Findings Of Fact Respondent is, and at all material times has been, a licensed physician, having been issued license number ME 0040551, by the State of Florida. Respondent is a 1979 graduate of the University of Juarez. Respondent performed an internship at Mount Sinai Hospital in Chicago, Illinois, from 1979 to 1980. Between 1980 and 1982, Respondent performed a two year internal medicine residency at Grant Hospital in Chicago, Illinois. Respondent is "Board-eligible" in the area of internal medicine. Internal medicine involves a non-surgical approach to evaluating multiple organ systems. It involves understanding diseases at a "higher" level and dealing with multiple illnesses. Respondent once has taken, but did not pass, the examination to become Board certified in internal medicine. Respondent has had no other complaints filed against his license to practice medicine in Florida, other than the one at issue in this case. On or about May 2, 1986, Respondent admitted patient L. S. to Clearwater Community Hospital in Clearwater, Florida, because of a possible cerebral vascular accident which occurred 3 days prior to admission. Patient L. S. was a 76-year old male patient who was a member of the "Gold Plus" IMC Health Maintenance Organization. At or about the time of admission of patient L. S. to Clearwater Community Hospital, Respondent obtained a patient medical history from L. S. and performed a physical examination. As a result of the stroke, patient L. S. had speech difficulties at the time of admission to Clearwater Community Hospital. Respondent's initial patient history for L. S. included the following information: With respect to the cerebral vascular accident, the patient had awakened 3 days prior to the admission and had difficulty with speech and difficulty using his right hand. The patient was able to ambulate without difficulty and had noted no improvement or worsening in symptoms in the three days prior to admission. The patient had had intestinal surgery 50 years previously, which, according to Respondent's documented history, resulted in chronic diarrhea. Additionally, the patient had been hospitalized two years earlier for "dysphagia (a difficulty in swallowing) with a negative work-up." According to the patient, the patient had no coronary artery disease, hypertension, peptic ulcer disease or diabetes. The patient's social history provided the information that the patient smoked tobacco, one-half pack per day, and did not drink alcohol. The patient provided information that he was on the following medication: Lomotil p.r.n. (as needed); Lanoxin 0.125 mg. per day; and Quinaglute 100 mg., dose schedule unknown. Respondent performed an appropriate initial physical examination on patient L. S. Of significance was Respondent's finding with respect to the patient's heart: "Irregular, irregular rhythm with no gallops or murmurs appreciated." After completing the initial history and physical examination, Respondent's impression was: Acute CVA, patient now three days post-insult and appears to be stable. He already has good use of his right upper extremities and his speech is intelligible although slurred History of cardiac arrhythmia History of chronic diarrhea secondary to intestinal surgery 50 years ago. As part of his plan for the patient, formulated after obtaining the initial history and physical, Respondent noted, "Will also consider ECHO cardiogram as the heart irregularity may provide the source of the emboli." While patient L. S. was hospitalized during the May 2, 1986, admission, Respondent ordered the following tests which were performed on the patient: a complete blood count; a prothrombin time test; an activated partial thromboplastin time test; a routine urinalysis; a portable upright chest x-ray; a bilateral duplex carotid ultrasound study; a CT scan of head - stroke routine (non contrast study); a Brain CT Scan Stroke Protocol-Post contrast series only; an electroencephalogram (EEG); a blood chemistry profile; and an electrocardiogram (EKG)(the patient was also placed on a telemetry monitor). On admission, Respondent ordered Lomotil, one tablet to be given as needed for diarrhea, Lanoxin 0.125 mg. to be given four times a day, and Quinaglute 100 mg. to be given twice a day. On the same day of admission, Respondent changed the order for Quinaglute to 325 mg. to be taken by mouth twice a day. On admission and again on May 9, 1986, Respondent ordered blood serum levels of digoxin (Lanoxin is a drug containing digoxin). These blood levels revealed that the digoxin level was low on admission (normal laboratory values were listed as between 0.5 to 2.0 - the actual value was 0.1). The repeat digoxin level reflected that the digoxin was within normal limits on May 9, 1986 (the actual value was 1.1). Quinidine levels were also obtained (to determine the level of the drug Quinaglute in the blood), pursuant to Respondent's request. The quinidine level taken on admission was below normal (normal laboratory values were listed between 2.0 and 5.0 - the actual value was .7). The repeat quinidine level performed on May 9, 1986, reflected that the quinidine levels were within normal limits (2.6). Under the circumstances, the Respondent cannot be severely criticized for the initial history he took from the patient. In ideal circumstances, an internist would attempt to get more detail on the patient's smoking history pertinent to possible chronic obstructive lung disease or possible congestive heart failure, on the patient's chronic diarrhea, and on the patient's drug dosages. But the Respondent was dealing with a 76-year old man who came to see him for symptoms of a stroke three days before. The patient had difficulty making his speech understood and had no family or friends available to help him give his medical history to the Respondent. It was within acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances for the Respondent to take as much history as the patient was capable of comfortably giving at that time. The Respondent was planning on referring the patient to the hospital's stroke team, which over the course of the hospital stay would completely evaluate the effect of the stroke on the patient. The Respondent planned to have blood serum levels done which would establish proper drug dosages. The Respondent's primary concerns were the possibility of an evolving stroke and the possibility of malignant cardiac arrhythmias. Since there were no complaints or symptoms of chronic obstructive pulmonary disease or congestive heart failure, it was not necessary to pursue the smoking details on the initial history on this admission. As for the diarrhea, the Respondent was dealing with a 76-year old man who reported chronic diarrhea for 50 years. It may have resulted from intestinal surgery 50 years ago, and it may have been exacerbated by the Quinaglute the patient had been prescribed for his heart arrhythmias. Severe malabsorption problems would show up on the blood screen and the complete blood count the Respondent was planning to have the patient undergo. Otherwise, it was acceptable under the circumstances of this case to concentrate on the two primary concerns and treat the diarrhea symptomatically with Lomotil as needed for the time being. The Respondent should have followed up on obtaining available previous hospital records, especially the local admission for dysphagia two years prior, but that information would not appear in the initial history. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated the patient's heart as a possible cause of the stroke. The evidence suggests that it is fairly debatable among physicians whether to order a $500-$600 echocardiogram in a case such as this; it is not necessary to meet the standard of care. When the Respondent initially examined the patient and heard irregularly irregular heart rhythms, he initially considered an echocardiogram. Irregularly irregular heart rhythms suggest atrial fibrillation which can predispose a patient to heart clots (emboli) which can break off, travel through the circulatory system and cause a stroke. But the results of the CAT Scan indicated that the stroke was not caused by a heart embolus but by a constriction of smaller blood vessels. In addition, the results of the EKG and telemetry monitoring revealed that the patient did not have atrial fibrillation but had significant and possibly malignant premature ventricular contractions (PVCs). While this particular heart beat irregularity is serious and can be fatal, it does not predispose a patient to heart emboli and resulting strokes. With this information, the echocardiogram was no longer necessary. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated his lung function. The chest x-ray and EKG which the Respondent had done for the patient enabled the Respondent to diagnose obstructive pulminary disease (C.O.P.D.) if the patient had it. Milder cases of C.O.P.D. would have required with a pulmonary function test or a blood gas level. The evidence suggests that it is fairly debatable among physicians whether to have done one of those tests in this case; it was not necessary to meet acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances. The patient had no complaint of shortness of breath with exertion that would suggest emphysema. To the contrary, he progressed well in physical therapy during the 10-day hospitalization with no indication of this symptom. Nor did the patient have cyanosis or clubbing that would be symptomatic of chronic bronchitis. Those are the two kinds of C.O.P.D. about which a physician evaluating L. S. would be concerned. Regarding the patient's chronic diarrhea, the Respondent performed some general screening tests which, while non-specific in nature, had potential to provide some information about the patient's nutritional status. The complete blood count (C.B.C.) may provide information about some deficiencies. Generally, in an isolated deficiency of vitamin B12 or folic acid, one would expect to find an elevated M.C.V. (mean corpuscular volume), which would show up on a C.B.C. In this case, however, the C.B.C. provided no real information about the nutritional status of patient L. S. The M.C.V. was only slightly elevated. A prothrombin time test can be done to evaluate vitamin K deficiencies and was done in this case. Additionally, the blood levels of several substances can provide information about malnutrition. In this case, the chemistry profile revealed malnutrition. The blood chemistry profile revealed low albumin levels, low globulin levels and low total protein levels. The possibility exists that patient L. S. suffered from diarrhea which was caused or aggravated by the Quinaglute that the patient was also taking. Quinaglute can cause diarrhea. This was not evaluated by the Respondent. It could not be evaluated by the medication history the patient was able to give (i.e., by determining how long the patient had been taking Quinaglute in relation to the period of time the patient had had diarrhea.) Besides, the Respondent made the decision to stabilize the patient's potentially life- threatening heart arrhythmias using the Quinaglute instead of withdrawing the Quinaglute in an attempt to cure the diarrhea problems with which the patient had lived for 50 years. The Respondent cannot be severely criticized for this decision. On this admission, it was acceptable to treat the patient's diarrhea symptomatically for the time being and further evaluate and treat it after the Respondent dealt with the more serious matters of the C.V.A. and the heart arrhythmias. On or about May 12, 1986, Respondent transferred patient L. S. to Druid Hills Skilled Nursing Center from Clearwater Community Hospital. As reflected in Respondent's discharge summary for patient L. S., Respondent was not able to determine the precise cause of the stroke which patient L. S. suffered prior to discharging the patient from the hospital. The discharge diagnoses reflect: (1) acute cerebral vascular accident; and (2) cardiac arrhythmias with frequent P.V.C.'s. The Respondent kept patient L. S. in Clearwater Community Hospital for ten days, from May 2 until May 12, 1986. Although the evaluation and tests were completed within five days, the Respondent did not want to discharge the patient to his home where he would be by himself, but rather to a nursing home. While waiting for a nursing home bed to become available, the Respondent used the resulting extended hospital stay to continue physical therapy. At the time of transfer from the hospital to Druid Hills, patient L. S. was frail. He was 76 years old, five feet ten inches tall and weighted only 113 pounds. Having just had a stroke, he was far from the picture of health, and this was noted by some of the nursing staff upon transfer to Druid Hills Skilled Nursing Center. He looked and was ill, but he was stable. At the time of admission to Druid Hills, patient L. S. was in essentially the same condition as when admitted to Clearwater Community Hospital, ten days earlier. The patient still suffered from slurred speech and had problems with his right arm. But he was stable and anxious to begin speech and physical therapy. On May 12, 1986, at about 2:00 p.m., Judith Salyer, L.P.N., attempted to contact Respondent in order to confirm routine house orders by "beeping" Respondent. Respondent called the nursing home at 4:30 p.m. on the same day to provide the following admission orders: Lanoxin 0.125 mg. by mouth four times a day ASA by mouth four times a day Persantine 75 mg. by mouth two times a day Quinaglute 325 mg. by mouth every eight hours Lomotil by mouth three time a day for diarrhea Tylenol by mouth four times a day Restoril 15 mg. by mouth at night for sleep as needed Physical Therapy Speech Therapy In addition to slurred speech, on May 14, 1986 (two days after admission to Druid Hills), patient L. S. began to have problems with his eye which was red and draining yellow matter (inaccurately described as "pus" in the nursing notes.) When asked by nursing staff if his eye hurt, L. S. advised them that it did. In all other respects, patient L. S.'s condition seemed essentially unchanged. Respondent was not advised of the change in the patient's eye. On the following date, patient L. S. developed additional symptoms. These included coughing and a runny nose with white mucous. The patient's eyes continued to be pink tinged with a moderate amount of yellow drainage from the eye noted. At 2:20 p.m. on May 15, 1986, Judith Salyer, L.P.N., spoke with Respondent and received the routine house orders which Salyer had called about on May 12, 1986. Salyer did not advise Respondent of the minor cold symptoms. Later on the evening of May 15, 1986, it was noted that patient L. S.'s appetite was poor. On May 16, 1986, at 2:00 p.m., it was noted that L. S. was refusing to eat meals and had a inoderately unsteady gait. On May 17, 1986, it was noted that L. S. informed the nurse on duty that he had had loose stools five times. Additionally, it was noted that the patient was refusing to eat meals. At 9:00 p.m. on May 17, 1986, patient L. S. was noted to be "out of bed." No complaints of diarrhea were noted. Additionally the patient ate 80% of his meal and requested ice cream. In the early part of the day on May 18, 1986, patient L. S. was noted to have "chronic diarrhea" by nursing staff. (Throughout his nursing home stay, the patient was given Lomotil, an anti-diarrheal agent, in an effort to treat the diarrhea.) Between at least 9:30 p.m. on May 18, 1986, and the evening of May 19, 1986, patient L. S. appeared to be doing reasonably well. The patient's appetite was good. There were no complaints of diarrhea. The runny nose, coughing and eye drainage were not noted after May IS, 1986. At 2:00 p.m. on May 20, 1986, Nurse Salyer noted that patient L. S. appeared slightly confused at intervals. The patient had mild congestion and a productive cough. The patient's gait was noted to be unsteady at times. At that time, Salyer "beeped" Respondent in an attempt to advise Respondent of the patient's change in condition. Respondent did not call back on May 20, 1986. A productive cough is a cough which produces "gobs" of mucous. Such a cough can be indicative of a lower (as opposed to upper) respiratory infection or congestion in the chest. The presence of a productive cough is a cause for concern. In a later entry made on May 20, 1986, a Nurse Rooker noted that the patient had remained in bed during the shift. His appetite was 40%. It was noted that L. S. was congested, coughing up large amounts of whitish mucous. On May 21, 1986, at some time before 2:00 p.m., Respondent was notified by telephone of patient L. S.'s stable vital signs, "cold symptoms," that the patient appeared slightly confused at intervals, was refusing to eat, was mildly congested with a productive cough and had an unsteady gait at times. Given this information, Respondent determined that the patient had a "cold" or upper respiratory infection. New orders were received and transcribed. On May 21, 1986, Respondent ordered Ampicillin 250 mg. to be taken every four hours for eight days. Respondent also ordered Actifed to be taken three times a day as needed for "sinus congestion." Respondent gave patient L. S. Ampicillin, which is an antibiotic, for his symptoms as a precautionary or prophylactic measure. Antibiotics should not, as a general rule, be ordered without having a well-grounded understanding why the patient is ill. The cause of the infection should be determined. The most basic reason for not giving an antibiotic without first evaluating the source of the infection is that the antibiotic then can serve to simply hide the symptoms. The antibiotic will cause some improvement, making it appear that the patient is not quite as ill, when in fact the infection persists. Additionally, there is a theory in medicine that the antibiotic can serve to cause a resistant strain of infection. Respondent assumed that, like most other nursing home patients, patient L. S. was suffering from a cold. Respondent ordered no further tests to evaluate the patient and Respondent declined to see the patient on May 21, 1986. Under the facts and circumstances of this case, it was inappropriate for Respondent to prescribe Ampicillin, an antibiotic, without first evaluating the source of the infection. Assuming that L. S. had a "cold" or upper respiratory infection, it was appropriate for Respondent to order Actifed, an antihistamine, for L. S. on May 21, 1986. However, given the presence of a productive cough, chest congestion could have been present. With chest congestion, an antihistamine like Actifed would have been inappropriate. Actifed will dry up the chest. Mucous in the chest which needs to be expectorated, and brought up and out, will remain in the chest. A mucolytic expectorant, not an antihistamine, should be ordered when the chest is congested. Given the facts that patient L. S. was recuperating from a recent CVA, had difficulty in swallowing, and had multiple medical problems, the Respondent could have been more aggressive in either examining this patient, who had a productive cough, or ordering appropriate testing. A reasonably prudent physician, under similar conditions and circumstances, could have personally examined the patient L. S. on May 21, 1986, or soon thereafter. Alternatively, a reasonably prudent physician could have ordered a C.B.C. and a chest x-ray or some other ancillary diagnostic modalities. A C.B.C. is a method by which one can obtain a count of blood cells, particularly white blood cells, in a patient in order to determine whether there is an ongoing infection. The type of white blood cells present (lymphatic cell or a leukocytic cell) can assist in the determination of whether the infection is bacterial or viral in nature. A chest x-ray is necessary to diagnose pneumonia or obstruction in the lungs. Given the history of patient L. S.'s difficulty in swallowing, it is entirely possible that the patient aspirated food or mucous. When such a foreign substance is inhaled into the lungs, it blocks off the bronchials (the airways into the lungs) and causes an obstruction which will lead to pneumonia. Given this patient's condition and history, Respondent could have used a chest x-ray to evaluate the patient to rule out the possibility of aspiration. But it was not necessary for the Respondent to have arranged to personally examine the patient or order tests at this stage. It would be appropriate to monitor a patient with a viral infection (or "cold") or to prescribe antibiotic such as Ampicillin for a bacterial infection. On May 21, 1986, the antibiotic Ampicillin was given to patient L. S. by nursing staff at Druid Hills. This antibiotic was administered as ordered until May 29, 1986, when it was discontinued on the eighth day. On May 22, 1986, Nurse Salyer noted that patient L. S. had diarrhea. Patient L. S. told Nurse Salyer that in the past the patient had taken Ampicillin and that the Ampicillin had caused diarrhea. Salyer further noted on that date that L. S. was coughing up large amounts of yellowish phlegm. On May 22, 1986, at some time prior to 3:00 p.m., Salyer "beeped" Respondent in an attempt to advise Respondent of L. S.'s statement that the antibiotic was causing diarrhea. Respondent did not call Salyer back by the end of her shift on May 22, 1986. On the 3:00 p.m. to 11:00 p.m. shift at Druid Hills, on May 22, 1986, Kathy Rooker, L.P.N., was involved in the care of patient L. S. At 4:50 p.m., Rooker noted that Respondent had not returned the earlier telephone call. Therefore, Rooker called the answering service for Respondent again and asked the answering service to "beep" Respondent again. The Respondent did not call Rooker back. On May 23, 1986, Nurse Salyer notified Respondent of L. S.'s statement that the antibiotic that patient L. S. was taking (Ampicillin) had previously caused the patient to have diarrhea. Respondent decided not to change the antibiotic order for patient L. S. Ampicillin is known to cause diarrhea in some individuals. But so do many other antibiotics. A reasonably prudent physician, after having been advised that the patient had diarrhea and that the patient previously had had diarrhea while on the same antibiotic, could either change the antibiotic therapy or wait and see if the diarrhea continued or became a problem. On May 23, 1986, at 2:00 p.m., Salyer noted that patient L. S. continued to experience congestion and a productive cough, and continued to have a poor appetite. The same information was noted on the evening shift on May 23, 1986. This condition persisted on May 24, 1986. Additionally, the patient's temperature was 100 degrees on May 24, 1986. Previously, the patient had had an essentially normal temperature. On May 25, 1986, it was noted that patient L. S. was still congested with a productive cough. Additionally, the patient's temperature continued to be elevated. On May 26, 1986, no entry was made in the nurses' notes as to the status of the patient's congestion and cough. It was noted that the patient's friend, "John," came to request permission to take L. S. out for the day. However, L. S. indicated that he felt too weak to go. Both L. S. and his friend asked that Respondent be called for a leave of absence order in the future. It was further noted that the patient continued to have a poor appetite. In the morning on May 27, 1986, Nurse Salyer "beeped" Respondent for the leave of absence order. Respondent did not return that call during Salyer's shift on May 27, 1986. In the 2:00 p.m. entry for May 27, 1986, Salyer noted that patient L. S.: had bed rest during the shift; suffered from chronic diarrhea with mucous in the stool; was refusing to eat with poor fluid intake; had yellow mucous draining from his eyes; and had continued congestion with a productive cough. At 9:00 p.m. on May 27, 1986, it was noted that the patient's condition as described above had persisted. Additionally, it was noted that Respondent had not returned the telephone call made by Salyer that morning. In fact, it does not appear that Respondent ever returned Salyer's call made on May 27, 1986. On May 28, 1986, it appeared that patient L. S. was improving some in comparison to the patient's condition on previous dates. It was noted that the patient's respirations were "easy." However, it was also noted that the patient still had periods of confusion, still had poor appetite, still was congested and had yellowish drainage from the right eye. On May 29, 