The Issue Whether Respondents violated Sections 458.331(1)(k), (m), (n), and (t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of medicine pursuant to Section 20.42 and Chapters 455 and 458, Florida Statutes. Respondent, Alan K. Roberts, M.D. (Roberts), 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 0030398 in 1977. He is a Board Certified family practice physician. Respondent, Peter R. Genovese, M.D. (Genovese) 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 0013626. He is a Board Certified family practice physician. Roberts and Genovese are the co-owners of Sunshine Medical Center (SMC) which operates three separate offices located in the Miami area at Sunset Drive, Port of Miami, and Port Everglades. Jose R. Menendez, M.D. (Menendez) has been a licensed physician in the State of Florida since 1973. Menendez began working for SMC in 1992 and worked there for approximately six months. Menendez worked at the Sunset Drive and Port of Miami locations. Aside from his salary, Menendez received no other remuneration and had no financial interest in SMC. PATIENT C.W. In 1985, SMC had a contract with the Public Employees Service Company (PESCO) whereunder SMC would perform routine screening physicals on Dade County teachers and administrators. The physicals were called VISTA examinations. Patient C.W., a clerk with the Dade County School System, went to SMC for a VISTA examination on October 16, 1985. She filled out a patient information form indicating her home address, home telephone number, name of employer, and her work telephone number. C.W.'s examination consisted of blood tests, urinalyses, chest x-rays, EKG, hearing function tests and a spirometry. All of the tests were administered by a female employee of SMC. After completion of the tests, C.W. met with a man whom she believed was a doctor, who in her presence, looked at the x-rays. C.W. did not see the x-rays herself. She was advised that "everything looked fine." She was not told that she had a problem with her lungs or that the x-rays showed that she had any suspicious tumors or masses on her lungs. In reality, the x-rays indicated abnormalities in her chest. C.W.'s spirometry test results were abnormal and her white blood cell count was low, but she was not informed of these abnormalities. C.W.'s charts show that she was seen at SMC on October 16, 1985, but do not indicate what doctor was responsible for supervising and administering the tests and what doctor met with C.W. after the tests were completed. There are no physical findings recorded in the clinical data portion of C.W.'s chart and no notes are in the chart as to the results of the tests performed. Neither Dr. Genovese nor Dr. Roberts examined C.W. on October 16, 1985. SMC used a pre-printed form letter to notify its patients of the results of the VISTA examination. The form letter contained the stamped signatures of the Respondents. On October 21, 1985, an undated form letter was sent to C.W. advising her that the results of the VISTA examination were normal and satisfactory and that no medical follow-up was necessary. A handwritten notation on the form letter stated, "Please increase the iron intake. Your blood work show (sic) decrease iron. Also, stop smoking." C.W. received the letter. The form letter contained stamped signatures of the Respondents. On November 4, 1985, the Respondents were conducting a routine review of patients' charts and x-rays, including those of C.W. The Respondents noted the abnormality on C.W.'s x-ray. C.W.'s charts did not mention the abnormality. On November 4, 1985, Respondents sent a second preprinted and presigned form letter to C.W. which advised C.W. that the results of the VISTA examination required a follow up visit. The form letter contained the following handwritten note: Review of our records reveals that your lab reports were omitted from our report of 10-21-85. A copy is enclosed for your family doctor. Also, your chest x-ray is abnormal and you should see your family doctor immediately for a second x-ray and follow-up care. The second letter was sent by first class U.S. mail. C.W. did not receive the second letter informing her of the abnormal x-ray. On November 12, 1985, the laboratory supervisor for SMC placed a telephone call to C.W. at her home but did not get an answer. On November 14, 1985, Genovese placed a telephone call to C.W.'s home but did not receive an answer. On November 19, 1985, Roberts called C.W. at home and received no answer. On November 19, 1985, Roberts called PESCO and advised a PESCO staff member that C.W. had an abnormal chest x-ray. No further attempt was made by Respondents to contact C.W. The purpose of the telephone calls to C.W. was to make certain that she got follow-up treatment for the mass in her lung. After the examination at SMC, C.W. began having a fever and generally felt ill. In February, 1986, C.W. consulted with a doctor and was advised that she had a tumor in her lung. The lower lobe of her right lung was surgically removed; however, the cancer spread to other parts of her body. C.W. died as a result of lung cancer. When the October 21 and November 4, 1985 letters were sent under the Respondents' preprinted signatures, the Respondents became involved in the care of Patient C.W. Patient C.W. was advised by a form letter from Respondents that her examination was satisfactory, when a review of C.W.'s x-ray showed a gross abnormality. To so advise the patient gave the patient a false reassurance that she was physically well except for her anemia. The document did not accurately reflect the test results of the patient. Respondents again involved themselves in the care of Patient C.W. when they reviewed her x-rays and discovered the abnormality in her lung and sent a second letter to notify her that the x-ray was abnormal and that she should see her family doctor. Although the letter was sent first class U.S. mail and was not returned to Respondents, Respondents should have either sent the letter by certified mail or made personal contact with C.W. Failure to do so constituted a level of care and treatment which fell below that level which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. INSURANCE BILLINGS In order to start the billing process for services provided at SMC, each doctor generates a "super bill" which reflects the services provided such as office visit, x-rays, laboratory work and electrocardiograms. The charges are placed on the super bill by clerical staff and returned to the doctor at the end of the day to be checked for accuracy. The super bill is then transmitted to the billing department at SMC where it is encoded by a clerk and an insurance claim form is generated. As part of the encoding process, either a doctor's name or SMC's name is placed on the form. As part of SMC's quality assurance program, the insurance claims are reviewed in batches to check that the diagnoses, procedures and charges are appropriate. It is common for the insurance claims to be backed up for 7 to 10 days in the billing department. The money collected for the insurance billings goes directly to SMC. SMC submitted insurance claims for treatment of the following