to leave the impression that Dr. Upfal was a treating physician making a ?note? in the chart after reviewing the records, rather than a physician hired by USIS to perform a peer review. Second and more critical, the peer review that Dr. Upfal conducted was of Dr. Eye, not Dr. Koslowski. The words ?Botox? or ?botulinum? do not appear in Dr. Upfal‘s report; it states not a word regarding Dr. Koslowski‘s treatment of P.T. Based on the evidence of record, the opinion Dr. Yaffe attributes to Dr. Upfal regarding discontinuation of the Botox injections is imaginary.39/ This is not the end of Dr. Yaffe‘s creativity. In his review of Dr. Koslowski‘s medical notes, Dr. Yaffe states, ?September 4, 2006, the claimant reported to Dr. Koslowski of the effectiveness of the Botox lasting two months.? P.T. actually made this report to Dr. Koslowski on September 4, 1996, after her first series of Botox injections. This report led Dr. Koslowski to conclude that he had not used enough Botox. See Finding of Fact 45, supra. After Dr. Koslowski increased the dosage, P.T. routinely reported the effects of the injections as lasting much longer than two months. Dr. Yaffe also states, ?July 9, 2007, Dr. Koslowski reported that the Botox lasted three months and was causing a steady improvement in the patient‘s condition.? Dr. Koslowski made no note in P.T.‘s medical record on July 9, 2007, and never in any of his notes made such a categorical statement about Botox causing ?steady improvement? in P.T.‘s condition. Dr. Koslowski always understood the tenuousness of P.T.‘s medical status and that the effects of the Botox injections were ameliorative and temporary. Dr. Yaffe‘s report lists twelve ?conclusions,? some of which bear directly on Dr. Koslowski‘s treatment and some of which are general statements regarding such matters as FDA approval of Botox for focal dystonia and who is allowed to inject Botox in the state of Florida. In summary, Dr. Yaffe concluded that Dr. Koslowski‘s medical records were insufficient to document his objective exam findings or to correlate the exam findings with P.T.‘s symptoms. Dr. Yaffe concluded that Botox was not indicated for P.T.‘s peripheral nerve condition and that Dr. Koslowski‘s evaluation and treatment of P.T. were not medically necessary and appropriate. He stated that the duration of treatment was excessive. However, Dr. Yaffe also stated, ?The response to this treatment as represented by the patient‘s subjective complaints and examinations by a number of physicians involved with this case shows that there has been some benefit with less spasm and pain.? He stated that this ?might be a placebo effect.? In his conclusions, Dr. Yaffe also mentioned once again the ?suspicion? that the problems with P.T.‘s right forearm may have been self-inflicted. Finally, the following ?conclusion? of Dr. Yaffe is set out in full: 3. Dr. Koslowski quoted ?Dr. Michael Pulley? (see Shands) that he injected. . . ?the claimant‘s arm twice, which lasted eleven and twelve months.? However, there are no additional documented information available from Shands or Dr. Koslowski‘s to support these comments regarding Botox effectiveness in this regard. The quote is a reference to Dr. Koslowski‘s medical note of June 3, 2003, when P.T. returned to his office for the first time in over two years. See Finding of Fact 107, supra. However, the language that Dr. Yaffe placed in quotation marks is actually his summary of Dr. Koslowski‘s note. The placement of Dr. Pulley‘s name in quotation marks implies some level of suspicion, presumably as to whether Dr. Koslowski is concocting an endorsement for his treatment from another physician. Dr. Yaffe‘s report includes a ?summary of records reviewed? that lists 36 sources but does not list Dr. Pulley or Shands in Jacksonville, which may explain Dr. Yaffe‘s failure to recognize Dr. Pulley‘s name.40/ However, the inclusion of the parenthetical ?see Shands? indicates some level of awareness of Dr. Pulley‘s identity. Dr. Yaffe‘s deposition testimony did little to clarify his level of information as regards to Dr. Pulley. When first questioned, Dr. Yaffe had no recollection of Dr. Pulley. There followed a colloquy in which Dr. Yaffe stated that he ?reviewed the records of everything that was presented to me in the envelope? provided by the Department,41/ but had no recollection of Dr. Pulley‘s providing any Botox injections to P.T. Dr. Yaffe agreed that it would be relevant for him to evaluate why a second physician chose to administer Botox to P.T., but he could not recall making such an evaluation in his report. Dr. Yaffe attempted to minimize the absence of Dr. Pulley‘s records in his report by stating that, if he had reviewed them, he would have concluded that Dr. Pulley had made ?another mistake.? Either Dr. Yaffe was not provided Dr. Pulley‘s medical records, or he ignored them in his report. In either case, this omission constitutes a significant flaw in Dr. Yaffe‘s analysis of Dr. Koslowski‘s treatment of P.T. Dr. Yaffe failed to consider Dr. Pulley‘s supportive opinion while giving full credit to the negative peer review reports of Drs. Miranda, McCormick, and Wolff, not to mention the negative opinion he invented for Dr. Upfal. Dr. Yaffe testified that he had no recollection of the peer reviews of Dr. Eye‘s treatment of P.T., despite his report‘s emphasis on the peer review of Dr. Upfal. Dr. Yaffe had no real recollection of Dr. Eye‘s medical records or of how those records correlated with those of Dr. Koslowski. Dr. Yaffe could not recall the interaction between Drs. Eye and Koslowski or the testing performed on P.T. by Dr. Eye. Dr. Yaffe stated that it ?wasn‘t my function? to examine internal medicine issues, regardless of their relevance to an evaluation of Dr. Koslowski‘s treatment. Dr. Yaffe testified that he has never used Botox in his practice. Before arriving at his opinion, Dr. Yaffe did not consult with any neurologist who uses Botox. Dr. Yaffe claimed to have received some training during his residency in the use of Botox by watching other physicians administer it. This claim seems unlikely given that Dr. Yaffe completed his residency in 1974 and all available data indicate that Botox was not used on humans even experimentally before 1977.42/ The undersigned credits Dr. Yaffe with having observed physicians administer Botox to patients, and assumes that he was merely confused as to when this occurred. Dr. Yaffe stated that P.T.‘s claw hand could have been caused by spasticity but was more likely the result of peripheral nerve damage. The muscles that are innervated by the ulnar nerve become impaired and cannot maintain adequate function. The antagonistic muscles take over the positioning of the fingers, resulting in clawing. Dr. Yaffe stated that he saw no point in Dr. Koslowski‘s injection of Botox into the stronger muscles: ?You are still not correcting a weakened muscle, which is the cause of the problem. You are just going to add another problem area . . . The concept is not right.? Like Dr. McCormick, Dr. Yaffe did not see the merit of using Botox to reduce pain and restore some level of functioning to P.T.