1986, the patient's condition further deteriorated. On this date, in the morning, it was noted that the patient remained congested. In the afternoon, a friend of L. S. named Sigfred Ivanicki, came to see L. S. Ivanicki had visited L. S. in Druid Hills twice a week (on Sundays and Thursdays) while L. S. was in the nursing home. When Ivanicki saw L. S. on Thursday, May 29, 1986, in the afternoon (Ivanicki usually visited between 4:00 p.m. and 6:00 p.m.), Ivanicki was very concerned about the deterioration he saw in L. S.'s condition and believed at that point that L. S. was dying. Ivanicki had had an opportunity to see patient L. S. several times before May 29, 1986. Initially, when Ivanicki saw patient L. S. shortly after the admission of the patient to Druid Hills, patient L. S. appeared cheerful and on the road to recovery. Ivanicki would, on each visit, perform tasks of a personal nature for L. S. Thereafter, the patient developed bad congestion with a productive cough and had diarrhea. None of these symptoms appeared too serious to Ivanicki. However, on May 29, 1986, Ivanicki became truly concerned about L. S. After seeing patient L. S. on May 29, 1986, Ivanicki went to see the head nurse at Druid Hills and asked that Respondent be called to come see the patient and transfer the patient to the hospital. At that time, Ivanicki was told that Respondent was very hard to reach. At 6:00 p.m. on May 29, 1986, a nurse Febbo assessed patient L. S.'s condition. Nurse Febbo noted that the patient refused to eat, complained of shortness of breath and had a flushed face. The patient's skin was warm and dry. The patient's vital signs were as follows: pulse 102 beats per minute, temperature 99.8, blood pressure 120/60 and respiration rate 28 per minute. The patient's lungs were clear with decreased breath sounds. The patient was congested and was expectorating thick clear mucous. The patient was incontinent of bowel. On May 29, 1986, at 6:00 p.m., Nurse Febbo noted that she attempted to contact Respondent at 546-5702 unsuccessfully, and had notified Respondent's answering service that she was attempting to contact Respondent. Respondent returned Nurse Febbo's call at 8:00 p.m., on May 29, 1986. The nursing staff advised the Respondent of patient L. S.'s condition as reflected in Finding 52, above. In response, the Respondent provided the following telephone order for the patient: Lomotil three times a day, discontinue betadine to the little finger, and obtain a splint for right hand. Respondent did not order a C.B.C. or a chest x-ray at that point, even though both tests would have been appropriate. Additionally, Respondent did not go see the patient when advised of the patient's condition. Regardless whether the nursing staff had placed a "STAT" call, a reasonably prudent physician, after being advised of the condition of patient L. S., would have either gone in to see the patient or promptly ordered a C.B.C. and a chest x-ray. The vital signs and physical examination results reflect a very sick individual. The decreased breath sounds indicated that pneumonia or a pneumonic process had begun in the patient's lungs. Additionally, the diarrhea had advanced to the stage where the patient was incontinent. Respondent should have either seen the patient (something he had decided not to do up to this date) or should have ordered a chest x-ray and C.B.C. The nurses' notes for 8:00 p.m. on May 29, 1986, reflect that the patient L. S. was given Actifed by mouth for congestion, consistent with Dr. Hayward's orders given on May 21, 1986, and not changed. Given the presence of a pneumonic process in L. S.'s lungs, Actifed was inappropriate. See Finding 36, above. On May 30, 1986, it was noted prior to 9:30 a.m. that the patient L. S. was growing increasingly weak and was coughing up a greenish yellow mucous. The patient's lungs were noisy and appeared to be filled with fluid. The nursing staff had begun attempts to contact Respondent, probably beginning as early as 7:30 a.m. At 9:30 a.m., the nurses' notes reflect that the nursing staff had attempted to call Respondent several times and had paged Respondent at the hospital but had received no return telephone call. At 10:00 a.m., Gold Plus called the nursing staff at Druid Hills. Mr. Ivanicki had contacted Gold Plus to complain about Respondent's failure to transfer L. S. to the hospital for treatment. Gold Plus, after talking to the nursing staff, was also to attempt to contact Respondent. At 10:15 a.m., on May 30, 1986, over two hours after the first telephone calls, Respondent finally called Druid Hills and ordered that the patient be sent to the emergency room at Clearwater Community Hospital. Confusion occurred over the transfer of the patient to the hospital, due to no fault of Respondent. As a result of this delay, the patient was not transported to Clearwater Community Hospital until about 11:45 a.m., on May 30, 1986. However, before the actual transport could occur, the patient partially "coded" or had a cardiopulmonary arrest. At the time of the arrival of patient L. S. at Clearwater Community Hospital, the patient had a cardiopulmonary arrest and resuscitation techniques were successfully used. A chest x-ray performed showed haziness in the lungs which was suspicious for aspiration pneumonia. On June 14, 1986, patient L. S. died at Clearwater Community Hospital. The patient had been in a coma since arrival at the hospital. The immediate cause of death was listed as cardiogenic shock. Respondent's final diagnoses were: (1) cardiopulmonary arrest; (2) aspiration pneumonitis; (3) possible acute myocardial infarction; (4) thrombocytopenia; (5) cardiac arrhythmia with frequent PVCs; (6) hyperkalemia; (7) status post-recent CVA; and (8) severe post-anoxic encephalopathy. It was the practice of nursing personnel at Druid Hills to identify calls to physicians as "STAT" calls when an emergency or critical situation existed. With a STAT call, an immediate response was necessary. Nursing staff at Druid Hills did not consider patient L. S.'s condition to be an emergency or critical until May 30, 1986. The calls to Respondent were not identified as "STAT" calls. It would have been inappropriate for the Respondent to delay his response to telephone calls made by Druid Hills nursing staff pertaining to patient L. S. on May 29 and 30, 1986. A reasonably prudent physician, acting under similar conditions and circumstances, would have returned such telephone calls within an hour unless other emergencies existed. But it was not proved that the Respondent received and delayed his response. The Respondent generally was good about returning telephone calls and was experiencing difficulty both with the Gold Plus switchboard and with his answering service. The Respondent's response to those calls may well have been reasonable under the circumstances. In contrast, the calls on May 20, 22 and 27 were not of any emergency nature and did not require priority response. It was not proved that the Respondent's response to' those calls were delayed unreasonably. (Gold Plus had a policy of not permitting a leave of absence, the subject of the May 27, 1986, call.) Except to the extent that the Respondent's course of treatment was inappropriate, as noted above, the Respondent's records (including the hospital and nursing home records) justify his course of treatment of L. S. Respondent, in his treatment of patient L. S., failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances, as a result of the deficiencies and omissions noted above.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medicine: (1) hold the Respondent, Edward C. Hayward, M.D., guilty of violating Section 458.331(t), Florida Statutes (1985)(Count One of the Administrative Complaint); (2) dismiss the charges in Count Two of the Administrative Complaint (alleged failure to maintain adequate medical records); (3) place the Respondent on probation for two years under such terms as the Board of Medicine deems appropriate; and (4) fine the Respondent $1,000.00. RECOMMENDED this 13th day of April, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 13th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2568 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact. 1.-11. Accepted and incorporated. Proposed findings regarding the milk of magnesia order, rejected. It was part of routine orders. The patient never developed constipation so it never was administered. The proposed finding is irrelevant and unnecessary. Otherwise, accepted and incorporated. Accepted and incorporated. 14.-17. Rejected as contrary to facts found. The paragraphs reciting the tests the Respondent had done are accepted and incorporated; the rest is rejected as contrary to facts found. First three sentences, accepted and incorporated; the rest is rejected as contrary to facts found. Accepted and incorporated. Rejected as contrary to facts found. Nurse's description of the patient as "acutely ill" is subordinate to facts found. It is not a diagnosis. Otherwise, accepted and incorporated. 23.-25. Accepted and incorporated. 26. Except that the use of the word "pus" is rejected as inaccurate, accepted and incorporated. 27.-36. Accepted and incorporated to the extent necessary and not subordinate. Accepted but subordinate to facts found. Accepted and incorporated to the extent necessary and not subordinate. Rejected that the Respondent made no attempt to determine the cause of the patient's illness as contrary to facts found; the rest is accepted and incorporated. Rejected, as contrary to facts found, that Actifed was "inappropriate." What was inappropriate was the failure to properly evaluate whether the patient had chest congestion. 41.-44. Accepted and incorporated to the extent necessary and not cumulative. 45. Rejected as contrary to facts found. 46.-57. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. 61.-68. Accepted and incorporated. Rejected as contrary to facts found. Accepted but subordinate to facts found. Rejected as contrary to facts found. Accepted and incorporated. Respondent's Proposed Findings Of Fact. 1.-7. Accepted and, to the extent necessary, incorporated. Penultimate sentence rejected as contrary to the greater weight of the evidence; the rest is accepted and incorporated. Accepted, as far as it goes, and incorporated. However, the proposed findings ignore the productive cough that was observed throughout the period May 20-29, 1986, and which was reported to the Respondent on May 21 and 29, 1986. Third sentence, to the extent it implies it states all the symptoms, rejected as contrary to facts found. Fourth sentence rejected as contrary to facts found--temperature was somewhat elevated and both pulse and respirations were up for a patient in bed rest. Sixth sentence rejected as contrary to facts found--the patient was awake at intervals during the night. Rest is accepted and incorporated with some additional facts. First sentence rejected as contrary to facts found--the patient's condition began to worsen seriously on May 29, 1986, and continued to worsen through the night. The nurses were alarmed at his condition on the morning of May 30, 1986, and began trying to call the Respondent at approximately 7:30 a.m. Third sentence, rejected as not proven when the Respondent received the message that the nursing staff was trying to contact him. The rest is accepted and incorporated. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard W. Payant, Esquire 2349 Sunset Point Road Clearwater, Florida 34625 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case are whether Respondent violated section 458.331(1)(m), Florida Statutes, by failing to keep legible medical records that justify the course of treatment of a patient, as set forth in the Second Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43, chapter 456, and chapter 458, Florida Statutes (2015). The Board of Medicine is charged with final agency action with respect to physicians licensed pursuant to chapter 458. Dr. Velilla is a licensed physician in the state of Florida, having been issued license number ME 98818. Dr. Velilla's address of record is 12709 Miramar Parkway Miramar, Florida 33027. Dr. Velilla has been a medical director at Evolution MD since the summer of 2010. Dr. Velilla was licensed to practice medicine in the state of Florida during all times relevant to Petitioner's Second Amended Administrative Complaint. Dr. Velilla is Board-certified in internal medicine by the American Board of Internal Medicine. On or about December 29, 2010, Patient C.A. consulted with Dr. Velilla regarding possible abdominal liposuction and fat transfer to the gluteal area. These are cosmetic surgery procedures, undertaken with the object of enhancing the patient's appearance, and are purely elective. On or about February 10, 2011, Dr. Velilla performed an evaluation of Patient C.A. and ordered routine pre-operative laboratory studies. The laboratory report prepared by First Quality Laboratory indicated readings within normal limits for blood urea nitrogen (BUN) at 19.8 and creatinine serum at .7, but an abnormally high BUN/creatinine ratio reading of 30.43. It showed an abnormally high globulin reading at 3.40, an abnormally low INR reading of .79, an abnormally low MCH reading of 25.2, and an abnormally low MCHC reading of 30.7. On or about February 15, 2011, Dr. Velilla reviewed Patient C.A.'s pre-operative laboratory report results. He placed a checkmark next to the high BUN/creatinine reading and the low INR reading. He wrote "Rev." with the date and signed his name on each page. Dr. Velilla testified that he performed a glomerular filtration rate test, a calculation used to check on the functioning of the kidneys, and the result indicated normal renal function. He testified that a BUN/creatinine ratio outside of the normal range could be caused by several factors, and that after his assessment, the reading was not of concern to him in proceeding to surgery. Dr. Velilla did not make any notation on Patient C.A.'s medical records to indicate how or why he concluded that the abnormal BUN/creatinine ratio reading was not of concern. On February 24, 2011, Patient C.A. filled out a "General Consent" form. Patient C.A. agreed to disclose her medical history, authorized the release of medical records for certain purposes, agreed to use skin care products as directed, and acknowledged possible side effects from the use of skin care products. The form also stated, "I understand that Cesar Velilla, M.D. P.A. services generally consist of a series of treatment [sic] to achieve maximum benefit, and this consent shall apply to all services rendered to me by Cesar Velilla, M.D., P.A., including ongoing or intermittent treatments." On February 24, 2011, Patient C.A. filled out a "Medical History" form. Patient C.A. indicated she was not under the care of a dermatologist, did not have a history of erythema ab igne, was not on any mood-altering or anti-depression medication, had never used Accutane, had never had laser hair removal, had no recent tanning or sun exposure, had no thick or raised scars from cuts or burns, and had never had local anesthesia with lidocaine. The form did not ask for information about any prior abdominal procedures, previous liposuction treatments, multiple pregnancies, or abdominal hernias. On February 24, 2011, Patient C.A. signed a "Consent for Laser-Assisted Lipolysis Procedure SLIM LIPOSCULPT." The form did not include consent for fat transfer to the gluteal area or describe risks or possible complications of that procedure. Patient C.A. also signed a "Consent for Local Aneshesia [sic]" form. As Dr. Obi testified, the risks from a fat transfer procedure are generally the same as those of the liposuction procedure; although with a fat transfer, you have additional potential for fat embolism. On or about February 24, 2011, Dr. Velilla performed liposuction of the abdomen and thighs with fat transfer to the gluteal area on Patient C.A. at Evolution MD. Patient C.A.'s liposuction was not the "Slim Liposculpt" laser-assisted procedure. The testimony was clear that the "Slim Liposculpt" procedure would use a laser to melt the fat before liposuction, which could not be done on Patient C.A. because the fat was to be transferred. There was testimony that a laser could be used to improve skin retraction, however. As Dr. Velilla testified, Patient C.A. had requested the fat transfer in addition to the liposuction prior to the procedure. Dr. Velilla discussed the risks of both the liposuction and the fat transfer with Patient C.A., and she consented to have the procedure done. As Dr. Velilla testified, this consent was later documented on the operative report prepared sometime after the surgery and dated February 24, 2011, the date of the surgery. Dr. Velilla's testimony was supplemented by the operative report, which stated in pertinent part: The patient requested liposuction with fat transfer and understood and accepted risks including but not exclusive to bleeding, infection, anesthesia, scarring, pain, waves, bumps, ripples, contour deformities, numbness, skin staining, fluid collections, non- retraction of the skin, deep venous thrombosis, fat embolism, pulmonary embolism, death, necrotizing fasciitis, damage to surrounding structures, need for revision surgery, poor aesthetic result and other unexpected occurrences. No guarantees were given or implied and the patient had no further questions prior to the procedure. Other options including not having surgery were discussed and dismissed by the patient. The operative report adequately documented Patient C.A.'s earlier oral informed consent for liposuction with fat transfer. Patient C.A. did not execute a written informed consent for the fat transfer prior to the procedure. Dr. Velilla also noted in the operative report that the "patient physical examination and pre-operative blood work were within normal limits." Neither the operative report nor any other documentation indicated whether a complete physical examination or a focused physical examination was given, or what that examination consisted of. Patient C.A. was scheduled for a second liposuction procedure on her arms on February 26, 2011. It was decided to defer the procedure on her arms to this later date in order to keep the amount of lidocaine at a safe level during the initial procedure. On or about February 26, 2011, Patient C.A. presented to Evolution MD with complaints of nausea and mild pain. Dr. Velilla was not at the Evolution MD office. Mild pain is to be expected on the second day after a fat transfer procedure, and nausea can be anticipated in some patients who are taking opiods, as had been prescribed for Patient C.A. There was insufficient competent evidence in the record to support a finding that Patient C.A.'s symptoms were unusual or that Dr. Velilla was ever informed of more serious symptoms in Patient C.A. that day. Dr. Velilla spoke by telephone with an Evolution MD staff member about Patient C.A.'s symptoms and instructed the staff member to ask Patient C.A. to wait for his arrival at the office. A "Progress Note" signed on February 26, 2011, by Ms. Amanda Santiago, of Dr. Velilla's office, indicated that Patient C.A. said the pain and nausea were "due to the Vicodin." The note indicates that Dr. Velilla was called, that he stated he might stop the Vicodin and start Patient C.A. on Advil or Tylenol for pain, and that he asked that Patient C.A. be prepared for surgery. The note does not indicate that Dr. Velilla directed that Patient C.A.'s vital signs be taken, or that they were taken. The note states that Patient C.A. decided not to have the procedure on her arms done and that Dr. Velilla was again called. The note indicates that he asked the staff to take pictures of Patient C.A. and ask her to wait for him to arrive. Dr. Velilla did not order Evolution MD staff to take Patient C.A.'s vital signs. Her vital signs were not recorded by Evolution MD staff on February 26, 2011. Contrary to Dr. Velilla's request, Patient C.A. left Evolution MD on February 26, 2011, prior to Dr. Velilla's arrival at the office, and Evolution MD staff were unable to contact her. On or about February 27, 2011, Patient C.A. presented to Coral Springs Medical Center where she was admitted with a diagnosis of severe dehydration, intravascular volume depletion, diarrhea, nausea, and vomiting. Subsequently, Patient C.A. was admitted to the intensive care unit. Patient C.A. remained hospitalized until March 31, 2011. Standards and Ultimate Facts Dr. Obi is a surgeon specializing in plastic surgery. He does not conduct laser-assisted liposuction, but performs what is known as "wet" or "super wet" liposuction, as was performed by Dr. Velilla in this case. He has been a Diplomate of the American Board of Plastic Surgery since 1982. Dr. Obi reviewed Patient C.A.'s medical records from Evolution MD, other related records, and the Second Amended Administrative Complaint. Taken as a whole, Dr. Obi's testimony with respect to the medical history documented for Patient C.A. was not clear and convincing. He testified that Patient C.A. was undergoing a significant operative procedure and that it involved multiple anatomic areas. He also noted that the history did not include information as to whether Patient C.A. had prior abdominal surgical procedures, earlier liposuction, multiple pregnancies, or abdominal hernias. He testified that this information could indicate increased risks of injury and that this relevant history must be documented. Dr. Obi stated that in his opinion the patient history did not meet the minimum standards of the medical records rule. On the other hand, Dr. Obi seemed to have only a partial understanding of what the medical records rule required, and he had no opinion on whether the patient history justified the course of treatment of Patient C.A.