The Issue The issue is whether, pursuant to Section 57.111, Florida Statutes, Petitioner (all references to "Petitioner" are to Dr. Reich, even though in the preceding case he was the respondent) is entitled to attorneys' fees and costs in defending a case against him in which Respondent alleged that he was guilty of deviating from the applicable standard of care and failing to keep appropriate medical records.
Findings Of Fact At all material times, Petitioner has been a licensed physician in Florida, holding license number ME 0051631. He is Board-certified in ophthalmology. At all material times, Petitioner has been a "small business party," within the meaning of Section 57.111(3)(d), Florida Statutes. From 1996-98, Petitioner worked part-time at The Metabolic Treatment Center in Ft. Myers. Twice weekly, Petitioner visited the center and saw patients, who generally complained of symptoms consistent with metabolic conditions. Toward the end of Petitioner's term of employment at The Metabolic Treatment Center, its owners, one or more natural persons, sold the facility to a publicly traded corporation. Petitioner's relationship with the new chief operating officer was poor. One day, Petitioner reported to work and found the facility had been closed, leaving Petitioner without access to the records kept by the center. Petitioner commenced litigation with the corporate owner of The Metabolic Center to obtain copies of medical records. Petitioner obtained a court order compelling the corporation to turn over medical records, but the corporation did not do so, and the case was closed in February 1999 without Petitioner's ever obtaining the records that he had sought. The corporate owner was administratively dissolved by the Department of State in September 1999. On November 21, 2000, Respondent filed an Administrative Complaint against Petitioner concerning one patient whom he treated in 1997 at The Metabolic Treatment Center. In 2001, Respondent prepared a 50-count Administrative Complaint against Petitioner concerning 10 patients whom he had treated at The Metabolic Treatment Center. In 2001, Petitioner was represented by attorney William Furlow. Mr. Furlow and a representative of Respondent negotiated a settlement, but Petitioner claimed that he had lacked the authority to enter into the settlement. The Board of Medicine declined to reopen the settlement and issued a Final Order to this effect. Petitioner appealed to the First District Court of Appeal, which issued an opinion on March 26, 2004, requiring the Board of Medicine to give Petitioner an evidentiary hearing on the factual issue of whether he had authorized Mr. Furlow to settle the case on the conditions set forth in the settlement agreement. Rather than litigate the authorization question, the Board of Medicine filed an amended Administrative Complaint on August 20, 2004, concerning the lone patient who had been the subject of the earlier-filed Administrative Complaint, and filed a second Administrative Complaint on October 27, 2004, concerning the 10 patients who had been the subject of the never-filed, 50-count Administrative Complaint. After transmittal to the Division of Administrative Hearings, these cases, which were consolidated, became DOAH Case Nos. 04-3222PL and 04-4111PL, respectively. By the time of the filing of the 2004 Administrative Complaints, Petitioner was represented by his present counsel. However, this representation has not been continuous. Shortly before the final hearing in the consolidated cases, Petitioner's counsel moved for leave to withdraw because Petitioner had fired them. The motion was granted, an accompanying request for continuance was denied, and Petitioner represented himself at the hearing, which took place on December 6 and 7, 2005. The undersigned Administrative Law Judge issued a Recommended Order on May 5, 2006. The Recommended Order excluded all of Respondent's evidence consisting of purported medical records, except for the records that Petitioner had identified in a prehearing deposition. These evidentiary rulings left evidence concerning only four patients. The recommendation was for the Board of Medicine to enter a Final Order dismissing all charges against Petitioner concerning all but the four patients mentioned above. For these patients, the recommendation was for the Board to enter a Final Order finding Petitioner guilty of the financial exploitation of four patients, failure to perform a statutory obligation as to three patients, failure to maintain adequate medical records on three patients, preparation of inappropriate prescriptions for two patients, and violation of the applicable standard of care as to one patient. The Recommended Order recommended an administrative fine of $29,000 and five years' probation. In Final Orders issued September 7 and October 9, 2006, the Board of Medicine substantially adopted the Recommended Order with revisions to the penalty. Petitioner appealed the Final Orders and, on January 23, 2008, the Fourth District Court of Appeal vacated the Final Orders. The reasoning of the court was that Petitioner had been denied access to medical records at The Metabolic Treatment Center, and, thus, there was no competent substantial evidence, given the clear and convincing standard, to support the findings of violations. On March 17 and 21, 2008, pursuant to the mandate, the Board of Medicine entered Final Orders dismissing all charges against Petitioner and taxing appellate costs of $610. On March 21, 2008, Petitioner filed his Petition Pursuant to the Florida Equal Access to Justice Act. The attorneys whom Petitioner had discharged immediately prior to the final hearing were re-engaged immediately after the issuance of the Recommended Order. These attorneys, who are presently representing Petitioner, prepared the briefs and argued the appeal. Petitioner seeks attorneys' fees for three phases of this litigation: 1) litigation over the purported consent agreement, concluding with the filing of the two Administrative Complaints that were transmitted to the Division of Administrative Hearings; 2) litigation in the two Division of Administrative Hearings cases through the appellate court's mandate; and 3) litigation with the Board of Medicine in obtaining the Final Order vacating the earlier Final Orders. To the extent that the first claim concerns the consent agreement, it is untimely for the reasons discussed in the Conclusions of Law. To the extent that the first claim concerns the same allegations covered in the second claim, it is part of the second claim. The second claim is really two claims: one concerns the proceeding at the Division of Administrative Hearings and culminating with the Final Orders issued by the Board of Medicine, and the second is for the appellate proceeding. The third claim really is part of the second claim, as the Board of Medicine never filed anything to initiate this phase of the overall proceeding. The question underlying the claim for attorneys' fees for the second phase of litigation is whether the Board of Medicine was substantially justified in filing the two Administrative Complaints in August and October 2004. Respondent has submitted as Respondent Exhibit A a voluminous stack of investigative reports prepared by the Agency for Heath Care Administration (AHCA) in connection with the disciplinary cases prosecuted against Petitioner. The periods of investigation run from July 9, 1998, through August 28, 2001, although the whole period is not covered and the periods covered by some reports overlap the periods covered by other reports. The investigative reports contain opinion letters from five physicians. The investigative report for the period of July 9, 1998, through September 9, 1998, contains an undated letter from Kevin M. Holthaus, M.D. Dr. Holthaus's letter addresses three patients, including one for whom AHCA had obtained medical records. Dr. Holthaus opined that Petitioner fell below the standard of care in the diagnosis and management of endocrine disorders like hypothyroidism and diabetes. Dr. Holthaus added that Petitioner failed to perform an appropriate history and physical examination prior to ordering extensive diagnostic studies. Dr. Holthaus noted that Petitioner's prescription of thyroid hormone, despite laboratory studies obviating the need for this treatment, posed a threat to the wellbeing of the patient. Dr. Holthaus's letter also states that Petitioner stood to gain from his actions, which included inadequate assessments of patient complaints and symptoms and inappropriate or inadequate diagnoses. The investigative report for October 14, 1998, through February 4, 1999, contains the notes of a telephone interview with Craig R. Sweet, M.D., who said that he had contacted The Metabolic Treatment Center about Petitioner's treatment of one patient. An unidentified person said that Petitioner no longer worked at the center, but had treated patients for nonexistent thyroid problems. Dr. Sweet stated that he had seen nothing justifying Petitioner's administration of thyroid medication or human growth hormone to the patient. This investigative report also contained a letter dated April 18, 1999, from E. Timothy Shapiro, M.D., who treats patients for a wide variety of endocrine problems. Dr. Shapiro, who was also an assistant clinical professor at the University of Miami, addressed one patient and found excessive and unjustified lab work, inappropriate treatment with thyroid hormone despite normal thyroid functions, inappropriate treatment with testosterone despite normal testosterone levels, and inappropriate treatment with growth hormone despite inadequate growth hormone testing and no clinical features of growth hormone deficiency. Dr. Shapiro concluded that the evidence "points to a scheme to extract money." The investigative report for May 2, 2000, to July 19, 2000, includes an undated letter from H. Curtis Benson, M.D. Dr. Benson found that Petitioner ordered unnecessary lab tests, treated a patient for hypothyroidism despite normal thyroid function studies, and kept "cursory" medical records containing no mention of a complete physical examination. The investigative report for September 21, 2000, through November 8, 2000, notes that one patient reported that Petitioner had told her that she had a fatal blood disease, but, when she was seen by her regular physician, he found no problems with her blood. Interestingly, this complainant was the insurance investigator who had submitted the other complaints, which were the bases of the insurance company's concern of excessive and unnecessary testing. A principal of The Metabolic Treatment Center had invited the insurance investigator to visit The Metabolic Treatment Center as a patient and see the operation for herself. Also in this report is a letter from Mr. Furlow, dated November 20, 2000, stating that many of Petitioner's records were out of his possession when he was forced out by the center. The investigative report for March 22, 2001, through June 8, 2001, contains a letter dated January 2, 2001, from Dr. Shapiro. Stating that he had reviewed four more cases, Dr. Shapiro stated that Petitioner was performing excessive lab testing, usually of tests that carry high reimbursement levels. Dr. Shapiro questioned the accuracy of the numerous diagnoses of peripheral neuropathy, noting that Petitioner routinely ordered nerve conduction tests, which were performed by a radiologist, rather than, as was common in Dr. Shapiro's experience, a neurologist. Dr. Shapiro also stated that Petitioner treated patients with thyroid hormone despite their normal thyroid function. He concluded that this pattern of medical practice was fraudulent and below the applicable standard of care. This investigative report also contains a letter dated January 18, 2001, from Hamilton R. Fish, M.D., who had examined the records of three patients. Dr. Fish summarized his concerns as: 1) many unnecessary lab tests, including reported abnormalities in the nerve conduction studies with no follow-up or referral; 2) no follow-up or referral on a patient diagnosed with hyerinsulinemia and insulin resistance; 3) lab tests and an EKG done on one patient prior to an evaluation by a physician; and 4) inaccurate medical advice contained in The Metabolic Treatment Center handbook given to patients, such as a warning that exercise makes insulin levels rise. The investigative reports for January 12, 2001, through February 7, 2001, and March 22, 2001, through June 8, 2001, contain letters from Dr. Shapiro dated December 27, 2000, and March 19, 2001. In each of these letters, Dr. Shapiro analyzes another patient and finds excessive and inappropriate lab testing, inappropriate diagnoses and treatment, a failure to refer a patient with neuropathy to a neurologist, and a failure to meet the applicable standard of care. The transcript of the probable cause meeting held on October 22, 2004, reveals that the probable cause panel had all of the above-described investigative materials, which included extensive medical records. Counsel summarized to the panel the important portions of the Administrative Complaint concerning the 10 patients who were the subject thereof. In authorizing the filing of the Administrative Complaint, the chair noted that he had never seen such unanimity of opinion among the consultants and suggested an emergency suspension. Although the transcript of the probable cause meeting on the Administrative Complaint involving only one patient has been lost, it must be inferred, based on the memorandum of action, that a probable cause panel similarly considered the file materials and similarly authorized the filing of that Administrative Complaint a couple of months earlier. Respondent contends that Petitioner never claimed the existence of additional medical records until the final hearing. This is not exactly true, as the records contain representations that Petitioner was unable to obtain all of the records from The Metabolic Treatment Center. On the other hand, Petitioner did not provide the probable cause panels with any expert opinion in his favor, except for Petitioner's medical claims for his treatment methods, which are detailed in the Recommended Order. The first Administrative Complaint filed in this case was on November 21, 2000; it was the complaint concerning one patient, so it was the precursor to the Administrative Complaint filed on August 20, 2004, in DOAH Case No. 04-3222PL. The next Administrative Complaint was filed in 2001, and it was the precursor to the Administrative Complaint filed on October 27, 2004, in DOAH Case No. 04-4111PL. From the earliest of these dates to the latest, Respondent had a reasonable basis in fact to proceed. Viewing the investigative materials in the manner most favorable to Petitioner, they presented a conflict between mainstream medical opinions concerning the proper diagnosis and treatment of endocrinal disorders and Petitioner's opinion, unsupported by other authorities (at least, in the investigative file), that conventional, acceptable ranges for various items, such as T-3 or TSH, are wrong or that holistic approaches are medically necessary to treat certain metabolic syndromes. At best, from Petitioner's point of view, this was a conflict in opinions between five practitioners, on the one hand, and Petitioner, on the other, and the informed, well-reasoned opinions of the five experts with whom Respondent consulted provided a reasonable basis in fact for the filing of all the Administrative Complaints and all of the charges contained within them.
