The Issue Whether the subject Endorsement to an HMO benefit contract language is ambiguous and, if so, whether the subject subscriber is entitled to additional benefits because of the ambiguity.
Findings Of Fact At all times pertinent to this proceeding, T. C. was enrolled as a participant in the group HMO contract issued by Petitioner to a construction company for the benefit of its employees and their eligible dependents. The HMO contract consisted of a Group Health Services Agreement, a Member Handbook, and any endorsements to either document. The Member Handbook and an Endorsement to the Member Handbook in September 1999 are the documents pertinent to this proceeding. In those documents, Petitioner is referred to as HOI. Prior to September 1999, paragraph 1.08 of the schedule of benefits section of the Member Handbook (page 42) provided, in pertinent part, as follows. 1.08 Short-term physical, speech, or other therapies designed to correct functional defects which remain after a catastrophic illness or crippling injury, . . . when medically appropriate for the treatment of a Condition, provided that significant improvement of the Member's Condition, as determined by the Medical Director of HOI, is expected within two months from the first date of treatment. This benefit is limited to a maximum of two months of treatment per Member per Calendar Year. The subject HMO contract was amended in September 1999 by the Endorsement styled "Endorsement: Rehabilitation Services (85999.459/99SR)" 3/ provided, in pertinent part, as follows: All prior references to short-term physical, speech, or other therapies in the Group Health Services Agreement and/or Member Handbook and any Endorsement attached thereto is [sic] hereby deleted and replaced with the following new subsection entitled Rehabilitation Services: Rehabilitation Services Prescribed short-term inpatient and outpatient rehabilitation services [are] limited to the therapy categories listed below. In order to be covered: (1) HOI must review, for coverage purposes only, a Rehabilitation Plan submitted or authorized by the Member's 4/ Primary Care Physician; (2) HOI must agree that he Member's Condition 5/ is likely to improve significantly within 62 days from the first date such services are to be rendered; (3) such services must be provided to treat functional defects which remain after an illness or injury; and (4) such services must be Medically Necessary 6/ for the treatment of a Condition. Rehabilitation Plan means a written plan, describing the type, length, duration, and intensity of rehabilitation services to be provided to a Member with rehabilitation potential. Such a plan must have realistic goals which are attainable by the Member within a reasonable length of time and must be likely to result in significant improvement within 62 days from the first date such services are to be rendered. The Rehabilitation Plan must be renewed every 30 days. Outpatient Outpatient rehabilitation services are limited per Member per Condition to the number of Medically Necessary rehabilitation services which are received by the Member within the consecutive 62-day period which immediately follows the first date that the Member begins such services. Outpatient rehabilitation services are limited to the therapy categories listed below: Speech Therapy: . . . Physical/Occupational Therapy: Services of a Physical Therapist or Occupational Therapist or Massage Therapist for the purpose of aiding in the restoration of normal physical function lost due to illness, injury, stroke or a surgical procedure while this coverage was in force. In order for Physical Therapy, Occupational Therapy, or massage therapy to be covered under this provision, such services must be part of an approved Rehabilitation Plan and provided by a provider licensed to render such services. Cardiac Therapy: . . . Inpatient Rehabilitation services of the therapy categories described above provided during a covered inpatient confinement will be covered for the duration of the confinement. T. C. was injured in a fall on December 31, 1999. He sustained a fracture of his left proximal humerus with neurovascular compromise. He underwent surgery to reduce the fracture at St. Mary's Medical Center in West Palm Beach where he remained hospitalized until his discharge on January 10, 2000. Upon discharge, his physicians recommended and prescribed a Rehabilitation Plan which provided for physical therapy on Tuesdays and Thursdays of each week. This Rehabilitation was reviewed and approved by Petitioner, effective January 31, 2000. T. C. began receiving rehabilitation services on Thursday, February 10, 2000, from a provider known as Pediatric Therapy. On or about March 24, 2000, Petitioner notified T. C.'s family and Pediatric Therapy that additional physical therapy would not be covered after that date. On Friday, March 24, 2000, T. C.'s