--the actual statutory standard that Dr. Velilla was charged with violating in the Second Amended Administrative Complaint: Q. What does the rule say? A: What does the rule say? The medical record rule I believe requires – I can't tell you verbatim what it says. It requires adequate documentation so that in the event that the care of a patient has to be transferred to another healthcare professional the documentation is adequate that the patient, that the professional could immediately step in and take over. Q: Okay. You believe that's part of either the statute or the rule enacted by the Board of Medicine? A: If the Board of Medicine is the group responsible for the medical record rule, then I would say yes. Q: Okay. Have you reviewed what has been alleged in the amended administrative complaint, or second amended administrative complaint, as to the statutory provision for medical record adequacy? A: The statutory, I'm not sure that I have. * * * Q: And do you believe that the records fail to justify the course of treatment of the patient with those history findings? A: That's not what I said. I didn't say it failed to justify. What I said is it wasn't complete. Q: Okay, do you have an opinion as to whether the records fail to justify the course of treatment of the patient? A: No. Q: You don't have an opinion. Okay, thank you. In contrast, Dr. Soler testified that in his opinion the patient history that was documented as part of Patient C.A.'s medical records did justify her course of treatment. With respect to the physical examination, Dr. Obi noted that there was only a single line in the operative record stating that the physical examination was within normal limits. He noted that the documentation did not indicate what had been examined and did not record any specific findings or results of any examination that was conducted. However, he never offered an opinion that the record of the physical examination failed to justify the course of treatment of Patient C.A. Dr. Soler testified that in his opinion, the record of the physical examination did justify the course of treatment of the patient. Petitioner did not show by clear and convincing evidence that the documentation of Patient C.A.'s medical history and physical examination failed to justify her course of treatment. Dr. Obi testified that the medical records should have contained more evaluation or explanation of the abnormal laboratory report results: Q: And so was the check mark, when coupled with that note in the pre op, or in the operative report, sufficient documentation of Dr. Velilla's evaluation of the of the patient's pre-operative lab results? A: In my opinion, no. Q: And what do you base that on? A: If you have an abnormal result, I think it is incumbent on you – it – depending on what the abnormality is, and depending on what your interpretation of that abnormality is, it's incumbent to explain it. Sometimes you need to repeat the tests. Sometimes it may be perfectly within normal limits, but on the laboratory sheet, if it says that it's high, or out of the range of normal, I think other than just check mark, I think you just acknowledge what your thoughts are. Q: And do you remember if there was anything abnormal in Patient C.A.'s pre-operative laboratory results? A: There was one area that I commented on. That was the BUN-creatinine ratio. Q: And what is the BUN-creatinine ratio? A: It's just a ratio of some parameters dealing with kidney function. Q: Okay, and what does that lab result tell you about a patient, if anything? A: Well, you know, it can call your attention to the area, I mean, it can tell you, you know, that the patient has some renal issues. It can tell you that the patient is, you know, potentially dehydrated, it can tell you that the patient, you know, is within normal. But if the values are – if one value is high and the other one is low, it may give you a, a high reading. And that's understandable, but all you need to do is document that. It was Dr. Obi's opinion that the medical records failed to contain a sufficient evaluation or explanation of the abnormal BUN/creatinine ratio laboratory result. He acknowledged that the abnormal result was not necessarily indicative of a renal problem. However, Dr. Obi also testified: Q: Okay. Do you have an opinion as to whether those records are adequate to justify the course of treatment of the patient? A: The failure to document the thought process on this ratio would, in and of itself, not prevent or preclude the operative procedure from being done, if that's your question. At best, Dr. Obi's testimony was thus ambiguous as to whether or not failure to include an explanation of the abnormal laboratory result failed to justify the course of treatment of Patient C.A. Dr. Soler testified that no other documentation or chart entry was required to address the lab report value in order to justify proceeding with the surgery. Dr. Sandler testified that the BUN/creatinine ratio was a renal-related test, but does not itself indicate kidney malfunction. Dr. Sandler also testified that in his opinion, no other documentation was needed prior to proceeding with the surgical procedure. The Department did not clearly and convincingly show that the documentation in the medical records relating to abnormal laboratory results failed to justify the course of treatment of Patient C.A. Dr. Obi testified that Dr. Velilla had a duty to order the taking of Patient C.A.'s vital signs since he was not yet in the office when she returned on February 26, 2011, the date the second liposuction had been scheduled. He testified that if the medical records rule "requires doing what's appropriate at each visit," then Patient C.A.'s records did not meet the requirements of that rule. He testified that if Patient C.A. was an "outlier" in that her symptoms were uncommon, the standard of care required that Patient C.A.'s vital signs be taken. Dr. Obi admitted that there was no documentation in the medical records to suggest that Dr. Velilla had ordered the staff at Evolution MD to take Patient C.A.'s vital signs, but he testified that the order should have been given and that it should have been documented. Dr. Obi testified that there was no written documentation of an informed consent for the fat transfer and that the consent for the "Slim Liposculpt" procedure was consent for a procedure that was not done. Again, Dr. Obi seemed unfamiliar with the specific requirements of the medical records rule: Q: And is, is the –is a written documentation of the fat transfer required by the medical record rule in this case? A: In terms of the actual requirement, it would be my opinion that it should be required. Now, I can't say if it says that for every procedure, every surgical procedure, every invasive procedure, that a written consent must be documented; because obviously, you now, the patient consented. It's implied that the patient consented because she showed up for the procedure. Dr. Obi testified that he was aware that the operative report contained statements that Patient C.A. had been informed of the risks of the fat transfer procedure and that she had specifically consented. He admitted he was unsure as to "which board, or organization, or outfit" requires a written informed consent. Aggravating and Mitigating Factors No evidence was introduced to show that Dr. Velilla has had any prior discipline imposed. There was no evidence that Dr. Velilla was under any legal restraints in February 2011. It was not shown that Dr. Velilla received any special pecuniary benefit or self-gain from his actions in February 2011. It was not shown that the actions of Dr. Velilla in this case involved any trade or sale of controlled substances. On May 17, 2014, Dr. Velilla received a certificate showing completion of an FMA educational activity conducted in Jacksonville, Florida, entitled "Quality Medical Record Keeping for Health Care Professionals."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the Second Amended Administrative Complaint against the professional license of Dr. Cesar Augusto Velilla. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of June, 2016.
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m) and (t) of Section 458.331(1), Florida Statutes, by failing to keep written medical records justifying the course of treatment, and by failing to practice medicine with the appropriate level of care, skill, and treatment.
Findings Of Fact The Respondent, David Zufi, M.D., is and has been at all times material to this proceeding a licensed physician in the State of Florida, having been issued license number ME 0014856. The Respondent's last known address is 641 Reinaute Avenue, Coral Gables, Florida 33156-2345. The Respondent was and is a Board Certified plastic surgeon certified by the American Board of Plastic and Reconstructive Surgery since 1976. At all times material to this case, Dr. Ricardo Samitier-Cardet 1/ was the primary care physician or the attending physician for the Patient C.R. The Patient C.R. had sought out Dr. Samitier for the purpose of having several cosmetic surgical procedures performed; procedures which for a patient with a normal health history would have been minor cosmetic procedures. At all times material to this case, Dr. Samitier was a licensed practicing physician in the State of Florida. Dr. Samitier has never been Board Certified in any area of medicine. Dr. Samitier self-designated himself as a "cosmetic surgeon." At all times material to this case, the Respondent was unaware of any pending charges against Dr. Samitier. 2/ Prior to Friday, May 1, 1992, the Respondent was acquainted only marginally with Dr. Samitier. For a period of six months the Respondent had in the past rented office space one day a week to Dr. Samitier for consultation purposes. The Respondent had also spoken to Dr. Samitier a few times at meetings of the Coral Gables Hospital staff. The Respondent and Dr. Samitier had never shared any type of professional relationship with regard to the medical care of any patient. There were no referrals of patients between the two doctors, nor had the Respondent ever acted as a consultant in any capacity for Dr. Samitier prior to Friday, May 1, 1992. The Respondent had never visited Dr. Samitier's office prior to Friday, May 1, 1992. Dr. Samitier's medical records for the Patient C.R. include the following historical details. The patient had had an aortic valve replacement approximately twenty years earlier and had no history of angina. The patient was taking Coumadin, 5 mg. daily. The patient had no history of bleeding or hematomas and had normal erections. On Friday, May 1, 1992, at approximately 9:00 p.m., Patient C.R. underwent a Suction Assisted Lipectomy to the face, neck, and trunk, plus Circumferential Autologous Penile Engorgement (CAPE), which was performed by Dr. Samitier at Dr. Samitier's office. At the time of the foregoing surgical procedure Patient C.R. was a 47-year-old male who had previously undergone two open heart procedures, had a permanent pacemaker inserted, had a prosthetic aortic valve, and had been on Coumadin therapy for approximately twenty years. 3/ Coumadin is an anticoagulant drug which is taken to prolong a patient's blood clotting time. A patient maintained on long-term Coumadin therapy is at increased risk for clotting when the Coumadin is discontinued. The Patient C.R.'s long-term Coumadin anticoagulation therapy was made necessary by the fact that he had a prosthetic aortic valve. Before performing surgery on a patient with a history of cardiac problems such as those presented by the Patient C.R., a surgeon should obtain a cardiac clearance by means of consultation with a cardiologist. Dr. Samitier did not obtain a cardiology consultation prior to the surgery on the Patient C.R. 4/ A Prothrombin Time Test is a test which is utilized to evaluate a patient's blood clotting time. A Prothrombin Time Test should have been performed on the Patient C.R. immediately before the surgery on May 1, 1992. The test was not performed at that time. 5/ A Prothrombin Time Test was performed on the Patient C.R. about two weeks prior to the surgery. The Patient C.R. was a high risk patient who should never have been considered a candidate for elective surgery due to his history of cardiac problems, his prosthetic aortic valve, and his long-term Coumadin therapy. 6/ The two primary risks for a patient like Patient C.R. are that if his coagulation rate is substantially slower than normal the patient is at risk of uncontrollable bleeding at the surgery sites and if his coagulation rate becomes normal or slower than normal he is at risk of clot formation on his prosthetic aortic valve. Either condition can produce serious consequences, even fatality. On Friday, May 1, 1992, at approximately 11:30 p.m., which was approximately two hours after completion of the surgical procedure, the Patient C.R. began bleeding from his right cheek. It was a slow venous oozing bleed. The patient was taken back to the operating room where Dr. Samitier attempted without success to stop the bleeding with digital pressure. At approximately 2:30 a.m. on Saturday, May 2, 1992, by which time the bleeding from the patient's right cheek had persisted for approximately three hours, Dr. Samitier placed an emergency telephone call to the Respondent to request assistance in controlling the bleeding from a right buccal stab incision. The Respondent discussed the matter briefly with Dr. Samitier and told Dr. Samitier to try to control it with pressure. A few minutes later the Respondent became concerned that Dr. Samitier might need more assistance and called him back. During the second telephone call Dr. Samitier made it clear that he would feel more comfortable if the Respondent came to his office. The Respondent went to Dr. Samitier's office, arriving at approximately 3:00 a.m. on Saturday, May 2, 1992. Upon arrival, the Respondent discussed the situation with Dr. Samitier, obtained patient history information from Dr. Samitier, examined the patient, and promptly applied digital pressure with an adrenaline pad. The Respondent and Dr. Samitier alternated in the application of digital pressure and the bleeding stopped in approximately twenty minutes. There is no evidence that the patient was bleeding from any of the other surgical sites. While the Respondent was at Dr. Samitier's office, the Respondent did not review Dr. Samitier's medical chart on the Patient C.R. because he did not feel it was necessary to do so. During the entire time that the Respondent was examining, evaluating, and treating the Patient C.R., Dr. Samitier was right beside the Respondent providing the Respondent with information and answering the Respondent's questions about the patient. Under these circumstances, especially in view of the Respondent's limited role in the care of the patient, it was reasonable for the Respondent to rely on the oral information provided by Dr. Samitier and it was not necessary for the Respondent to review the written chart. 7/ Dr. Samitier advised the Respondent that the Patient C.R. had been on maintenance Coumadin and that the Coumadin had been discontinued three days prior to the surgery. Dr. Samitier also advised the Respondent that no pre- operative Prothrombin Time Test had been performed immediately prior to the surgery, and that the Patient C.R. had a pacemaker. At the time the Respondent was applying pressure to stop the oozing bleed, the Respondent was unable to communicate with the Patient C.R. because the patient was sedated with Nubain, a synthetic pain killer. Dr. Samitier explained to the Respondent that he had used Nubain during the surgical procedure and had also administered Nubain post-operatively when the patient had complained of pain during the course of Dr. Samitier's efforts to control the cheek bleeding prior to calling the Respondent. The Respondent's examination of the Patient C.R. included an examination of all of the surgical wounds inflicted during the procedures performed by Dr. Samitier, which included the cheeks, the portion of the neck immediately under the chin, and the lower abdominal area. No significant bruising or swelling was noted and no bleeding was detected at any of the incision sites other than the right buccal site which had occasioned Dr. Samitier's call to the Respondent. The Respondent looked for hematomas and ecchymosis and discoloration. There was no evidence that the patient had any generalized bleeding or hematoma at the time the Respondent was examining or treating him. During the entire time the Respondent was at Dr. Samitier's office in the early morning hours of Saturday, May 2, 1992, the Patient C.R. was connected to various monitors, all of which gave readings within normal ranges. The patient's blood pressure and pulse rate were both checked and found to be within normal ranges. While the Respondent was at Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent discussed with Dr. Samitier the fact that the most prudent course of treatment for the Patient C.R. would be to hospitalize the patient. Dr. Samitier agreed that hospitalization would be the most prudent course, but then told the Respondent that he could not hospitalize the patient because the patient had told Dr. Samitier that he would not, under any circumstances, agree to be admitted to a hospital. Dr. Samitier also told the Respondent that the patient had said he did not want the nature of his operation to be disclosed to his wife or family members. During this discussion Dr. Samitier also disclosed to the Respondent that Dr. Samitier did not have admitting privileges at any hospital. In view of Dr. Samitier's reluctance to hospitalize the patient at that time, the Respondent told Dr. Samitier that Dr. Samitier should continue to monitor the patient and observe him clinically and if the vital signs or clinical observations demonstrated any deterioration of the patient's condition, or if the patient changed his mind about hospitalization, Dr. Samitier should call the Respondent and the Respondent would arrange to have the patient admitted into Coral Gables Hospital where the Respondent had admitting privileges. The Respondent also discussed with Dr. Samitier the need for a consultation with a cardiologist or hematologist in the event the patient were to be hospitalized. The Respondent emphasized the need for such a consultation before any action was taken to modify the patient's coagulation status. The Respondent's suggestions to Dr. Samitier regarding the future care and management of the Patient C.R. were appropriate under the circumstances. During the visit to Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent did not recommend to Dr. Samitier that he have a Prothrombin Time Test performed on the Patient C.R. Although such a test might have been useful in the management of the patient's condition if the patient had been hospitalized, it is doubtful that the test would have served any useful purpose while the patient remained at Dr. Samitier's office. Under the circumstances, the failure to recommend a Prothrombin Time Test was not a departure from acceptable standards of medical practice. After the bleeding stopped, the Respondent remained at Dr. Samitier's office for at least two hours waiting to see if there was any recurrence of the bleeding. During that time period the Respondent examined the Patient C.R. several times to monitor his status and check for any bleeding. There was no recurrence of the bleeding from the patient's right cheek, nor was there any visible bleeding from any of the other surgical wounds. Sometime between 5:00 a.m. and 6:00 a.m. on Saturday, May 2, 1992, the Respondent left Dr. Samitier's office and returned to the Respondent's home. Dr. Samitier remained at his office to monitor and otherwise care for the Patient C.R. Dr. Samitier never contacted the Respondent to request that the Respondent arrange for the hospitalization of the Patient C.R. At approximately noon on Saturday, May 2, 1992, the Respondent was driving in his car a few blocks from Dr. Samitier's office. Because he was near Dr. Samitier's office, the Respondent decided to stop by Dr. Samitier's office to see how the patient was doing instead of making a telephone call later. The Respondent arrived at Dr. Samitier's office unannounced and inquired as to the status of Patient C.R. Dr. Samitier told the Respondent that the patient was doing fine, that his vital signs remained stable, that he was up and about, that he had taken oral sustenance, and that he had passed urine. Dr. Samitier also told the Respondent that the Respondent did not need to see the patient. After the foregoing discussion, Dr. Samitier invited the Respondent to observe a penile engorgement procedure Dr. Samitier was getting ready to perform on another patient. While walking with Dr. Samitier to the operating room, the Respondent had a brief glimpse of the Patient C.R. sitting up in bed in a small room. The Respondent continued on with Dr. Samitier and watched Dr. Samitier perform a penile engorgement procedure on another patient. After watching that procedure, the Respondent left Dr. Samitier's office. During the noon visit to Dr. Samitier's office on Saturday, May 2, 1992, the Respondent did not examine or treat the Patient C.R. On Sunday morning, May 3, 1992, at approximately 1:10 a.m., the Respondent received a telephone call from Dr. Samitier's office advising him that the Patient C.R. had gone into cardiac arrest. The Respondent went to Dr. Samitier's office. When the Respondent arrived at Dr. Samitier's office, the Patient C.R. was already being treated by emergency medical technicians. The emergency medical technicians told the Respondent that his services or assistance in the care of the patient were not needed and that they were going to transport the patient to Mercy Hospital. The emergency medical technicians took the Patient C.R. to Mercy Hospital where he was pronounced dead in the Emergency Room. The Respondent did not examine or treat the Patient C.R. during the early morning hours of Sunday, May 3, 1992. Later that same day an autopsy was performed on the body of the Patient C.R. The Respondent and Dr. Samitier attended the autopsy. The medical examiner did not come to any conclusion as to the cause of the patient's death. The Respondent did not document any of his contact with the patient C.R. in Dr. Samitier's office chart because the Respondent did not think it was necessary for him to do so. The Respondent thought it was sufficient for him to make his own record of what he did in the form of a consultation report. In the normal course of events he would have written such a report the following Monday when he got to his office, which seems to be a common practice of physicians who perform consultation services away from their own offices on weekends. There is no clear and convincing evidence that under the circumstances of this case the Respondent was required to write anything in Dr. Samitier's medical records concerning the Patient C.R. There is no established practice in this regard because it is very rare for a physician to perform consultation services in the office of another physician. Further, although consultation reports are virtually always prepared following formal consultations, when a consulting physician is called in for a very limited purpose, performs his services in the presence of the primary care physician or the attending physician, and orally advises the primary care physician or the attending physician what he has discovered or done, the consulting physician often does not prepare any written report at all, but leaves it to the primary care physician or the attending physician to memorialize what was discovered or done in the patient's chart. During the late afternoon or early evening of May 3, 1994, after the autopsy of the Patient C.R., the Respondent wrote a historical recapitulation of his involvement with the care and treatment of the Patient C.R. The record prepared by the Respondent on May 3, 1992, documents the Respondent's involvement in the care and treatment of the Patient C.R. The record demonstrates the Respondent's observations, recommendations, treatment, and the reasons why the Respondent did not get involved in all aspects of the patient's care. The record prepared by the Respondent on Sunday, May 3, 1992, was sufficiently timely to comply with applicable standards of medical care and record-keeping. The information contained in that record was sufficient to comply with applicable standards of medical care and record-keeping. The Respondent was called by Dr. Samitier for the limited function of stopping an oozing venous bleeding from an incision wound in the right cheek of the Patient C.R. The Respondent's consultation in this regard was of an informal nature and was limited in scope. His treatment of stopping the bleeding with direct pressure with an adrenalin pad was an appropriate course of treatment for the condition he was called to resolve. The Respondent was not at any time the primary care physician or attending physician for the Patient C.R.; that responsibility was at all material times the responsibility of Dr. Samitier. By assisting Dr. Samitier to stop the bleeding from one incision wound, the Respondent did not undertake, nor did he become responsible for, the overall care and management of the patient. Inasmuch as the nature of the consultation the Respondent was asked to perform was limited in scope, the Respondent's examination of the Patient C.R. was sufficient. Under the circumstances of this case it was not necessary for the Respondent to perform a comprehensive physical examination. The Respondent's authorized role in the care of the Patient C.R. was complete when he departed between 5:00 and 6:00 a.m. on the morning of Saturday, May 2, 1992. He had performed all he had been authorized to perform and, although he had offered to do more (such as arrange for the patient to be hospitalized), his offer of further assistance was rejected by Dr. Samitier. When the Respondent paid his courtesy visit to Dr. Samitier's office at about noon on Saturday, May 2, 1992, the Respondent did not have permission or authority from anyone to examine or treat the Patient C.R. At that time Dr. Samitier expressly told the Respondent that the Respondent did not need to see the patient. Under those circumstances, the Respondent had neither authority nor obligation to examine the Patient C.R. at the time of his noon visit on Saturday, May 2, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 9th day of January, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1995.