five patients during March 1993 through May 1993: J.V., R.L., L.W., P.Z., and D.W. SMC submitted a claim form dated March 31, 1993 to Metropolitan for services rendered to patient J.V. on March 25 and 29, 1993. The claim form stated that the physician was J.R. Menendez. Part of the services rendered to on March 25, 1993 was an injection of terramycin. Menendez did not work on March 25, 1993. He has never administered any Terramycin intramuscularly or intravenously to a patient in his professional career. Menendez did not provide any services to patient J.V. on March 25, 1993. The services listed on the claim form were provided to patient J.V. on March 25, 1993, by staff at SMC; however it was by someone other than Menendez. Menendez did provide follow-up services for J.V. on March 29, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient R.L. on March 30, 1993. The claim form stated that the physician was J.R. Menendez. Menendez did not work on March 30, 1993 and did not provide any services to patient R.L. on that date. However, the services listed on the insurance claim form were provided to patient R.L. by someone at SMC on March 30, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient D.W. on March 31, 1993. The claim form stated the physician was J.R. Menendez. Menendez did not work on March 31, 1993, and did not provide any services to patient D.W. on that date. Someone at SMC, other than Menendez, provided the services to patient D.W. on March 31, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient P.Z. on March 31, 1993. The claim form stated the physician was J.R. Menendez. Menendez did not work on March 31, 1993, and did not provide any services to patient P.Z. on that date. P.Z. was provided the services on March 31, 1993, by someone at SMC other than Menendez. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient L.W. on March 30, 1993. Part of the services rendered to L.W. was an injection of terramycin. Menendez did not work on March 30, 1993, and did not provide any services to patient L.W. on that date. Someone else at SMC provided the services to patient L.W. on March 30, 1993. SMC submitted an insurance claim to Central States Southeast and Southwest Areas Health and Welfare Fund for services provided to patient P.W. on February 3, 1993. The claim form stated that the physician was Jose M. Menendez and contained the purported signature of J. Menendez, MD. Menendez did not provide services to P.W. on February 3, 1993, and did not sign the insurance claim form. P.W. was a regular patient of Roberts. Roberts examined and treated on February 3, 1993. As of August 12, 1993, SMC had not received payment from Central States for services provided to P.W. on February 3, 1993. SMC submitted a second claim for the February 3 services, but this time the physician was listed as Dr. Modesto Ordoqui. Some time in April, 1993, one of the Respondents gave Menendez a folder containing some insurance claim forms to review to make sure the services correlated with the diagnoses. After reviewing the files, Menendez concluded that he had not provided services to patients J.V., R.L., L.W., P.Z. and D.W. listed on the insurance claim forms given to him by Roberts. On April 15, 1993, at a dinner meeting with Respondents, Menendez told them that he had not provided the services to the patients on the insurance claims that Roberts had given him to review. The Respondents told him that they did not know what he was talking about. Menendez resigned that evening.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaints in Case Nos. 94-3430 and 94-3757; finding Respondent Dr. Kenneth Alan Roberts guilty of violating Sections 458.331(1)(m) and (t), Florida Statutes in Counts One and Two of Case No. 94-3759, finding Respondent Dr. Peter R. Genovese guilty of violating Counts One and Two in Case No. 94-2142; and imposing the following penalty as to each Respondent: (1) one year probation with terms and conditions to be set by the Board, (2) an administrative fine in the amount of $3,000, and (3) a reprimand. DONE AND ENTERED this 27th day of December, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 27th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2142 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: The second sentence is rejected as unnecessary. The remainder is accepted. Paragraphs 3-4: Accepted. Paragraphs 5-8: Accepted in substance. Paragraph 9: Rejected as unnecessary. Paragraph 10: Accepted. Paragraph 11: The first, second, fourth, fifth, sixth, and seventh sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 12: The first and fourth sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 13: Rejected as unnecessary based on the finding that Menendez did not work on March 25, 30, and 31, 1993. Paragraph 14: Accepted that Menendez did not work on March 25, 30, and 31, 1993. The remainder is rejected as unnecessary. Paragraph 15: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 16: The first two sentences are rejected as unnecessary. The third and fourth sentences are accepted in substance. The fifth, sixth, seventh, and eighth sentences are rejected as unnecessary. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The last sentence is rejected as not supported by the record. The remainder is rejected as constituting argument. Paragraph 18: The first sentence is rejected as unnecessary. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 19: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 20: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraphs 21-22: Accepted in substance. Paragraph 23: Rejected as subordinate to the facts found. Paragraph 24: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 25: Rejected as unnecessary. Paragraph 26: Sentences 1-8, 10, and 11 are accepted in substance. Sentences 9 and 12 are rejected as unnecessary. The last sentence is rejected as subordinate to the facts found. Paragraph 27: The second and third sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 28: Rejected as subordinate to the facts found. Paragraph 29: Accepted in substance. Paragraph 30: The first sentence is rejected as not supported by the evidence. The billing practices may not have been proper in that the correct treating physician's name was not listed on some of the insurance claims but the evidence does not support a finding that the incorrect billing was anything other than a clerical mistake. The last sentence is rejected as subordinate to the facts found. Paragraph 31: The first two sentences are rejected as unnecessary. The third and fourth sentences are accepted in substance. The remainder is rejected as constituting argument. Paragraph 32: Accepted in substance that the second billing was a rebilling. The documentary evidence established that the second billing was in Dr. Ordoqui's name. The last sentence is rejected as constituting argument. Paragraph 33: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 34: The first through the fourth sentences are accepted in substance. The last two sentences are rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraphs 35-38: Accepted in substance. Paragraph 39: The second sentence is rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 40: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 41: Accepted in substance. Paragraph 42: Accepted in substance that Respondents met on November 4, 1985 and discovered the abnormality in the x-ray. Paragraph 43: The last phrase of the last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 44: Accepted. Paragraph 45: Accepted in substance. Paragraph 46: The evidence did not establish that Rene Bravo saw Patient C.W. The remainder is irrelevant based on the findings of fact. Paragraphs 47-49: Accepted in substance. Respondents' Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-6: Accepted in substance. Paragraph 7: The last sentence is accepted. The first sentence is rejected to the extent that the evidence does not establish that either Respondent gave either claim form for P.W. to Menendez. Given that one of the claim forms was not generated until after Menendez resigned, at least one of the forms could not have been given to Menendez. It is accepted that Menendez did not recognize the signature on one of the claims as his. Paragraph 8: Accepted in substance. Paragraph 9: The last sentence is rejected as not necessary. The remainder is accepted in substance. Paragraph 10-11: Rejected as subordinate to the facts found. Paragraph 12: The first sentence is accepted. The second sentence is rejected as unnecessary. Paragraph 13: Rejected as subordinate to the facts found. Paragraph 14: Accepted in substance. Paragraph 15: Accepted that the second billing was a rebilling for services for which no payment had been received. Based on the bill under Dr. Ordoqui's name, it appears that the first bill was under Menenedez's name and the second bill was under Dr. Ordoqui's name. Paragraphs 16-23: Accepted in substance. Paragraph 24: Accepted in substance that neither Respondent examined C.W. on October 16, 1985. Paragraph 25: Rejected as subordinate to the facts found. Paragraph 26: The first sentence is accepted in substance. The second sentence is accepted in substance to the extent that the use of a form per se does not constitute notification below the prevailing standard of care. Paragraph 27: Accepted in substance. Paragraph 28: Rejected as irrelevant since the Respondents adopted that method to inform the patients and by sending it out under their signature became responsible for the care of the patient. Paragraph 29: Accepted in substance that it was customary for the Respondents. Paragraphs 30-31: Accepted in substance. Paragraph 32: Rejected as subordinate to the facts found. Paragraph 33: Accepted in substance. Paragraph 34: The first sentence is rejected as not supported by the evidence. The second sentence is accepted in substance except as to treated. Paragraphs 35-36: Rejected as not supported by the evidence. COPIES FURNISHED: Joseph A. Garwood, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street allahassee, Florida 32399-0792 Harold M. Braxton, P.A. Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, Esquire General Counsel Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed in the State of Florida, having been issued license number ME 0055126. On December 4, 1989, D.W. presented herself as a patient at Unity Health Center, where Respondent was employed as a physician. She complained of headaches, insomnia, and jerking of her muscles. She advised that she had had her roof repaired and other repairs done to her home and feared she was reacting to some of the chemicals involved with those repairs. She further advised that the health department had evaluated her home for the presence of formaldehyde, carbon monoxide, and other toxins but none had been detected. Respondent took a minimal, at best, history but performed no physical examination. Yet, Respondent diagnosed the patient as suffering from chemical toxicity. He recommended a holistic diet and prescribed a number of homeopathic or holistic substances. He recommended that the patient return in three weeks to be re-checked. The patient returned to Unity Health Center on December 28, 1989. Respondent recommended an Interro test to check her chemical toxicity levels. The patient submitted to that test, and Respondent used the results of the Interro testing to confirm his diagnosis of chemical toxicity related to chemicals in the patient's environment from the repair of her roof. The Interro machine indicated that the patient had elevated levels of formaldehyde; toxic levels of arsenic, lead, and mercury; and a sensitivity to mold and yeast. Respondent prescribed additional homeopathic or holistic substances including "de-tox drops", prescribed a tranquillizer, and recommended that the patient return in three weeks to be re-checked. Respondent used the Interro machine as a diagnostic instrument. His medical records contain no notation that the patient gave informed consent for the use of the Interro machine for that purpose, and no written informed consent is contained in Respondent's records. The Interro machine is a device with certain dials and switches on it and an electrode 3-4 inches long and approximately 1/2 inch in diameter, cylinder-shaped, which is held in the patient's hand. The other cord attached to the machine has two electrodes that go around the patient's index and ring fingers of the left hand, much like a polygraph machine. The third component is a wand which is held by the tester. When the patient is hooked up to the Interro machine with the two electrodes on the left hand and holding the other electrode in the right hand, the wand is pressed into certain "acu-pressure points" by the tester. A needle on the machine indicates the patient's sensitivity to whatever substance the tester has the machine "tuned to". The Interro machine is a device purported by its manufacturer to be a computerized question and answer device which measures changes in the patient's skin conductivity in response to computer-generated questions. The Interro's training manual specifically represents that it is not a medical device; rather, it is a communication device. The Interro machine is not approved by the federal Food and Drug Administration as a medical diagnostic device. Rather than returning to Respondent or Unity Health Center, the patient went to Dr. Tillinghast Lybass, a specialist in allergies and immunology, for a second opinion on January 9, 1990. She complained of allergies and chemical toxicity and advised Lybass of Respondent's diagnosis. She advised Lybass of the inspection of her home by the health department and of the repairs done on her roof. She discussed her previous exterminating service. D.W.'s complaints to Lybass were headaches, itching, body jerking, blurred vision, redness of her eyes, and insomnia. Lybass took a complete history of her symptoms, the course of her illness, her past medical history, her family medical history, and her environmental history. He did an allergy work-up on D. W. and tested her for sensitivity to mold and mildew, to a natural pesticide found in a plant, to formaldehyde, and to some of the materials that were listed in the safety information sheets the patient obtained from the contractor