mother telephonically filed an expedited grievance with Petitioner requesting coverage for additional physical therapy. As part of her request, she informed Petitioner that although Petitioner's authorization period began on January 31, 2000, T. C. did not commence treatment at Pediatric Therapy until February 10, 2000. Thus, approximately ten days of the authorized period were not utilized. She further informed Petitioner that he had not completed treatment and continued to require physical therapy. Upon review of his treatment dates in relation to the authorization period and consideration of the information provided by his mother, Petitioner approved coverage for a further period of rehabilitation services from Tuesday, March 28, 2000, to April 13, 2000, the date the 62-day period starting February 10, 2000, expired. Petitioner declined coverage for rehabilitation services beyond April 13, 2000, on the basis that the benefits for outpatient therapy under the contract had been exhausted. In its correspondence to T. C.'s mother, Petitioner stated that it was relying on paragraph 1.08, page 42, of the HMO contract. The reference to this provision was an error because the provision had been replaced and superseded by the Endorsement. There was no evidence that T. C.'s family suffered any prejudice because of the erroneous reference in the denial correspondence. The operative language at issue in this proceeding is the language set forth in the Endorsement.
The Issue Whether Respondent's license to practice medicine should be suspended or revoked, or the licensee otherwise disciplined, for alleged violations of Chapter 458, Florida Statutes, as set forth in the Administrative Complaint, dated April 17, 1981, and Administrative Complaint, dated September 15, 1981, as amended on January 15, 1982. This proceeding commenced with Petitioner's filing of an Administrative Complaint on April 17, 1981, alleging that Respondent should be disciplined under Chapter 458, Florida Statutes, (1975)(1979) as a result of his alleged misconduct in 1974-75 whereby he engaged in sexual intercourse with one Sally Burton which resulted in her pregnancy and subsequent abortion. The Complaint also contained eleven counts involving the alleged prescribing of Schedule II controlled substances in 1980 by Respondent without a DEA registration certificate authorizing him to do so. Additionally, one count involved the alleged issuance by Respondent of a prescription to himself for a Schedule II controlled substance. Respondent thereafter requested an administrative hearing pursuant to Section 120.57(1), Florida Statutes, and the case was referred to this Division for appointment of a Hearing Officer. Notice of Hearing was issued on July 14, 1981 for a hearing to be held on September 22-23, 1981 at Tampa, Florida. Petitioner filed a motion for continuance of the hearing on the ground that a second administrative complaint had been issued against the Respondent on September 16, 1981, and that the two complaints should be consolidated for the purpose of hearing. The motion was granted and the hearing indefinitely continued. Petitioner filed its Second Administrative Complaint, dated September 15, 1981, with the Division on October 22, 1981, together with a motion to consolidate the two complaints. Respondent requested a Section 120.57(1), Florida Statutes, hearing as to the matters alleged in the complaint. The cases were consolidated by Order, dated November 13, 1981, pursuant to Rule 28-5.106, Florida Administrative Code. Notice of Hearing for the consolidated cases was issued on November 13, 1981 for a hearing to be held on February 15-16, 1982 at Tampa, Florida. Thereafter, Petitioner moved to amend Counts IV and VI of the Second Complaint and said motion was granted by Order dated February 5, 1982. As amended the Second Complaint alleged violations of Chapter 458, Florida Statutes, during various periods from 1967 to 1981. In general terms, it was alleged that Respondent had provided improper treatment to a patient suffering from alcoholic depression and anxiety, and that he employed the patient as a "co-therapist" in group sessions which had a negative impact on the patient's mental health as well as members of the group. The complaint further alleged that Respondent had engaged in activities of a sexual nature with a female patient, Emily Garrett, in 1968 which resulted in her emotional upset and harm. Finally, discipline was sought against Respondent as a result of his conviction in the Circuit Court of Hillsborough County, Florida on June 10, 1981 of manslaughter pursuant to Section 482.07, Florida Statutes, in connection with the death of Sally Burton. On February 5, 1982, Respondent filed a Motion for Continuance of the hearing due to a conflict in the schedule of one of his legal counsel, and due to the then pending appeal of Respondent's conviction