The Issue 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
Conclusions The attending nurse's actions and inactions fell below the standard of professional care applicable under the circumstances. The consequences of a below normal fetal heart rate are so critical that, even if the nurse was suspicious that the monitor was not working properly, her proper response should have been to take immediate steps to determine whether the fetus was in distress, to intervene with resuscitation measures if needed, and to alert a doctor. Her failure to take appropriate action was negligence and was the proximate cause of the injuries suffered by Janaria. South Broward Hospital District, doing business as Memorial Regional Hospital, is liable as the nurse's employer. There are many reasons for entering into a settlement agreement other than the perceived merits of the claim and, therefore, I am not precluded from reviewing the terms of the parties' settlement agreement in this matter and determining whether they are reasonable under the totality of the circumstances. In this case, the settlement amount is far less than the usual jury verdict for injuries of this nature. Had this case involved a private hospital, the settlement amount would probably have been much larger. Therefore, I believe it would be fair and reasonable for the Senate to pay an award of $550,000 (or 50 percent more than the agreed settlement amount). ATTORNEY’S FEES AND LOBBYIST’S FEES: In compliance with s. 768.28(8), F.S., the Claimants' attorneys will limit their fees to 25 percent of any amount awarded by the Legislature. However, Claimants’ attorneys did not acknowledge their awareness of the provision of the bill that limits attorney’s fees, lobbyist’s fees, and costs to 25 percent of the award. They propose a lobbyist's fee that would be an additional 6 percent of any award. OTHER ISSUES: The bill should be amended to correct the name of the defendant to South Broward Hospital District. Of the two annuity options presented by the Claimants' attorney, I believe the option that guarantees payment for 40 years is the better option. In addition, because Shakima Brown received nothing in the settlement, I believe the bill should specify that, in the event that Janaria dies before the trust fund is exhausted, the balance in the trust fund should go to Ms. Brown. The District stated that paying a claim in the amount of $300,000 would not impair its ability to provide normal services. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 38 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Ted Deutch Representative Kelly Skidmore Faye Blanton, Secretary of the Senate Bram D. E. Canter Senate Special Master House Committee on Constitution and Civil Law Tony DePalma, House Special Master Counsel of Record
The Issue The issues are whether Respondent is guilty, in his care of each of several patients, of failing to perform a statutory or legal obligation by performing unnecessary diagnostic tests, failing to keep legible medical records justifying the course of treatment, exercising influence on the patient to exploit the patient for the financial gain of Respondent or a third party, prescribing legend drugs other than in the course of his professional practice, and failing to practice medicine in accordance with the applicable level of care. If Respondent is guilty of any of these violations, an additional issue is what penalty should be imposed.
Findings Of Fact At all material times, Respondent has been a licensed physician in Florida, holding license number ME 51631. At all material times, Respondent has been Board-certified in ophthalmology. Respondent has not previously been disciplined. From 1996 to 1998, to supplement his income from the practice of ophthalmology in Deerfield Beach, Florida, Respondent worked at the Metabolic Treatment Center in Ft. Myers, typically receiving patients twice weekly at the center. At the Metabolic Treatment Center, Respondent typically saw patients whose many complaints had not been resolved by other physicians. The treatment philosophy of the Metabolic Treatment Center and its staff, including Respondent, was to check for and treat the metabolic component of patients' disorders. While Respondent worked at the Metabolic Treatment Center, between one and three physicians worked at the center, although Respondent, rather than another physician, typically saw his patients. Respondent's employment at the center ended shortly after the persons who owned it when he started working there sold it to a publicly traded corporation. After the change in ownership, Respondent did not like the new chief operating officer of the Metabolic Treatment Center. Respondent claims that he declined an offer from the chief operating officer to become the medical director of the center. Problems multiplied at the center until, one day, management abruptly locked out the staff and closed the center. In September 1999, the corporation owning and operating the Metabolic Treatment Center was administratively dissolved by the Florida Department of State. In subsequent litigation between Respondent and the Metabolic Treatment Center, Respondent obtained a circuit court order requiring the center to turn over medical records to him, but this order appears to have resulted in little, if any, actual relief, and the court case was closed in February 1999 without Respondent's obtaining copies of extensive medical records. Neither party disputes the fact that, while employed at the Metabolic Treatment Center, Respondent kept handwritten medical notes on each patient whom he saw. Respondent testified that these brief handwritten notes constituted less than five percent of the chart entries that he made on each patient. Respondent testified that he supplemented his handwritten notes, which he made while seeing a patient, by dictating or otherwise inputting more elaborate notes into a computer at the center. Petitioner contends that the handwritten notes were the only medical records that Respondent prepared for each patient. The Administrative Law Judge credits Petitioner's contention. Respondent attributed the loss of the more detailed medical records to the sudden termination of his relationship with the Metabolic Treatment Center and the subsequent refusal of the center's owners to allow Respondent access to these computer-stored records. It is impossible to credit Respondent's claim, at least to the extent of inferring the existence of extensive, detailed records for each of the patients in question. Respondent knew that any data that he inputted into a computer at the Metabolic Treatment Center were in jeopardy, unless he made copies of the computer files. As a self- described "per diem" physician at the center, Respondent knew that, at anytime, he could lose access to the facility and the computer-stored data at the facility. Before his abrupt termination, Respondent had encountered growing problems with the new Metabolic Treatment Center owners. Familiar with computer hardware and software, Respondent easily could have made copies of the computer files containing the medical records of his patients, but he failed to do so, and he cannot adequately explain this failure. The "failure" is because no such more detailed records ever existed. Respondent does not appear to have been especially attentive to detail, at least when practicing metabolic therapy at the Metabolic Treatment Center. In certain respects, the underlying conflict in these cases is between Respondent, practicing--holistically--metabolic therapy, and Petitioner's expert, Dr. Elton Shapiro, practicing--analytically-- endocrinology. Whatever else may be said of Respondent's holistic methodology, it cannot be said that a single tree ever blocked his view of the vast forest. At one point during the hearing, Respondent misread simple data on a chart. At no point during the hearing did Respondent claim the smallest recollection of any detail about any of the several patients involved in these cases. Although Petitioner's delay in prosecuting these cases would have presumably contributed to Respondent's failure to recall the details of his care for these patients, it is unusual that Respondent would lack any recollection whatsoever of any of the four patients who were clearly under his care at the center. Respondent claims to have spent an hour and a half with each new patient--a claim that is not credited--but nothing else in his testimony or the record contradicts the impression created by other aspects of the record of a high-volume practice at the Metabolic Treatment Center. A high-volume practice was not conducive to the kind of detailed record-keeping that Respondent claims to have undertaken. As Respondent himself testified, the center's management supplied him with forms that identified packages of lab tests, so that a single package combined useful tests with tests of little value, given the complaints, history, and findings concerning a particular patient. Respondent's ready acceptance and use of these test packages also militate against a finding that he attended closely to detail in his metabolic therapy practice. Discrediting Respondent's claim of a vast trove of detailed medical records does not mean that the present records are complete or even unaltered. Respondent's relations with the new owners of the Metabolic Treatment Center deteriorated to the point of hostility. A significant possibility exists that, following the cessation of operations at the center, existing medical records were not safeguarded and some records were lost. Likewise, records may have been altered. One record in these cases bears a handwritten printing of Respondent's name, misspelled. Another bears an awkward depiction of Respondent's letterhead from his east-coast opthamological practice--of which Respondent plausibly disclaims any knowledge. Although the Administrative Law Judge excluded records that appeared altered, some handwritten notes, lab results, and other materials may be missing from the present records. In making the findings below, the Administrative Law Judge has considered--patient-by-patient, entry-by-entry--all reasonable bases for inferences of the existence of other medical records, such as other handwritten notes or lab reports, that would support the quality of care that Respondent may have provided to any patient. The primary effect of this inferential process has been not to find, after examination of the admitted medical records, that the omission of a record of a patient history means that Respondent did not take one. With one minor exception, the sole basis for the admission of the medical records that have been admitted is Respondent's testimony identifying specific pages of records. The medical records adequately identified by Respondent are contained exclusively in Petitioner Exhibit 9, which is the transcript of Respondent's deposition taken, while he was still represented by counsel, on November 17, 2005. Attached to the transcript are about 300 pages of copies of purported medical records. (These pages are numbered 1-222 and 24-105.) The transcript discloses which records, by page number, that the Administrative Law Judge found that Respondent had adequately identified. After reviewing all of the evidence, the Administrative Law Judge has determined that he improperly admitted at the hearing other medical records. These records, which Respondent has never identified adequately, came from two main sources, although the original source in all cases was (or should have been) the Metabolic Treatment Center. The sources of these excluded records are of insufficient reliability to justify their admission. None of the patients themselves identified their medical records. Petitioner obtained the excluded records, which Respondent has never adequately identified, from two sources. First, Petitioner obtained some of the records from J. H., who is a cost-control employee of the insurer whose concerns led to the investigations that culminated in these cases. J. H. contacted Respondent during the course of her investigation into the reasonableness of the testing and treatment ordered by Respondent. In an odd