that had done the repair work in her home. He obtained a copy of Respondent's medical records on the patient. Dr. Lybass was unable to document any significant degree of allergy antibodies in the patient's blood. Although he performed specific skin tests for the major molds, the patient did not demonstrate any sensitivity. Further, the patient's blood chemistries were normal except for an elevated cholesterol level. Lybass did not do any specific tests for heavy metals since there was no reason to indicate or expect that the patient had any kind of heavy metal poisoning from the patient's history. He had the patient expose a culture plate at her home and learned there was no significant amount of mold there. Dr. Lybass diagnosed the patient's condition, based on her history and his physical examination and the tests he performed, as stress, anxiety, and fear or phobia of her environment. Respondent was engaged in the practice of medicine when he diagnosed and treated patient D. W. His diagnosis was a medical diagnosis. He undertook to treat her complaints, recommending certain holistic or homeopathic remedies and even prescribing a tranquillizer which is a prescription drug. Respondent failed to keep an adequate medical record of his examination and treatment of the patient. He took only a minimal history and documented no physical examination, not even vital signs. His medical record includes no plan for any recognized medical tests to support his diagnosis, and his records contain no justification for the use of the Interro machine on that patient. Although the patient presented with complaints that could have serious medical implications, Respondent did not perform or document any recognized medical tests to rule out any potential causes for the patient's symptoms. The Interro device is not an accepted medical device in the medical community. The Interro device cannot be used to make a diagnosis of chemical toxicity since it does not test the patient's bloodstream. The Interro report contained in Respondent's medical record for patient D. W. does not purport to measure the chemicals in a patient's body; rather, it simply lists body systems in a graph. Since the Interro device is not a diagnostic medical device, the use of that device to make a medical diagnosis, without first obtaining the full and informed consent of the patient, constitutes experimentation on a human subject. Respondent made deceptive or untrue representations to patient D. W. Based on the results of the Interro testing, Respondent diagnosed the patient's symptoms as chemical sensitivity and mold sensitivity and recommended treatments and remedies. Respondent's representation of the Interro machine as a medical diagnostic device was untrue as was Respondent's representation that the patient was suffering from chemical and mold sensitivity. Those misrepresentations constituted a trick or scheme in the practice of medicine. D. W. was tricked into believing that Respondent had made an accurate diagnosis with the Interro device when the device in fact had no medical value. Respondent practiced medicine below the acceptable standard of care of a reasonably prudent physician under similar conditions and circumstances in his diagnosis and treatment of patient D. W. On the basis of just a few questions and without a physical examination or the use of any medically recognized tests, Respondent made the diagnosis of chemical toxicity and prescribed various holistic medicine drops. He then used the Interro machine as a medical testing instrument and relied on the results of that testing in prescribing various holistic or homeopathic substances and diets.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of the allegations contained in Counts One, Two, Three, Five and Six of the Administrative Complaint filed in this cause; Finding Respondent not guilty of the allegations contained in Count Four; Dismissing Counts Seven and Eight of the Administrative Complaint filed in this cause; and Suspending Respondent's license to practice medicine in the State of Florida until such time as Respondent can demonstrate to the Board of Medicine that Respondent can practice with skill and safety. DONE and ENTERED this 5th day of February, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1996. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 94-3214 Petitioner's proposed findings of fact numbered 2, 4-24, 26 and 27 have been adopted either verbatim or in substance. Petitioner's proposed finding of fact numbered 1 has been rejected as not constituting a finding of fact. Petitioner's proposed finding of fact numbered 3 has been rejected as being irrelevant to the issues involved herein. Petitioner's proposed finding of fact numbered 25 has been rejected as not being supported by competent evidence. COPIES FURNISHED: Dr. Marm Harris Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Joseph S. Garwood, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard Plagenhoef, M.D. Post Office Box 12131 Dallas, Texas 75225 Richard Plagenhoef, M.D. Post Office Box 2129 Cherokee, North Carolina 28789
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 Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They fail to include an adequate patient history and initial assessment of the patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the patient's background. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, 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 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
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.
Findings Of Fact Dong Hack Koo, M.D., is a licensed physician in the State of Florida, having been issued license number ME 0027494. Koo was so licensed at all times material to the Amended Administrative Complaint. At all times material to this cause, Koo maintained an office at 121 East 8th Street, Jacksonville, Florida, 32206. On July 10, 1985, Diane Rabideau, an Investigator for the Department of Professional Regulation, inspected Koo's offices and found them to be unclean, with evidence of roach eggs present under a sink. Rabideau also found a rectal speculum and two vaginal speculums lying on a sink. Koo told Rabideau that the rectal speculum and the two vaginal speculums had been used. No evidence was presented to indicate how long the speculums had been on the sink. If such instruments are not cleaned quickly and properly following use, there is a high chance of spreading infection to the next patient to use the instrument. Such instruments should be placed in a cleansing solution and scrubbed, then wrapped and sterilized. It is the community practice to clean such instruments as soon as possible after use. According to Dr. Rosin, any physician who performs abortions in an unclean office with instruments lying around that have not been properly cleaned, has practiced below the community standard of care. However, no evidence was presented to show that Koo performed abortions under such circumstances. Koo does perform first trimester abortions in his office. It was not disputed that abortions are a medical and surgical procedure which can be dangerous. Emergency