before the Second District Court of Appeal. The motion was orally denied prior to hearing, but was renewed at the commencement of hearing on February 15, 1982. At that time, Respondent gave consent to the withdrawal of his current counsel, and a conditional appearance was entered by Frank Ragano, Esquire who conditioned such appearance on having an opportunity to familiarize himself with the facts and law of the case. The renewed motion was denied for lack of good cause, but Respondent was afforded the opportunity to proceed with his counsel who was then present, William S. Lancaster, Esquire, during presentation of Petitioner's case, at which time a continuance would be granted to afford additional time for Mr. Ragano to assist in preparing Respondent's defense. Mr. Lancaster requested that he be permitted to withdraw due to his stated inability to fully represent the Respondent at the hearing. Respondent consented to the withdrawal, and declined to proceed in the manner suggested by the Hearing Officer, and thereupon left the hearing room. Accordingly, the proceeding commenced in the absence of Respondent and his counsel. After the testimony of seven witnesses of Petitioner had been received, Respondent and Mr. Lancaster reentered the hearing room and agreed to participate in the proceeding provided a continuance would be granted at the conclusion of Petitioner's case. Respondent's counsel then cross-examined three of the witnesses who had previously testified. The hearing was continued on February 16, 1982 until April 20, 1982, and was concluded on April 22, 1982, except for the submission of late-filed exhibits in the form of depositions of four rebuttal witnesses and letter from the Drug Enforcement Administration. At the hearing, Petitioner presented the testimony of thirteen witnesses, including the Respondent. Respondent called thirty-three witnesses and testified in his own behalf. Petitioner submitted twenty-two exhibits in evidence. Those exhibits which were received provisionally at the hearing are now admitted. Respondent submitted nine exhibits, but withdrew Respondent's Exhibit 3, and Respondent's Exhibit 6 was rejected. Respondent's Exhibit 9 "A Guide for the Individual and Group Psychotherapy" was erroneously stated at the hearing to be Respondent's Exhibit 8, and has been renumbered. Late filed exhibits consisted of a letter from the Drug Enforcement Administration (Respondent's Exhibit 11), and the depositions of Dr. Joseph Lupo (Respondent's Exhibit 8), Shirley Heflin (Respondent's Exhibit 10) Emily Garrett (Petitioner's Exhibit 23), Captain R. W. Poindexter (Petitioner's Exhibit 24), and Janice Simmons (Petitioner's Exhibit 25) A Proposed Recommended Order filed by Petitioner has been fully considered, and those portions thereof not adopted herein are considered to be unnecessary, irrelevant, or unsupported in law or fact. Respondent has requested that this Recommended Order be delayed pending action by the Supreme Court of Florida on Petition for Writ of Certiorari in the criminal proceeding. This request is denied.
Findings Of Fact Respondent Louis John Tsavaris has been licensed to practice medicine in Florida since August 15, 1956. He received his medical degree at the University of Miami School of Medicine in 1956, interned at the Cornell Medical Center, and attended the University of Michigan where he was an Assistant Resident and Junior Clinical Instructor. He began his practice as a psychiatrist at Tampa in 1962 and has continuously practiced in that capacity. (Testimony of Respondent, Petitioner's Exhibit 19). Pierce H. Brereton, Jr. became a patient of Respondent in 1967. He was a homosexual who suffered from depression and a severe character disorder, together with an alcohol and drug problem. Brereton had had several prior hospitalizations for schizophrenia. Respondent prescribed Antabuse for the patient to control his drinking, but Brereton discontinued its use after several months. He participated in group therapy sessions conducted by Respondent until 1978 when he terminated his patient relationship. Although Brereton soon resumed his drinking habits after discontinuing Antabuse, he attempted to hide the fact from Respondent. As early as 1974, and off and on throughout the following years, Respondent prescribed Valium for Brereton's depression and anxiety. About 1974, Respondent opened another office in Siesta Key and employed Brereton to run errands and to do janitorial work at that location. Respondent then utilized Brereton as a "co-therapist" in psychiatric group therapy sessions for a fee of approximately $100 per week. Brereton had had no formal training or qualification as a therapist, but several years later commenced graduate courses in Gestalt therapy at the University of South Florida. Another "co- therapist", Kathryn Von Schmidt, who had been a patient of Respondent since 1973, was