‘s right hand, because the use of Botox would have the eventual result of further weakening the muscles in the hand. Given the overall poor prognosis for P.T.‘s right arm, Dr. Yaffe‘s emphasis on ?correcting a weakened muscle? seems a questionable priority compared to the increased quality of life that P.T. obtained however temporarily, from the Botox injections. Dr. Yaffe‘s opinion also mirrored that of Dr. McCormick regarding Dr. Koslowski‘s use of the term ?spasticity.? See Finding of Fact 307, supra. Dr. Yaffe scoffed at the suggestion that P.T.‘s case was particularly complex. He testified that half of P.T.‘s referrals were unnecessary and constituted ?barking up the wrong tree.? An essential basis for Dr. Yaffe‘s opinion was that Dr. Koslowski‘s use of Botox is outside the list of FDA-approved applications. Dr. Yaffe stated his categorical opposition to off-label uses of Botox by physicians. He testified that off- label use of a medication is ?speculative? and therefore violates the standard-of-care. Dr. Yaffe acknowledged that physicians often use off-label treatments by stating, ?They may be, but that doesn‘t justify them doing it, does it?? Dr. Yaffe was a truculent, evasive, and somewhat disingenuous witness. Many pages of the deposition consist of Dr. Yaffe pointlessly arguing with Dr. Koslowski‘s lawyer. At one point, Dr. Yaffe refused to answer a question because counsel was ?using words that are so vague, like =number‘ and =several.‘? The ?vague? words that counsel was using were in fact quotations from Dr. Yaffe‘s own report. Dr. Yaffe‘s report gave prominence to the possible ?psychological component? in P.T.‘s problems, but in his testimony Dr. Yaffe backpedaled from the notion that this represented his own opinion and stated that he was merely noting that ?some observers? had suggested the psychological component.43/ He also backed away from the several suggestions of ?factitiousness? in his report, again claiming that he was merely recording the observations of other practitioners. In summary, Dr. Yaffe‘s slipshod and in places factitious written report, coupled with his belligerent yet equivocal testimony, rendered him an unpersuasive witness. Testimony at the final hearing P.T. testified at the final hearing. She testified that she had retired after 40 years as a registered nurse, 25 of them spent working at Memorial. At the time of the hearing, she still had the wound on her arm and wore a bandage. P.T. testified that the wound was currently about the size of a dime and one millimeter in depth. The wound had not been infected for about five years. P.T. denied ever manipulating the wound. She testified that physicians placed casts on the wound on at least three different occasions, preventing her from accessing the wound. Once, the cast had to be removed after two weeks ?because the smell got so bad.? P.T. testified that the casting was done after surgery. The wound would be closed immediately after the surgical procedure, but would open up while it was in the cast. It would begin as a small necrotic area and then gradually become larger. P.T. testified that she was currently changing the wound dressings. For several years, a home health care service did the dressing changes for her and the dressings were ?much more elaborate.? At times, there were pumps on the wound. P.T. stated that she would not have been able to manipulate the wound during the periods when the home health care service was dressing the wound.44/ P.T. testified that no one who has experienced the kind of pain she endured would extend the agony by manipulating the wound. She recalled that at one point when the pain was unbearable, she and Dr. Eye discussed amputating her right arm. She recalled that she tried hyperbaric treatments, whirlpool treatments, acupuncture, surgery, and all manner of physical and occupational therapies, and stated that she was willing to do anything to heal the arm. P.T. testified that the Botox treatments from Dr. Koslowski helped with the pain. P.T. stated, ?[A]t first you‘d get some relaxation of the joints and I was able to open my hand, and then within a week I had total loss of the spasms. I mean, it was amazing. It was truly amazing.? She stated that she never saw anything inappropriate in Dr. Koslowski‘s technique. P.T. testified that she finally gave up on getting the Botox treatments when the ?hassle? of obtaining approval from the insurance carrier became too much. Since she stopped receiving Botox injections, P.T. has treated the pain with Klonopin prescribed by Dr. Hartman, with acupuncture, and with microcurrent treatments. P.T. discussed her treatment by Dr. Shah, Dr. Kirsner, and Dr. Boswell. She stated that it was the USIS case manager who first suggested mental health care. She stated that she didn‘t know what she would have done without Dr. Boswell to ?vent to? when she was undergoing such excruciating pain. P.T. testified that she has had an eating disorder since she was seven years old, and that she has binged and purged through the years, though she also stated that she has had those episodes ?under control? since 2007. P.T. stated that none of her psychiatric or psychological care providers ever suggested to her that the wound on her arm was related to any psychiatric condition. P.T. testified that Dr. Eye was the ?gatekeeper? for her care. She believed that Dr. Eye knew about her eating disorder, but acknowledged that she felt shame about it and did not reveal her eating disorder to physicians other than Drs. Kirsner and Boswell. P.T. had no recollection of telling Dr. Koslowski about her eating disorder or her nutritional issues. P.T. also acknowledged that she was not candid with Dr. Koslowski regarding the medications she had been prescribed by Dr. Kirsner. She denied ever taking multiple narcotics at the same time and denied being addicted to narcotics. Dr. Koslowski testified that he completed his residency in neurology at the Medical College of Pennsylvania, then did a fellowship in neurorehabilitation at the University of Maryland. While at the University of Maryland, Dr. Koslowski took elective training in regional anesthesia at Johns Hopkins University. He stated that at present he is the only neurorehabilitation specialist in Jacksonville and is the only neurologist with admitting privileges to Brooks Rehabilitation Hospital in Jacksonville. He also regularly lectures to neurology residents at Shands in Jacksonville. Dr. Koslowski is board certified in neurorehabilitation and was accepted as an expert in the fields of neurology and neurorehabilitation