twist, Respondent invited J. H. to assume the role of a patient at the center, and J. H. accepted his invitation. Presumably, Respondent took a history, made physical findings, and may have recommended a plan of treatment for the insurance investigator, who then, presumably foregoing the treatment plan, caused herself to be included among the 11 patients who eventually formed the subject of DOAH Case No. 04-4111PL. (As noted above, Petitioner has dropped its allegations concerning investigator/patient J. H.) The Administrative Law Judge finds that medical records produced exclusively from the insurer or J. H. lack sufficient reliability, under the facts of these cases, including the unusual involvement of the insurer's investigator in producing facts on which to prosecute Respondent, to justify their admission. Second, Petitioner obtained some records from Respondent's former attorney, who testified briefly at the final hearing. However, the source or sources of these records are unclear in the record. Given the age of these cases, the lack of proof concerning the preparation and custody of the putative medical records, and the fact that Respondent's former attorney obviously obtained the records from one or more other sources, it is impossible to find that the records identified by counsel are sufficiently reliable as to admit them into evidence. Only one category of medical records, besides those adequately identified by Respondent, is sufficiently reliable to be admitted into evidence. This category comprises those few records that Dr. Shapiro testified at the hearing were linked in time and content to other records already adequately identified by Respondent. This post-hearing exclusion of additional evidence affects only C. M. among the nine patients remaining in these two cases. For C. H., P. G., Sarah B., and S. A., Petitioner relied exclusively on the medical records attached to Petitioner Exhibit 9, substantial portions of which Respondent adequately identified. For B. H.-M., G. H., L. L., and R. B., Petitioner acknowledged at the hearing that it was relying exclusively on testimony because no records pertaining to these patients had been admitted. The absence of any acknowledgement by Respondent that he treated B. H.-M., G. H., L. L., R. B., or C. M., coupled with the absence of any admitted medical records for these five patients, preclude any factfinding about Respondent's care of these patients, or even that Respondent cared for them at all. Petitioner has therefore failed to prove any of the alleged violations concerning these five patients. C. H., a 46-year-old female, presented at the Metabolic Treatment Center for an initial visit on June 6, 1996. For C. H., pages 3 and 5-26 under tab "C. H." in Petitioner Exhibit 9 are admitted. On June 6, Respondent performed a physical examination of C. H. that revealed nothing of clinical significance. Under "impression," Respondent noted "pending labs & NCV." "NCV" is a study of nerve conduction velocity. An NCV study measures the speed of conduction of a nerve, which is an indication of the nerve's condition. C. H. completed an 11-item checklist for her health history and symptoms. Her history reported mitral valve regurgitation and prolapse, fibromylagia, and hypoglycemia. However, C. H. circled the "no" response to the question, "Do you have diabetes?" On another form, C. H. denied having had any of the listed conditions. C. H. also completed a checklist circling "yes" or "no" next to each of 14 symptoms and 11 conditions. C. H.'s symptoms included dizziness, chest pain, numbness in hands or feet, back pain, neck pain, shortness of breath, "a feeling that your heart skips a beat," "a fluttering sensation in your heart," fatigue, weight gain, inability to lose weight, depression and menstrual problems. C. H. indicated that her history did not include any of the listed conditions. Prior to sending C. H. to obtain NCV studies from another physician working for the Metabolic Treatment Center, Respondent completed a Metabolic Treatment Center form entitled, "Letter of Medical Necessity." The purpose of the form, according to the preprinted contents, is for Respondent to certify that services are "medically necessary" and "reasonable and necessary." The form shows that Respondent ordered NCV studies of the upper and lower extremities by the Metabolic Treatment Center to rule out peripheral neuropathy, possibly of a diabetic nature. Dr. Martin S. Goldstein of the Metabolic Treatment Center performed the NCV studies on the date of the initial visit. Bearing the date of June 6, 1996, and the heading, "Metabolic Treatment Center," the report states that a "slowed conduction is demonstrated" for the left upper extremity. The report includes the impression of "peripheral neuropathy." Respondent never addressed the question of diabetes according to the medical records. Blood work performed on June 7, 1996, June 28, 1996, and July 24, 1996, revealed that glucose was in the normal range and serum insulin was normal on June 7 and July 24, but high on June 28. The records do not indicate whether Respondent ruled out diabetes, as was his documented intent on the original office visit, nor do the records contain any discussion of Respondent's conclusions from this repeated blood work, if he did not feel that he could rule out diabetes. The portion of the rule-out diagnosis mentioning diabetes merely faded out of the records, except, of course, for repeated blood work that typically assists a practitioner in diagnosing diabetes. At least as to Respondent's handling of the question of diabetes, Petitioner proved that the medical records fail to justify the course of treatment following a rule-out diagnosis of peripheral neuropathy, possibly of a diabetic nature. Petitioner also proved that Respondent's ordering of the NCV studies was unnecessary and excessive, despite the abnormality disclosed in the upper left extremity. The salient facts are: 1) Respondent ostensibly ordered the NCV studies to rule out peripheral neuropathy, possibly of a diabetic nature; 2) the NCV studies revealed likely peripheral neuropathy of the upper left extremity; and, most importantly, 3) Respondent's medical records contain no discussion of the meaning of the abnormal finding from the NCV study of the upper left extremity. Notwithstanding the abnormal NCV finding, Respondent failed to refer C. H. to a neurologist, undertake treatment himself, or document why he was taking neither action. Respondent's failure to act on the abnormal finding proves that he never intended to do anything if the NCV studies uncovered anything wrong, as one did. Additionally, Respondent ordered the NCV studies without first testing C. H.'s sensory or motor functions and despite the patient's denial of any tingling in the arms or legs. The evidence establishes that C. H.'s tests were unnecessary and excessive. By failing to act on the abnormal NCV finding, Respondent failed to conform to the applicable standard of care. However, Petitioner's standard of care allegations cite only inappropriate and excessive testing, failing to perform an appropriate history and physical examination, and inappropriately and inaccurately diagnosing C. H. The excessive testing with respect to the NCV studies, discussed above, is better described as a failure to conform to a statutory duty than a failure to satisfy the applicable standard of care. Other excessive testing, discussed immediately below, is better described as the exploitation of a patient for financial gain. For the reasons noted in the Conclusions of Law, below, it is impossible to conclude that Respondent's failure to act on the abnormal NCV result violates the applicable standard of care because of the absence of a specific allegation to this effect. The blood work of June 28 and July 24, 1996, was excessive for several reasons. In most cases, items tested were normal when first tested on June 7, but this first round of blood work was generally appropriate. However, no medical reason existed to retest such items three weeks later or one month after the second round of blood work. For example, Respondent ordered an iron reading on June 7, despite any basis to suspect anemia. The reading was normal, but Respondent retested it on June 28 and July 24--on which occasions, iron remained within the normal range. Respondent tested amylase on all three occasions--despite any complaint, such as acute abdominal pain, that would suggest pancreatitis and justify a test for amylase--and on all three occasions amylase levels were normal. As noted above, Respondent tested serum insulin on all three occasions, again for no apparent reason, after the initial test was normal and the second test revealed only a slight elevation. Respondent ordered additional tests that were unnecessary in connection with the above-described blood work. Items tested unnecessarily include prolactin (absent any problem with excessive milk production), cortisol (especially as it was not a suppression test, but was a random test, which is useless), ACTH (especially because it was ordered before any cortisol abnormality was found), DHEA (absent any finding of masculinization), and human growth hormone (in the absence of any indication of an abnormality in growth hormone). Petitioner proved that Respondent ordered unnecessary and excessive tests to exploit C. H. for financial gain. On June 13, 1996, Respondent saw C. H. for the first time after her initial visit a week earlier and started her on Cytomel, 5 mcg each, four times daily. Cytomel is T3, a synthetic thyroid hormone. T3 combines in the blood with another thyroid hormone, T4, to regulate the metabolism of the cells within the body. Normally, when these hormones fall too low in the blood, the pituitary gland produces thyroid stimulating hormone (TSH), which stimulates the thyroid gland to produce more T3 and T4. The June 7 blood work revealed that total T3 and TSH were well within the normal range, although T4 was either at the low range of normal or just below the normal range. The June 28 and July 24 blood work showed values only for total T3, which were again well within the normal range. Without any support in the medical records except a notation of "low energy," Respondent elected to commence thyroid hormone supplementation. Within a week after starting on this prescription, C. H. had reduced the frequency of taking the Cytomel to three times daily due to heart palpitations, which is a known side effect of the drug. However, during an office visit on June 27, Respondent advised C. H. to resume taking Cytomel--5 mcg, five times daily--obviously after learning of the heart palpitations, but before obtaining the results of the June 28 lab work showing a normal total T3 level. C. H. discontinued taking Cytomel on July 11, 1996, due to feelings of fatigue. On August 9, 1996, C. H. reported, for the first time, that she "feels great," although, judging from the medical records, her recovery seems to have been spontaneous. Petitioner proved that Respondent's initial prescription of Cytomel was inappropriate and outside the course of practice because the blood work indicated normal values for the relevant hormones. The medical records contain no trace of a discussion of why Respondent would prescribe T3 for a patient with these values, complaints, and history. Not only was the Cytomel useless, but, for C. H., it produced cardiac side effects. If Petitioner had alleged the inappropriate prescription of thyroid medications as a basis for an alleged violation of the applicable standard of care, as it did with respect to C. M. and S. A., Petitioner would also have proved that the increased prescription of Cytomel, on June 27, violated the applicable standard of care. The resumption of the Cytomel prescription on June 27 departed from the applicable standard of care because Respondent knew that the Cytomel had produced a potentially dangerous side effect, and he ordered C. H. to increase the dosage of Cytomel before he had even seen the results of the blood work done the following day--which results again showed a normal total T3 level. Respondent's treatment plan, if it fact it can be called a