employed by him to assist at group sessions commencing in 1974. She was unqualified at the time, but received a Master's Degree in Counselling in December, 1975. She continued in her capacity as a co-therapist until the end of 1976. Also, Marian Klein, who held a Master's Degree in Psychology and had been Respondent's patient since 1973, became a co-therapist from 1975 to 1979. Brereton worked as co-therapist with both Von Schmidt and Klein during) the period 1974-1978. Klein found that his ability as a therapist varied from excellent to disruptive. Breretons appearance and general manner improved substantially during the years that he served as a co-therapist. Several of the group patients testified at the hearing that his presence caused a deterioration in their condition because he was unqualified to conduct therapy sessions. However, a number of other patients who attended the sessions seemed unaware that Brereton actually had any kind of "official" capacity, and regarded him merely as loquacious and as a "roll-taker". Respondent was either present or readily available during virtually all of the sessions in which co-therapists were assisting in the conduct of group sessions. Respondent employed Brereton as a co-therapist ostensibly to provide him with a reference for future employment and in the belief that such activity would be therapeutic for him. Brereton testified that his drinking had continued during the years when he was employed by Respondent, and that Respondent frequently drank alcoholic beverages with patients, including Brereton, before and after therapy sessions. He claimed that Respondent frequently came to his (Brereton's) residence with a bottle of liquor which they drank. The weight of the evidence shows that Brereton hid his drinking from Respondent and other patients, and that they were virtually unaware of his continuing alcohol problem. Respondent occasionally would join a group for dinner at a restaurant and have a drink with them, but did not make a practice of it. The evidence is insufficient to show that he either drank frequently with Brereton or otherwise made liquor available to him. In 1978, Brereton became irrational and abusive and came to therapy sessions on occasion when he had been drinking. At such times, Dr. Klein would send him home. She finally informed Respondent about his actions on one occasion. Respondent then warned Brereton of the dangers of taking Valium when he had been drinking. The patients in the groups were aware of his drinking in 1978 and were disturbed by his conduct. Brereton had considered Respondent to be "as infallible as the Pope" during his early years as a patient, but after the death in 1975 of Cassandra "Sally" Burton, who had been another of Respondent's patients, and Respondent's subsequent indictment for her death with consequent publicity of that fact, Brereton harbored hostile feelings against Respondent. He has filed a malpractice suit against Respondent and urged other patients to do so. Expert opinion holds that, although a "co-therapist" or other assistant at group therapy sessions should have appropriate credentials in counselling or psychology, an unqualified patient's presence in come leadership capacity would not necessarily impair his or her mental health, or that of the other patients if the group is structured with a qualified therapist or psychiatrist present at the sessions. It is found that insufficient evidence has been presented to establish that Brereton's activities as a co-therapist had a negative or deleterious impact on either his mental health or that of other patients. (Testimony of Respondent, Brereton, Crumpler, Speck, Ramirez, Burdette, Gonzalez, Stenberg, Prince, Adams, Putney, Melton, Albano, Brown, Barker, Burns, Von Schmidt, Buckman, Wheatley, Silverman, Jones, Carlton, Gardner, Arrifaht, Lancaster, Klein, Petitioner's Exhibits 4-5, 7-8). In 1962, Emily Garrett, then approximately 15 years old, became a patient of Respondent for several months. She suffered from depression and was autistic. She returned for treatment with Respondent in 1965 or 1966 and continued as a patient until 1970. She testified by deposition at the hearing that on either April 6 or 13, 1968, Respondent requested that she come in his office after a group therapy session where he proceeded to unbutton her blouse and fondle her breasts, and sought to have her perform an oral sex act upon him. She claimed that her depression was increased as a result of Respondent's sexual advances, thus precipitating a suicide attempt on April 19th by taking a large quantity of Valium prior to a group therapy session. After the session, when Respondent learned of her ingestion of the drug, he had several of the group members take her to the hospital where her stomach was pumped out. She returned home and then took some other drugs and was returned to the hospital where