situations can arise during abortions and these emergencies require the presence of emergency equipment such as suction and the ability to start an intravenous medication. Koo does maintain suction equipment and intravenous solutions in his office. However, when possible he immediately transfers emergency patients to another facility. Koo does perform abortions in his office without the presence of an assistant to aid in emergency situations. According to Dr. Rosin, the standard of care in the community requires that an assistant be present during an abortion to assist the physician should an emergency situation arise. Additionally, according to Dr. Rosin, a physician who performs abortions without emergency equipment or without an assistant has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. When Rabideau visited Koo's office on July 10, 1985, she obtained a sampling of drugs kept by Koo for dispensing to patients. The sampling revealed that a majority of the drugs had expired. However, no evidence was presented that this is a violation of Florida Statutes. Rabideau also found that Koo maintained a number of Schedule III, IV, and V, controlled substances in his office which he dispensed to patients. In dispensing these controlled substances, Koo used the instructions for use which are printed on the packaging. He also, at times, taped a small piece of paper to the packaging with his telephone number and the name of the patient. Koo did not completely label these controlled substances, which he dispensed, with his name and address, the date of delivery, directions for use, the name of the patient, and a warning concerning the transfer of the substance. Koo maintains no inventory of the scheduled controlled substances which are kept in his offices and dispensed to his patients. On August 6, 1985, Diane Rabideau again visited Koo's office. While Rabideau waited, a female patient by the name of Mary Green was seen by Koo and left with a prescription. Rabideau then asked Respondent to present the medical records on the patient, Mary Green. Koo was unable to present any medical records for the patient which he had just seen and to whom he had just dispensed medication. Koo's office procedure regarding patient medical records is to record histories and examination results on the patient medical records during the patient's visit. These medical records are kept in individual folders under the name of each patient. When a patient presents for treatment, the medical records for that patient are pulled and given to the doctor. After each visit, the patient's medical records are refiled. On or about March 16, 1986, pursuant to a subpoena from the Department of Professional Regulation, Koo provided the original medical records on ten (10) abortion patients. These original medical records were examined by John F. McCarthy, a questioned documents expert for the Florida Department of Law Enforcement. McCarthy's examination by electrostatic detection apparatus revealed that numerous indentations on the records superimposed with information from other records. For example, Exhibit 6 contained indentations from the writing on the face of Exhibit 10. Further, McCarthy found indentations on Exhibit 6 resulting from the writing on Exhibit 8. Thus, Exhibit 8 was on top of Exhibit 6 when it was prepared. Exhibit 8, however, is dated July 24, 1985, and Exhibit 6 is dated May 29, 1985. McCarthy's expert opinion is that at the time the various documents were prepared, they were on top of each other. It is therefore found that Exhibits 1-10, the original medical records on the ten named abortion patients, were not prepared at the time Koo saw the patients, but were instead all prepared at the same time, in response to the subpoena. It therefore must be found that the records were fabricated by Koo in response to the Department's subpoena. Prior to performing an abortion, a physician needs to verify whether the patient has Rh positive or negative blood type. The physician cannot rely on patients' representations that the Rh factor is positive or negative, but most obtain independent verification. This is because patients know that if they have Rh negative blood, they must receive a shot which is expensive. Koo relied on the patients' statements in ascertaining the Rh factor and did not obtain independent verification. In Dr. Rosin's expert opinion, the failure of a physician to obtain independent verification of the Rh factor poses a potential for harm to the patient and such failure is a failure to practice medicine with that level of care, skill, and treatment that is recognized in the medical community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Medicine enter a Final Order finding Dong Hack Koo, M.D., GUILTY of violating Counts Two, Three, Four, Five, and Six of the Amended Administrative Complaint, and therein SUSPEND his license to practice medicine for a period of six (6) months during which he be required to successfully complete continuing education courses in maintaining, controlling, dispensing, labeling, and inventorying controlled substance, and in maintaining adequate patient records to justify the course of treatment. DONE AND ENTERED this 26th day of August, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 26th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1066 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding of Fact which so adopts the proposed finding of fact: 1 (1) ; 2 (2); 3 (3); 4 (4); 5 (4); 6 (4); 7 (4); 8 (5); 9 (6); 10 (6); 11 (9); 12 (7); 13 (8); 14 (9); 15 (10); 16 (11); 17 (11); 18 (12); 19 (13); 20 (13); 21 (15); 22 (14); 23 (14); 24 (16); 25 (16); 26 (16); 27 (16); 28 (17); 29 (18); and 30 (19) That portion of proposed finding of fact 12 which concludes that Respondent does not maintain emergency equipment in his office is rejected as unsupported by the competent substantial evidence. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dong Hack Koo, M.D. 121 East 8th Street, Suite 7 Jacksonville, Florida 32206 Dorothy Faircloth, Executive DIRECTOR Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues for determination in this case are whether Respondent's license to practice osteopathic medicine should be revoked or otherwise disciplined for the reasons set forth in the Administrative Complaint, specifically for: 1) Respondent's failure to meet the acceptable standard of care for osteopathic medicine in his treatment of Patients S.R., K.P., R.Y., V.E., C.K., and S.P.; and 2) Respondent's failure to keep adequate medical records for the named patients.