plan, seems completely unrelated to C. H. and the findings of any physical examination and lab work or the complaints and history that she related to Respondent. Not surprisingly, her recovery seems similarly unrelated to any treatment plan. However, Petitioner failed to allege the prescription of thyroid medication as a basis for an alleged violation of the applicable standard of care as to C. H. Petitioner failed to prove the three alleged grounds for an alleged violation of the applicable standard of care. Petitioner failed to prove that the history or physical examination was inadequate or that the only diagnosis in the records--a rule-out diagnosis--was inaccurate or inappropriate. Although Petitioner proved some inappropriate and excessive testing, this improper testing is best described as a failure to perform a statutory obligation, with respect to the NCV studies, and as the financial exploitation of a patient, as to the repeated and unjustified blood work. Thus, as to C. H., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, the exploitation of a patient for financial gain, and the inappropriate prescription of a thyroid replacement medication, but not a violation of the applicable standard of care. P. G., a 43-year-old female, presented at the Metabolic Treatment Center for an initial visit on July 3, 1997. For P. G., pages 43-44 (top), 47-48, and 55-69 under tab "P. G." in Petitioner Exhibit 9 are admitted. Following a physical examination, Respondent noted diminished deep tendon reflexes at the right and left dorsal pedal sites, right and left biceps sites, right and left post- tibial sites, and right and left poplyteal sites. Respondent obtained a history that included high blood pressure and heart disease, as well as a family history of heart disease. P. G. complained particularly about depression, pain, swelling in the joints for five years, faulty memory, joint pain, and poor concentration. She also complained of fatigue, numbness, tingling, and muscle aches. Petitioner failed to prove a violation of the applicable standard of care for a failure to perform an adequate physical examination or history. Respondent made a working diagnosis of hypothyroidism, hypertension, endocrine gland disorder, and chronic fatigue. He also made a rule-out diagnosis of pituitary access disorder. Respondent ordered blood work and directed P. G. to record her basal temperature daily. Petitioner failed to prove a violation of the applicable standard of care for a misdiagnosis, at this point in Respondent's care of P. G. Petitioner's expert witness described NCV studies that Respondent ordered of P. G.'s upper and lower extremities on July 3, but Petitioner failed to prove that these studies took place. The portion of the medical records (p. 45 under tab "P. G." in Petitioner Exhibit 9) discussing the results of the NCV studies was not admitted into evidence, and the NCV reports themselves were not offered into evidence. Petitioner failed to prove a failure to perform a statutory obligation for ordering unnecessary NCV studies. The blood work resulting from a collection occurring on July 8, 1997, revealed elevated glucose and cholesterol components. Earlier blood work done in January 1997 revealed elevated cholesterol components, but not glucose. The July 1997 lab work reported normal levels of total T3, T4, and TSH, which are consistent with the results of the January 1997 lab work for T4 and TSH (T3 was not tested in January 1997). In ordering the blood work for July 7, Respondent ordered analysis of insulin, iron, cortisol, growth hormone, and prolactin. For the reasons discussed in connection with C. H., Petitioner proved that these tests were medically unnecessary. Petitioner thus proved that Respondent exploited P. G. for financial gain in ordering all of these unnecessary tests. P. G. returned to Respondent's office on July 11 to discuss the results of the blood work. Respondent diagnosed her with, among other conditions, hypothyroid "both by temperature and symptoms." Although Respondent noted the thyroid readings from the July 7 blood work, he failed to discuss the relationship between these normal readings and his diagnosis of hypothyroid. Petitioner thus proved that the medical records do not justify the course of treatment. Additionally, distinct from this shortcoming in the medical records, Petitioner proved that Respondent inaccurately diagnosed P. G. with hypothyroidism and thus failed to satisfy the applicable standard of care. The lab work relating to P. G.'s thyroid function resembles the NCV studies of C. H. in terms of a lack of medical necessity. In the case of C. H., Respondent ordered the NCV studies for a reason other than to assist in diagnosis because, when they disclosed an abnormality, he ignored the positive finding and took no action. In the case of P. G., Respondent ordered the thyroid tests for a reason other than to assist in diagnosis because, when they revealed no problems with thyroid function, he ignored the negative finding and proceeded as he presumably would have if the tests had produced a positive finding of thyroid abnormality. Petitioner has proved that the blood work on thyroid function lacked medical justification and was unnecessary, and Respondent thus failed to perform a statutory obligation. On July 11, Respondent started P. G. on Cytomel, "0.5" mcg, four times daily. (An error in the sequencing of Respondent's medical records under tab "P. G." in Petitioner Exhibit 9 places immediately after the page describing the July 3 visit a page noting an increase in the dosage of Cytomel. Given the presence of an August 22 entry on this latter page, it is obvious that the page containing the entry increasing the Cytomel should have followed the page that ends with the July 31 visit.) Also on the July 11 office visit, Respondent started P. G. on human growth hormone. The July 7 blood work did not support this treatment because Respondent failed to test for human growth hormone either after exercise stimulation or glucose suppression. The value for human growth hormone in the July 7 blood work appears to be within the normal range. At the next office visit, which took place on July 31, 1997, Respondent also increased P. G.'s Cytomel to 10 mcg four times daily and ordered her to take human growth hormone on a cycle of five days on and two days off. As on July 11, Respondent, on July 31, lacked any justification to prescribe Cytomel or human growth hormone to P. G. Petitioner proved that Respondent inappropriately prescribed controlled substances to P. G. However, this finding applies only to the prescription of Cytomel because Petitioner never alleged that Respondent inappropriately prescribed human growth hormone. Although the inappropriate prescription of Cytomel probably would also constitute a violation of the applicable standard of care, Petitioner did not make such an allegation regarding P. G. Thus, as to P. G., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, the exploitation of a patient for financial gain, the inappropriate prescription of a thyroid replacement medication, and the violation of the applicable standard of care. Sarah B., a 52-year-old female, presented at the Metabolic Treatment Center for an initial visit on September 5, 1996. For Sarah B., pages 72-80 and 87 under tab "Sara [sic] B." in Petitioner Exhibit 9 are admitted. No patient history was admitted into evidence, but it is impossible to infer from this omission that Respondent failed to obtain an appropriate patient history. Completed forms were present for other patients, the forms seem to have been readily available for completion by patients (not Respondent), and completed forms, which supplied numerous conditions or complaints that the patient had only to recognize and mark, set the stage for metabolic treatment of these numerous conditions or complaints. The records document Respondent's physical examination of Sarah B. on September 5, 1996, and disclose no abnormalities. Under "impression," Respondent stated, "pending labs and NCV." Petitioner failed to prove a violation of the applicable standard of care for a failure to perform an adequate physical examination or history. Performed on September 5, the NCV studies, again performed by Dr. Goldstein of the Metabolic Treatment Center, find a "mild focal peripheral neuropathy." Respondent next saw Sarah B. on September 12 and 20, 1996, but his notes omit any mention of the neuropathy. Once again, Respondent failed to treat the condition revealed by the NCV studies, refer the patient to a neurologist, or at least explain why he was taking no action. For the reasons discussed in connection with C. H., Petitioner proved that the NCV studies ordered by Respondent lacked medical justification and were unnecessary, and Respondent thus failed to perform a statutory obligation. Respondent ordered analysis of cortisol, DHEA, human growth hormone, iron, prolactin, and amylase. The records reveal no justification for these tests. Petitioner proved that Respondent exploited Sarah B. for financial gain. The September 5 blood work revealed normal values for T4, total T3, and TSH. Despite the absence of any thyroid abnormalities, on September 12, Respondent started Sarah B. on Cytomel, 5 mcg, four times daily. Respondent's notes reveal no reason why he started Sarah B. on Cytomel and lack even the specificity of the notes on the same issue with respect to P. G. Petitioner proved that the medical records fail to justify the course of treatment. However, Respondent discontinued the Cytomel one week later. Although the notes fail to explain the reason for his action, Respondent's prompt discontinuation of Cytomel demands more proof than Petitioner has provided, if it were to prove that the weeklong prescription of Cytomel was inappropriate or, had Petitioner pleaded the prescription of Cytomel as a violation of the applicable standard of care, deviated from the applicable standard of care. Thus, as to Sarah B., Petitioner proved a failure to perform a statutory obligation, a failure to maintain adequate medical records, and the exploitation of a patient for financial gain, but not the inappropriate prescription of a thyroid replacement medication or the violation of the applicable standard of care. S. A., a 53-year-old female, presented at the Metabolic Treatment Center for an initial visit on June 3, 1998. For S. A., pages 88-90, 92, 97-99, and 100-06 under tab "S. A." in Petitioner Exhibit 9 are admitted. After performing a physical examination, which included pulses and reflexes of the extremities, Respondent formed the impression that S. A. probably suffered from peripheral neuropathy. As is the case with Sarah B., no patient history is contained in the medical records, but, for the reasons stated above, it is impossible to find that Respondent failed to take a history. Petitioner thus failed to prove a violation of the applicable standard of care by failing to perform an appropriate physical examination or history. S. A. is dissimilar to the above-described patients in several respects. First, according to the testimony of Dr. Shapiro, S. A. suffered from hypothyroid disorder, so the ordering of blood work to assess thyroid function and the prescribing of thyroid supplement were appropriate. Second, judging from the medical records, Respondent did not order NCV studies. Third, S. A. was an uncooperative patient. Fourth, the lab reports on the blood work are substantially illegible, likely due to poor copying, with the result that it is impossible to read the values and ranges for particular items that are tested and, in some cases, read the items themselves. In general, no clear picture of the findings, diagnoses, and treatment plan emerges from the record, with the sole exception stated in the following paragraph. The sole exception is that it is clear from the records that Respondent, again, ordered tests of numerous items, such as testosterone (absent masculinization), prolactin, cortisol, growth hormone, and blood type, that were unnecessary. Petitioner thus proved that Respondent exploited S. A. for financial gain, but failed to prove the remaining S. A.-related allegations.