The Issue The issue for determination in this case is whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Lehel Kadosa, M.D., is, and at all material times was, a physician licensed to practice medicine in Florida, having been issued license no. ME 0041277. At all relevant times, Respondent was the owner and operator of the Tampa Bay Back Institute, 7208 North Sterling Avenue, Tampa, Florida. The business stationery of the Tampa Bay Back Institute stated that Respondent is "Board Certified" in "Neurological & Orthopedic Surgery," "Pain Management," and "Neurothermography." Respondent is in fact not board-certified in neurological or orthopedic surgery by the American Board of Neurological Surgery or the American Board of Orthopedic Surgery. The American Board of Medical Specialties does not recognize a board of "pain management" or "neurothermography." Thus, no physician could claim to be "board certified" in those claimed specialties. Patient A.M. presented to Respondent on July 3, 1991, with subjective complaints of extreme pain in her neck, right shoulder, right arm, lower back, and right leg. Patient A.M. testified that she had suffered back and neck pain for 26 years, since she had a back spasm requiring hospitalization. She testified that due to a boating accident and a fall on the sidewalk, the pain had become more acute in the two years prior to her coming to Respondent. She testified that she had gone to at least five doctors over the years for her neck and back pain, but nothing they did offered her any lasting relief. Patient A.M. testified that she was at her "wit's end" when she called to make an appointment with Respondent. She needed something done then and there to help her problem, and was willing to do whatever was necessary to obtain relief for her back. Respondent was not seeing patients the week of July 1, 1991, because he was planning to leave for a visit to his native Hungary, and because he was overseeing renovations to his offices. However, Patient A.M. appeared to be in such severe pain and so desperate for relief that Respondent agreed to see her on July 3. On June 30, 1991, the Tampa Bay Back Institute had run an advertisement in the Tampa Tribune, touting its expertise in "non- surgical treatment of back pain, neck pain & headaches." The advertisement advised that immediate appointments were available and offered a "Free Initial Consultation." Respondent’s name did not appear in the advertisement. The advertisement did not contain the disclaimer language set forth in Section 455.24, Florida Statutes. The same advertisement appeared as late as the August 11, 1991, issue of the Tampa Tribune. Patient A.M. testified that she called Respondent specifically because of his newspaper advertisement, and that she knew nothing about Respondent other than the contents of the advertisement. Patient A.M. testified that the advertisement led her to expect not to be charged for the initial visit. She could not recall whether she mentioned the advertisement when she made the appointment over the telephone, or whether she brought the advertisement with her at the time of her appointment. Patient A.M. testified that she did remember making a point of telling Respondent's staff she was there as a result of the advertisement. She could not recall whether she discussed the matter directly with Respondent. Melinda Kadosa, Respondent’s daughter, testified that she was working in the office when Patient A.M. called for her first appointment. Ms. Kadosa testified that Patient A.M. never mentioned the advertisement; rather, she told Ms. Kadosa that she had heard of Respondent through other doctors and patients. Ms. Kadosa testified that the usual practice in Respondent’s office was to make a notation on the chart of any patient who mentioned the "free consultation." There was no such notation on the chart of Patient A.M. Respondent billed Patient A.M. for a "new patient comprehensive exam" in the amount of $200. Patient A.M. disputed this amount. She admitted that Respondent conducted a full physical examination, but believed that this examination should have been included as part of the "free initial consultation." There was inconclusive expert testimony as to whether the term "consultation" includes a physical examination. Dr. Joseph Uricchio testified that it depends on the context of the situation. Dr. John McCutchen testified that, in his opinion, "consultation" includes a physical examination, but conceded that there is "room for debate" on the question. The advertisement containing the questioned language was not directed at physicians but at laypersons; thus, expert testimony as to a physician's understanding of the term "consultation" is beside the point. The question is resolved by determining whether it was reasonable for Patient A.M., as a layperson of ordinary intelligence and experience, to believe that the term "free initial consultation" included the physical examination to which she admittedly consented. It is found that the term "free initial consultation" is at best ambiguous as to the services it encompasses, and that it was reasonable for Patient A.M. to expect that the "free initial consultation" would include a physical examination. Ms. Kadosa’s testimony that Patient A.M. made no mention of the advertisement is irrelevant. The advertisement itself made an unqualified offer of a "free initial consultation." There was no requirement that the prospective patient make reference to the advertisement in order to obtain the free services. Mr. Rodney Thompson, an employee of Respondent, testified that the advertisement was placed by a hired consultant, without the permission or approval of Respondent. He testified that the advertisement appeared in the Tampa Tribune three or four times, only on Sundays. Even crediting Mr. Thompson’s version of events, the analysis remains the same. Respondent was responsible for the advertising placed on behalf of his business by his paid consultant. Patient A.M. was in no position to know that Respondent had not approved the advertisement. Respondent made no effort to disclaim the advertisement. Indeed, Ms. Kadosa’s testimony indicated that Respondent honored the advertisement when patients specifically mentioned it. Prior to the initial examination, Patient A.M. filled out a "Patient’s History Form," in which she described her present complaints as "extreme pain in neck, right shoulder and arm, lower back, right leg." Patient A.M. also provided Respondent with a set of X-rays taken by one of her previous physicians. Respondent performed a physical examination on Patient A.M. of the head, ears, eyes, nose and throat, the thoracic cage, cervical spine, thoracic spine, and lumbar spine. Respondent also performed a neurological examination of Patient A.M. After performing the physical examination, Respondent ordered X-ray studies of the cervical, thoracic, and lumbosacral spine, pelvis, and right elbow. Based on the history, examination, and X-rays, Respondent recorded the following medical impressions: chronic cervical sprain/strain with myofascitis; chronic lumbosacral sprain/strain with myofascitis; spondylosis of the cervical and lumbosacral spine by X-ray studies; chronic lower back pain; right cervical radiculitis; right lumbosacral radiculitis; chronic sprain of the right elbow; bursitis of the right knee; degenerate disc disease, L5-S1; and arthritis of the sacroiliac joints. Respondent recorded that he expressly ruled out cervical reflex dystrophy of the right upper extremity. Based on the listed impressions, Respondent ordered the following tests: Cervical spine: magnetic resonance imaging ("MRI"), X-rays, and thermography. Thoracic spine: X-rays and thermogaphy. Lumbar spine: MRI, X-rays, and thermography. Right upper extremity: X-rays, thermography, nerve conduction velocity ("NCV") studies. Left upper extremity: X-rays, thermography, and NCV studies. Right lower extremity: thermography. Left lower extremity: thermography. Sacrum: X-rays. Patient A.M. testified that Respondent informed her, prior to ordering the listed tests, that they could cost thousands of dollars. She testified that at the time she didn't know what some of the tests were. Nonetheless, she agreed to undergo the tests, telling Respondent that she wanted to do "whatever was necessary in order to try to get some relief" for her back. Respondent also ordered a one-month course of physical therapy for Patient A.M. All three testifying experts agreed that the physical therapy was appropriate and well within the standard of practice. Patient A.M. did not complete the course of physical therapy. Patient A.M. only returned to Respondent’s office once, and never saw Respondent in person after the initial visit. The bulk of the relevant expert testimony concerned the timing and necessity of the listed tests. Petitioner presented the deposition testimony of John W. McCutchen, M.D., a Florida- licensed, board-certified physician in orthopedic surgery. Dr. McCutchen testified that he reviewed Respondent’s file on Patient A.M., though he did not see the actual X-rays or MRIs. From his review of the record, Dr. McCutchen saw no medical problems with the manner in which Respondent performed the physical on Patient A.M. Dr. McCutchen testified that he questioned the diagnosis of spondylosis of the cervical lumbosacral spine, because such a diagnosis requires X-ray studies and he saw no evidence in the record that X-rays had been taken. Dr. McCutchen was apparently unaware that Respondent was in possession of X-rays taken by one of A.M.’s previous physicians, and could have based his initial impression on those X-rays. Dr. McCutchen questioned Respondent’s ordering X-rays of the cervical, thoracic, and lumbar spine, because the record did not indicate the requisite complaint by Patient A.M. of mid- thoracic pain. However, Dr. McCutchen also testified that he did not have a "big objection" to the X-rays, merely that he would not have ordered them. He testified that these X-rays were within the standard of care. Dr. McCutchen testified that he had no argument with Respondent’s ordering X-rays of the lumbar spine, the pelvis, and the right elbow. Dr. McCutchen testified that the MRIs of the sacral spine and cervical spine ordered by Respondent were not indicated at this juncture of Patient A.M.’s treatment. He testified that he would first want to review the X-rays, and find that the X-rays show changes "that are severe in nature." He would also need to see the results of a neurological examination indicating "nerve root injury or disc rupture or something like that" to justify an MRI of the cervical and lumbar spine. The MRI report stated that A.M. had "loss and reversal of the normal lordotic curvature of the cervical spine, central disc herniation at the C5-6 level, disc bulges at the C3-4, 4-5 and 6-7." Dr. McCutchen testified that this report merely confirmed that there were some disc bulges, and that these were normal for Patient A.M.’s age group. Dr. McCutchen testified that nothing in the MRI report justified Respondent’s ordering of the MRIs. There were no neurological symptoms, history, or any other indication for the MRI of the lumbar spine. He concluded that ordering the MRIs was an excessive diagnostic tool. Thermography is a technique for sensing and recording on color film hot and cold areas of the body by means of an infrared detector that reacts to blood flow, its intended purpose being to detect disease states that manifest themselves by increased or decreased blood flow. Dr. McCutchen was dismissive of thermography as a diagnostic tool. He testified that it was used years ago, but has been disused for the past ten to twelve years. He testified that the theory in cases such as Patient A.M.’s would be that the thermograph would show changes in skin warmth that in turn would indicate nerve dysfunction; however, he testified that thermography has proven inaccurate and of no value in providing any information to assist in the treatment of a patient. Even accepting arguendo that thermography works according to theory, Dr. McCutchen testified that nothing in the medical record indicated the neurological changes that would validate the need for thermography as a diagnostic tool. While Dr. McCutchen believed the thermography was completely useless, he testified that he was unaware of any standard in the medical community regarding the use of thermography. Dr. McCutchen next testified as to the need for the NCV studies on the arms and legs of Patient A.M. He stated that, to justify NCV studies, he would expect to see something in the record concerning nerve dysfunction in the affected areas. Dr. McCutchen testified that elements of nerve dysfunction would be some difficulty in the ability to move the extremities, or some weakness, atrophy or paralysis, or a loss of sensation in a nerve root. These elements would be discovered through the history and physical examination, but Dr. McCutchen testified that he saw no such documentation in the patient records. Dr. McCutchen testified that the neurological examination for Patient A.M. was grossly within normal limits for muscle tone, bulk, and strength of all major muscle groups of the upper and lower extremities. The deep tendon reflexes were within normal limits. Patient A.M. was able to walk in steps, on tiptoe, and heel walk within normal limits. Thus, Dr. McCutchen concluded there was no justification for ordering the NCV studies of the upper or lower extremities. Dr. McCutchen also noted that the records for Patient A.M. show no indication of an interpretation of the thermograms or of the NCV studies, although the billing records show charges for those interpretations. Dr. McCutchen concluded that a "variety of things" done by Respondent in the course of his treatment of Patient A.M. were "totally excessive." He testified that the patient presented with some cervical lumbar pain and some right arm pain, and received an unnecessary MRI of the lumbar spine and NCVs of all four extremities. Dr. McCutchen concluded that Respondent’s course of treatment fell below the level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances. Respondent presented the expert testimony of Joseph Uricchio, M.D., an orthopedic surgeon licensed in Florida since 1965. Dr. Uricchio testified that in recent years his practice has tended to specialize in patients with complaints of chronic pain similar to those of Patient A.M. After discussing the patient’s complaints and the diagnostic tests ordered by Respondent, Dr. Uricchio opined that, based upon his understanding of the facts, the ordering of the tests was within accepted standards of medical care in the practice of medicine in the State of Florida. Dr. Uricchio testified that his opinion was based on his understanding of the discussions that occurred between Respondent and Patient A.M. as to her complaints and desired outcome. Dr. Uricchio stated that his impression was that Patient A.M. told Respondent that her back problems were longstanding and that she was anxious to investigate any reasonable course of treatment that might eliminate her problem. Dr. Uricchio's understanding was generally consistent with the testimony of Patient A.M. Dr. Uricchio agreed that the gradual application of physical therapy for Patient A.M. was "singularly appropriate." Dr. Uricchio testified that, given this particular patient and her professed interest in finding the root cause of all her problems, it was within the range of acceptable medical practice to order NCV tests of the left arm; X-ray studies of the coccyx, pelvis, and thoracic spine; and thermography scans of the cervical spine, thoracic spine, upper extremities, lumbosacral spine, and lower extremities. Dr. Uricchio testified that it is unusual to order this array of tests for the typical patient, and admitted that he could not recall having ordered all these tests at once. However, he testified that ordering the tests was acceptable in this instance because Respondent was dealing with a patient who had a 25-year history of unexplained, chronic problems and a shorter history of increasing problems with her neck and back, with pain going into her extremities. Dr. Uricchio recalled Patient A.M.'s statements that she was "at her wit's end" and desperate to find out "what’s going on." He testified that this was an unusual set of circumstances and a difficult diagnostic and therapeutic challenge. Dr. Uricchio testified that NCV studies are legitimate diagnostic tools appropriate for a patient complaining of an unexplained pain radiating into an extremity, and that Patient A.M. had complained of arm, leg, and shoulder pain coupled with her longstanding neck and back pain. He testified that the NCV studies of the left arm were appropriate, though Patient A.M. complained of pain in her right arm. Dr. Uricchio testified that thermography is a test that has been done for a long time historically, and has enjoyed a "resurgence of interest" in the past 20 years. This testimony was in marked contrast to Dr. McCutchen’s testimony that thermography has fallen into disuse over the past ten years. Dr. Uricchio acknowledged that thermography is controversial in some areas, but that it is a well accepted, expected test to be run in cases of people dealing with chronic pain and chronic pain management. Dr. Uricchio testified that thermogaphy complements NCV testing. The NCV study tests motor nerves to determine if they are conducting nerve impulses well, while thermogaphy tests sympathetic nerves to determine if they are irritated. Dr. Uricchio testified that it was appropriate for Respondent to order both X-rays and MRIs because they show different things. X-rays give a picture of the bone. MRIs give a picture of the dural sac where the spinal cord and nerve roots run, showing the nerve roots as they go out between the bones. Dr. Uricchio testified that an X-ray would not reveal a herniated disc, but that an MRI would. Dr. Uricchio testified that if economy of medical care were a consideration, then a physician might take the course of ordering X-rays and examining those before ordering MRIs. However, because in this instance Patient A.M. appeared unconcerned about the cost of the procedures and was desperate to learn the cause of her condition, Dr. Uricchio found it acceptable to order both X-rays and MRIs at the same time. Dr. Uricchio concluded that the array of tests was justified because the tests are all different: the thermogram looks for sensory nerves or reflex sympathetic dystrophy; the X-ray looks at the integrity of the bone; the MRI finds whether there is a ruptured disc pinching a nerve; radiography or video fluoroscopy tests for abnormal motion or subluxations or any other change in the movement of the neck. Respondent also presented the testimony of Nicholas T. Zervas, M.D., a board certified neurosurgeon and the director of neurosurgery at Massachusetts General Hospital, Harvard Medical School. Dr. Zervas testified that his specialty is patients with brain tumors, though he also deals with spinal problems, disc problems, spinal tumors, peripheral nerve tumors, and general neurosurgery. Dr. Zervas testified that in his practice at Harvard Medical School he tends to treat difficult and complicated cases in which patients have seen a number of doctors without success and have moved "up the ladder of expertise." Dr. Zervas reviewed the patient records regarding Patient A.M., and concluded that she was a "problem patient" in that she had chronic pain for many years and had apparently seen a number of physicians without a specific diagnosis ever having been made. Dr. Zervas testified that with such a "problem patient," it is appropriate to do every reasonable, non-invasive test available to "cover the waterfront" and make sure that everything possible is being done to isolate the causes of the patient’s problems. Dr. Zervas testified that he has made little use of thermography in the last ten years. He further testified that in 1991, when Respondent ordered the tests, thermography was recognized within the medical community as an appropriate diagnostic study and was widely used. Dr. Zervas stated that his research indicated that the medical community’s reliance on thermography began to wane in about 1994, but that prior to that time there was "tons of literature on the value of thermography." Dr. Zervas testified that the thermography was the only test he would not have ordered. He disagreed with the suggestion that thermography went into disuse because it was inaccurate. Dr. Zervas stated that when MRIs and CT scanning came on the scene, they presented an easier way of finding things through direct imaging, replacing reliance upon the circumstantial evidence provided by thermography. Dr. Zervas justified Respondent’s ordering thermography as a "resort to secondary testing" to give him a hint as to whether this was nerve root disease, "since he wasn’t able to find a specific, positive, objective finding." Dr. Zervas’ justification for thermography in this case cannot be credited. The thermography was ordered at the same time as the other tests, before the results of the X-rays and MRIs could be read and interpreted to find "a specific, positive, objective finding." Thus, this "resort to secondary testing" was at best premature. Dr. Zervas testified that all of the tests ordered by Respondent were medically appropriate and within the standard of care, in light of Patient A.M.’s condition at the time she was examined by Respondent. Dr. Zervas testified that he often takes the same approach with such patients, utilizing all tests available that might show where an abnormality might lie, so that he can move ahead and begin treatment as soon as possible. Dr. Zervas found the numerous X-rays justified because it is difficult to isolate the source of chronic neck and back pain, meaning that X-rays of the cervical, thoracic, and lumbar spine, the pelvis, the sacrum, and the coccyx would be required to ensure that all possibilities were covered. Dr. Zervas found the MRIs of the cervical and lumbar spine an appropriate, non-invasive means of "trying to sort out what is present in the spinal canal and bones around it," as well as a means of ensuring that the cause of the pain is not a disc or a tumor. Dr. Zervas was questioned as to why NCV studies of both the left and right arms were appropriate, given that Patient A.M. complained of pain only in the right arm. Dr. Zervas answered that one of the first things taught in medical school is to compare side to side. If readings were done only on the right side, there would be no comparative basis for determining whether the readings were abnormal. Dr. Zervas testified that the X-rays and MRIs revealed extensive degenerative spinal disease in the neck and lumbar regions, more extensive in the cervical region, with extensive narrowing of the intervertebral frame, and bulging discs at several levels of the cervical and lumbar regions. Dr. Zervas believed these findings would be significant once correlated with the clinical syndrome. Dr. Zervas noted that the findings were significant enough to indicate surgery once she was seen by a neurosurgeon at a later date. He could not offer his own opinion on whether surgery was justified, saying that his own course would have been extensive physiotherapy and referral to a pain clinic. Dr. Zervas testified that in his opinion Respondent did not exercise influence on Patient A.M. to exploit her for his own financial gain. Dr. Zervas testified that Respondent did not deviate from the accepted standard of care in treating Patient A.M. Dr. Zervas testified that the records kept by Respondent justified his course of treatment of Patient A.M. It is found that the weight of the expert evidence establishes that all of the tests ordered by Respondent were clinically justified, except for the thermograms. All of the experts agreed that it is somewhat unusual for a physician to order X-rays, MRIs, and NCV studies simultaneously after a patient’s initial visit. However, it is found that these orders were clinically justified under the peculiar circumstances presented at Patient A.M.: longstanding back and neck pain having recently increased to the point where the patient described the pain as nearly unbearable; years of visits to various physicians without either relief from the pain or a specific diagnosis; and the patient’s express statements that she was unconcerned with the cost of treatment. It is found that Petitioner proved clearly and convincingly that thermography was an unnecessary diagnostic test. Even granting Dr. Zervas’ statements that thermography may be a useful "secondary" test in instances where primary tests are inconclusive, Respondent prematurely ordered the thermograms. Thermography might have been justified had the MRIs and NCV studies previously been reviewed and found inconclusive, assuming that thermography is of value at all. Dr. McCutchen’s testimony that thermography is of no value in providing information useful in patient treatment is credited, in part because even Dr. Zervas testified that he has made little or no use of thermography over the past decade, and Dr. Uricchio's endorsement was tempered by his acknowledgement that thermography is controversial. It is found that Respondent failed to keep sufficient records to fully explain the course of treatment that he ordered. The experts were forced to derive much of their information regarding the course of treatment from Respondent’s itemized billing records, because the actual medical records created by Respondent were too cursory to provide useful information. On a related issue, Petitioner alleged that Respondent billed Patient A.M. for services that were not rendered. Specifically, it is alleged that Patient A.M. was billed for interpretations of the X-rays, NCV studies, and thermographic scans, when these interpretations are not documented in the medical record. The weight of the evidence indicates that the interpretations were in fact performed, but that Respondent failed to document those interpretations in his medical records.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding the Respondent, Lehel Kadosa, guilty of violating Section 458.331(1)(d), (g), (m), (t), and (x), Florida Statutes, as alleged in the complaint, and imposing upon the Respondent the penalty of a reprimand, supervised probation for a period of three years, and an administrative fine in the amount of $20,000. DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. 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 17th day of September, 1999. COPIES FURNISHED: Albert Peacock, Esquire Agency for Health Care Administration Legal Department Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33629 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue At the hearing, DPR dismissed Count II, alleging a violation of subsection 458.331(1)(h) Florida Statutes. The remaining issues for resolution are whether, as alleged in Counts I, III, IV and V, Dr. Robinson violated subsections 458.331(1)(n),(q), and (t) Florida Statutes by failing to maintain adequate records, by inappropriately prescribing controlled substances, and by failing to properly evaluate and treat multiple medical problems.