without objection. Dr. Koslowski explained that his training in anesthesia has been important because a large portion of his practice is pain management. He is able to perform nerve blocks that other neurologists cannot do. Dr. Koslowski explained that the Botox injections he performed on P.T. were ?a form of nerve block, but we do it to the muscle at the neuromuscular junction.? Dr. Koslowski testified that P.T. was referred to him by Dr. Eye and presented with ulnar neuropathy that resulted in pain and spasms. He stated that P.T. was having a lot of spasms in her right arm, and the spasms had the effect of breaking down the skin from the inside out. Dr. Koslowski testified that Dr. Steinberg had been planning a complex tendon transfer for P.T., but that he decided not to perform it because the Botox was effective.45/ Dr. Koslowski testified that he first started learning about Botox during his fellowship. He has since published an article and lectured on Botox. He described it as working in two ways, one neuromuscular and one nervous. Its neuromuscular function is to block the effect of acetylcholine at the junction between the nerve and the muscle. Its nerve effect is analgesic, blocking substances like glutamate, calcitonin gene-related peptides, and substance P that go from the nerve to transmit the sensation of pain. Dr. Koslowski noted that Botox was not FDA-approved until 1989, well after his experiences using it on patients during his Johns Hopkins fellowship. He further noted that in 1989 Botox was not approved for all its present-day uses. Dr. Koslowski stated that in his experience it is common for there not to be FDA approvals for treatments of rare disorders, because ?it‘s very expensive to get FDA approval, so a lot of times a drug company will get the drug on the market for one indication and will wind up using it for another indication.? Dr. Koslowski testified that it is very common for professional journals and conferences to discuss off-label uses for Botox. He stated that the upcoming meeting of the American Academy of Neurology would include the presentation of nine papers on uses for Botox that have not been approved by the FDA. Dr. Koslowski was not surprised by the length of the effects of Botox injections on P.T. He stated that he has been injecting Botox longer than anyone else in Jacksonville and that P.T.‘s results were not inconsistent with his long experience. Dr. Koslowski testified that these results were also consistent with the literature in the field, which showed responses to Botox that varied from a couple of months to a year. Dr. Koslowski testified that he reviewed all the available medical records in this case, and that it took him about 83 hours to do so. In his opinion, it would be impossible for an expert to understand P.T.‘s case by reviewing the record for only a few hours. Dr. Koslowski‘s testimony is entirely credited as to the amount of time required adequately to review the medical record in this case. Dr. Koslowski testified that he treated P.T. for about ten years. P.T. was an ?extremely complex? patient who was being treated by ?about half a dozen? other physicians at the time she started seeing Dr. Koslowski. All of these physicians were aware that Dr. Koslowski was treating P.T. with Botox, and none of them ever suggested the treatment was inappropriate. Dr. Koslowski disagreed with the reviewing physicians‘ opinions that Botox should only be used for conditions of the central nervous system. He testified as to medical literature demonstrating its use in peripheral nervous system phenomena and cited Dr. Pulley‘s agreement that Botox was appropriate in the case of P.T. Dr. Koslowski also disagreed with the opinion of Drs. Yaffe and McCormick that Botox was inappropriate for P.T. because its effect would only be to further weaken an already weak muscle. Dr. Koslowski believed that it was myopic to look at the muscle in isolation and emphasized that he and Dr. Steinberg were trying to treat P.T.‘s spasticity for function: Being a specialist in rehab, function is very, very important. It‘s more important that all the little iotas that we as neurologists tend to be fixated on. So by correcting the spasm, P.T. became functional to the point that she came to me afterwards and she —- the first time, she came to me and said: ?Wow, I can open up my hands. I can now start an IV with my right hand.? It was like a miracle, she thought. I mean, she‘s trying to help people. That‘s what I was trying to do myself. Dr. Koslowski disagreed also with the notion that ?spasticity? is never present with a peripheral nerve injury, based on his own years of experience and medical literature describing spasticity as a condition that may occur secondary to various disorders or traumas, including peripheral nerve injury. He also pointed to the fact that Botox treatment is increasingly common for focal hand dystonias such as writer‘s cramp or cramping in musicians, which are not necessarily caused by the central nervous system. As to the ?spasticity? controversy, the undersigned finds that it amounts to a tempest in a teapot. The Department‘s witnesses seized on Dr. Koslowski‘s use of the term ?spasticity? to make a debating point, i.e., that P.T. could not be suffering from ?spasticity? as that term is generally defined in the medical community because she suffered no central nervous system injury, therefore Dr. Koslowski does not understand even basic neurological principles. The undersigned finds that the following colloquy between Dr. Pulley and counsel for Dr. Koslowski adequately disposes of this issue in a common sense way: Q. Do you have any concern regarding the administration of Botox to this patient? A. No. Q. Let me just ask you this, in terms of evaluation of spasticity, do you believe that P.T. was suffering from spasticity? A. No, I don‘t. Q. Okay. Is the term spasticity sometimes used for conditions —- peripheral nerve-type conditions? A. Well, that‘s a little controversial, and I think —- I think it would be probably incorrectly applied and maybe a better term would be spasm as opposed to spasticity. Q. Is it frequent, however, that neurologists and other professionals use the term spasticity when they should really use the term spasm? A. Yes. I think it‘s not at all uncommon.46/ Q. Okay. And does-— does the use of spasticity rather than the term spasms necessarily imply that any . . . inappropriate medical treatment would be given to a patient? A. No. It doesn‘t necessarily imply that, no.47/ In short, contrary to the Department‘s implication, even if Dr. Koslowski is misusing the term ?spasticity,? such misuse does not perforce lead to the conclusion that his treatment of P.T. was inappropriate. At most, it demonstrates that his use of Botox was off-label, which Dr. Koslowski freely admitted in any event. As to another criticism by Dr. McCormick, that P.T. could not possibly have experienced immediate relaxation upon injection of the Botox, Dr. Koslowski testified that he probably injected a local anesthetic prior to administering the Botox, and that P.T. was likely feeling the effect of the anesthetic. He stated that it was his practice to inject P.T. with a local because she complained about how painful the Botox injections were. Dr. Koslowski conceded that he did not record the use of a local anesthetic. Dr. Koslowski went on to testify that he had noted signs of Wallerian degeneration in P.T., which he described as degeneration of the myelin sheaths around the nerve and then the axons caused by nerve damage. In P.T.