Recommendation RECOMMENDED that the Board of Medicine enter a final order dismissing DOAH Case No. 04-3222PL and dismissing all counts in DOAH Case No. 04-4111PL, except the four counts alleging the financial exploitation of C. H., P. G., Sarah B., and S. A.; the three counts alleging the failure to perform a statutory obligation regarding C. H., P. G., and Sarah B.; the three counts alleging the failure to maintain adequate medical records regarding C. H., P. G., and Sarah B.; the two counts alleging inappropriate prescriptions to C. H. and P. G.; and the one count alleging a violation of the applicable standard of care as to P. G. For these violations, the Board should enter a final order imposing an administrative fine of $29,000 against Respondent and placing his license on probation for five years. DONE AND ENTERED this 5th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2006. COPIES FURNISHED: Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, BIN A02 Tallahassee, Florida 32399-1701 Dr. M. Rony Francois, Secretary Department of Health 4052 Bald Cypress Way, BIN A00 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Irving Levine Department of Health Prosecution Services Unit 4052 Bald Cypress Way, BIN C65 Tallahassee, Florida 32399-3265 Marvin Reich 1979 West Hillsboro Road Deerfield Beach, Florida 33442
The Issue The issue presented in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on August 17, 1999.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine, pursuant to Section 20.43, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Pursuant to the provisions of Section 20.43, Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. Respondent is a licensed physician in the State of Florida, having been issued license number ME 0063067. Respondent is board-certified in internal medicine. On March 10, 1995, Patient C.C., a 68-year-old woman with a history of cigarette smoking first presented to Respondent as a new patient with a complaint of nocturia (frequent urination at night). Patient C.C. completed a medical history form for Respondent indicating her past medical history and any medical complaints that she had at that time. Patient C.C.'s history was negative, with the exception of treatment for a skin disorder and arthritis of the fingers. Patient C.C. reported no history of cardiorespiratory problems and had no complaints of cardiorespiratory problems. Patient C.C. had undergone laboratory testing on March 8, 1995, that revealed an elevated glucose level of 167. While the blood glucose level was elevated, Patient C.C. did not meet the specific diagnosis criteria, as it existed in 1995, to be diagnosed as a diabetic. Respondent conducted a physical examination of Patient C.C., noting his findings in Patient C.C.'s chart. Due to the elevated glucose level, Respondent directed Patient C.C. to begin a 1500 calorie diet and follow an exercise regimen. Respondent advised Patient C.C. of his evaluation, assessment, and proposed plan of treatment. While in his care, Respondent regularly ordered laboratory testing to monitor Patient C.C.'s glucose levels. A report dated May 13, 1995, revealed that Patient C.C.'s glucose level had decreased to 136. A report dated September 7, 1995, revealed Patient C.C.'s glucose level to be 128. Laboratory testing performed at Community Hospital of New Port Richey on October 17 and 18, 1995, revealed glucose levels of 135 and 133, respectively. Upon receipt of the laboratory findings and pertinent diagnostic testing, Respondent advised Patient C.C. of the results, discussed his recommended course of treatment, and noted the discussion in her medical record. On October 16, 1995, Patient C.C. presented to Respondent suffering from uncontrolled hypertension, anxiety, stress, and non-specific chest discomfort. Respondent immediately admitted Patient C.C. into Community Hospital of New Port Richey. Patient C.C. underwent a chest X-ray during her hospitalization. The X-ray revealed a right upper lobe consolidation and the radiologist's report urged follow-up. Respondent received the radiologist's report and discussed the findings with Patient C.C. On October 24, 1995, Respondent advised Patient C.C. by certified letter that he would no longer provide medical care for Patient C.C., that her condition required medical attention, and that she should seek the care of another physician without delay. Patient C.C. received the certified letter on October 27, 1995. Respondent never had the opportunity to provide follow-up or additional care to Patent C.C. as related to the abnormal chest X-ray or elevated glucose level. The evidence at the hearing established that the care provided to Patient C.C. by Respondent was within the standard of care. The evidence at hearing also established that the Respondent's medical records for Patient C.C. documented and justified the course and scope of his treatment of Patient C.C. Respondent's expert testified that the standard of care did not require Respondent to obtain a chest X-ray when he initially saw Patient C.C. in March 1995. Petitioner's expert offered no testimony and presented no evidence on this issue. Practice guidelines did not require and, in fact, recommended against obtaining routine chest X-rays to screen for lung cancer, even for patients at risk, such as smokers. Respondent and the Respondent's expert, Dr. Corral, both testified that Patient C.C. was not a diabetic, and therefore, did not require treatment for a condition from which she did not suffer. Petitioner's expert, Dr. Benson, testified that Patient C.C. was a diabetic and required definitive treatment for that specific condition. Dr. Benson's testimony is less credible on this issue, and the testimony of Respondent and Dr. Corral is found to be more persuasive and credible. Patient C.C. did not meet the 1995 criteria to be diagnosed as a diabetic. The clear and unambiguous criteria required elevation of plasma glucose greater than 200 mg/dl, or a feasting plasma glucose greater than 140 mg/dl on two consecutive occasions. Patient C.C. never met the criteria. Respondent adhered to the standard of care in diagnosing, evaluating, monitoring, and treating Patient C.C.'s elevated glucose levels. In summary, Petitioner failed to establish by clear and convincing evidence that Respondent failed to meet the standard of care with regard to his alleged failure to (1) perform a complete history and physical examination on a new patient with significant risk factors for cardiopulmonary disease; (2) to order a chest X-ray as part of a work-up on a new elderly patient with a long history of smoking; (3) follow up on the patient's abnormal chest X-ray; and (4) follow up with the patient's test results that revealed an elevated glucose level. Additionally, Petitioner failed to establish by clear and convincing evidence that Respondent did not keep written medical records justifying the course of treatment of the patient by failing to document a plan or evaluation for the course of treatment of Patient C.C.'s abnormal chest X-ray and elevated plasma glucose level.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Medicine, enter a final order dismissing the August 17, 1999, Administrative Complaint against Respondent, Rajesh Bhagvatipras Dave, M.D. DONE AND ENTERED this 6th day of March, 2001, in Tallahassee, Leon County, Florida. WILLIAM R. PFEIFFER 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 6th day of March, 2001. COPIES FURNISHED: Christopher J. Schulte, Esquire Burton, Schulte, Weekley, Hoeler, Poe & Robbins, P.A. 100 West Kennedy Boulevard Suite 800 Tampa, Florida 33602 Eric Scott, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact Respondent is, and at all material times has been, a licensed physician, having been issued license number ME 0040551, by the State of Florida. Respondent is a 1979 graduate of the University of Juarez. Respondent performed an internship at Mount Sinai Hospital in Chicago, Illinois, from 1979 to 1980. Between 1980 and 1982, Respondent performed a two year internal medicine residency at Grant Hospital in Chicago, Illinois. Respondent is "Board-eligible" in the area of internal medicine. Internal medicine involves a non-surgical approach to evaluating multiple organ systems. It involves understanding diseases at a "higher" level and dealing with multiple illnesses. Respondent once has taken, but did not pass, the examination to become Board certified in internal medicine. Respondent has had no other complaints filed against his license to practice medicine in Florida, other than the one at issue in this case. On or about May 2, 1986, Respondent admitted patient L. S. to Clearwater Community Hospital in Clearwater, Florida, because of a possible cerebral vascular accident which occurred 3 days prior to admission. Patient L. S. was a 76-year old male patient who was a member of the "Gold Plus" IMC Health Maintenance Organization. At or about the time of admission of patient L. S. to Clearwater Community Hospital, Respondent obtained a patient medical history from L. S. and performed a physical examination. As a result of the stroke, patient L. S. had speech difficulties at the time of admission to Clearwater Community Hospital. Respondent's initial patient history for L. S. included the following information: With respect to the cerebral vascular accident, the patient had awakened 3 days prior to the admission and had difficulty with speech and difficulty using his right hand. The patient was able to ambulate without difficulty and had noted no improvement or worsening in symptoms in the three days prior to admission. The patient had had intestinal surgery 50 years previously, which, according to Respondent's documented history, resulted in chronic diarrhea. Additionally, the patient had been hospitalized two years earlier for "dysphagia (a difficulty in swallowing) with a negative work-up." According to the patient, the patient had no coronary artery disease, hypertension, peptic ulcer disease or diabetes. The patient's social history provided the information that the patient smoked tobacco, one-half pack per day, and did not drink alcohol. The patient provided information that he was on the following medication: Lomotil p.r.n. (as needed); Lanoxin 0.125 mg. per day; and Quinaglute 100 mg., dose schedule unknown. Respondent performed an appropriate initial physical examination on patient L. S. Of significance was Respondent's finding with respect to the patient's heart: "Irregular, irregular rhythm with no gallops or murmurs appreciated." After completing the initial history and physical examination, Respondent's impression was: Acute CVA, patient now three days post-insult and appears to be stable. He already has good use of his right upper extremities and his speech is intelligible although slurred History of cardiac arrhythmia History of chronic diarrhea secondary to intestinal surgery 50 years ago. As part of his plan for the patient, formulated after obtaining the initial history and physical, Respondent noted, "Will also consider ECHO cardiogram as the heart irregularity may provide the source of the emboli." While patient L. S. was hospitalized during the May 2, 1986, admission, Respondent ordered the following tests which were performed on the patient: a complete blood count; a prothrombin time test; an activated partial thromboplastin time test; a routine urinalysis; a portable upright chest x-ray; a bilateral duplex carotid ultrasound study; a CT scan of head - stroke routine (non contrast study); a Brain CT Scan Stroke Protocol-Post contrast series only; an electroencephalogram (EEG); a blood chemistry profile; and an electrocardiogram (EKG)(the patient was also placed on a telemetry monitor). On admission, Respondent ordered Lomotil, one tablet to be given as needed for diarrhea, Lanoxin 0.125 mg. to be given four times a day, and Quinaglute 100 mg. to be given twice a day. On the same day of admission, Respondent changed the order for Quinaglute to 325 mg. to be taken by mouth twice a day. On admission and again on May 9, 1986, Respondent ordered blood serum levels of digoxin (Lanoxin is a drug containing digoxin). These blood levels revealed that the digoxin level was low on admission (normal laboratory values were listed as between 0.5 to 2.0 - the actual value was 0.1). The repeat digoxin level reflected that the digoxin was within normal limits on May 9, 1986 (the actual value was 1.1). Quinidine levels were also obtained (to determine the level of the drug Quinaglute in the blood), pursuant to Respondent's request. The quinidine level taken on admission was below normal (normal laboratory values were listed between 2.0 and 5.0 - the actual value was .7). The repeat quinidine level performed on May 9, 1986, reflected that the quinidine levels were within normal limits (2.6). Under the circumstances, the Respondent cannot be severely criticized for the initial history he took from the patient. In ideal circumstances, an internist would attempt to get more detail on the patient's smoking history pertinent to possible chronic obstructive lung disease or possible congestive heart failure, on the patient's chronic diarrhea, and on the patient's drug dosages. But the Respondent was dealing with a 76-year old man who came to see him for symptoms of a stroke three days before. The patient had difficulty making his speech understood and had no family or friends available to help him give his medical history to the Respondent. It was within acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances for the Respondent to take as much history as the patient was capable of comfortably giving at that time. The Respondent was planning on referring the patient to the hospital's stroke team, which over the course of the hospital stay would completely evaluate the effect of the stroke on the patient. The Respondent planned to have blood serum levels done which would establish proper drug dosages. The Respondent's primary concerns were the possibility of an evolving stroke and the possibility of malignant cardiac arrhythmias. Since there were no complaints or symptoms of chronic obstructive pulmonary disease or congestive heart failure, it was not necessary to pursue the smoking details on the initial history on this admission. As for the diarrhea, the Respondent was dealing with a 76-year old man who reported chronic diarrhea for 50 years. It may have resulted from intestinal surgery 50 years ago, and it may have been exacerbated by the Quinaglute the patient had been prescribed for his heart arrhythmias. Severe malabsorption problems would show up on the blood screen and the complete blood count the Respondent was planning to have the patient undergo. Otherwise, it was acceptable under the circumstances of this case to concentrate on the two primary concerns and treat the diarrhea symptomatically with Lomotil as needed for the time being. The Respondent should have followed up on obtaining available previous hospital records, especially the local admission for dysphagia two years prior, but that information would not appear in the initial history. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated the patient's heart as a possible cause of the stroke. The evidence suggests that it is fairly debatable among physicians whether to order a $500-$600 echocardiogram in a case such as this; it is not necessary to meet the standard of care. When the Respondent initially examined the patient and heard irregularly irregular heart rhythms, he initially considered an echocardiogram. Irregularly irregular heart rhythms suggest atrial fibrillation which can predispose a patient to heart clots (emboli) which can break off, travel through the circulatory system and cause a stroke. But the results of the CAT Scan indicated that the stroke was not caused by a heart embolus but by a constriction of smaller blood vessels. In addition, the results of the EKG and telemetry monitoring revealed that the patient did not have atrial fibrillation but had significant and possibly malignant premature ventricular contractions (PVCs). While this particular heart beat irregularity is serious and can be fatal, it does not predispose a patient to heart emboli and resulting strokes. With this information, the echocardiogram was no longer necessary. While L. S. was in the hospital, the Respondent appropriately and adequately evaluated his lung function. The chest x-ray and EKG which the Respondent had done for the patient enabled the Respondent to diagnose obstructive pulminary disease (C.O.P.D.) if the patient had it. Milder cases of C.O.P.D. would have required with a pulmonary function test or a blood gas level. The evidence suggests that it is fairly debatable among physicians whether to have done one of those tests in this case; it was not necessary to meet acceptable standards of care recognized by a reasonably prudent similar physician under similar circumstances. The patient had no complaint of shortness of breath with exertion that would suggest emphysema. To the contrary, he progressed well in physical therapy during the 10-day hospitalization with no indication of this symptom. Nor did the patient have cyanosis or clubbing that would be symptomatic of chronic bronchitis. Those are the two kinds of C.O.P.D. about which a physician evaluating L. S. would be concerned. Regarding the patient's chronic diarrhea, the Respondent performed some general screening tests which, while non-specific in nature, had potential to provide some information about the patient's nutritional status. The complete blood count (C.B.C.) may provide information about some deficiencies. Generally, in an isolated deficiency of vitamin B12 or folic acid, one would expect to find an elevated M.C.V. (mean corpuscular volume), which would show up on a C.B.C. In this case, however, the C.B.C. provided no real information about the nutritional status of patient L. S. The M.C.V. was only slightly elevated. A prothrombin time test can be done to evaluate vitamin K deficiencies and was done in this case. Additionally, the blood levels of several substances can provide information about malnutrition. In this case, the chemistry profile revealed malnutrition. The blood chemistry profile revealed low albumin levels, low globulin levels and low total protein levels. The possibility exists that patient L. S. suffered from diarrhea which was caused or aggravated by the Quinaglute that the patient was also taking. Quinaglute can cause diarrhea. This was not evaluated by the Respondent. It could not be evaluated by the medication history the patient was able to give (i.e., by determining how long the patient had been taking Quinaglute in relation to the period of time the patient had had diarrhea.) Besides, the Respondent made the decision to stabilize the patient's potentially life- threatening heart arrhythmias using the Quinaglute instead of withdrawing the Quinaglute in an attempt to cure the diarrhea problems with which the patient had lived for 50 years. The Respondent cannot be severely criticized for this decision. On this admission, it was acceptable to treat the patient's diarrhea symptomatically for the time being and further evaluate and treat it after the Respondent dealt with the more serious matters of the C.V.A. and the heart arrhythmias. On or about May 12, 1986, Respondent transferred patient L. S. to Druid Hills Skilled Nursing Center from Clearwater Community Hospital. As reflected in Respondent's discharge summary for patient L. S., Respondent was not able to determine the precise cause of the stroke which patient L. S. suffered prior to discharging the patient from the hospital. The discharge diagnoses reflect: (1) acute cerebral vascular accident; and (2) cardiac arrhythmias with frequent P.V.C.'s. The Respondent kept patient L. S. in Clearwater Community Hospital for ten days, from May 2 until May 12, 1986. Although the evaluation and tests were completed within five days, the Respondent did not want to discharge the patient to his home where he would be by himself, but rather to a nursing home. While waiting for a nursing home bed to become available, the Respondent used the resulting extended hospital stay to continue physical therapy. At the time of transfer from the hospital to Druid Hills, patient L. S. was frail. He was 76 years old, five feet ten inches tall and weighted only 113 pounds. Having just had a stroke, he was far from the picture of health, and this was noted by some of the nursing staff upon transfer to Druid Hills Skilled Nursing Center. He looked and was ill, but he was stable. At the time of admission to Druid Hills, patient L. S. was in essentially the same condition as when admitted to Clearwater Community Hospital, ten days earlier. The patient still suffered from slurred speech and had problems with his right arm. But he was stable and anxious to begin speech and physical therapy. On May 12, 1986, at about 2:00 p.m., Judith Salyer, L.P.N., attempted to contact Respondent in order to confirm routine house orders by "beeping" Respondent. Respondent called the nursing home at 4:30 p.m. on the same day to provide the following admission orders: Lanoxin 0.125 mg. by mouth four times a day ASA by mouth four times a day Persantine 75 mg. by mouth two times a day Quinaglute 325 mg. by mouth every eight hours Lomotil by mouth three time a day for diarrhea Tylenol by mouth four times a day Restoril 15 mg. by mouth at night for sleep as needed Physical Therapy Speech Therapy In addition to slurred speech, on May 14, 1986 (two days after admission to Druid Hills), patient L. S. began to have problems with his eye which was red and draining yellow matter (inaccurately described as "pus" in the nursing notes.) When asked by nursing staff if his eye hurt, L. S. advised them that it did. In all other respects, patient L. S.'s condition seemed essentially unchanged. Respondent was not advised of the change in the patient's eye. On the following date, patient L. S. developed additional symptoms. These included coughing and a runny nose with white mucous. The patient's eyes continued to be pink tinged with a moderate amount of yellow drainage from the eye noted. At 2:20 p.m. on May 15, 1986, Judith Salyer, L.P.N., spoke with Respondent and received the routine house orders which Salyer had called about on May 12, 1986. Salyer did not advise Respondent of the minor cold symptoms. Later on the evening of May 15, 1986, it was noted that patient L. S.'s appetite was poor. On May 16, 1986, at 2:00 p.m., it was noted that L. S. was refusing to eat meals and had a inoderately unsteady gait. On May 17, 1986, it was noted that L. S. informed the nurse on duty that he had had loose stools five times. Additionally, it was noted that the patient was refusing to eat meals. At 9:00 p.m. on May 17, 1986, patient L. S. was noted to be "out of bed." No complaints of diarrhea were noted. Additionally the patient ate 80% of his meal and requested ice cream. In the early part of the day on May 18, 1986, patient L. S. was noted to have "chronic diarrhea" by nursing staff. (Throughout his nursing home stay, the patient was given Lomotil, an anti-diarrheal agent, in an effort to treat the diarrhea.) Between at least 9:30 p.m. on May 18, 1986, and the evening of May 19, 1986, patient L. S. appeared to be doing reasonably well. The patient's appetite was good. There were no complaints of diarrhea. The runny nose, coughing and eye drainage were not noted after May IS, 1986. At 2:00 p.m. on May 20, 1986, Nurse Salyer noted that patient L. S. appeared slightly confused at intervals. The patient had mild congestion and a productive cough. The patient's gait was noted to be unsteady at times. At that time, Salyer "beeped" Respondent in an attempt to advise Respondent of the patient's change in condition. Respondent did not call back on May 20, 1986. A productive cough is a cough which produces "gobs" of mucous. Such a cough can be indicative of a lower (as opposed to upper) respiratory infection or congestion in the chest. The presence of a productive cough is a cause for concern. In a later entry made on May 20, 1986, a Nurse Rooker noted that the patient had remained in bed during the shift. His appetite was 40%. It was noted that L. S. was congested, coughing up large amounts of whitish mucous. On May 21, 1986, at some time before 2:00 p.m., Respondent was notified by telephone of patient L. S.'s stable vital signs, "cold symptoms," that the patient appeared slightly confused at intervals, was refusing to eat, was mildly congested with a productive cough and had an unsteady gait at times. Given this information, Respondent determined that the patient had a "cold" or upper respiratory infection. New orders were received and transcribed. On May 21, 1986, Respondent ordered Ampicillin 250 mg. to be taken every four hours for eight days. Respondent also ordered Actifed to be taken three times a day as needed for "sinus congestion." Respondent gave patient L. S. Ampicillin, which is an antibiotic, for his symptoms as a precautionary or prophylactic measure. Antibiotics should not, as a general rule, be ordered without having a well-grounded understanding why the patient is ill. The cause of the infection should be determined. The most basic reason for not giving an antibiotic without first evaluating the source of the infection is that the antibiotic then can serve to simply hide the symptoms. The antibiotic will cause some improvement, making it appear that the patient is not quite as ill, when in fact the infection persists. Additionally, there is a theory in medicine that the antibiotic can serve to cause a resistant strain of infection. Respondent assumed that, like most other nursing home patients, patient L. S. was suffering from a cold. Respondent ordered no further tests to evaluate the patient and Respondent declined to see the patient on May 21, 1986. Under the facts and circumstances of this case, it was inappropriate for Respondent to prescribe Ampicillin, an antibiotic, without first evaluating the source of the infection. Assuming that L. S. had a "cold" or upper respiratory infection, it was appropriate for Respondent to order Actifed, an antihistamine, for L. S. on May 21, 1986. However, given the presence of a productive cough, chest congestion could have been present. With chest congestion, an antihistamine like Actifed would have been inappropriate. Actifed will dry up the chest. Mucous in the chest which needs to be expectorated, and brought up and out, will remain in the chest. A mucolytic expectorant, not an antihistamine, should be ordered when the chest is