she remained for several days. Garrett further testified that on May 28, 1968, Respondent again fondled her breasts in his office after a group session had terminated. Garrett continued as Respondent's patient until October, 1970 when she changed psychiatrists and became a patient of a Dr. Vesley. This was due to the fact that she was unable to continue private sessions with Respondent because he was commuting between Tampa and New Jersey in order to teach at a medical college. In April, 1981, she became aware of publicity surrounding Respondent and voluntarily contacted Petitioner's investigators, at which time she related to them her allegations concerning Respondent's misconduct. Although she testified that she had told her sister about the incidents several years after they had occurred, and had also related them to Dr. Vesley, neither of those individuals testified at the hearing. Garrett testified that she did not report or otherwise complain about Respondent at an earlier time because of her feelings of dependence and sense of loyalty to him. Respondent denied Garrett's allegations and claimed that she had come to his office several times after her discontinuance as a patient and wanted him to become romantically involved with her. Although experts in the field of psychiatry agree that it is clearly unethical and a deviation from acceptable standards of practice for a psychiatrist to have sexual contact with a patient, it is also common for female patients to fantasize about their relationships with their psychiatrist. It would be unusual for a patient to continue treatment with a psychiatrist after he had committed a sexual assault against her. It is found that insufficient credible evidence has been presented to establish that Respondent committed the acts alleged by Garrett. (Testimony of Garrett (Depositions-Petitioner's Exhibits 17-18, 23), Respondent, Gonzalez, Warren, Afield, Gardner). Cassandra "Sally" Burton became a patient of Respondent in 1974. He diagnosed her condition as paranoid schizophrenia in partial remission with a drug addiction problem. She had previously been treated by psychiatrists and had been hospitalized. She had been a patient of Dr. Joseph Lupo, a Tampa psychiatrist, in 1969 when she was 18 years old. His tentative diagnosis of her condition was depression. After several months treatment in the fall of 1969, he admitted her to the psychiatric unit of Tampa General Hospital in January, 1970 based on her stated intention to commit suicide by overdosing on medication. He found her to be manipulative in her personal relationships and seductive in nature. She was discharged from the hospital after six days confinement at the insistence of her father. Dr. Lupo recommended to him at the time that she be continued in psychotherapy because she needed long-term treatment. She had shown signs of a manic depressive disorder. Such a disorder is a form of psychosis, which means loss of touch with reality and disorganization of thoughts, with impaired judgment. Based on psychological testing and observation, Dr. Lupo found that she was inclined to dramatize events in order to get attention, or as a manner of looking for help and being rescued. It was his opinion that she was capable of fabricating a story about having sexual intercourse, or a sexual affair with her treating psychiatrist. At the time that Burton became Respondent's patient, she told him that she had had syphilis and herpes. He treated her for gonorrhea and referred her to a gynecologist. In 1972, she had been hospitalized for several weeks for herpetic vaginitis. In August, 1974, Respondent referred the patient to Dr. Lawrence H. Ricker, a clinical psychologist, for testing and evaluation. He found that she was sexually disturbed with a severe personality disorder involving hysterical personality with underlying paranoid schizophrenic tendencies. His recommendation was a conservative therapeutic approach which considered her to be psychotic with support reality testing in the present rather than exploring the past. He further found that she had a propensity for self dramatization and tended to exaggerate, which exhibited a need for attention. Cassandra Burton was employed with A law firm as a legal secretary in Tampa in the fall of 1974. According to Jennifer Ross, a fellow employee, Respondent telephoned Burton at her office several times a week at which times they discussed when they were next going to see one another. The only time Ross saw Respondent and Burton together was at a dinner party at Ross' boy friend's house. On that occasion, Respondent and Burton arrived separately. Two of Respondent's former patients testified that they had had sexual relations with Burton. In one of these instances, the patient met Burton at Respondent's office and she asked him to take her home. This occurred about December, 1974. The other patient testified