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 osteopathic medicine under Chapters 455 and 459, Florida Statutes. Respondent, Vincent Sundry, D.O., is and at all material times was, a licensed osteopathic physician in Florida, having been issued license number OS 001383. Central to the standard of care issues in this case is Respondent’s use of vitamin B-12 injections. Respondent testified that it is his practice to give patients 2 cc injections of B-12 "to get rid of lethargy and malaise." Respondent testified that he does not use B-12 to treat medical conditions. Respondent believes that B-12 improves the flow of oxygen in the blood and provides a boost of energy. It is also Respondent’s practice to mix ½ cc of B-12 with other medications to ease the sting of injections. Respondent testified that he learned this technique from a supervising physician at his osteopathic college in the 1950’s. In those days, medications such as penicillin were delivered in a heavy, syrup-like suspension, and the needles were of a larger gauge than is now common. Respondent’s supervising osteopathic physician believed that thinning the medicine with B-12 resulted in a less painful shot. Respondent adopted the practice and has maintained it throughout his career. Petitioner’s expert witness, Dr. Taylor, testified that B-12 shots are indicated only for pernicious anemia or an inability to absorb B-12 naturally. He testified that the only way to test for anemia or a B-12 loss is to draw a complete blood count ("CBC") and test the values of the hemoglobin. Dr. Taylor testified that giving B-12 injections to patients can be misleading, suggesting that it will make them feel better or have more energy when in fact it has no more effect than a placebo. Dr. Taylor stated that under some circumstances a placebo may be useful, but only as a last resort when conventional medications have failed. Dr. Taylor was also concerned that use of B-12 for such imprecise complaints as "lethargy" or "malaise" could lead to a delay in the correct diagnosis and treatment of the patient’s condition. Dr. Taylor conceded that B-12 is harmless, and that he has never seen a toxic or allergic reaction to B-12. Petitioner’s other expert, Dr. Latus, agreed that the accepted conditions for B-12 injections are pernicious anemia or a B-12 deficiency proven by blood tests. Dr. Latus also agreed that he was aware of no contraindications for B-12, and that the amounts of B-12 administered by Respondent were appropriate and not dangerous. Dr. Latus testified that some patients respond to placebos, but had no opinion on whether administering placebos constituted malpractice by an osteopathic physician. Respondent’s expert witness, Dr. Diamandis, also served as Respondent’s monitor during the 1992-1997 probation imposed on Respondent by an earlier order of the Board of Osteopathic Medicine. Dr. Diamandis testified that he has given B-12 injections to patients at their request, when the patients believed it would help them and after he had examined them. Dr. Diamandis summarized his view of B-12 as follows: It’s a funny thing, you can’t draw lines on B-12 and limit B-12, the use. You also cannot draw any lines and say you’re treating something when you give B-12, because it’s only a treatment for pernicious anemia, and it might also be a treatment for something else these days. Who knows. We’ve been drinking wine for a long time. Now they say it’s good for platelets to thin the blood a little bit . . . So I don’t think you can draw the line and say you shouldn’t use B-12. You can draw a line that says it’s only good for this that we know of. But a lot of people feel good when they get the shots. Maybe someone can come along and tell you why they feel good. Maybe a psychiatrist could do it. Dr. Diamandis did not accept Respondent’s use of ½ cc of B-12 to take the sting out of an injection as a method he would use in his own practice. However, he also declined to opine that Respondent’s method would constitute a deviation from the standard of care. Dr. Latus could not recall having been taught this method in his osteopathic training. As to several of the patients discussed in detail below, Petitioner pursued a theory that Respondent was using B-12 to treat conditions such as contact dermatitis, viral sinusitis, and ear infections, because the B-12 injections coincided with Respondent’s efforts to address those conditions. As stated above, Respondent denied that he ever used B-12 to treat any medical condition other than complaints of "lethargy" and "malaise." Respondent’s testimony on this point is credited. Petitioner failed to demonstrate that Respondent’s unorthodox use of B-12 constitutes a deviation from the standard of care. Patient S.R. Patient S.R., a 26-year-old female, first visited Respondent’s office on February 3, 1994, complaining of headaches caused by stress and tension. On March 2, 1994, Respondent treated S.R. for two abscesses in the upper right leg. Respondent cleaned the area of the abscesses, did a xylocaine block, incised and drained the abscesses, and bandaged the area. He gave S.R. injections of 1 cc of dexamethasone, a corticosteroid; 1 cc of lincomycin, an antibiotic; and ½ cc of B-12. Respondent testified that these injections did not go into the muscle tissue, but were done surficially around the abscesses. Respondent prescribed tetracycline, an antibiotic, and Librax to ease "the stress and strain going on in her nerves." Dr. Taylor testified that the dexamethasone was contraindicated, because injections of cortisone or steroids given at the time of an infection tend to blunt the immune system and slow the healing process. Dr. Taylor found this especially significant because S.R.’s infection was so serious that it had to be incised and drained. Dr. Taylor also found problematic Respondent’s failure to schedule a follow-up visit a few days later to assess the healing process. Dr. Taylor testified that lincomycin has a side effect profile so bad that the Food and Drug Administration removed oral lincomycin off the market. He testified that in 1994 there were other injectable antibiotics with fewer potential side effects that could have been given to S.R. Dr. Taylor testified that Respondent’s progress notes for S.R. simply set out a diagnosis and plan of treatment, without recording the size and duration of the abscesses, or the patient’s temperature, vital signs, or blood pressure. Dr. Latus testified that dexamethasone is not normally given in the case of an abscess or infection because it would have no effect. He agreed with Dr. Taylor that dexamethasone is a steroid that blunts the natural immune system, and thus should not have been used to treat S.R.’s abscesses. He also agreed that Respondent’s records did not sufficiently explain the situation or the reasons for the course of treatment Respondent pursued. Dr. Diamandis testified that he would not criticize the use of dexamethasone or some other anti-inflammatory in certain situations involving infections. However, the situations he described involved relatively extreme situations such as a patient with her throat so swollen there is concern that breathing will become obstructed, or a patient who is running a fever in the range of 104 degrees. These situations are not analogous to Respondent’s use of dexamethasone to treat S.R. Respondent testified that he administered the dexamethasone to take down the inflammation of the abscesses, in conjunction with the lincomycin to take down the infection. The evidence establishes that Respondent did not meet the applicable standard of care by administering dexamethasone for the treatment of Patient S.R.’s abscesses, and by failing to monitor the patient’s progress after the initial