congested. Given the facts that patient L. S. was recuperating from a recent CVA, had difficulty in swallowing, and had multiple medical problems, the Respondent could have been more aggressive in either examining this patient, who had a productive cough, or ordering appropriate testing. A reasonably prudent physician, under similar conditions and circumstances, could have personally examined the patient L. S. on May 21, 1986, or soon thereafter. Alternatively, a reasonably prudent physician could have ordered a C.B.C. and a chest x-ray or some other ancillary diagnostic modalities. A C.B.C. is a method by which one can obtain a count of blood cells, particularly white blood cells, in a patient in order to determine whether there is an ongoing infection. The type of white blood cells present (lymphatic cell or a leukocytic cell) can assist in the determination of whether the infection is bacterial or viral in nature. A chest x-ray is necessary to diagnose pneumonia or obstruction in the lungs. Given the history of patient L. S.'s difficulty in swallowing, it is entirely possible that the patient aspirated food or mucous. When such a foreign substance is inhaled into the lungs, it blocks off the bronchials (the airways into the lungs) and causes an obstruction which will lead to pneumonia. Given this patient's condition and history, Respondent could have used a chest x-ray to evaluate the patient to rule out the possibility of aspiration. But it was not necessary for the Respondent to have arranged to personally examine the patient or order tests at this stage. It would be appropriate to monitor a patient with a viral infection (or "cold") or to prescribe antibiotic such as Ampicillin for a bacterial infection. On May 21, 1986, the antibiotic Ampicillin was given to patient L. S. by nursing staff at Druid Hills. This antibiotic was administered as ordered until May 29, 1986, when it was discontinued on the eighth day. On May 22, 1986, Nurse Salyer noted that patient L. S. had diarrhea. Patient L. S. told Nurse Salyer that in the past the patient had taken Ampicillin and that the Ampicillin had caused diarrhea. Salyer further noted on that date that L. S. was coughing up large amounts of yellowish phlegm. On May 22, 1986, at some time prior to 3:00 p.m., Salyer "beeped" Respondent in an attempt to advise Respondent of L. S.'s statement that the antibiotic was causing diarrhea. Respondent did not call Salyer back by the end of her shift on May 22, 1986. On the 3:00 p.m. to 11:00 p.m. shift at Druid Hills, on May 22, 1986, Kathy Rooker, L.P.N., was involved in the care of patient L. S. At 4:50 p.m., Rooker noted that Respondent had not returned the earlier telephone call. Therefore, Rooker called the answering service for Respondent again and asked the answering service to "beep" Respondent again. The Respondent did not call Rooker back. On May 23, 1986, Nurse Salyer notified Respondent of L. S.'s statement that the antibiotic that patient L. S. was taking (Ampicillin) had previously caused the patient to have diarrhea. Respondent decided not to change the antibiotic order for patient L. S. Ampicillin is known to cause diarrhea in some individuals. But so do many other antibiotics. A reasonably prudent physician, after having been advised that the patient had diarrhea and that the patient previously had had diarrhea while on the same antibiotic, could either change the antibiotic therapy or wait and see if the diarrhea continued or became a problem. On May 23, 1986, at 2:00 p.m., Salyer noted that patient L. S. continued to experience congestion and a productive cough, and continued to have a poor appetite. The same information was noted on the evening shift on May 23, 1986. This condition persisted on May 24, 1986. Additionally, the patient's temperature was 100 degrees on May 24, 1986. Previously, the patient had had an essentially normal temperature. On May 25, 1986, it was noted that patient L. S. was still congested with a productive cough. Additionally, the patient's temperature continued to be elevated. On May 26, 1986, no entry was made in the nurses' notes as to the status of the patient's congestion and cough. It was noted that the patient's friend, "John," came to request permission to take L. S. out for the day. However, L. S. indicated that he felt too weak to go. Both L. S. and his friend asked that Respondent be called for a leave of absence order in the future. It was further noted that the patient continued to have a poor appetite. In the morning on May 27, 1986, Nurse Salyer "beeped" Respondent for the leave of absence order. Respondent did not return that call during Salyer's shift on May 27, 1986. In the 2:00 p.m. entry for May 27, 1986, Salyer noted that patient L. S.: had bed rest during the shift; suffered from chronic diarrhea with mucous in the stool; was refusing to eat with poor fluid intake; had yellow mucous draining from his eyes; and had continued congestion with a productive cough. At 9:00 p.m. on May 27, 1986, it was noted that the patient's condition as described above had persisted. Additionally, it was noted that Respondent had not returned the telephone call made by Salyer that morning. In fact, it does not appear that Respondent ever returned Salyer's call made on May 27, 1986. On May 28, 1986, it appeared that patient L. S. was improving some in comparison to the patient's condition on previous dates. It was noted that the patient's respirations were "easy." However, it was also noted that the patient still had periods of confusion, still had poor appetite, still was congested and had yellowish drainage from the right eye. On May 29, 1986, the patient's condition further deteriorated. On this date, in the morning, it was noted that the patient remained congested. In the afternoon, a friend of L. S. named Sigfred Ivanicki, came to see L. S. Ivanicki had visited L. S. in Druid Hills twice a week (on Sundays and Thursdays) while L. S. was in the nursing home. When Ivanicki saw L. S. on Thursday, May 29, 1986, in the afternoon (Ivanicki usually visited between 4:00 p.m. and 6:00 p.m.), Ivanicki was very concerned about the deterioration he saw in L. S.'s condition and believed at that point that L. S. was dying. Ivanicki had had an opportunity to see patient L. S. several times before May 29, 1986. Initially, when Ivanicki saw patient L. S. shortly after the admission of the patient to Druid Hills, patient L. S. appeared cheerful and on the road to recovery. Ivanicki would, on each visit, perform tasks of a personal nature for L. S. Thereafter, the patient developed bad congestion with a productive cough and had diarrhea. None of these symptoms appeared too serious to Ivanicki. However, on May 29, 1986, Ivanicki became truly concerned about L. S. After seeing patient L. S. on May 29, 1986, Ivanicki went to see the head nurse at Druid Hills and asked that Respondent be called to come see the patient and transfer the patient to the hospital. At that time, Ivanicki was told that Respondent was very hard to reach. At 6:00 p.m. on May 29, 1986, a nurse Febbo assessed patient L. S.'s condition. Nurse Febbo noted that the patient refused to eat, complained of shortness of breath and had a flushed face. The patient's skin was warm and dry. The patient's vital signs were as follows: pulse 102 beats per minute, temperature 99.8, blood pressure 120/60 and respiration rate 28 per minute. The patient's lungs were clear with decreased breath sounds. The patient was congested and was expectorating thick clear mucous. The patient was incontinent of bowel. On May 29, 1986, at 6:00 p.m., Nurse Febbo noted that she attempted to contact Respondent at 546-5702 unsuccessfully, and had notified Respondent's answering service that she was attempting to contact Respondent. Respondent returned Nurse Febbo's call at 8:00 p.m., on May 29, 1986. The nursing staff advised the Respondent of patient L. S.'s condition as reflected in Finding 52, above. In response, the Respondent provided the following telephone order for the patient: Lomotil three times a day, discontinue betadine to the little finger, and obtain a splint for right hand. Respondent did not order a C.B.C. or a chest x-ray at that point, even though both tests would have been appropriate. Additionally, Respondent did not go see the patient when advised of the patient's condition. Regardless whether the nursing staff had placed a "STAT" call, a reasonably prudent physician, after being advised of the condition of patient L. S., would have either gone in to see the patient or promptly ordered a C.B.C. and a chest x-ray. The vital signs and physical examination results reflect a very sick individual. The decreased breath sounds indicated that pneumonia or a pneumonic process had begun in the patient's lungs. Additionally, the diarrhea had advanced to the stage where the patient was incontinent. Respondent should have either seen the patient (something he had decided not to do up to this date) or should have ordered a chest x-ray and C.B.C. The nurses' notes for 8:00 p.m. on May 29, 1986, reflect that the patient L. S. was given Actifed by mouth for congestion, consistent with Dr. Hayward's orders given on May 21, 1986, and not changed. Given the presence of a pneumonic process in L. S.'s lungs, Actifed was inappropriate. See Finding 36, above. On May 30, 1986, it was noted prior to 9:30 a.m. that the patient L. S. was growing increasingly weak and was coughing up a greenish yellow mucous. The patient's lungs were noisy and appeared to be filled with fluid. The nursing staff had begun attempts to contact Respondent, probably beginning as early as 7:30 a.m. At 9:30 a.m., the nurses' notes reflect that the nursing staff had attempted to call Respondent several times and had paged Respondent at the hospital but had received no return telephone call. At 10:00 a.m., Gold Plus called the nursing staff at Druid Hills. Mr. Ivanicki had contacted Gold Plus to complain about Respondent's failure to transfer L. S. to the hospital for treatment. Gold Plus, after talking to the nursing staff, was also to attempt to contact Respondent. At 10:15 a.m., on May 30, 1986, over two hours after the first telephone calls, Respondent finally called Druid Hills and ordered that the patient be sent to the emergency room at Clearwater Community Hospital. Confusion occurred over the transfer of the patient to the hospital, due to no fault of Respondent. As a result of this delay, the patient was not transported to Clearwater Community Hospital until about 11:45 a.m., on May 30, 1986. However, before the actual transport could occur, the patient partially "coded" or had a cardiopulmonary arrest. At the time of the arrival of patient L. S. at Clearwater Community Hospital, the patient had a cardiopulmonary arrest and resuscitation techniques were successfully used. A chest x-ray performed showed haziness in the lungs which was suspicious for aspiration pneumonia. On June 14, 1986, patient L. S. died at Clearwater Community Hospital. The patient had been in a coma since arrival at the hospital. The immediate cause of death was listed as cardiogenic shock. Respondent's final diagnoses were: (1) cardiopulmonary arrest; (2) aspiration pneumonitis; (3) possible acute myocardial infarction; (4) thrombocytopenia; (5) cardiac arrhythmia with frequent PVCs; (6) hyperkalemia; (7) status post-recent CVA; and (8) severe post-anoxic encephalopathy. It was the practice of nursing personnel at Druid Hills to identify calls to physicians as "STAT" calls when an emergency or critical situation existed. With a STAT call, an immediate response was necessary. Nursing staff at Druid Hills did not consider patient L. S.'s condition to be an emergency or critical until May 30, 1986. The calls to Respondent were not identified as "STAT" calls. It would have been inappropriate for the Respondent to delay his response to telephone calls made by Druid Hills nursing staff pertaining to patient L. S. on May 29 and 30, 1986. A reasonably prudent physician, acting under similar conditions and circumstances, would have returned such telephone calls within an hour unless other emergencies existed. But it was not proved that the Respondent received and delayed his response. The Respondent generally was good about returning telephone calls and was experiencing difficulty both with the Gold Plus switchboard and with his answering service. The Respondent's response to those calls may well have been reasonable under the circumstances. In contrast, the calls on May 20, 22 and 27 were not of any emergency nature and did not require priority response. It was not proved that the Respondent's response to' those calls were delayed unreasonably. (Gold Plus had a policy of not permitting a leave of absence, the subject of the May 27, 1986, call.) Except to the extent that the Respondent's course of treatment was inappropriate, as noted above, the Respondent's records (including the hospital and nursing home records) justify his course of treatment of L. S. Respondent, in his treatment of patient L. S., failed to practice medicine with the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances, as a result of the deficiencies and omissions noted above.