that he had observed her in bed with other men on several occasions. On March 5, 1975, Dr. Charles Mastin of Indian Rocks Beach performed an abortion on Burton. Respondent accompanied her to Mastin's office. After the abortion was performed, Burton embraced Respondent and they left the office together. The last charge made to Burton by Respondent's office for professional services was in December, 1974. Although she did not thereafter participate in group therapy sessions, Respondent's office records show that she made approximately 51 telephone calls to Respondent at his office from December, 1974 through April, 1975. On one occasion, she was involved in an automobile accident and came to Respondent's office where he examined her and referred her to an orthopedist. On April 19, 1975, at 11:24 p.m. Deputy Sheriff William Daggett of the Hillsborough County Sheriff's office was dispatched to assist fire and rescue personnel at Burton's residence in the Castellano Apartments. When he arrived at the apartment, rescue personnel were working on Cassandra Burton who was unconscious. Another Deputy Sheriff and Respondent were also present. Daggett proceeded to obtain information concerning the matter from Respondent, who was not under suspicion at the time. Respondent said that Burton had called him at 10:50 p.m., and told him that she had fallen down in the bathroom and was not feeling well. At that point, according to Respondent, the phone went dead as if it had been dropped. He decided to go to her apartment and arrived there about 25 minutes later, after stopping to purchase and eat an ice cream cone. He related that when he arrived at the apartment he found Burton sitting in a chair with the telephone cord around her throat area and that he could not tell whether she was breathing. He then called fire/rescue for assistance and commenced giving her artificial respiration. Respondent told Deputy Sheriff Daggett that although he had been Burton's doctor approximately a year before, he was presently seeing her only socially. A few days after Burton's death, Respondent called Jennifer Ross and said that he wanted to explain what had happened to Sally Burton. He told her that she had died from fibrillation of the heart, which was connected with some diuretic pills that she had been taking. Ross asked him if her death had anything to do with the abortion and he said "no". He asked her not to mention the abortion or his "relationship" with Burton to the police. On June 25, 1975, Respondent was indicted in the Hillsborough County Circuit Court for the premeditated murder of Cassandra (sic) Ann Burton, a/k/a Sally Burton, on April 19, 1976, by strangling her to death by means unknown, contrary to Florida Statutes, 782.04. On June 10, 1981, Respondent was found guilty of the crime of manslaughter and sentenced to imprisonment for fifteen years. Respondent testified at the hearing that he had terminated his physician-patient relationship with Burton in December, 1974 when he determined that she was seriously ill, not functioning well in group therapy, and needed long-term treatment. He recommended that she secure inpatient treatment and suggested that she see Dr. Arturo D. Gonzalez for this purpose. However, she did not wish to do so. On several occasions in 1975, Respondent let Burton borrow his car while he was out of state. He conceded that he had seen her after terminating her as a patient and decided to talk to her on occasions. He testified that he had induced her to attend a Bible class that he had been attending since the early 60's and that he would speak to her briefly once a week before the class. He denied ever having sexual intercourse with her and said that one of the reasons for his terminating her as a patient was due to the fact that she had vaginal herpes, which was always contagious in his opinion, and that he had had to treat several of his male patients who had been involved with her for urethral discharge. He claimed that she would pick up these patients at his office, and take them home with her. Respondent further testified that although he had arranged for Burton's abortion and accompanied her to the doctor's office for that purpose, he had not caused the pregnancy and did not pay for the abortion. Periodically in the past, he had referred patients who became pregnant to physicians in the locality for abortions and maintained an office file listing physicians who performed this procedure. Respondent testified that on the evening of April 19, 1975, he was conducting a group therapy session in his office and finished about 10:50 p.m. He later received several telephone calls from Burton from which he gained the impression that she might have taken some medication and could be physically ill, or that she was trying to get him over to her place to try to seduce him. He asked another patient, Christine Carlton, to