‘s case, he believed that the ulnar nerve damage degenerated backward to her brachial plexus into her brain stem to cause the phenomenon. Dr. Koslowski based this diagnosis on EMGs and nerve conduction studies indicating a progressive degeneration of the ulnar nerve. Dr. Koslowski stated that he didn‘t aggressively pursue more EMG or nerve conduction studies after he began administering Botox because his role in P.T.‘s treatment ?was really to treat her with the Botox and the pain, to help her with the pain.? He was working with Dr. Eye, who was overseeing P.T.‘s treatment and whom Dr. Koslowski saw in the hospital almost every day. They discussed the case frequently because it was so unusual. Dr. Koslowski estimated that over the years he has received hundreds of referrals from Dr. Eye. On this point, Dr. Koslowski‘s testimony is consistent with that of Dr. Eye, who stated, ?As a matter of fact, when I sent her to Dr. Koslowski for his help with the -— with the Botox, I didn‘t want him to do the tests. We were doing the tests, and all I asked him to do was the treatment. I was doing the testing.? Dr. Eye is here specifically referencing blood testing, but the larger point remains that Dr. Koslowski‘s role in P.T.‘s treatment was very limited and circumscribed by the overall authority of Dr. Eye. See also, Finding of Fact 27, supra. Dr. Koslowski conceded that he did not always include his diagnosis or all of his test results in his written records. He also stated that at the time of the referral, he did not receive any reports or written explanation of the reason for the referral from Dr. Eye. The history provided in Dr. Koslowski‘s initial evaluation was based solely on information provided by P.T. Dr. Koslowski testified that he relied on this information to be accurate and complete. Dr. Koslowski testified that he never requested medical records from P.T.‘s other treating physicians. During the entire time he treated P.T., Dr. Koslowski was unaware that she had been treated for psychiatric problems. He was unaware that she had treated with Dr. Shah, Dr. Kirsner, or Dr. Boswell, and was also unaware of her eating disorder. Dr. Koslowski did not believe that P.T.‘s psychiatric condition was important in the context of his limited involvement in her treatment. As to possible self-injurious behavior, Dr. Koslowski testified that it ?might be a curiosity,? but also would not be relevant to his treatment. He did not pursue the issue because Dr. Eye, the physician in charge of P.T.‘s treatment, had informed Dr. Koslowski that he had considered the possibility of self-harm and had ruled it out. Dr. Koslowski could not testify as to whether anything about P.T.‘s wound suggested self-harm because he did not examine the wound. Dr. Koslowski testified that his treatment was justified because a patient such as P.T. ?has so many issues and she‘s complaining of such severe pain, it‘s worth trying these avenues . . . [Y]ou have to think out of the box a lot of times when you‘re in this field.? Dr. Koslowski‘s statement is supported by Dr. Eye‘s testimony: [Dr. Koslowski‘s] theory —- and he and I talked about this —- was that the spasticity of the -– of the muscle and the tendon, if you will, or the motion actually was having an adverse effect on the blood supply because of the continued tension. And when we relaxed that, now she could move the arm, the pain was dramatically better. I mean, it was -— if for no other reason than purely humanitarian reasons for the pain, it was worth it because this poor woman was in pain. But on top of that she got increased movement. Now she could use the arm, now she could work, and now the wound would heal. So, I mean, how can you go wrong with that. Dr. Pulley‘s deposition testimony likewise supports the testimony of Dr. Koslowski. Dr. Pulley testified that he often uses Botox for off-label treatments such as focal limb dystonias and spasticity of the leg. He stated that Botox is ?pretty much accepted as a treatment for things like writer‘s cramp? although it is not FDA-approved for that use. Dr. Pulley agreed that there were a number of conditions that occurred so infrequently that it would be impracticable to perform the kind of studies that lead to FDA approval. Dr. Pulley testified that P.T. had objective indications of a real medical condition in her hand and that the possibility she might be faking ?didn‘t enter into my thought process.? He did not perform testing beyond the physical examination because he saw no reason to doubt the existing diagnosis or to change the treatment she was receiving. The ulnar nerve problem was a clear diagnosis and the posture of P.T.‘s hand and her inability to straighten her fingers made diagnostic testing unnecessary. On examination of P.T., Dr. Pulley noted flexion of the digits of her right hand. He stated that it is usually ?too late to do much? for patients in P.T.‘s condition because they have developed a contracture of the joint, meaning that no treatment will ever improve the position of their fingers. P.T. had not reached that point and therefore was an appropriate candidate for Botox injections: I have seen other patients who‘ve had similar issues, but in those cases I have not seen patients that I thought would benefit from treatment with botulinum toxin. Either they didn‘t have the overactivity of muscles that she seemed to demonstrate, or they had permanent flexion contractures already that I didn‘t think that they would benefit from treatment with botulinum toxin. * * * [T]he goal of using that medication is to reduce muscle overactivity or perhaps to restore balance, so when you have nerve injury, some of the muscles supplied by that nerve will become weak. In certain joints there are different muscles acting across that joint, and if some muscles become weak, others will become relatively overactive and could put the joints in an abnormal posture making them less functional. So in this case the idea was to reduce the activity of some of the muscles to sort of restore that balance. Dr. Pulley testified that P.T. obtained pain relief and some relaxation of the spasms from the Botox injections. He allows