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Medicine: (1) hold the Respondent, Edward C. Hayward, M.D., guilty of violating Section 458.331(t), Florida Statutes (1985)(Count One of the Administrative Complaint); (2) dismiss the charges in Count Two of the Administrative Complaint (alleged failure to maintain adequate medical records); (3) place the Respondent on probation for two years under such terms as the Board of Medicine deems appropriate; and (4) fine the Respondent $1,000.00. RECOMMENDED this 13th day of April, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2568 To comply with Section 120.59(2), Florida Statutes (1987), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings Of Fact. 1.-11. Accepted and incorporated. Proposed findings regarding the milk of magnesia order, rejected. It was part of routine orders. The patient never developed constipation so it never was administered. The proposed finding is irrelevant and unnecessary. Otherwise, accepted and incorporated. Accepted and incorporated. 14.-17. Rejected as contrary to facts found. The paragraphs reciting the tests the Respondent had done are accepted and incorporated; the rest is rejected as contrary to facts found. First three sentences, accepted and incorporated; the rest is rejected as contrary to facts found. Accepted and incorporated. Rejected as contrary to facts found. Nurse's description of the patient as "acutely ill" is subordinate to facts found. It is not a diagnosis. Otherwise, accepted and incorporated. 23.-25. Accepted and incorporated. 26. Except that the use of the word "pus" is rejected as inaccurate, accepted and incorporated. 27.-36. Accepted and incorporated to the extent necessary and not subordinate. Accepted but subordinate to facts found. Accepted and incorporated to the extent necessary and not subordinate. Rejected that the Respondent made no attempt to determine the cause of the patient's illness as contrary to facts found; the rest is accepted and incorporated. Rejected, as contrary to facts found, that Actifed was "inappropriate." What was inappropriate was the failure to properly evaluate whether the patient had chest congestion. 41.-44. Accepted and incorporated to the extent necessary and not cumulative. 45. Rejected as contrary to facts found. 46.-57. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. Accepted and incorporated. Accepted and, to the extent not subordinate, incorporated. 61.-68. Accepted and incorporated. Rejected as contrary to facts found. Accepted but subordinate to facts found. Rejected as contrary to facts found. Accepted and incorporated. Respondent's Proposed Findings Of Fact. 1.-7. Accepted and, to the extent necessary, incorporated. Penultimate sentence rejected as contrary to the greater weight of the evidence; the rest is accepted and incorporated. Accepted, as far as it goes, and incorporated. However, the proposed findings ignore the productive cough that was observed throughout the period May 20-29, 1986, and which was reported to the Respondent on May 21 and 29, 1986. Third sentence, to the extent it implies it states all the symptoms, rejected as contrary to facts found. Fourth sentence rejected as contrary to facts found--temperature was somewhat elevated and both pulse and respirations were up for a patient in bed rest. Sixth sentence rejected as contrary to facts found--the patient was awake at intervals during the night. Rest is accepted and incorporated with some additional facts. First sentence rejected as contrary to facts found--the patient's condition began to worsen seriously on May 29, 1986, and continued to worsen through the night. The nurses were alarmed at his condition on the morning of May 30, 1986, and began trying to call the Respondent at approximately 7:30 a.m. Third sentence, rejected as not proven when the Respondent received the message that the nursing staff was trying to contact him. The rest is accepted and incorporated. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard W. Payant, Esquire 2349 Sunset Point Road Clearwater, Florida 34625 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact At all times relevant hereto Thomas P. Elliott was licensed in Florida as an osteopathic physician having been first licensed in Florida in 1977 and issued Certificate No. 0003751. He graduated from an accredited osteopathic school of medicine in Kirksville, Missouri in 1952 and was duly licensed in Missouri where he practiced for some 23 years before entering the U.S. Air Force medical corps for two years. He was assigned to Tyndall AFB in Panama City, Florida. Upon his release from the USAF and licensure in Florida, he moved to Largo, Florida in 1977 where he set up a general practice as an osteopathic physician. Jack Bianco was first seen by Respondent on 12/19/B3 complaining of constant back pain. Examination and x-rays showed the degeneration of lower spine which could result in some pain. Bianco gave a history of an accident while in the military in 1966 which required extensive surgery and use of a brace for several years. Respondent acknowledged that if a patient said he had pain, he was given the benefit of the doubt. Although Bianco had received treatment at VA facilities those records were never asked for nor obtained by Respondent. Bianco stated he was allergic to Codeine and refused prescriptions for anti-inflammatory drugs. On this initial visit he was treated by manipulation, high frequency pulse and given a prescription for Dilaudid. Bianco remained a patient of Respondent until September 1984. At each visit, which occurred at approximately one week intervals, Bianco was treated with manipulation, high frequency pulse therapy and issued a prescription for Dilaudid. During the nine months Bianco was a patient he was given prescriptions for 374 Dilaudid, 4 mg. Dilaudid is the brand name for Hydromorphone Hydrochlorite. It is the strongest form of morphine available for oral ingestion and is a Class II controlled substance because of its highly addictive attributes. Extended use of Dilaudid (beyond two or three weeks) is generally deemed suitable only for terminally ill patients suffering from a painful malady such as cancer. Respondent recognized that Bianco was coming for treatment principally to get Dilaudid but he nevertheless continued to prescribe Dilaudid and never referred Bianco to a drug treatment facility. In March 1984, Respondent reduced the number of Dilaudid prescribed at one time to 8 but in July 1984 increased the number to 10. Respondent testified he attempted to take Bianco off the Dilaudid and Bianco did not return for treatment after receiving his last prescription from Respondent September 6, 1984. However, as noted below, Bianco's records (and others) were seized by the Sheriff's Office September 11, 1984. Records maintained by Respondent on Bianco fail to record results of the treatment given. On nearly every visit the same treatment was given followed by the prescription for Dilaudid. Although Respondent testified + + + + shown on the patient record showed that response to the treatment was first class, there is no record that Bianco's condition was improving, remaining constant or getting worse, or that any effort was made to change the medication to a less addictive drug. Respondent was never registered to participate in a detoxification program. Without such registration it is illegal for a practitioner to prescribe maintenance drugs to an addict. Between 1979 and 1984, Respondent also treated Stanley Berry, Lawrence Brainard, Cheryl Morelli, Michael Morelli; Donald Murray, Nicholas Spano, Linda Valentine, Paul Broussard, Lee Coryell, Arthur Gray, Sherri Gray, Raine Troupe, Bruce Flood, Debora Bolte, Leon Clifford, Gail Outlaw, William Ellmore, Horace Maybee, William Noble, Irene Morelli and Ernest Pingatore, as alleged in the Administrative Complaint. All of these patients complained of pain, generally back pain, on the first visit. Most reported having been involved in an earlier accident and reinjuring the back recently. The examinations given by Respondent consisted of checking the x-rays if the patient presented one to see if there was any skeletal problem that could cause pain. Otherwise he would palpate the patient to find a potential cause of pain. On these initial visits and throughout the period the patient was treated by Respondent, vital signs (blood pressure, temperature and pulse) were rarely, if ever, taken by Respondent or anyone else at his office. Most of these patients were given manipulation, heat or high pulse frequency treatment and prescriptions for Dilaudid on the first visit. Those who presented records showing they had been given Demerol or Percodan were usually given prescriptions for Demerol or Percodan and a muscle relaxant. Both Demerol and Percodan are Class II controlled substances. These patients' charts, like the chart on Bianco, failed to record what, if any, progress was made as the treatment progressed. Petitioner's expert witnesses, who reviewed the patient records and testified in these proceedings, could not decipher some of the notations made by Respondent on these charts as he used abbreviations, pluses, etc. While it would be very important for a doctor to read the patient record of a patient who had been treated by another physician, there is no specific format or specified abbreviations for maintaining patient records. All of these patients were given prescriptions for Class II drugs with inadequate documentation to justify the use of such drugs in the patient records. They were also given these prescriptions for a much longer time than was indicated for the physical symptoms which could easily lead to addiction, assuming the patient was not already addicted. Many of these patients were referred to Respondent by other patients above named. Those patients with the same surnames were from the same family, generally husband and wife. Respondent testified he gave no significance to the fact that he was prescribing large quantities of Class II drugs to two members of the same family. Frequently drug addicts refer other addicts to a doctor from whom the referrer is able to obtain drugs. Some of these patients were recognized as addicts by Respondent. Nevertheless, he would discuss their dependency with them, continue to prescribe controlled substances for them and never referred any of his patients to a detoxification center. Some of Respondent's patients listed above were given prescriptions for sufficient quantities of Schedule II drugs that they disposed of these drugs on the street. Approximately of those patients above noted were arrested by police for drug related offenses. These practices constitute prescribing controlled substances not in the course of Respondent's professional practice. Donald Murray was a patient of Respondent's from July 1979 through July 1984. During this period he received 198 prescriptions for Dilaudid, 240 prescriptions for Percodan, 16 prescriptions for Tuinol, as well as prescriptions for Tylox and Desoxyn (for narcolepsy). No entry in the patient record justified a diagnosis of narcolepsy for this patient. During the 28-day period between May 18, 1982 and June 28, 1982, Murray was given prescriptions for 72 Dilaudid, 4 mg. and 74, Percodan. In April 1983, Murray was given prescriptions by Respondent for 240 Percodan in less than a 30-day period. Respondent testified Murray needed the drugs to maintain his law practice. Nicholas Spano was a patient of Respondent from July 10, 1980 until September 7, 1984. Between July 19, 1982 and September 7, 1984, Spano received prescriptions for more than 2700 Percodan and prescriptions for 424 Tylox, another Class II drug. At the time these prescriptions were given to Spano, Respondent was aware of a psychiatric report by Dr. Joye dated 3/23/81 that Spano was believed to have a narcotic dependence on Percodan, of Joye's recommendation to discontinue Percodan, and of a report by Dr. Adams dated March 31, 1981 that Spano had been a chronic user of Percodan. In 1982, Detective William Logan in the vice and narcotic squad of the Pinellas County Sheriff's Office contacted Respondent regarding a forged prescription to one of his patients. At that meeting they discussed how not to get involved with drugs. Subsequent thereto Logan received complaints from pharmacies in Largo regarding what appeared to the pharmacist as excess prescriptions for narcotics written by Respondent and an investigation was commenced. On March 6, 1984, Respondent telephoned Logan to say he had read that two of his patients had been arrested, viz. Raine Troupe and Bruce Flood. Respondent acknowledged to Logan that he knew these men were addicts and that he was taking them off slowly. Respondent also admitted having other patients who were questionable. By this time Respondent had become a suspect in the criminal investigation and further telephone calls from Respondent were not returned by Logan. Respondent's office was searched on September 11, 1984, pursuant to a subpoena and patient records of the 23 patients above noted were seized. Respondent was subsequently brought to trial in Circuit Court in and for Pinellas County, entered a plea of nole contendere, and on August 25, 1985, adjudication of guilt of unlawful delivery of controlled substance was withheld, Respondent was placed on probation for three years, ordered to pay certain costs, and prohibited from prescribing Schedule II drugs.