treatment. Respondent’s other actions in treating S.R., though subject to differences of opinion, met the standard of care. The evidence establishes that Respondent’s medical records failed to justify the course and scope of treatment concerning the use of dexamethasone. Respondent’s records failed to record such basic information as the patient’s vital signs, and recorded no specific observations concerning the abscesses. Patient K.P. On February 1, 1994, Patient K.P., a 56-year-old female, first presented to Respondent with a severe gastric upset. Respondent diagnosed gastritis and esophagitis. On March 4, 1994, Patient K.P. again visited Respondent. No complaint is noted for K.P. in Respondent’s notes. The notes indicate that K.P.’s weight was 193 pounds, her blood pressure was 130/82, and her heart tones and lungs were normal. Respondent decided to place K.P. on a weight regimen. He placed K.P. on thyroids; Lasix, a diuretic; and human chorionic gondatropin (HCG), a hormone produced during pregnancy. During a subsequent visit for the weight regimen on April 5, 1994, Respondent also prescribed Zestoretic, an antihypertensive combined with a diuretic. Respondent noted K.P.’s weight at 192 pounds during this visit. On April 26, 1994, K.P. visited Respondent complaining of bouts of vertigo. Respondent noted that her blood pressure had dropped to 114/78, and her weight was 188 pounds. Respondent also noted that K.P. was leaving for Canada, and he continued all the prescribed medications in larger quantities. Dr. Taylor testified that the use of HCG for obesity is inappropriate, because HGC is no more effective than a placebo for weight loss. Respondent testified that the HCG was not prescribed for weight loss but to treat menopausal syndrome in K.P., to "quiet her nerves" and help her lose weight. Respondent denied ever using HCG for diet patients. However, Dr. Diamandis, the probation monitor, recalled that Respondent had used HCG is the past for weight loss. Dr. Taylor disagreed with the use of Lasix for weight loss. He testified that Lasix artificially induces dehydration, giving the false appearance of weight loss. When the medication is stopped, the volume of fluids returns. Dr. Taylor testified that thyroids could induce a hypometabolic state, and has an adverse effect on the patient’s thyroid gland itself by discouraging the natural production of thyroid hormone. The thyroid gland can begin to dysfunction or decrease the amount of thyroid hormone it would make. Dr. Taylor stated that giving a patient thyroid for a period of weeks or months could induce hypothyroidism. Dr. Taylor also questioned the use of Zestoretic, noting that nothing in Respondent’s records for K.P. indicates hypertension. Dr. Taylor pointed out that this prescription, coupled with Lasix, meant that K.P. was now taking two diuretics, which would result in low blood pressure and a lower level of potassium and other salts in the bloodstream. Dr. Taylor testified that he was not surprised that K.P.’s chief complaints on April 26, 1994 were bouts of vertigo and decreasing blood pressure, as these symptoms were to be expected with the medications Respondent prescribed. Dr. Taylor concluded that Respondent’s treatment constituted a major safety issue for K.P. Respondent continued the prescriptions for K.P. when she went to Canada, without taking any steps to monitor her condition. Respondent’s records indicated no monitoring of the patient’s electrolytes, no chronic medication list, no chronic problem list, and no discussion of diet for K.P., despite the fact that she was seeing Respondent for weight loss. The evidence establishes that Respondent did not meet the applicable standard of care by administering thyroid, Lasix, HCG, and Zestoretic for the treatment of Patient K.P.’s weight problem. The evidence establishes that Respondent’s medical records failed to justify the course and scope of treatment concerning the use of thyroid, Lasix, HCG, and Zestoretic. Patient R.Y. Respondent’s records indicate that Patient R.Y. visited Respondent 39 times over the period from early March 1993 through September 26, 1994. Twenty-one of those visits, from March 1993 through February 1994, involved persistent contact dermatitis, a skin rash resulting from exposure to a primary irritant or to a sensitizing antigen. Upon his initial diagnosis of contact dermatitis, Respondent gave R.Y. injections of dexamethasone and Vistaril, a tranquilizer, as well as B-12. Respondent also prescribed an oral antihistamine. On nine subsequent visits, Respondent gave B-12 injections to R.Y. Dr. Latus testified that nothing in the medical record or his experience indicated that B-12 injections were appropriate treatment for contact dermatitis. As found above, Respondent denied that he used B-12 as a treatment for any condition other than lethargy and malaise, and that denial was credited. Aside from the use of B-12, Dr. Latus found nothing inappropriate in Respondent’s treatment of R.Y. Dr. Taylor joined Dr. Latus’ objection to the B-12 injections, and also criticized Respondent for seeing the patient 21 times over an 11-month period for contact dermatitis. Dr. Taylor opined that such a large number of visits without resolving the problem should have caused Respondent to refer R.Y. to a dermatologist. Respondent testified that he tried to refer R.Y. to a dermatologist, but that he refused to go because of the expense. Respondent stated that R.Y.’s condition was responsive to the treatment he was giving, but that the condition was caused by R.Y.’s working with concrete and stucco, and that R.Y. refused to find another line of work. Respondent concluded that until R.Y. was willing to quit working with the materials that were causing his problem, a specialist could not achieve any better result than Respondent. The evidence failed to establish that Respondent did not meet the applicable standard of care as to his treatment of Patient R.Y.’s contact dermatitis. Respondent’s medical records, while lacking descriptive detail of the color and quality of the rash, adequately justify the course and scope of treatment of Patient R.Y. Patient V.E. On March 15, 1994, Patient V.E., a 38-year-old female, presented to Respondent with a complaint of pain in the lateral left foot. Respondent’s records attribute the pain to a cheap pair of shoes that V.E. had worn for four or five days. Respondent diagnosed a severe ligamentous sprain, and possible falling arch. Respondent gave V.E. a one cc injection of prednisone, a steroid, and eight 375 milligram tablets of Naprosyn, an anti-inflammatory. On March 31, 1994, V.E. returned to Respondent, again indicating pain in her left foot, in the third and fourth metatarsal area, accompanied by edema. Respondent injected the area with xylocaine, a pain killer, then with dexamethasone. He prescribed Lasix to reduce the swelling. The only item in the treatment of V.E. that either Dr. Taylor or Dr. Latus found to be objectionable was an unrecorded injection of ½ cc of B-12. Both doctors opined that B-12 is not indicated for a foot sprain. Respondent testified that the B-12 was not administered to remedy the foot