the patient to determine when she requires another injection, based on her function. Because of the pain of the injection, patients sometimes put off the injection as long as possible. Dr. Pulley stated that it is not recommended to do Botox injections more frequently than every 90 days, but that there is no maximum interval between injections. The length of an injection‘s effect is dependent on ?a lot of factors? including the cause of the dysfunction, the size of the patient, other medications, and the number of injections the patient has received in the past. Dr. Pulley has had patients wait more than a year for repeat injections. As to the question of whether repeated Botox injections were inappropriate in this case because they only served to further weaken the muscle, Dr. Pulley responded as follows: [T]he goal here is to try to restore some balance between the excessive amount of flexion and sort of allowing more extension to happen, and that was the goal of her treatment. So if continually giving Botox actually in some cases can cause some permanent weakness of the muscles that you‘ve treated and may lead to some permanent, quote, dysfunction of that muscle but—but hopefully improved function for the person. Dr. Pulley stated that Botox is an effective therapy for patients with peripheral neurological disorders and that it was an effective therapy for P.T. The determination of the success of Botox treatment is always up to the patient because the goal is to improve the patient‘s function. If the patient feels that her function is better with the treatment, then the physician takes the patient at her word. Summary of findings The evidence established that there was a therapeutic purpose for the Botox injections administered by Dr. Koslowski. The initial purpose was to confirm whether P.T. had spasm in her right hand. In 1996, Dr. Steinberg wanted to confirm the presence of spasm and if possible get the spasm under control sufficiently to allow for tendon transfer surgery. Dr. Steinberg even hoped that the Botox therapy might improve P.T.‘s condition to the point that surgery would not be necessary. The Botox injections provided so much relief that P.T. continued to return to Dr. Koslowski for further periodic injections. The injections relieved P.T.‘s pain and spasms and restored a level of functionality to her right hand for periods of several months.48/ Dr. Koslowski was never P.T.‘s primary physician. Dr. Eye emphasized that he sent P.T. to Dr. Koslowski ?for treatment, not for diagnosis.? Dr. Koslowski‘s role in P.T.‘s overall treatment was extremely limited, which adequately accounts for his failure to delve deeply into P.T.‘s psychological diagnoses, eating disorder, or possible manipulation of the wound on her right arm. None of these issues were related to the very particular treatment that Dr. Koslowski was providing. As to Dr. Koslowski‘s alleged failure to inquire as to P.T.‘s psychological condition, it must be remembered that P.T. was not always the most forthcoming of patients. She kept even Dr. Eye in the dark as to her psychiatric treatment. She would not allow her mental health providers to discuss her case with the physicians who were treating her arm. It is questionable whether further inquiries by Dr. Koslowski would have provided any information of use in his treatment of P.T. The Department‘s evidence did not establish that P.T. manipulated the wound on her right arm. There was reason to suspect that she might be engaged in self-harm, but none of P.T.‘s direct providers believed that she was doing so. In any event, Dr. Koslowski‘s treatment addressed pain and spasm caused by an ulnar neuropathy that was a consequence of the wound. He did not treat the wound itself; indeed, Dr. Koslowski testified that he could not recall ever examining the wound. Whether P.T. was manipulating the wound would have been at most of tangential concern to Dr. Koslowski. The Department alleged but failed to prove that P.T. was exaggerating her reports of pain and faking the spasms in her right hand. The Department‘s only argument on this point is that pain is subjective and that P.T.‘s reports should not be believed. The unanimous testimony of her treating physicians that the pain and spasm were genuine sufficiently disposes of this argument. The Department‘s EMA and peer reviewers were far less than convincing. Faced with the clear evidence that the Botox injections provided pain relief and restoration of function to P.T., the Department‘s experts were reduced to focusing on Dr. Koslowski‘s use of the term ?spasticity,? on Dr. Koslowski‘s reports of relaxation after the injections, and on the fact that Dr. Koslowski‘s use of Botox was off-label. None of the Department‘s experts adequately addressed the fact that P.T.‘s other treating providers unanimously supported Dr. Koslowski‘s treatments, or the fact that Dr. Pulley also performed the Botox injections. This is not even to mention the careless misreading and non-reading of the medical records or the misstatements of fact in which the Department‘s experts engaged, which alone were sufficient to disqualify the testimony of Dr. Miranda and to significantly impair the credibility of Dr. Yaffe. As indicated in the discussion of the self-harm issue, much of the evidence presented at the hearing would have been more appropriate to a proceeding against Dr. Eye or the other providers involved in direct treatment of P.T.‘s wound, rather than a proceeding against Dr. Koslowski, a bit player in the P.T. saga whose chief mistake appears to have been not agreeing to settle with USIS. The Department‘s investigation appears to have consisted of little more than accepting at face value the materials provided by the attorney for USIS, then hiring Dr. Yaffe to render an expert advisory opinion based on those materials. Nothing prevented the Department from undertaking a critical review of the USIS materials and discovering for itself the manifold errors that are set forth in the above findings. USIS clearly had business reasons for seeking to punish Dr. Koslowski while declining to pursue action against other physicians who were much more deeply involved in P.T.‘s treatment. The Department, however, should have better reasons for prosecuting a case than the fact that a physician would not accept an insurance company‘s settlement offer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers‘ Compensation, enter a final order dismissing the Notice of Intent. DONE AND ENTERED this 15th day of November, 2013, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 November, 2013.