Findings Of Fact Jerry Mason Robinson, M.D., has been continually licensed (license number ME 0011811) as a physician in the State of Florida since 1965. He was Board-certified in Family Practice in 1973 and was recertified in 1979 and 1985. He has continually practiced medicine since 1967 in Deltona, Florida, as a sole practitioner in family practice. Patient Fleming Dr. Robinson began treating Jesse Fleming when he came to his office on March 14, 1979, with complaints of being unable to breathe, a feeling of suffocation, and inability to sleep. The patient was found to be suffering from refractory heart failure and was admitted that same day to Seminole Memorial Hospital. Jesse Fleming was discharged as improved on March 23, 1979. His final diagnosis, reflected on the discharge summary, was: refractory heart failure, chronic obstructive pulmonary disease, and Pickwickian's syndrome. The notation "Pickwickian Syndrome" also appeared on the first clinical data sheet, dated March 14, 1979, in Dr. Robinson's office records for this patient. Pickwickian Syndrome, in lay terms, is a condition occurring in obese individuals wherein the abdominal fat presses on the diaphragm, cutting off the breathing and causing sleep at odd and inappropriate times. While Dr. Robinson initially felt that the condition was Pickwickian Syndrome, after the patient lost substantial weight in the hospital, he felt the proper diagnosis should be narcolepsy, a similar condition. He started him in the hospital on Dexedrine tablets, 5 mg. each morning, to increase his alertness. Narcolepsy is a very rare disease characterized by periods where the patient falls asleep uncontrollably many times during the day. The patient also has cataplexy, which is episodes of collapse that occur intermittently with emotional stress, laughing, giggling and fear. Another aspect of narcolepsy is called hypnagogic hallucinations, where an individual has vivid dreams. And the fourth part is called sleep paralysis where the patient cannot move on occasion without being touched. While there is no single test available to unconditionally diagnose a case of narcolepsy, the competent experts agree that a complete history and physical examination is required. The patient should be asked about sleeping patterns and about the symptoms described above. Testing through an electroencephalogram (EEG) and polysomnography is helpful. It is also important to specifically eliminate other causes of somnolence such as medications or other physical conditions, such as thyroid disorders or anemia. Dr. Robinson's records for Jesse Fleming are void of any documentation of the basis for his diagnosis of narcolepsy. The hospital discharge summary of his course in the hospital mentions only that the patient was found to be somnolent and sleeping all the time. He was on Valium in the hospital, 2 mg., 4 times a day to reduce anxiety. Valium is considered to be a central nervous system depressant and has drowsiness as one of its components. There is another notation on the records, on the occasion of an office visit, that the patient fell asleep in the office. This alone, does not indicate a case of narcolepsy. Although Dr. Robinson continued Mr. Fleming on Dexedrine or similar drug, Eskatrol, from the time that he was discharged from the hospital in March 1979, the first notation of a diagnosis of narcolepsy does not appear until March 20, 1981. The term appears intermittently as a diagnosis thereafter, but without description of any symptoms. Dexedrine is a Schedule II controlled substance. It is generally considered one of the amphetamines, a central nervous system stimulant. It has a high liability for habituation, or psychological dependence and overwhelming desire to continue to use the medication. It should not be used in those conditions in which it causes unnecessary stress on the vital organs of the body. It increases the demand of the heart for oxygen and can compromise an already failing heart. It is dangerous to give Dexedrine with thyroid hormones because the hormones make the heart more sensitive to Dexedrine and to the body's own form of Dexedrine, which is adrenalin. If given at all with Digoxin or Digitalis, Dexedrine should be given only with great care because these drugs slow the heart rate, an opposite effect of Dexedrine. In the past amphetamines were widely used to assist in weight control. That use was restricted and the treatment of narcolepsy is one of the remaining legitimate uses. And at least one expert in this proceeding, Jacob Green, M.D. would designate Ritalin, or a similar sympathomimetic drug as the treatment of choice for narcolepsy. In late 1981, Eskatrol was no longer available and Dr. Robinson began prescribing Dexedrine spansules, 15 mg., 200 or 100 at a time, at approximately monthly intervals. The patient has continued on this medication through 1985 and up to the time of the hearing. Around June 1979, Dr. Robinson began to prescribe Synthroid, a thyroid hormone, for Fleming's hypothyroidism at the same time that the patient was taking the amphetamine. On one occasion when the patient complained that he could not sleep, Dalmane, a sleeping medication was prescribed. Dexadrine spansules are a time-release medication which allows the effects of the drug to remain in the body for a longer period, including night time, when sleep is appropriate. Also while Fleming was on Eskatrol or Dexedrine, Dr. Robinson intermittently prescribed Brethine (a stimulant) for his lung problems, and on an on-going basis, Digoxin, for his heart condition. Assuming without the medical record basis to substantiate it, that the narcolepsy diagnosis was accurate, the prescription of Dexedrine to Jesse Fleming was dangerous and inappropriate. The patient records for Fleming are replete with references to irregular heart beats. On some occasions the nurse recorded "very irregular" apical pulses. These irregularities are sometimes a harbinger of heart failure and can occur in, or be exacerbated by, amphetamine therapy, especially in combination with thyroid hormones. In his testimony at hearing, Dr. Robinson stated that when he observed the notation of an irregular pulse he would check the patient himself to assure that the patient was alright. However, these observations are not reflected in the chart, except on one occasion when an EKG was taken and was found to be within normal limits. Good medical record-keeping is an essential aspect of a reasonable prudent physician's practice. Records are the mainstay of communications between physicians and provide a reminder to the physician with a busy practice. The records should provide objective findings and, from the patient, subjective findings. They guide the physician into what he was thinking previously and what needs to be done in the future. In a mobile society, when patients move from doctor to doctor, when specialists are brought in for consultation, when a regular doctor is absent, it is essential that another physician be able to view what has happened in the case from the medical records. Everything that is done needs to be justified in and documented in the records. The absence of a notation leads to the justifiable conclusion that the treatment was not undertaken or the test was not performed. Dr. Robinson failed to maintain adequate records to support his treatment of Jesse Fleming. The bases for his diagnosis of narcolepsy was utterly lacking, as was the basis for the decision to persist in prescribing Dexedrine under dangerous and potentially life-threatening conditions. Patient Kipp Fred Kipp was first examined by Dr. Robinson on June 8, 1978. He came to the office to get some prescriptions for medication that he was already taking. He had angina and a bad cold and was getting ready to return to Ohio, his summer residence. The history given by the patient on that first visit indicated that he had undergone two hip operations and an operation on his cervical spine for fusion. He had two aneurysm operations on his aorta, he had a hemorrhoidectomy and an amputation of his left second finger. At various times in the past he had been treated for severe arthritis in his back and foot, angina, hypertension, diabetes, pneumonia and hepatitis. His medications were Naprosyn for arthritis, Isordil for angina, Diabinese for diabetes, Hydrodiural for his hypertension, Percodan for his pain in his back, and Nitroglycerin for his angina. Dr. Robinson examined the patient and refilled his Naprosyn and Isordil. He told him to come back to see him in the fall when he returned to Florida. Fred Kipp returned to Dr. Robinson's office on December 7, 1978, complaining of chest pain. He was admitted to Seminole Memorial Hospital for pre-infarction angina and was discharged on December 11, 1978, with diagnoses of angina pectoris and coronary artery disease. From December 1978, until present, Dr. Robinson has been Fred Kipp's regular family physician. During this time he has treated him for angina or coronary artery disease, arthritis, hip problems, diabetes, back pain, shingles, vascular problems and chronic severe pain associated with all of these conditions. During this period the patient was hospitalized at least six times, primarily with heart trouble, but also for uncontrolled diabetes and impending gangrene. During a September 1984 admission to Central Florida Regional Hospital (formerly known as Seminole Memorial Hospital), the patient was diagnosed as having severe ankylosing spondylitis, a progressive spinal disease where the vertebrae ultimately become fused. The initial diagnosis was based on the patient's statement of his prior history, but the diagnosis was later confirmed by Dr. Robinson with an x-ray and CAT scan. The condition is very painful. During the course of his treatment of Fred Kipp, Dr. Robinson has kept the patient on Percodan for pain, in addition to his various medications for his multiple problems. Percodan is a Schedule II controlled substance containing oxycodone and aspirin. It is an analgesic with opium-like properties and is useful for moderate to moderately-severe types of pain. Because of the nature of the drug it has a potential for habituation and dependency, particularly when used on a regular long-term basis for chronic, as opposed to acute (temporary) pain. In order to avoid the habituation and dependency, less-addictive modalities should be tried before Percodan is selected as the treatment of choice. Dr. Robinson's office records for Fred Kipp do not reflect the consideration of alternatives. However, Dr. Robinson was aware that alternatives such as non-steroidal and anti- inflammatory agents were tried by consulting physicians, including by Dr. Broderick with Seminole Orthopaedic Associates. Fred Kipp is a very large man, approximately six feet, eight inches tall and weighing from 247 to 281 pounds. The dosages of Percodan prescribed for him by Dr. Robinson were not excessive, given the patient's size and physical problems. He has received between 200 and 300 Percodan per month for the last six years. At no time did he ever claim to have lost his prescription in order to get more drugs. Although the use of a strong narcotic with a chronic pain patient is the last resort of a reasonable, prudent physician, the use of Percodan was necessary and appropriate in Fred Kipp's case to allow him to maintain a reasonable quality of life. This finding is based not upon Dr. Robinson's office records, but rather on the competent expert testimony of his witnesses, who examined the patient and his records, and on the hospital records and consulting physicians' records in this case. Dr. Robinson's office records are deficient as to documented analysis of the patient's pain (subjective and objective observation) and efforts with less addictive modalities. While Dr. Robinson claimed that he requested Fred Kipp's records from his prior treating physician, his own records do not reflect that fact, nor was the attempt repeated when the first request was unproductive.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Michael Davis, was licensed as a Doctor of Chiropractic in Florida. Respondent treated Karen D. Moss from December 14, 1984 to January 25, 1985 and pursuant to his treatment, maintained certain records of that treatment. Ms. Moss first met the Respondent when she was going to massage school. In December, 1984, she was involved in a serious automobile accident and, when she failed to feel better afterwards, was referred to him by a co-worker, Ms. Madison. When Ms. Moss first went to Dr. Davis, she had already seen another physician for approximately four weeks and was dissatisfied with the treatment rendered by him. At the time of her first visit with Respondent, her right knee was swollen and felt like it needed to be cracked. Her neck could not be turned and her back was always stiff. She had sharp pains in her neck and constant pain in her right shoulder. Respondent, as a part of his treatment, prescribed massage by Ms. Madison and took one set of x-rays of his patient. He also, in the course of his treatment, used an ultra-sound machine which Ms. Moss could not describe, but even after going to see Respondent for several weeks, three to four times a week, she concluded he was not giving her what she needed and decided to seek yet a third doctor. When she terminated her visits to Dr. Davis, in her opinion, she was not only not improved, but even felt worse. At the time of her last visit with Dr. Davis, on January 25, 1985, she told him she was switching to another physician. At this time, Dr. Davis did not tell her that she had reached maximum medical improvement and recommended, to the contrary, that she continue to come see him. Ms. Madison, who recalls that several weeks after Ms. Moss began treatment with the Respondent, she left him advising Ms. Madison that she was not getting any better. When Ms. Moss first visited Dr. Davis, she filled out a form for him listing her complaints and her history as she knew it. She contends that she listed her back, neck, and right leg injury on the form but review of the form she filled out does not reflect any knee injury though constant knee pain is listed. At the time she filled the form out, she was emotionally unstable and merely wanted to get treatment. She was in pain and did not take a lot of time in filling out the form. To this day, two to three years later, though she has improved and credits this improvement to the treatment she received from other physicians, she still suffers from some of the complaints she had when she was a patient of Dr. Davis. Ms. Moss's records were reviewed by Dr. Robert S. Butler, a chiropractic physician in practice in Miami Shores, who examined them as an expert for the Board of Chiropractic Examiners. In his review, Dr. Butler found no record of a comprehensive medical examination being completed on Ms. Moss or that Dr. Davis took an adequate personal history. The initial examination on December 14, 1984, was not described adequately on any records and the case history form filled out by the patient does not appear to contain any personal entries by the Respondent. His entries appear to include only what appears in the narrative summary produced subsequent to the taking of the history. Any form filled out by a patient should be the basis for the doctor to use to inquire further of the patient in taking a case history. This was not done here by Dr. Davis except very briefly on the first page of the form and it cannot be determined from looking at that who put the entries there. Dr. Butler cannot say, therefore, that the physical examination supposedly accomplished by Dr. Davis was comprehensive as billed to the insurance company by the doctor. After reviewing the doctor's records on Ms. Moss and cross referencing them with each other, Dr. Butler at first found some of them to be repetitious but on closer examination, it appears that the dates do not coincide. There are also several discrepancies which, in and of itself, is not uncommon. In this case, however, the records are so full of discrepancies as to be beyond the common experience. His review of Respondent's progress notes failed to reveal any specificity. Assuming that the records Dr. Butler looked at were contemporaneous with treatment, they are not adequate for a prudent chiropractic physician's minimum standards and he was unable to determine a proper relationship between the diagnosis done by the Respondent and the billings submitted to the insurance company for services reportedly rendered. Dr. Butler was also concerned that the narrative report prepared on the computer for the insurance company contains much information not documented elsewhere in the records, such as blood pressure, pelvic findings, and recitations of procedures done. He is also concerned over an indication of weakness on the part of the patient without evidence of muscle testing. This type of record keeping is not customary and is, in his opinion, not good practice. Even Dr. Brown, Respondent's expert, indicated that when he keeps records on his patients, he marks down almost every test result he receives. Admittedly, he does not necessarily put in all negative findings, but very definitely lists all positive findings. He utilizes a sheet of conditions on which he checks off those the existence of which is shown and it is from this form, along with others, that he prepares his narrative summary. He agrees in essence with Dr. Butler that it is not acceptable practice for a physician to write a report to an insurance company indicating that a patient has reached maximum medical improvement when this conclusions is based on matters outside the patient record. Here, Dr. Butler concluded that the records completed on Ms. Moss by the Respondent are sufficient with regard to format but not as to content. He would not put in narrative form matters which are not documented in the backup forms and the evidence here, the records kept by Respondent, reflect many conclusions in the narrative submitted to the insurance company which are not backed up by test results recorded on exam forms. In light of the fact that both experts agree that Respondent's records were inadequate, it is so found. Dr. Butler examined the records that were furnished to the Department's investigator by Dr. Davis after some substantial reluctance and obfuscation on his part was overcome. In response, Dr. Davis contends that at the time the records were sought of him, he did not produce all of the records he had on Ms. Moss because of the nature and manner in which the subpoena was served and because the subpoena only asked for certain documentation. He contends, however, that he offered his entire file to the investigator, Ms. Pagett, who copied only certain records therefrom indicating that was all she needed. Review of the documentation submitted at the hearing, however, which was all that was submitted by either party, and which was examined by Dr. Butler, leads to the inescapable finding that the records kept by Respondent are minimal at best and appear to fall short of the minimum standards set for the chiropractic profession. Dr. Butler's testimony satisfies the Petitioner's requirement to go forward with the evidence and Respondent has failed to produce any evidence to counter the conclusions drawn by Dr. Butler which are adopted herein as to the sufficiency of the records. The Administrative Complaint alleges that on February 26, 1985, Respondent filed a report with Ms. Moss's insurance company indicating she had reached maximum medical improvement. Dr. Davis admits this was the case but contends that in his professional judgement, she had in fact reached that status at that time and there was nothing more that he could do for her to increase or improve her physical condition. Dr. Butler, concluded after evaluation of the records, that maximum medical improvement had not been reached and from the records, he cannot determine what standards the Respondent applied to reach the conclusion that he had. The patient still had symptoms which needed treatment and in light of the injuries sustained by Ms. Moss, the likelihood is slight that she would have reached maximum medical improvement within the six week period that Dr. Davis was treating her. Dr. Butler concedes that a physician has the obligation to report maximum medical improvement status when that status is reached, but here, he feels, the determination was premature. This no more than a professional difference of opinion, however. Dr. James E. Brown, a chiropractor practicing in Palm Beach Gardens also reviewed the records kept by Respondent on Ms. Moss and as a result of his review concluded differently. He is of the opinion that the Respondent's records on Ms. Moss are adequate and within standards. He feels they would support a conclusion of maximum medical improvement as well. In this regard, Dr. Brown states that the achievement of maximum medical improvement is not based merely on a period of time but on the condition of the patient's body. In the instant case, maximum medical improvement was achieved in a very short time under the Respondent's care. The patient was indicated as being pain free when she left Respondent's care and one does not properly continue to treat patients whose condition is as it was described in Respondent's records. In short, Maximum medical improvement can be reached when a patient is not completely healed and still has a continuing condition. He agrees with Dr. Butler to the effect that definition of the term "maximum medical improvement" is subject to varied interpretations by different physicians and he admits that even if the records show that a patient is pain free, if the patient still has stiffness, continued treatment would be given if there were indications that the patient was still in need of it. Here, neither Dr. Butler nor Dr. Brown examined Ms. Moss. Both relied solely upon the written records kept by Dr. Davis. Ms. Moss, however, still maintains that when she left Dr. Davis's treatment, she was still in pain and, in fact left, because she felt his treatment was not benefiting her. By itself, that might well mean she had reached maximum medical improvement because the experts both agree that an individual may still have pain