sprain, but to ease the sting of the dexamethasone injection. Respondent testified that he did not chart the B-12 because it was not used to treat anything, and it was only 1/2 cc to thin out the medicine. Respondent did record the 1/2 cc of B-12 in the shot records he was required to submit to the Board of Osteopathic Medicine as part of his probation. Dr. Taylor opined that the failure to include the 1/2 cc B-12 injection in the patient record constituted improper documentation. However, Dr. Latus expressly declined to opine on the question whether the failure to include the B-12 injection constituted improper documentation. The evidence failed to establish that Respondent did not meet the applicable standard of care as to his treatment of Patient V.E.’s ligamentous sprain. Despite their failure to include the 1/2 cc injection of B-12, Respondent’s medical records adequately justify the course and scope of treatment of Patient V.E. Patient C.K. Patient C.K.’s first visit to Respondent was on September 10, 1982, when he completed a medical history questionnaire indicating he was diabetic and took a "diabetes pill." The visits at issue in this case occurred in 1993 and 1994, when C.K. was in his early eighties. On March 9, 1993, Respondent diagnosed C.K. with back spasms and a pelvic tilt. Respondent applied osteopathic manipulative therapy, gave an injection of dexamethasone and ½ cc of B-12, and prescribed an anti-inflammatory medication. On April 1, 1994, C.K. visited Respondent with a complaint of pain in his left hip over the sciatic notch. Respondent repeated the injection of dexamethasone and B-12, and gave C.K. a refill of the anti-inflammatory medication. On April 2, 1994, Respondent recorded that C.K.’s hip pain had curtailed most of his activities, and a "probable need for radiological evaluation." Respondent recorded that C.K. was responsive to the osteopathic manipulative therapy, which restored some ability to bend, stoop, and move without pain. Respondent’s records do not indicate follow-up regarding the radiological examination, and do not indicate that X-rays were ever taken of C.K. Patient C.K. testified that he used to go to Respondent for his neck and back, but that Respondent never treated his diabetes. He recalled the manipulative therapy, and recalled requesting and receiving a B-12 shot from Respondent. He could recall receiving no X-rays. C.K. testified that he now works-out at the gym five or six days a week and suffers no back problems, but would return to Respondent if he did. Dr. Latus concluded that, aside from the B-12 injection, Respondent provided satisfactory and adequate care to Patient C.K. Dr. Taylor expressed concern about the B-12 and, more significantly, about Respondent’s administering corticosteroids to a diabetic patient, particularly where there is no record of what medication C.K. was taking for his diabetes. Dr. Taylor testified that corticosteroids elevate blood glucose, and should be avoided for diabetic patients unless they are in severe pain or unless corticosteroids are mandated for the patient’s condition. Dr. Taylor also criticized the lack of follow-up on the probable need for radiological examination. The evidence establishes that Respondent did not meet the applicable standard of care by administering dexamethasone for the treatment of Patient C.K.’s hip pain, given that C.K. was a diabetic. Because C.K. appeared to respond positively to the osteopathic treatments, Respondent’s failure to refer C.K. to a radiologist was within the standard of care. The evidence establishes that Respondent’s medical records failed to justify the course and scope of treatment concerning the use of dexamethasone. The records do not indicate the type of diabetes medication that C.K. was taking, or even an acknowledgment by Respondent that he took C.K.’s diabetes into account before administering dexamethasone. Patient S.P. Patient S.P., a 61-year-old female, visited Respondent only once, on April 1, 1994. She complained of vertigo, lethargy and malaise. She also indicated that, two to three weeks previously, she had a severe ear infection that was never treated. Respondent characterized S.P. as displaying overall myalgia, aching in her joints, hardly able to move. Her throat was swollen and inflamed. Respondent manipulated her back for the aches and pains, and manipulated her sinuses. Respondent diagnosed S.P. as having viral sinusitis, though he took no cultures to definitively diagnose the viral origin. He gave S.P. an injection of dexamethasone with ½ cc of B-12, and prescribed a ten-day course of vibramycin, a tetracycline antibiotic. Respondent testified that S.P. was on her way home to Michigan, but felt too sick to fly. His goal was to make her feel well enough to get home, at which point she would visit her own physician. Dr. Latus testified that, except for the B-12, the treatment of Patient S.P. was appropriate. Dr. Taylor testified that, aside from the B-12, Respondent misprescribed antibiotics to treat what he had diagnosed as a viral illness. Viral illnesses are not treated with antibiotics. However, Respondent could not definitively diagnose whether the infection was viral or bacterial without taking cultures. Under the rushed circumstances, Respondent prudently prescribed an antibiotic. At worst, the antibiotic would be ineffective; if the sinusitis was in fact a bacterial infection, the antibiotic would have a salutary impact. The evidence failed to establish that Respondent did not meet the applicable standard of care as to his treatment of Patient S.P.’s symptoms. Respondent’s medical records adequately justify the course and scope of treatment of Patient S.P. Conclusion In summary, the weight of the expert testimony and other evidence establishes that Respondent did not practice with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances as to Patients S.R., K.P., and C.K. The weight of the expert testimony and other evidence establishes that Respondent did practice with an acceptable level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances as to Patients R.Y., V.E., and S.P.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Osteopathic Medicine enter a final order determining that Vincent Sundry has committed three violations of Section 459.015(1)(o), Florida Statutes, three violations of Section 459.015(1)(x), Florida Statutes, and revoking his license to practice osteopathic medicine in the State of Florida. DONE AND ENTERED this 14th day of April, 2000, 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 14th day of April, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Practitioner Regulation-Legal A Post Office Box 14229 Tallahassee, Florida 32317-4229 Pamela A.M. Campbell, Esquire 535 Central Avenue, Suite 403 St. Petersburg, Florida 33701 Howard H. Whittington, Esquire 1100 Cleveland Street, Suite 900 Clearwater, Florida 33755 Bill Bukhalt, Executive Director Board of Osteopathic Medicine Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0750 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701 William Large, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A02 Tallahassee, Florida 32399-1701