Findings Of Fact Dr. Gans is a chiropractor licensed in Florida on the basis of examination. Dr. Gans prepared and filed an application for examination and licensure with the Florida State Board of Chiropractic Examiners. Dr. Gans answered the question on the application, "Do you have a chiropractic license in any state?" by stating: "Ohio - Mechanotherapy." The Ohio authorities recognized several professions whose functions would be included under the practice of chiropractic in Florida. Mechanotherapy generally would be limited to the practice of manipulation only. Dr. Gans was licensed in Ohio as a mechanotherapist. Dr. Gans answered the question on the application, "Have you ever been refused licensure in any state?" by stating, "No." Dr. Gans had applied for, taken, and failed the Ohio chiropractic examination whereupon he was not issued a license as a chiropractor by the State of Ohio. Dr. Gans was eligible to reapply to take the Ohio examination. At the time of his application to Florida, Dr. Gans had appealed the determination by the Ohio authorities that he had failed the Ohio examination.
Recommendation Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Florida State Board of Chiropractic Examiners revoke the license of Ray E. Gans. DONE AND ORDERED this 2nd day of October, 1978 in Tallahassee, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John R. Sutton, Esquire 250 Bird Road, Suite 310 Coral Gables, Florida 33146 Paul Lambert, Esquire 1311 Executive Center Drive Tallahassee, Florida 32301 C. A. Hartley, Director Florida State Board of Chiropractic Examiners Suite 202, Building B 6501 Arlington Expressway Jacksonville, Florida 32211
The Issue The issues in this case for determination are whether Respondent Samuel Cox, M.D., committed the violations of Chapter 458, Florida Statutes, as alleged in an Administrative Complaint filed by the Department of Health on November 18, 2006; and, if so, what disciplinary action should be taken against his license to practice medicine in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "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. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Samuel Cox, M.D., is, and was at the times material to this matter, a physician licensed to practice medicine in Florida, having been issued license number ME 77851 on April 22, 1999. Dr. Cox's mailing address of record at all times relevant to this matter is 2438 East Commercial Boulevard, Fort Lauderdale, Florida 33308. Dr. Cox is a board-certified general surgeon who has specialized his practice to bariatric surgery. He has performed bariatric surgery since 1985, performing approximately 3,000 such surgeries since that time. Dr. Cox has performed approximately 214 Roux-en Y procedures in Florida. No evidence that Dr. Cox has previously been the subject of a license disciplinary proceeding was offered. Bariatric Surgery. Bariatric surgery, also known as gastro-bypass surgery, is a type of surgery performed on morbidly obese patients to assist them in losing weight. In order to be found to be morbidly obese and, therefore, to be considered a candidate for the procedure, a patient must be found to have a Body Mass Index greater than 40. Body Mass Index is a measure of body fat based on height and weight (weight in kilograms divided by the square of height in meters). For example, a six-foot-tall individual weighing 296 pounds would have a Body Mass Index of 40.1. See http://www.nhlbisupport.com/bmi/. A patient with a Body Mass Index of 35 may also be considered a candidate for the surgery if they present with certain comorbidities associated with obesity. Comorbidities are physical problems associated with obesity and include diabetes, lung problems, heart problems, and high blood pressure. The more comorbidities a patient has, the higher the risk is to that patient from bariatric surgery. While there is more than one type of bariatric surgery, at issue in this case is a procedure known as Roux-en-Y gastric- bypass surgery (hereinafter referred to as "RNY Surgery"). RNY Surgery is a surgical method of creating a reduced-sized stomach. This reduced-sized stomach is created by removing a small portion of the stomach, where the esophagus (which brings food from the mouth to the stomach) attaches to the stomach, from the larger remaining portion of the stomach. The small portion of the stomach attached to the esophagus is then formed into a pouch, creating a much smaller stomach. The remaining larger portion of the stomach is completely by-passed. Often a device called a silastic ring is used at the bottom of the newly created stomach to help the pouch maintain the desired size and prevent it from stretching into a larger pouch. A portion of the small intestine is attached to the bottom of the newly created stomach. Approximately 150 centimeters down the small intestine, the excluded or removed portion of the stomach, the liver, and the pancreas are connected back to the intestine. This allows digestion of food to continue, but reduces the amount of digestion that previously occurred in the 150 centimeters of the intestine which are bypassed. RNY Surgery allows a patient to lose weight in two ways: first, by limiting the amount of food the patient can eat; and secondly, by reducing the absorption of nutrients by bypassing part of the intestine. The most common and serious complication of RNY Surgery is a leak at the gastrojejunal anastomosis, or the point where the newly created stomach pouch (the gastro) is connected to the intestine (the jejunal)(a gastrojejunal anastomosis leak will hereinafter be referred to simply as a "Leak"). This complication may be evidenced by several symptoms exhibited by a patient. Surgeons performing bariatric surgery must look for these symptoms. The typical symptoms of a Leak include left shoulder pain (caused by pooling of the leakage under the diaphragm which causes irritation which manifests as left shoulder pain), decreased urine output, fever, shortness of breath, and high heart rate. Some manifestations of a Leak, such as atrial fibrillation, are indirect signs of a Leak in that they are associated with the stress on the body caused by the Leak. Dr. Cox's Treatment of Patient W.T. Patient W.T. presented to Dr. Cox for bariatric surgery. W.T., a male, was 47 years of age at the time and was morbidly obese. W.T. weighed 458 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high blood pressure, sleep apnea, congestive heart failure, thrombophlebitis, pulmonary eboli, diabetes, and gatroesophageal reflux disease. There is no dispute that W.T. was an appropriate candidate for bariatric surgery. W.T. underwent RNY Surgery on August 31, 2005. During the surgery, Dr. Cox experienced difficulty seeing, due to the size of W.T.'s liver, the staples which he used to connect the intestine to the bottom of the newly formed stomach. Instead of confirming the placement of the staples, he was required to assess the staples with his fingers. This should have made him more sensitive to the possibility of a Leak. Before ending the surgery, Dr. Cox performed a test