but have reached the maximum improvement. However, Ms. Moss also relates that when she went to another doctor who continued to treat her, she did improve rapidly as a result of that treatment and it is found, therefore, that Dr. Davis's report of Maximum medical improvement upon Ms. Moss's leaving his care, was, for whatever reason, premature. During August, 1985, Dr. Davis also treated Teresa L'Heureux who had been injured in an automobile accident. As a part of the treatment of Ms. L'Heureux, Dr. Davis issued three prescriptions for a drug, Flexoril. The first two, those written on August 30, 1985 and September 20, 1985, were on prescription pads bearing the printed name of Dr. Sultana and the doctor's rubber stamp signature. The third prescription, on October 12, 1985, was a phone-in prescription which does not bear the name of any physician. Respondent contends that he wrote these prescriptions at the order of Dr. Sultana who had seen the patient prior to the day the prescriptions were issued and directed him to issue them using her prescription pad and a rubber stamp of her signature. Dr. Sultana, on the other hand, denies ever having seen Ms. L'Heureux as a patient; denies having written the prescriptions; denies having signed her name to them; and denies having authorized Respondent or anyone else to stamp them with her signature. What is more, she does not recall having ever called in the third prescription. Dr. Sultana admits to having discussed the matter with Detective Brown who was conducting an investigation into the matter and having told him that she does not stamp her prescriptions. She does not recall admitting to Detective Brown that she had a stamp. In fact, she does not have a stamp of her signature, has never used one, and denies ever having told Respondent to utilize a rubber stamp of her signature in writing prescriptions. Dr. Sultana did some work with the Respondent and served as his mentor in the field of psychiatry. She admits that, as Respondent claims, if it were true that she had called in prescriptions without having seen a patient and were to have allowed Respondent to affix her stamped signature to a prescription for a controlled drug, she could be in severe difficulty with licensing authority. However, she contends she is not denying it for that purpose but because she did not do what Respondent alleges she did, and her testimony, contradicted only by the attacks of the Respondent and his assertion that she did allow him to use her prescription pad as alleged, is accepted. Further, the note taken from what appears to be patient records bearing her apparent signature and ostensibly relating to Ms. L'Heureux, is an obvious forgery in that the note refers to another patient and has been excised from records improperly with an inaccurate date and name placed thereon. Comparison of the handwritten signature of Dr. Sultana on the note with that on the stamped prescriptions and the computer printout indicates that the signatures are dissimilar. It is concluded, therefore, that the stamp signature is not that of Dr. sultana but a forgery instead. Dr. Davis is also alleged to have improperly examined Ms. L'Heureux during a visit she made to his office on December 17, 1985 by, in the course of an examination for a bladder infection, placing his fingers in her vaginal area without first donning rubber gloves and by moving his fingers in and out of her vaginal area making sexually suggestive comments to her while doing so. He is also alleged to have provided unnecessary treatment based on his record of diagnosis and treatment of the patient. Ms. L'Heureux came to see Dr. Davis in October, 1985 after she was involved in a car accident. She had heard his advertisement on the radio and went to see him for relief, During the course of his treatment, he applied heat, electrical muscle stimulation, traction, and adjustments. Ms. L'Heureux claims that on one occasion during a manipulation, while she was laying on her stomach, Dr. Davis placed his hand in between her legs and told her to move. This made her uncomfortable. On another occasion, when he came back into the room after being absent for a moment, he commented that something smelled good. Neither of these actions is considered actionable, however, absent any further evidence of impropriety. On one visit, however, she complained to the Respondent of having urinary problems. She had brought the matter to the attention of the Respondent's technician previously and had been advised to provide a urine sample. When the Respondent came into the area where she was waiting, she mentioned it to him and he had her go back into the examining room where he advised her to take off her pants and examined her. At this time, there was no other female present in the building. During the course of the examination, without using gloves, he pushed with his hands on her lower abdomen and then inserted his fingers inside her. She claims that while doing this he asked her how long it took her to climax and advised her of different ways of climaxing. When he was finished with the examination, he gave her a prescription for flexoril on Dr. Sultana's prescription pad and let her out the door. Ms. L'Heureux indicates that she had never been to a chiropractor before this series of treatments with Dr. Davis and therefore did not know what was appropriate for him to do. She does know, however, that she never met Dr. Sultana. During the course of Ms. L'Heureux' treatment, she saw Dr. Davis every day for the first three weeks and then for three weeks thereafter, every other day. Starting with the seventh week, for two months, she saw him every third or fourth day, returning to be treated by him even after the visit during which he conducted the pelvic examination. She finds it difficult to believe that she saw Dr. Davis for as many times as he billed her for, but she cannot dispute it. Her attorney, when she went to see him referred her to another chiropractor. She continued to visit Dr. Davis even after he did the inappropriate vaginal examination because she had no money and Respondent agreed to wait for her insurance company to pay. He was guiding her with regard to timing and kept telling her not to worry about the fee - that the insurance company would pay - and in fact, he was the one who referred her to an attorney. After she left him to seek the services of another chiropractor, he billed her for a total of $1,996.00 of which the insurance company paid only $600.00. Dr. Davis is suing her for the balance. Dr. Butler examined Ms. L'Heureux' records as well as those of Ms. Moss. At no place in Ms. L'Heureux', except for the narrative billing sent to the insurance company, is there any mention of testing for a urine problem. No lab reports are contained in the records and as a result, the records are deficient in that regard. The results should be reported to the patient at the next visit unless something is extremely wrong, in which case, the patient should be notified immediately. Dr. Butler examined those records of Ms. L'Heureux made available to him and was of the opinion that there was nothing in them to justify the diagnosis made by Respondent much less to justify the billings. He did contend, however, that the use of a medical doctor's signature stamp on a prescription pad would be totally improper for a chiropractor and Dr. Davis, who denies the vaginal examination ever took place, stipulates that a vaginal exam, such as alleged herein, would be an inappropriate diagnostic procedure for a chiropractor. Dr. Davis' reputation regarding his relationship with his patients is somewhat mixed. On the one hand, Ms. Madison, who has known and worked with him for several years, considers him to be a considerate individual who shows concern for his patients who seem to like him. At no time, while she was working for him, did he ever show any sexual interest in any patients and in fact was quite reserved. Others, such as Mr. Mackhanlall, agree. On the other hand, some, like Dr. Kastein, with whom Respondent had a business disagreement, think little of him, his professional capabilities, his ethics, and his personality. Dr. Davis contends that he interviewed and examined Ms. Moss, as alleged in her testimony but asserts, contra to her statement, that he took a personal history and x-rays of her. He claims he made up a chart as to the type 4of manipulation to be done and on each of the periodic visits she made to his office, made progress notes which, though minimal themselves, served to refresh his memory at the end of each day when he dictated into a computed program log, more extensive progress notes on each of the forty or so patients he saw that day. Most of the information placed into the computer in this fashion was from memory, however, and not from his hand-kept progress notes. This is not a system designed to generate much confidence in either his notes or his credibility. Respondent also relates that toward the end of January, 1985, Ms. Moss indicated that she had no more dizziness and in fact, felt better though she still had some stiffness. Finally, she came in and told him she was totally free of dizziness and pain and on January 25, 1985, said she was "ok" and feeling fine. A complete examination which he made that day, he claims, showed normal motion. Based on this examination, he concluded that she had reached maximum medical improvement and so indicated to her insurance company. In March, 1985, he was asked to submit a report to the insurance company which he prepared, based on the computer printout of his daily progress notes. At that time, he had received no information from Dr. Alden, the healer to whom Ms. Moss went after severing her relationship with Respondent, to the effect that she was treating Ms. Moss and no records were requested of him by the insurance company. When the DPR investigator contacted him, he claims he gave her what was requested; no more and no less. As to Ms. L'Heureux, he relates that when he initially examined her he gave her a complete orthopedic and neurological examination. Based on his diagnosis, he prescribed traction, ultra-sound and x-rays. Respondent avers that in August, 1985, Ms. L'Heureux indicated she was having pain and wanted to see Dr. Sultana. He apparently set this up because, he claims, shortly thereafter, Ms. L'Heureux indicated she wanted the prescription Dr. Sultana said she would get. He claims he called Dr. Sultana who directed him to give her the prescription for Flexoril using the stamp signature and pad in her desk drawer. The second prescription was also approved by Dr. Sultana according to Respondent, and he continued to treat Ms. L'Heureux until her attorney told her to see an orthopedic surgeon rather than a chiropractor. Dr. Davis categorically denied ever having conducted any vaginal examination of Ms. L'Heureux and claims that on the day in question, after she had deposited the urine specimen for analysis with his technician, she left the building and that was the end of that visit. Dr. Sultana denies ever having given permission to write prescription on her pad and denies having a stamp of her signature. Having evaluated the testimony of Dr. Davis in this regard, vis a vis the testimony of Ms. L'Heureux, Ms. Moss, and Dr. Sultana, it is clear that Dr. Davis's testimony is the less credible. Evaluating the witnesses and considering the relative probabilities, it is clear that the complainants are the more credible and there is no indication that any of them stands to gain anything by initiating unfounded complaints against him. It is therefore, found that, as to the writing of the prescriptions, Dr. Davis had no authority to write them utilizing Dr. Sultana's pad and a rubber stamp of her signature. As to the alleged incident with Ms. L'Heureux involving the improper pelvic examination, it is found that it did occur as alleged in light of the deposition testimony of Ms. Johnson, a former patient who indicated Respondent, in May, 1983, conducted a pelvic examination on her without first securing her consent. Turning, then to the ultimate issue of the sufficiency of the medical records kept on both patients in question here, Dr. Butler is convinced that the records are inadequate. Dr. Brown to a lesser degree agrees. Consequently, it is found that the records have been shown to be inadequate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that Respondent's license as a chiropractic physician in Florida be revoked and he be fined a total of $8,000.00, but that so much of the penalty as calls for revocation of the license be suspended for two years under such terms and conditions as are prescribed by the Board of Chiropractic Examiners. RECOMMENDED this 19th day of June, 1987, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1987. COPIES FURNISHED: Edward H. Reise, Esquire Suite F 207 11173 N. Kendall Dr. Miami, Florida 33176-0917 Michael Davis, pro se 645 South Military Trail No. 9 West Palm Beach, Florida 33415 Erskine C. Rogers, III, Esquire 2875 South Ocean Blvd., Suite 200 Palm Beach, Florida 33480 Van Poole, Secretary Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe St. Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation Board of Chiropractic 130 North Monroe St. Tallahassee, Florida 32399-0750 APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4108 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties hereto: By the Petitioner Petitioner's counsel, notwithstanding, the oral comments made by the Hearing Officer at the conclusion of the hearing regarding the format of the Proposed Finding of Fact, failed to number the paragraphs to facilitate identification herein. This has therefore been accomplished by the undersigned. Findings that at all times in issue, Davis licensed as a chiropractor in Florida, Findings of Fact's 1-29 relate to the 2nd Administrative Complaint. Findings of Fact's 30-46 relate to the first. The remainder go to the issue of the credibility of the Respondent as a witness and relate to both. Accepted and incorporated herein. Rejected as immaterial except as to the fact that after leaving Respondent's treatment, the patient was seen and treated by an osteopathic physician. 3-5. Accepted and incorporated herein. 6. Accepted and incorporated herein except for the last two sentences which are irrelevant. 7-9. Accepted and incorporated herein. 10. Rejected as not a Finding of Fact. 11-14. Rejected as not Findings of Fact but mere comment on the evidence. The ultimate finding that Respondent conducted an examination of S.J. is accepted. Irrelevant and cumulative. Rejected as an improper finding of fact. 18-20. Irrelevant. Rejected as a comment on the evidence and not a finding of fact. Accepted and incorporated except for the last sentence which is comment on the evidence and not a Finding of Fact. 23-25. Rejected as a summary of the evidence and not a Finding of Fact. Rejected. Rejected as a summary of evidence and not a Finding of Fact. 28-29. Rejected as a comment on the quality of the evidence, not a Finding of Fact. Accepted and incorporated herein. Accepted except for the last sentence which is a comment on the evidence and not a Finding of Fact. Accepted and incorporated herein. Rejected as irrelevant as a Finding of Fact. 34-38. Rejected as a summary of the evidence and not a Finding of Fact. 39-43. Rejected as a summary of the evidence and not a Finding of Fact. Accepted as to medical justification - Rejected as to nature. Accepted and incorporated herein. Rejected as a comment on the evidence and not a Finding of Fact. 47-48. Rejected as irrelevant. 49-50. Cumulative. 51. Rejected. For the Respondent Respondent does not identify Findings of Fact. Paragraph numbers start with 6. 7 a. Rejected as a summary of evidence. Accepted. Rejected as a summary of the witness's testimony. 9 a. Accepted. Accepted. Rejected as a summary of the witness's testimony. 11 a. Accepted. Rejected as contra to the weight of the evidence. Rejected as a comment on the evidence. d-g. Rejected as a summary of the evidence - not a Finding of Fact. 13 a-c. Rejected as a summary of the evidence. 15 a. Rejected as contra to the evidence. b-c. Irrelevant. 17 a. Accepted. Irrelevant. No evidence before the Hearing Officer. Not supported by evidence of record. e-f. Irrelevant. 19 a. Accepted that Sx 3 was a called in prescription. b. Rejected as comment on the evidence. c-f. Rejected as a summary of the evidence. Not proven. Accepted 21 a-b. Irrelevant c-e. Rejected as a summary of evidence and not a Finding of Fact.
Findings Of Fact Respondent is the state agency charged with regulating the practice of dentistry, pursuant to Sections 20.165, 20.42, and Chapters 455 and 466, Florida Statutes and was not a nominal party to the proceedings. Petitioner, John Allison Rowe, D.D.S., (hereinafter referred to as Petitioner Rowe), is a Florida licensed dentist having been issued license number DN-0009364. Petitioner Rowe, at all times material hereto, practiced through a professional service corporation with principal office in the State of Florida. Petitioner, Ralph E. Toombs, D.D.S., (hereinafter referred to as Petitioner Toombs), is a Florida licensed dentist having been issued license number DN-0007026. Petitioner Toombs, at all times material hereto, practiced through a professional service corporation, with principal office in the State of Florida. Petitioner Rowe and Petitioner Toombs each employed less than twenty- five (25) employees at the time this action was initiated. Petitioner Rowe and Petitioner Toombs each had a net worth, including both personal and business investments, of less than two million dollars. In or around 1988, and in or around 1989, Respondent received several complaints from insurance companies concerning Petitioner Rowe's treatment, services, and fees charged to patients through the Central Florida Dental Association and/or other entities. Each insurance company had obtained a review of the services, treatment, and fees charged to the patients and had included that information in their complaint to Respondent. As a result, Respondent began a series of investigations into the allegations against Petitioner Rowe, whose name had appeared as the treating or certifying dentist on all health insurance claim forms submitted on behalf of the patients. The insurance companies alleged that Petitioner Rowe's fees were excessive relative to the customary and usual fees charged for the services, that certain diagnostic tests had been provided to the patients although of questionable medical necessity and acceptance in the dental community, and that certain procedures had been performed in excess of the justified needs of the patient. During the course of the investigation, it became necessary for the Respondent to consult with the Probable Cause Panel on the Board of Dentistry on or about July 12, 1989, and on or about October 13, 1989, to obtain certain patient records without patient authorization. The Probable Cause Panel of July 12, 1989, was composed of members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer. Each of the panel members at the July 12, 1989, meeting indicated that they had received and reviewed the Department's investigative materials. The July 12, 1989, panel found-reasonable cause to believe that there was a question of the medical necessity for the treatment provided such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek the patient's records by subpoena. On or about October 13, 1989, the Respondent again consulted with panel members Robert Ferris, D.D.S., Orrin Mitchell, D.D.S., and Thomas Kraemer to determine if reasonable cause existed to obtain certain patient records as part of its investigation of Petitioner Rowe. Each of the panel members indicated at the October 13, 1989, meeting that he had received and reviewed the investigative materials presented by the Respondent. The October 13, 1989, panel found reasonable cause to believe that there was a question of medical necessity for the treatment provided to the patient such that Petitioner Rowe had practiced below prevailing standards and authorized the Department pursuant to Section 455.241(2), Florida Statutes, to seek patients' records by subpoena. Following completion of its investigation, on or about April 10, 1991, Respondent initiated an action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the April 10, 1991, Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.W. DBPR Case No. 01-11379 Count II patient E.M. DBPR Case No. 89-02166 Count III patient J.T. DBPR Case No. 89-13187 Count IV patient M.Z. DBPR Case No. 89-02167 Count V patient M.R.V. DBPR Case No. 89-02372 Respondent alleged in the April 10, 1991 Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.W. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; and Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Patient E.M. (Count II) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient J.T. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.Z. (Count IV) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient M.R.V. (Count V) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. (Ex-A pgs. 1-18). The April 10, 1991 Administrative Complaint was filed at the direction of the November 2, 1990 Probable Cause Panel of the Board of Dentistry. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990 panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the meeting. After brief discussion and receipt of the advice of counsel, the Panel separately took up each investigative report but recommended that the Department consider consolidation of the charges into a single filed administrative complaint The Panel members felt very strongly about the charges as revealed by the investigative reports and consultant's opinions, and in accordance with Section 466.028(7), Florida Statutes, the panel recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek and expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about July 18, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, September 11, 1990, September 17, 1990, and September 18, 1990, Dr. Lilly issued individual detailed reports from review of the investigative materials noting several areas of concern with each patient's treatment and the billing associated with that treatment. As had the June 4, 1990, Probable Cause Panel, Dr. Lilly noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. The November 2, 1990, panel, composed of the same membership as the June 4, 1990, meeting, expressed similar concerns regarding Petitioner Rowe and an apparent lack of concern for treatment effectiveness. Panel member Robert Ferris, D.D.S. expressed praise for Dr. Lilly's reports noting that they were "excellent." The panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinion. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly found that in some cases diagnostic services had been billed twice on the same day although it was customary in the profession to perform the services in one session, that services had been billed which had not been provided to the patients, records were inadequate to justify those services provided, that treatment was provided without appropriate use of diagnostic information, orthotic devices were mischaracterized as surgical devices, fees greatly exceeded the usual and customary charges for certain services, questionable use of arthrogram studies was employed by Petitioner Rowe, certain other diagnostic studies conducted on the patients were of questionable medical necessity, and Petitioner Rowe had misdiagnosed a patient's condition. On or about July 24, 1991, Respondent initiated a second action against Petitioner Rowe, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. Each count of the July 24, 2991 Administrative Complaint filed against Petitioner Rowe represented a separate Department investigation and a separate case number was assigned to each investigation by Respondent as follows: Count I patient H.D. DBPR Case No. 01-11377 Count II patient R.M. DBPR Case No. 01-11378 Count III patient S.R. DBPR Case No. 01-12140 Respondent alleged in the July 24, 1991, Administrative Complaint that Petitioner Rowe committed the following violations with respect to each patient: Patient H.D. (Count I) Section 466.028(1)(n), Florida Statutes, by exercising influence over the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party: Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry or dental hygiene. Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; and Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Patient R.M. (Count II) Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(u), Florida Statutes, by having engaged in fraud, deceit, or misconduct in the practice of dentistry of dental hygiene. Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. Patient S.R. (Count III) Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; and Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance. The July 24, 1991, Administrative Complaint was filed at the direction of the April 10, 1991, Probable Cause Panel of the Board of Dentistry. The panel was composed of members Donald Cadle, D.M.D., William Robinson, D.D.S., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the April 10, 1991, panel meeting with the Department's recommendation that an administrative complaint be filed against Petitioner Rowe. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the April 10, 1991, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the three investigative reports together and recommended that the Department file charges as a single filed administrative complaint. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek revocation of licensure in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the April 27, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about April 27, 1990, the department presented the investigative reports to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The Panel expressed concerns about Petitioner Rowe's statements regarding the billing practices at the dental practice and the justification for his treatment and the fees charged for the services. The Panel found that expert review was necessary. On or about December 13, 1990, Respondent forwarded the investigative reports to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about February 21, 1991, February 27, 1991, and February 28, 1991, Dr. Lilly issued individual detailed reports from review of the investigative materials again noting several areas of concern with each patient's treatment and the billing associated with that treatment. Dr. Lilly again noted that Petitioner Rowe seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and services. Dr. Lilly noted that, despite the verification of completeness of records executed by the records custodian and obtained during the investigation of the allegations against Petitioner Rowe, certain patient records and billing information were clearly missing from some patient files. Despite lack of detailed discussion about the Department's recommendations, the April 10, 1991, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. The investigative reports revealed that Petitioner Rowe delegated responsibility for patient billing to the staff of the dental practice, that he did not see the bills before they were submitted to the insurance carriers or the patients, and that he had given staff the authority to sign the claim forms on his behalf or had signed blank insurance claim forms for use by the staff. Dr. Lilly's findings from review of DBPR Case Numbers 01-11377, 01- 11378 and 01-12140 were not dissimilar from those found in reviewing other investigative reports concerning Petitioner. Respondent's investigation of the allegations against Petitioner Rowe was extensive and included information gathering and interviews with the patients, Petitioner Rowe, Frank Murray, D.D.S., and others. On or about December 20, 1990, Respondent initiated an action against Petitioner Toombs, within the meaning of Section 57.111(3)(b)(3), Florida Statutes, through the filing of an Administrative Complaint against his license to practice dentistry. The December 20, 1990, Administrative Complaint filed against Petitioner Toombs concerned allegations filed by patient J.T., who had also filed a similar complaint against Petitioner Rowe. Both Petitioner Rowe and Petitioner Toombs disclaimed any knowledge about the care and treatment J.T. had received from them. Petitioner Toombs claimed that Petitioner Rowe and Dr. Frank Murray were responsible for setting the fees charged for services. Petitioner Toombs claimed that he was aware excessive charges had been incurred by some patients who had seen Petitioner Rowe and that the dental practice was aware of the problem and had ignored the problem. Respondent's investigation of Petitioner Toombs was coordinated with its investigation of Petitioner Rowe. In the Administrative Complaint filed December 20, 1990, Respondent alleged that Petitioner Toombs committed the following violations: Patient J.T. Section 466.028(1)(l), Florida Statutes, by making deceptive, untrue, or fraudulent representations in the practice of dentistry; Section 466.028(1)(j), Florida Statutes, by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes, by exercising influence on the patient in such a manner as to exploit the patient for the financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(m), Florida Statutes, by failing to keep written dental records and medical history records justifying the course of treatment of the patient. The December 20, 1990, Administrative Complaint was filed at the direction of the November 2, 1990, Probable Cause Panel of the Board of Dentistry, which had also considered the investigative materials for Petitioner Rowe. The panel was composed of members Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson. The investigative reports, including the consultant's opinion for each report, were on the agenda for the November 2, 1990, panel meeting, with the Department's recommendation that an administrative complaint be filed against Petitioner Toombs. Each panel member acknowledged that he had received the investigative materials and that he had reviewed the materials that were on the agenda for the November 2, 1990, panel meeting. After brief discussion and receipt of the advice of counsel, the Panel considered the investigative report and recommended that the Department file and administrative complaint against Petitioner Toombs. The Panel members in accordance with Section 466.028(7), Florida Statutes, recommended that the Department seek a suspension, probation, and fine in the disciplinary proceeding. Prior to presentation of the investigative reports for a determination of probable cause, the Department obtained the assistance of Howard L. Lilly, Jr., D.D.S., M.S. to provide an expert opinion of the materials gathered during the investigation. The Department's decision to seek an expert opinion was done with the concurrence of the June 4, 1990, Probable Cause Panel and pursuant to Section 455.203(6), Florida Statutes and Rule 21-1.012, Florida Administrative Code. On or about June 4, 1990, the Department presented the investigative report to the Probable Cause Panel composed of Robert Ferris, D.D.S., Donald Cadle, D.M.D., and Robert Hudson for purpose of determining the need for expert review. The June 4, 1990, Probable Cause Panel expressed specific concerns about the billing practices and on the care provided to the patient, i.e., the immediate seeking of oral surgery prior to excluding the use of less invasive techniques. The Panel found that expert review as necessary. On or about July 18, 1990, Respondent forwarded the investigative report for Petitioner Toombs, as well as the reports for Petitioner Rowe, to Howard Lilly, D.D.S., M.S., for his review and opinion. On or about August 29, 1990, Dr. Lilly issued his report from review of the investigative materials noting several areas of concern with patient J.T.'s treatment and the billing associated with treatment. Dr. Lilly noted that Petitioner Toombs seemed to disclaim any responsibility for what was taking place in the dental practice, particularly with respect to patient billing and the fees charged for patient treatment and service. Despite lack of detailed discussion about the Department's recommendation for Petitioner Toombs, the November 2, 1990, panel's findings were supported by the investigative reports which contained at least patient records and billing records certified as complete by the records custodian, interviews and statements of Petitioner Rowe and Petitioner Toombs, interview and statements from the patient J.T., interview and statements from Frank Murray, D.D.S., recorded statements from a meeting between Petitioner Rowe and Dr. Murray over alleged embezzled funds, and Dr. Lilly's consultant opinions. Respondent's investigation of the allegations against Petitioner Toombs was extensive and included information gathering and interviews with the patient, Petitioner Rowe, Petitioner Toombs, subsequent providers, Frank Murray, D.D.S., and others. On or about July 24, 1991, Respondent amended the Administrative Complaint filed against Petitioner Toombs without substantially altering the alleged violations committed by Petitioner Toombs. In each case, Respondent was required by Section 455.225(4), Florida Statutes, to file the administrative complaints at the direction of the Probable Cause Panel for the Board of Dentistry and prosecute the administrative complaints against the Petitioners according to Chapter 120, Florida Statutes. Both Petitioner Rowe and Petitioner Toombs disputed the allegations of the administrative complaints and the cases were referred to the Division of Administrative Hearings for formal hearing. Petitioner Rowe, without objection from Respondent, sought consolidation of DOAH Case Number 91-03213, representing the charges of the April 10, 1991, Administrative Complaint against him, with DOAH Case Number 91- 6022, representing the charges of the July 24, 1991, Administrative Complaint against him. Petitioner Rowe's cases were consolidated into a single proceeding on or about October 2, 1991. On or about October 18, 1991, this Hearing Officer entered an Order to Show Cause why Petitioner Toombs' case should not be heard concurrently with Petitioner Rowe's consolidated cases. Respondent did not object to hearing the cases concurrently and an Order was issued on November 4, 1991, setting Petitioner Toombs case for hearing concurrently with Petitioner Rowe's consolidated cases. On or about November 4, 1991, Respondent with the full agreement and consent of Petitioners Rowe and Toombs, requested consolidation of the then existing two proceedings. On or about November 18, 1991, the proceedings against Petitioners Rowe and Toombs were consolidated into a single action by Order of this Hearing Officer. During discovery, Petitioner Rowe obtained the original patient records for the eight patients at issue in the consolidated proceeding from Dr. Murray and/or the Central Florida Dental Association. Counsel for Petitioner Rowe provided the Respondent with copies of the records he had obtained in discovery. Counsel for Petitioner Rowe found that approximately 426 pages of records were then contained in the files of Dr. Murray and/or the Central Florida Dental Association, which had not been previously provided to the Respondent despite certification that the records provided to Respondent were complete. The majority of the records obtained by Petitioner Rowe, subsequent to the original finding of probable causes, were records of billing information not previously contained in the patient records. Based on the additional records, Petitioner Rowe and the Respondent moved this Hearing Officer to permit Respondent to amend the administrative complaints against Petitioner Rowe, which request was granted by this Hearing Officer. On or about April 9, 1992, Respondent conferred with the Probable Cause Panel of the Board of Dentistry for the purpose of amending the administrative complaints against Petitioner Rowe. The April 9, 1992, Probable Cause Panel was composed of members William Robinson, D.D.S., Faustino Garcia, D.M.D., and Robert Hudson. Prior to presentation of the proposed amended administrative complaint to the April 9, 1992, Probable Cause Panel, Respondent obtained the assistance of Reda A. Abdel-Fattah, D.D.S. in evaluating the patient records and in the drafting of the amended complaint. Prior to the Panel's consideration of the investigative materials, the Respondent obtained from Petitioner Rowe approximately 426 additional pages from the patient records of the Central Florida Dental Association and/or Dr. Murray and received additional records and information through supplemental investigation. Before directing that an amended administrative complaint be filed against Petitioner Rowe, the panel members at the April 9, 1992, meeting indicated that he had received the investigative materials and reviewed the materials along with the Department's recommendation to amend the complaint. Following receipt of the material and after having the opportunity to inquire of counsel, the April 9, 1992, Probable Cause Panel directed that the proposed Amended Administrative Complaint be filed against Petitioner Rowe. The Amended Administrative Complaint was filed against Petitioner Rowe, at the direction of the April 9, 1992, Probable Cause Panel, on or about April 22, 1992, and alleged the following violations: Count I Section 466.028(1)(b), Florida Statutes by having had a license to practice dentistry acted against by the licensing authority of another state; and/or Section 466.028(1)(jj), Florida Statutes by having failed to report to the Board, in writing, within 30 days if action has been taken against one's license to practice dentistry in another state. Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1978) by making deceptive, untrue or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry, Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; Section 466.028(1)(bb), Florida Statutes (1987) through violation of Section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonable calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count VIII patient S.R. DBPR No. 01-12140, DOAH 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count IX patient J.T. DBPR No. 89-13187, DOAH No. 91-3213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count I of the Amended Administrative Complaint was based on records obtained from the Tennessee Board of Dentistry and had not been previously charged as a violation in this proceeding. Panel Member Donald Cadle, D.M.D., had originally requested in the meeting of April 27, 1990, that the Department included findings as to the Tennessee Board of Dentistry's discipline of Petitioner Rowe in its expert review as possible violation of Section 466.0268(1)(jj), Florida Statutes. Dr. Cadle withdrew his request, after discussion with Panel Member Robert Ferris, D.D.S., finding that the previous disciplinary action was too remote in time for the statute to be applicable in Petitioner Rowe's case. The Probable Cause Panel of April 9, 1992, revisited the issue of the Tennessee Board of Dentistry's discipline of Petitioner Rowe and found that it should be included in the current disciplinary proceeding as part of the amended complaint. The panel failed to recognize the effective date of Section 466.028(1)(jj), Florida Statutes. After considering the additional records provided by Petitioner Rowe and the records obtained in supplemental investigation, the Amended Administrative Complaint dropped the previous allegations that Petitioner Rowe had violated Section 466.028(1)(m), Florida Statutes by failing to keep adequate written records for each patient. The remaining allegations of the original administrative complaints filed against Petitioner Rowe were included in the Amended Administrative Complaint and the following additional allegations were made for each patient: Count II patient H.W. DBPR No. 01-11379, DOAH No. 91-03213 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Section 466.028(1)(l), Florida Statutes (1987) by making deceptive, untrue, or fraudulent representations in the practice of dentistry. Count III patient E.M. DBPR No. 89-02166, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count IV patient M.Z. DBPR No. 89-02167, DOAH No. 91-03213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry. Count V patient R.P.V. [sic, M.R.V.] DBPR No. 89-2372, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(bb), Florida Statutes (1987) through violation of section 766.111, Florida Statutes by ordering, procuring, providing, or administering unnecessary diagnostic tests, which are not reasonably calculated to assist the health care provider in arriving at a diagnosis and treatment of the patient's condition; and Count VI patient H.D. DBPR No. 01-11377, DOAH No. 91-6022 Section 466.028(1)(y), Florida Statutes (1987) by being guilty of incompetence or negligence by failing to meet the minimum standard of performance in diagnosis and treatment when measured against generally prevailing peer performance; and Count VII patient R.M. DBPR No. 01-11378, DOAH No. 91-6022 Section 466.028(1)(j), Florida Statutes (1987) by making or filing a report which the licensee knows to be false; Section 466.028(1)(n), Florida Statutes (1987) by exercising influence on the patient in such a manner as to exploit the patient for financial gain of the licensee or a third party; Count VIII patient S.R. DBPR No. 01-12140, DOAH No. 91-6022 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Count IX patient J.T. DBPR No. 13187, DOAH No. 91-3213 Section 466.028(1)(u), Florida Statutes (1987) by engaging in fraud, deceit, or misconduct in the practice of dentistry; Section 466.028(1)(jj), Florida Statutes was added as a disciplinary provision for the Board of Dentistry effective July 6, 1990, pursuant to Section 3, Chapter 90-341, Laws of Florida (1990). Section 466.028(1)(n), Florida Statutes was repealed effective April 8, 1992, pursuant to Section 6, Chapter 92-178 Laws of Florida (1992). A formal hearing was held on the charges of the Amended Administrative Complaints beginning on or about November 9, 1992, and ending on or about November 13, 1992. As sanction for his non-compliance with prehearing discovery, Petitioner Toombs was limited at the formal hearing to the cross-examination of witnesses and the ability to object to evidence but was not permitted to call witnesses or enter evidence on his behalf. At the formal hearing, the patient records were found to be inherently unreliable and untrustworthy as evidence, due to the inconsistencies found to then exist in the patient records. At the formal hearing, it was established that Frank Murray, D.D.S. had custody and control of the patient records and that he had full control over patient billing and the fees charged for the treatment or services rendered through the Central Florida Dental Association. At the time Petitioner Rowe provided treatment or services to the patients who were the subject of the administrative complaints and amended administrative complaints, Petitioner Rowe was an employee and a shareholder of the Central Florida Dental Association. At the time that Petitioner Rowe provided treatment or services to the patients at issue in the underlying disciplinary proceeding, Frank Murray, D.D.S. made all operational decisions affecting the clinic and its patients. Petitioner Toombs was an associate dentist working for the Central Florida Dental Association and was not a shareholder of the clinic. At the time these cases were investigated, Respondent permitted individuals from whom patient records were sought to copy those records and provide the records to Respondent with an executed verification of completeness of records. For each patient who was the subject of the Respondent's investigation, an employee of the Central Florida Dental Association copied the patient records and submitted the records to the Respondent's investigator with a verification of completeness of records. There was no reason for the investigator to question the accuracy of the executed verification of completeness of records and the patient records appeared generally consistent across patient files. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action finding that Petitioner Rowe had violated Section 466.028(1)(b), Florida Statutes. On or about January 11, 1994, the Board of Dentistry entered a Final Order in the consolidated action dismissing all charges against Petitioner Toombs and the remaining charges against Petitioner Rowe. At the time services were provided to the patients by Petitioners Rowe and Toombs, Section 466.018, Florida Statutes, required that there be a dentist of record identified in the patient record. Section 466.018, Florida Statutes (1987) provided that the dentist of record was presumed responsible for the patient's care and treatment unless otherwise noted in the record. The records maintained for each of the patients at issue in the underlying disciplinary proceeding revealed that either no dentist of record had been charted or that Petitioner Rowe was the treating dentist of record as indicated by the patient medical history form and the health insurance claim forms submitted on behalf of the patient. Absent the identification of the dentist of record in the chart, Section 466.018(2), Florida Statutes (1987) provided that the owner of the dental practice was the dentist of record for the patient, in this case, Frank Murray, D.D.S., Petitioner Rowe, and the other shareholders of the dental practice. Section 466.018(4), Florida Statutes provided that a dentist of record could be relieved of his/her responsibility to maintain dental records by transferring records to the owner dentist and maintaining a list of all records transferred. There was no evidence presented during the investigation of the underlying disciplinary proceeding or offered at formal hearing to demonstrate that either Petitioner Rowe or Petitioner Toombs had complied with Section 466.018(4), Florida Statutes in transferring patient records to Frank Murray, D.D.S. or the Central Florida Dental Association, i.e., a written statement signed by dentist of record, the owner of the practice, and two witnesses, that listed the date and the records transferred to either Frank Murray, D.D.S. or Central Florida Dental Association.