called a methylene blue test. To perform this test, an anesthesiologist puts medicine down a tube which passes through the patient's nose and into the new stomach. The physician then looks for any sign of a leak where the physician has sewn or stapled the small intestine to the stomach. With W.T., the methylene blue test did not disclose any leaks. The day after W.T.'s bariatric surgery, September 1, 2005, W.T. began to complain of pain in his left shoulder which is an important symptom of a Leak. W.T. also experienced decreased urine output during the night (he had, however, "responded well to fluid increases and diuretics"), and a low- grade fever, which are also indicators of a Leak. Although pain is a normal response to any operation, pain in the shoulder for the type of non-laparoscropic bariatric surgery performed by Dr. Cox should have made Dr. Cox more concerned than he apparently was as to the cause. The normal pain response to the type of operation Dr. Cox performed would be expected where the incision was made, but not in the shoulder. Dr. Cox treated W.T.'s shoulder pain with narcotic analgesia by a patient-controlled analgesia pump. He treated the decreased urine output with increased fluids and a diuretic (Mannitol). The fever was treated with Tylenol. Although the left shoulder pain, decrease in urine output, and low-grade fever could have been indicative of a Leak, Dr. Cox made no note in the patient records that he had considered the possibility that W.T. had a Leak, prematurely ruling out the possibility of a Leak. Dr. Cox suggested that the left shoulder pain was related to a diaphragmatic irritation caused by the use of surgical instruments on the diaphragm and that the urine output decline could have been attributable to the impact on W.T.'s kidneys by his diabetes. While these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the second post-operative day, September 2, 2005, W.T. exhibited an abnormal heart rhythm, called atrial fibrillation. With a normal heart rhythm, the atrial (the first two of the four heart chambers) contracts, followed by contraction of the ventricles (the other two heart chambers). Atrial fibrillation is an abnormal heart rhythm characterized by a failure of the atria to completely contract. The fact that W.T., who had no prior history of atrial fibrillation, was evidencing atrial fibrillation on post-operative day two should have raised a concern about what was happening to W.T., including, but not limited to, the possibility of a Leak. W.T. was also experiencing an abnormally high heart rate of 148, which could have also been indicative of a Leak. Dr. Cox continued to treat W.T.'s shoulder pain with narcotic analgesia and the decreased urine output with increased fluids and Mannitol. He treated the elevated heart rate with Cardizem, a medicine used to slow the heart. W.T.'s shoulder pain appeared to decrease, which was to be expected given the course of treatment ordered by Dr. Cox. Dr. Cox had not, however, appropriately determined the cause of the pain. Again, nothing in Dr. Cox's medical records indicates that he considered the possibility that W.T.'s various symptoms might be indicative of a Leak. Nor did he take any action, such as an upper gastrointestinal test, to rule out the possibility of a Leak. To perform a gastrointestinal test, a patient drinks a water-soluble contrast called Gastrografin and a radiologists takes serial pictures of the patient, which show the contrast as it moves down the esophagus and then crosses through the anastomosis of the pouch and intestine. From these pictures, it can be determined whether the anastomosis is open and functioning properly and whether any of the contrast leaks outside of the new stomach-intestine path. The test is not fool-proof, but it is an appropriate diagnostic tool for Leaks. Dr. Cox suggests that the atrial fibrillation and high heart rate could have simply been a recognized complication of any stress W.T., with his borderline cardiac status, was experiencing. Again, while these might have been appropriate considerations at the time, Dr. Cox could have not known for sure what was causing W.T.'s symptoms and, therefore, should have considered all the possible causes of these symptoms, especially the possibility of a Leak. On the third post-operative day, September 3, 2005, air and serosanguinous fluid were observed seeping from W.T.'s abdominal incision. The existence of air may be evidence of a Leak. Although some air gets into the abdominal cavity during surgery, it is usually absorbed by the body very, very quickly. Air coming from an incision on post-operative day three suggests a hole in the intestine. Dr. Cox responded to the finding of air coming from the abdominal incision by ordering a methylene blue swallow, where W.T. swallowed a small amount of blue dye. Blue dye was then seen either coming out of the incision or drains placed in W.T.'s abdomen. Either way, the test was "positive" indicating a leak in W.T.'s intestine. Dr. Cox correctly took W.T. back into surgery. He discovered and corrected a Leak which had been caused by failure of the staples used in W.T.'s surgery. Although much was made as to when the staples failed, that evidence was not conclusive nor is it necessary to resolve the dispute. Whether the staples failed immediately after surgery or at some later time does not excuse Dr. Cox's failure to appropriately react to signs exhibited by W.T. which could have indicated that W.T. had a Leak. This case does not turn on whether a Leak actually existed. It turns on whether Dr. Cox appropriately considered the possibility of a Leak and took the steps medically necessary. With W.T., he did not. Dr. Cox's error was not in failing to find the Leak earlier; it was in failing to properly consider the possibility of a Leak when W.T. exhibited signs that should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak evidenced by W.T.'s symptoms was inconsistent with the standard of care. Dr. Cox's Treatment of Patient J.L. Patient J.L. presented to Dr. Cox for bariatric surgery. J.L., a male, was 35 years of age at the time and was morbidly obese. J.L. weighed 417 pounds and had a Body Mass Index of Because his Body Mass Index exceeded 50, he was considered "super" morbidly obese. He also had the following comorbidities: high cholesterol, stress incontinence, depression, anxiety, high blood pressure, gastroesophageal reflux disease, and shortness of breath on exertion associated with asthma. There is no dispute that J.L. was an appropriate candidate for bariatric surgery. J.L. underwent RNY Surgery on August 4, 2005. Dr. Cox also removed J.L.'s gallbladder. Before ending the surgery, Dr. Cox performed a methylene blue test. The methylene blue test performed on J.L. did not disclose any leaks. On the first post-operative day, August 4, 2005, J.L.'s heart rate was as high as 155 (anything over 120 is problematic), was experiencing decreased oxygen saturation of 89 percent (95 percent to 98 percent are considered normal saturation levels), had increased BUN and creatinine levels, and his urine output was borderline low. The increased BUN and creatinine, indicative of a problem with the kidneys, were are not being perfused well. J.L. was also complaining of right shoulder pain. Dr. Cox's note concerning the right shoulder pain specifically notes that it was not the "left" shoulder, which suggests that Dr. Cox was aware of the significance of left shoulder pain. J.L.'s high heart rate and low oxygen saturation level were considered significant enough to return him to the intensive care unit. On the second post-operative day, August 5, 2005, J.L.'s BUN and creatinine levels rose higher. That evening J.L. had a high heart rate. His urine output level, which Dr. Cox had treated with a diuretic and increased fluids, had improved. J.L. also became agitated and restless. He began to constantly request water. Dr. Cox eventually ordered, however, that J.L. not be given water. Dr. Cox failed to note in his records that he considered the possibility that J.L. had a Leak. Instead, Dr. Cox focused on the possibility that J.L. was suffering from rhabdomyolysis, a malfunction of the kidneys caused by the breakdown, as a result of surgery, of muscle tissue into cells too large in size for the kidneys to process. Dr. Cox ordered a CK test which found elevated creatine phosphor kinase or CPK, a marker of muscle death. Dr. Cox then consulted with a nephrologists. While the symptoms evidenced by J.L. could have very well been a result of rhadbodmyolysis, they also could have been symptomatic of a Leak. Dr. Cox did not have adequate information on August 5, 2005, to conclusively find that J.L. was suffering from rhadbodmyolysis and, more importantly, not from a Leak. As of the second post-operative day, J.L. was exhibiting a high heart rate, low urine output, pain in his right shoulder, a worsening oxygen saturation level and hunger for air, and a changed mental status (anxiety and combativeness). Due to these symptoms, Dr. Cox should have considered the possibility of a Leak, rather than merely concluding that J.L. was suffering from rhabdomyolysis and treating J.L.'s individual symptoms. On the third post-operative day, August 6, 2005, J.L.'s condition worsened. His agitation and combativeness due to his thirst and air hunger worsened. J.L. was treated with Haldol, a psychiatric medication. Dr. Cox continued to suspect rhadbdomyolysis and to ignore the possibility of a Leak. On the fourth post-operative day, August 7, 2005, at approximately 15:30, pink-tinged fluid was seen draining from J.L.'s incision. A pulmonologist consulting on J.L.'s case was the first to suggest the possibility of a Leak, questioning whether the entire clinical picture pointed to intra-abdominal sepsis due to a Leak. It was not until the drainage from J.L.'s incision that Dr. Cox first considered the possibility of a Leak. Even then, Dr. Cox did not return J.L. to surgery until August 7, 2005, where a Leak was found and repaired. Dr. Cox's error in his treatment of J.L., like his error in his treatment of W.T., was not in failing to find the Leak earlier, but in failing to properly consider the possibility of a Leak when J.L. exhibited signs which should have prevented Dr. Cox from, with reasonable medical certainty, ruling out the possibility that a Leak was present. For this reason, the fact that a Leak was ultimately found is of little importance in deciding whether the charges leveled against him in the Administrative Complaint are accurate. Even if no Leak had ultimately been found, Dr. Cox's failure to properly respond to the potential of a Leak, evidenced by J.L.'s symptoms, was inconsistent with the standard of care. Dr. Cox's explanation at hearing as to why he waited from August 5, 2005, when it was apparent that J.L. had a Leak, until August 7, 2005, to repair the Leak, is not contained in Dr. Cox's medical records. The Standard of Care. The Department's expert, Christian Birkedal, M.D., credibly opined that Dr. Cox failed to practice medicine in accordance with the level of care, skill, and treatment recognized in general law related to health care licensure in violation of Section 458.331(1)(t), Florida Statutes (hereinafter referred to as the "Standard of Care"), in his treatment of W.T. and J.L. In particular, it was Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care as to W.T. by failing to recognize W.T.'s signs and symptoms of a Leak and by failing to perform a post-operative upper gastrointestinal test on W.T. once he evidenced those signs. Dr. Birkedal's opinion is credited and accepted. As to J.L., Dr. Birkedal's opinion that Dr. Cox violated the Standard of Care by failing to recognize the signs and symptoms of a Leak for two days post-operatively is credited and accepted. The opinions to the contrary offered by Dr. Cox and his witnesses as to W.T. and J.L. are rejected as not convincing and as not addressing the issue precisely enough. The opinions offered by Dr. Cox and his witnesses with regard to both patients were essentially that the various symptoms pointed to by Dr. Birkedal were not "evidence" of a Leak. Those opinions do not specifically address the issue in this case. Dr. Cox and his witnesses based their opinions on whether Dr. Cox should have "known" there was a Leak at the times in issue. That is not the charge of the Administrative Complaint or the basis for Dr. Birkedal's opinion. The question was, not whether Dr. Cox should have known there was a Leak, but whether he should have considered a Leak as a possible cause for the symptoms exhibited by W.T. and J.L. Additionally, and finally, Dr. Birkedal based his opinions, not by looking at the record as a whole, as did Dr. Cox and his experts, but by looking at only those records in existence at the times relevant to this matter. In this way, Dr. Birkedal limited himself to a consideration of what Dr. Cox knew about his patients at the times relevant in the Administrative Complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that Samuel Cox, M.D., has violated Section 458.331(1)(m) and (t), Florida Statutes, as alleged in Counts I, II, and III of the Administrative Complaint; issuing a reprimand; placing his license on probation for two years, with terms to be established by the Board; and imposing a fine of $15,000. DONE AND ENTERED this 19th day of June, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 19th day of June, 2007. COPIES FURNISHED: Patricia Nelson, Esquire Assistant General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3250 Jonathon P. Lynn, Esquire Marci Strauss, Esquire Stephens, Lynn, Klein 301 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