Recommendation Based on the foregoing, it is hereby, ORDERED: That Petitioners' requests for award of attorney's fees and costs are DENIED. DONE AND ORDERED this 23rd day of November, 1994, in Tallahassee, Leon County, Florida. MARK CLARK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of November, 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by Petitioners, pursuant to Section 120.59(2), F.S. Adopted in Paragraph 1. & 3. Rejected as unnecessary. Adopted in part in Paragraph 64. The charges with regard to influence for financial gain were included in the amended complaint. & 6. Rejected as immaterial. The panel explained in an earlier meeting that its real concern was with the exercise of influence for financial gain. Rejected as contrary to the weight of evidence. Adopted in Paragraph 54. Rejected as argument that is not supported by the record or immaterial. Adopted in conclusions of law, as to section 57.111, but rejected-as immaterial as to section 120.59(6)(a), F.S. since the agency is not a "nonprevailing party". Adopted in conclusions of law. This finding is, however, disputed by Respondent. Adopted in Paragraphs 2 and 3. Adopted in Paragraph 4 14.-16. Rejected as contrary to the weight of evidence. 17.-19. Rejected as unnecessary, given the conclusion that the complaints were "substantially justified" at the time they were filed. COPIES FURNISHED: Mr. William Buckhalt Executive Director Board of Dentistry 1940 North Monroe Street Tallahassee, Florida 32399-0765 Harold D. Lewis, Esquire General Counsel Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 George Stuart, Secretary Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Brooten, Jr., Esquire 660 West Fairbanks Avenue Winter Park, Florida 32789 Jon M. Pellett, Qualified Representative Department of Business and Professional Regulation 1940 North Monroe St., Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in the State of Florida and holds license number ME 0043566. Respondent has never been the subject of a previous complaint from the Department of Professional Regulation (now the Department of Business and Professional Regulation). No patient involved in this proceeding incurred injury as a result of any procedure performed by Respondent or as a result of any medical record kept by Respondent, nor did any patient claim injury or make a complaint against Respondent. Respondent derived no financial gain from any act or omission alleged in the administrative complaint. All events pertaining to this proceeding occurred in 1987 or 1988. Prior to February 8, 1988, the effective date of Chapter 88-1, Laws of Florida, Section 458.331(1), Florida Statutes provided, in pertinent part, as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Section 25 of Chapter 88-1, Florida Statutes, became effective February 8, 1988, and amended the pertinent provisions of Section 458.311(1), Florida Statutes, to read as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. At the times pertinent to this proceeding, Petitioner had adopted no rules pertaining to the keeping of records by a licensed physician. Imperial Point Medical Center (Imperial Point) is a hospital located in Broward County, Florida. Unless otherwise indicated, all hospital records referred to in this matter are from Imperial Point. PATIENT #1 (C.S.) On August 8, 1988, Respondent performed an upper endoscopy on Patient #1, a male, who was 44 years old at the time of the procedure. This procedure was performed at Imperial Point on an outpatient basis. An upper endoscopy is the viewing of the mouth, the pharynx, the esophagus, the stomach and portions of the duodenum with a fiber optic instrument that allows direct visualization of the lining of these structures and allows therapeutic maneuvers. The records kept of this procedure performed on Patient #1 on August 8, 1988, include an outpatient hospital record entitled "Operative Report". The description of the procedure portion of this report includes the following: ". . . The gastric portion was infiltrated with 1:1,000 adrenaline . . ." Adrenaline, also known as epinephrine, is a vasoconstrictor that can be used to control minor bleeding and oozing. It is used regularly in gastroenterology to treat actively bleeding lesions or ulcers with evidence of recent bleeding prior to performing a more permanent type of hemostasis. Dr. Goldberg testified that epinephrine was usually injected into these areas by a needle. Dr. Goldberg was of the opinion that epinephrine should not be used in cases of trivial bleeding or oozing or after routine biopsies unless there is an imminent danger of a significant arterial bleed. The testimony of Dr. Cerda and Dr. Singh established that spraying epinephrine over an area that is subject to bleeding is a precautionary technique some gastroenterologists follow. Dr. Singh and Dr. Cerda have both either used this technique, or have observed its use by other physicians. The expert witnesses agreed that the injection by needle of epinephrine into the gastric wall would be a procedure that falls below an established standard of care. There was a dispute among the expert witnesses as to how the term "infiltrated" should be interpreted. Petitioner contends that the term "infiltrated" is synonymous with the term "injected", and that the medical records should be construed to mean that Respondent injected the gastric wall with a needle, and therefore practiced below the standard of care. This contention is consistent with the testimony of Dr. Goldberg. Respondent asserts that the medical record should be construed to mean that Respondent sprayed the gastric wall as a precautionary measure. This contention is consistent with the testimony of the expert witnesses who testified on behalf of the Respondent. This dispute is resolved by finding that the term "infiltrated" does not have the same meaning as the term "injected" and does not prove that Respondent injected Patient #1's gastric wall with a needle. This conclusion is based, in part, on the definition of the term "infiltrate" and on the context in which epinephrine is sometimes administered by gastroenterologists during this type procedure. According to The American Heritage Dictionary of the English Language, the term "infiltrate" means to pass a liquid or a gas into something through its interstices or to permeate with a liquid or gas passed through interstices. Dorland's Illustrated Medical Dictionary, Twenty Sixth Edition (Dorland) has a similar definition of the term "infiltrate". According to Dorland, an "interstice" is small interval, space, or gap in a tissue or structure. According to Dorland, the term permeate means to penetrate or pass through, as through a filter. Also according to Dorland, the term inject means the act of forcing a liquid into a part, as into the subcutaneous, the vascular tree, or an organ. Based on these definitions, it is found that the use of the term "infiltrate" is more consistent with the practice of spraying epinephrine onto the gastric wall, and that the use of the term "infiltrate" does not prove that Respondent injected the epinephrine into the gastric wall with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #1 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. A pathology report dated August 8, 1988 contained in the medical file provided a pathological diagnosis as follows: "esophageal brushings: no evidence of malignancy." Brushings are the result of passing a small brush through the biopsy channel of an endoscope, rubbing it over an area of concern that might have either a malignancy or a fungal infection, taking the brush out of the scope, wiping it on a microscopic slide, and sending the slide to the pathologist for cytological examination. The reference to the "esophageal brushings" in the pathology report was error. The brushings taken from Patient #1 during the procedure on August 8, 1988, came from the stomach, a fact obvious to all of the expert witnesses in light of the operative report and operative drawing made by Respondent. Because Petitioner failed to prove that Respondent took esophageal brushings from Patient #1, its charge that he failed to properly document his reasons for doing so must also fail. 1/ Petitioner proved that Respondent's medical records, including his office notes as to Patient #1 failed to contain an adequate medical history for Patient #1 and failed to reflect the findings of any physical examination of Patient #1 by Respondent. Petitioner further proved that such failures fall below an established standard of care as alleged in Count Two of the Amended Administrative Complaint. PATIENT #2 (R.B.) Patient #2 was a 70 year old male seen by Respondent for a consultation because of the patient's history of hematemesis, which is the vomiting of blood. Respondent prepared a formal consultation note dated September 25, 1988. The consultation note contains a description of the patient's condition, references a rectal exam, which was positive for blood, and indicates that a physical examination of the patient was made. Respondent again saw the patient on September 27, 1988 and performed an upper endoscopy. Dr. Goldberg was critical of the medical records kept by Respondent as to this procedure and was of the opinion that the medical records were inadequate. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedure. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records pertaining to this patient were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. The records kept of this procedure reflect that Respondent "infiltrated" Patient #2 with epinephrine. This is the identical dispute over the meaning of the term "infiltrated" that pertained to Patient #1 as discussed above. For the reasons given in resolving the dispute as it pertains to Patient #1, it is found that the term "infiltrated" does not have the same meaning as the term "injected" and that the use of the term does not prove that Respondent administered the epinephrine by injecting Patient #2 with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #2 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. PATIENT #3 (B.B.) Patient #3, a 65 year old female was admitted to Imperial Point with chest pains by her physician, a Dr. Fanfan. Patient #3 had a history of cancer which included the prior surgical removal of a tumor. On October 3, 1988, Respondent performed a colonoscopy of Patient #3. A colonoscopy is an examination of the colon from the anus to the ileocecal valve using a fiber optic instrument. A colonoscopy is indicated to evaluate abnormal X-rays, changes in bowel habits, evidence of bleeding, suspicions of inflammation, tumors, or polyps. Respondent adequately performed the procedure on Patient #3. The colonoscopy detected that Patient #3 had polyps. Subsequent laboratory results established that these were hyperplastic polyps that required no follow-up. Had the polyp been an adenomatous polyp, which is a true neoplasm with malignant potential, a follow-up for recolonoscopy would have been appropriate in one year. Prior to receiving the pathology reports, on the polyp, Respondent recommended a six month follow-up for the patient. This follow-up recommendation was appropriate at the time it was made. Petitioner failed to prove that the recommendation that a follow-up be performed was below an established standard of care. Petitioner failed to prove that the recommendation that the follow-up for this patient with a history of cancer be in six months as opposed to one year fell below an established standard of care. The barium enema for this patient was originally scheduled by the attending physician, Dr. Fanfan. Dr. Fanfan clearly wrote a note on the same day following Respondent's report of the colonoscopy that the barium enema was pending, yet the attending physician did not cancel the barium enema. There is no disagreement among the experts that the barium enema was unnecessary in light of the findings of the colonoscopy. It is medically unnecessary and inappropriate for both tests to be performed on the same day. Dr. Goldberg was of the opinion that Respondent was responsible for the patient once he began his consultation and that Respondent should have canceled the barium enema. Dr. Cerda, Dr. Eberly and Dr. Singh were of the opinion that the attending physician was responsible for scheduling the barium enema and that the attending physician or the radiologist should have canceled the barium enema. Dr. Eberly testified that as the primary care physician, the admitting physician is the "captain of the ship" and has the responsibility to make final determinations with respect to tests of this nature. Because of the conflicting testimony from equally credible expert witnesses, it is found that Petitioner failed to prove that Respondent violated an established standard of care by not cancelling Patient #3's enema. Dr. Goldberg was of the opinion that Respondent's medical records pertaining to Patient #3 were inadequate. He had several criticisms of the records. Dr. Goldberg opined that there should have been a formal consultation note on Patient #3's chart that included past history, present illness, review of systems, allergies, pertinent laboratories, a thorough organ specific or system examination, an impression, an adequate discussion of the consultant's impression and the consultant's plans. He opined that the indications for Patient #3's procedure were inadequately dictated on the procedure notes and that Respondent's history pertaining to Patient #3 was inadequate because there was no pertinent review of systems or past history, no mention of the previous tumor, no mention of allergies, and an extremely scant examination. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of this patient's medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #4 (E.K.) On October 4, 1988, Patient #4, a 92 year-old female, was admitted to the hospital with an acute onset of vomiting, dehydration, and abdominal pain. Respondent was asked by Patient #4's attending physician to evaluate Patient #4 for a potential small bowel obstruction following an X-ray that was consistent with a small bowel obstruction. Respondent performed an upper endoscopy on Patient #4 on October 7, 1988. An obstruction of the intestines is a blockage in the large or small intestine. The bowel behind the blockage may become inflated with fluid or air and may be seen on X-ray. The obstruction may result from a variety of abnormalities. Dr. Goldberg was of the opinion that the upper endoscopy was contra- indicated and potentially dangerous to the patient because of the X-ray indicating a complete bowel obstruction. Dr. Goldberg was also of the opinion that an upper endoscopy should be used only under compelling circumstances if there is a partial bowel obstruction. Dr. Goldberg was of the opinion that Respondent did the right tests on Patient #4, but in the wrong order since he did not first rule out an obstruction. Prior to performing the upper endoscopy Respondent monitored the patient for several days. During that time period, examinations indicated that the patient was having bowel movements. Both the attending physician's notes, Respondent's notes, and the nurse's notes indicate positive bowel signs on October 5 and 6, indicating that there was not a complete bowel obstruction. Respondent ordered a Golytely preparation administered to the patient, which usually consists of one or two liters of non-absorbable solution that basically washes the bowel out. That preparation would have been improper with a complete bowel obstruction. Dr. Goldberg was of the opinion that the use of a Golytely prep in this patient was a gross judgment error. Dr. Singh was of the opinion that there was no contra-indication for using the preparation in this situation. Petitioner failed to prove that Patient #4 had a complete bowel obstruction or that the procedure, including the use of the Golytely preparation, violated an established standard of care. It is found that Respondent was acting within the scope of his discretion as the consulting physician to order the administration of the Golytely preparation and to perform the upper endoscopy. On October 11, 1988, Respondent performed a colonoscopy on Patient #4. Respondent stated on the operative report that the colonoscopy was indicated because of diverticulitis. Diverticulitis was not mentioned in any of Respondent's notes concerning Patient #4, and there was no notation as to the reasons Respondent thought the patient had diverticulitis. Although Respondent failed to document why he felt that diverticulitis was an appropriate indication for the colonoscope, there is no dispute that a colonoscope was, in fact, indicated. Further, the colonoscope established that the pretest diagnosis of possible diverticulitis was not incorrect. The colonoscopy revealed areas of colitis, and the pathology report noted an ulcer with acute and chronic inflammation. Respondent's experts testified that they were of the opinion that Respondent violated no established standard by listing diverticulitis as an indication for the colonoscopy. It is found that Petitioner failed to prove that Respondent practiced below an established level in listing diverticulitis as an indication for the colonoscope. During the colonoscopy, Respondent found several mildly bleeding areas and infiltrated Patient #4 with epinephrine. For the reasons discussed pertaining to Patient #4, it is found that Petitioner failed to prove that Respondent violated an established standard of care in administering epinephrine to Patient #4. Dr. Goldberg was of the opinion that Respondent's handwritten consultation report was inadequate. Dr. Goldberg bases his conclusion on the following observations. The report was difficult to read and failed to include any significant historical events concerning Patient #4. In his consultation report, the Respondent failed to note anything about having done a rectal examination on this patient, whether or not the abdomen was distended, and whether there were active or inactive bowel sounds. Dr. Goldberg was of the opinion that these findings would help to distinguish between an obstruction and an ileus or paralysis of the bowel. Dr. Goldberg was also of the opinion that the patient's records of the upper endoscopy performed October 7, 1998, fail to reveal any significant findings. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #5 (J.T.) Patient #5, an 89 year-old male, was admitted to Imperial Point with a history of peptic ulcer disease and arthritis. This patient was seen by Respondent on a consulting basis. The patient was vomiting blood and Respondent was asked to see the patient to determine the source of the bleeding. Respondent performed an upper endoscopy on October 13, 1988, and found a significant outlet obstruction. On October 17, 1988, a G.I. series was performed and a repeat upper endoscopy and pyloric dilatation was performed. The procedures performed by Respondent were properly indicated and had a beneficial result to the patient. Back-to-back pyloric dilatations were appropriate and clinical judgment was properly exercised. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the upper endoscopy of October 13, 1988, in that Respondent's operative report failed to document Respondent's findings in detail. Dr. Goldberg testified that an essential endoscopy report that physicians are trained to do should include the following: indications for the procedure, medication used to sedate the patient, identification of instrument used, description of the anatomical landmarks and their condition as visualized by the physician passing the endoscope, the removal of the scope, the physician's impressions and what the physician plans to do about those impressions, how the patient tolerated the procedure and what the patient's condition was after the procedure, and that the patient was sent to the recovery area. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the procedures performed on this patient on October 17, 1988, in that Respondent's operative report did not document Respondent's findings in detail and did not indicate if the scope was passed through Patient #5's dilated pylorus into the duodenum. In Respondent's impressions on the second endoscopy, he noted pyloric stenosis and duodenal ulcer. In his procedure note Respondent does not mention whether he passed the scope into the duodenum or how he knew there was a duodenal ulcer. Dr. Goldberg was of the opinion that Respondent did not properly document what he did. On October 18, 1988, Respondent performed a repeat pyloric dilation on Patient #5. Dr. Goldberg was of the opinion that Respondent failed to record the reasons for the second procedure and to document his findings. Dr. Goldberg was of the opinion that the third endoscopy note did not adequately detail the examinations of the esophagus and stomach. Dr. Goldberg was of the opinion that every procedure note stands alone, and that if a physician does an endoscopy on day one and repeats it on day two, the physician still must make that report complete because it is not always going to be part of a document. Dr. Goldberg was of the opinion that Respondent's records did not stand alone. Dr. Goldberg was of the opinion that Respondent's handwritten consultation note was sketchy and should have contained a history of allergies because of the need to give the patient medications for sedation. Dr. Goldberg's criticisms of Respondent's medical records do not prove that the medical records kept by Respondent were inadequate as measured by an established standard. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedures and that the records were adequate. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #6 (D.Y.) From October 19, 1988, until October 22, 1988, Respondent was consulting physician to Patient #6, a 72 year-old male, who was admitted to Imperial Point with rectal bleeding. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to Patient #6 because a formal consultation note was lacking. The medical records which were reviewed by Dr. Goldberg were incomplete when reviewed by him. A specific reference is made to a consultation note that is not contained in the hospital records. Respondent established that other medical records were missing from the hospital records. In light of the specific reference to the consultation note, it is found that the absence of this consultation note from the hospital records is insufficient to prove that there existed no consultation note. On October 20, 1988, Respondent performed an colonoscopy on this patient and a biopsy was taken in the segmental descending colon area. The colonoscopy could not be completed because the colonoscopy could not pass to the patient's cecum. The following recommendation was made by Respondent (the original is in all capital letters): IN VIEW OF NOT REACHING TO THE CECUM, THE PATIENT WOULD NEED BE (this is an abbreviation for barium enema) AND ALSO IF EVERYTHING IS NEGATIVE, RECOLONOSCOPY IN ONE YEAR AND IF THERE ARE ANY CHANGES IN THE BIOPSY OF THE POLYP, THEN ACCORDINGLY WILL PLAN. On October 21, 1988, the follow-up barium enema was performed by Dr. Nicholas M. Arfaras, a radiologist. The radiology report reflected the following finding: "Also in the sigmoid there is an approximately 1 cm. rounded filling defect identified near the junction with the descending colon. This is felt to be secondary to a polyp." The possible polyp detected by the barium enema should have been followed up. However, it was not established that Respondent was consulted by the attending physician about the results of the barium enema. Dr. Lipton, as the attending physician, would have had the responsibility for following up the recommendations made by Respondent and for bringing Respondent or another gastroenterologist in for further consultations following the barium enema if Dr. Lipton had believed it necessary to do so. This patient was discharged from Imperial Point by Dr. Lipton on October 22, 1988. The final page of the discharge summary for this patient reflected the following notation: "Condition was improved. The patient is to have a follow up in one week in the office with Dr. Lipton and with Dr. Gupta in two weeks." The evidence presented in this proceeding, including Respondent's office notes, does not reflect that Respondent had any involvement with this patient after October 21, 1988, until 1990, when he performed on the patient at North Broward Medical Center a procedure described as a "multiple colonoscopy with multiple biopsies and cauterization." This procedure in 1990 revealed multiple polyps. The polyp removed on colonoscopy in 1988 was an adenomatous polyp, a polyp with significant malignant potential. This patient needed a follow-up colonoscopy in one year. Respondent was the consulting physician and recommended reevaluation of the patient in one year. Follow-up care was not the responsibility of Respondent, but of the treating physician. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records in that Respondent failed to adequately document the indications for the colonoscopy performed on Patient #6 and why the colonoscope could not be passed to Patient #6's cecum. Dr. Goldberg opined that a physician doing a colonoscopy needs to tell why he did not get to the cecum so that the next physician colonoscoping this patient can take appropriate precautions. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #7 (C.R.) Respondent was a consulting physician to Patient #7, a 64 year old male who was hospitalized with rectal bleeding. Respondent saw this patient because of a possible colonic fistula, which is a connection with any piece of the intestine and some other structure. Respondent recommended a barium small bowel X-ray and a barium enema, both appropriate clinical recommendations. On November 11, 1987, Respondent performed a colonoscopy on Patient #7. Petitioner contends that Respondent failed to keep adequate written medical records pertaining to the aforementioned procedure in that Respondent failed to document an adequate history as an indication of Patient #7's colonoscopy. This contention is rejected based on the testimony of Dr. Singh. The medical records provide adequate justification for the procedure. Dr. Goldberg was critical of Respondent's records pertaining to this patient and considered the records inadequate. He was of the opinion that the records should have better detailed his findings and should have recorded any follow-up plans for a repeat colonoscopy on the patient. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to provide a history or physical examination for Patient #1 as alleged in Count Two, which reprimands Respondent for that violation, and which imposes an administrative fine in the amount of $250.00 against the Respondent for that violation. It is further recommended that all other charges against Respondent contained in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993.