accompany him to Burton's apartment to ascertain her condition, but she declined to go with him at that time. Respondent testified that he had asked Burton to call a cab or an ambulance, but she insisted that he come over to her apartment, stating that she was "too dizzy" to drive out herself. He testified that he then proceeded to her apartment after stopping to buy an ice cream cone, since he had not eaten all day. He did not believe there was a genuine emergency because of Burton's history of "rescue" fantasies and, in any event, thought he would have several hours if she had actually taken an overdose of drugs. When he arrived at Burton's apartment, he found her in a chair facing the door, and she did not respond to his greeting. He saw blueness in her legs and took her pulse, and patted her on the face. He picked her up, put her on the couch and checked her corneal reflex, and then started artificial respiration. He called the emergency squad while administering artificial respiration. He testified that when he heard the approaching sirens of the rescue squad, he went out on the apartment landing and saw a man ducking behind the bushes. He also testified that he had seen someone running down the stairs when he first arrived at the apartment. He denied strangling Burton. Dr. Joan Wood, Deputy Chief Medical Examiner for the Sixth Judicial Circuit, testified that, although the medical examiner, Dr. Feegel, had originally determined that Burton's death was caused by strangulation, he modified his opinion in his testimony at Respondent's trial to include the possibility of accidental death. Dr. Wood has reviewed all of the medical reports concerning thee deceased, and is of the opinion that the pathological studies and reports are insufficient upon which to determine the cause of death within a reasonable medical certainty. As a result of the foregoing findings, the following additional findings are made: Insufficient competent evidence was presented to establish that Respondent had a sexual relationship with Cassandra Burton and that he caused her pregnancy. Although the evidence shows that Respondent's association with Burton was of such a nature as to greatly exceed the bounds of a normal psychiatrist-patient .relationship, it was generally in keeping with his compulsive personality which, as described by Dr. Warren, the examining psychiatrist, involved a tendency to try and please women, particularly hysterical ones. Other expert and lay testimony showed him to be an individual who became excessively involved with his patients. At the time of the death of Cassandra "Sally" Burton on April 19, 1975, for which Respondent was thereafter found guilty of manslaughter, Respondent was acting in the role of a psychiatrist or physician, as evidenced by the deceased's request to him for medical assistance and his attempted response thereto in such capacity. (Testimony of Respondent, Burdette, Freeman, Daggett, Ross, Adams, Wood, Silverman, Jones, Carlton, Mezrah, Thomas, Gardner, Ricker, Petitioner's Exhibits 12-16, 21, Respondent's Exhibits 4-5, 8). It was the practice of Respondent to have his secretary, Jean Jones, prepare his yearly applications to the Drug Enforcement Administration, Department of Justice, for renewal of his registration to dispense controlled substances pursuant to Federal law and regulation. She customarily prepared the application which was signed by Respondent and, in years prior to 1980, he had obtained registration to dispense Schedule II through V controlled substances. His application for renewal of registration which expired on November 30, 1979 was prepared by a different secretary due to Jones' absence, and the application signed by Respondent inadvertently reflected a request for renewal of authority to dispense only Schedule III and IV substances. Respondent was unaware that his registration renewal did not include authority to dispense Schedule II drugs. During the period March 6 through October 31, 1980, Respondent prescribed Class II controlled substances without proper registration to Lileen Dunn for Mepergan Fortis and Percodan, Anne Pizzo for Dexedrine, William Gray for Ritalin, Nick Douzanis for Desoxyn, Patty Crist for Amytal, Elio Alvarez, Jr. for Quaaludes, John Adams for Dexedrine, Harold Wyatt for Quaaludes, Karen Berrian and Janet Anifant for Dexamyl. On October 2, 1980, Respondent prescribed Noctec for himself which was filled at a Tampa pharmacy. Noctec is a Schedule IV controlled substance. Thomas Rowley had taken his wife to Respondent for treatment in the summer of 1980 and such treatment continued into December of that year. Although Respondent had provided Rowley with some samples of Noctec for his wife, and prescribed medicine for her in Rowley's name to prevent Mrs. Rowley from taking an overdose of medicine, Rowley had never received or obtained Noctec on a prescription which named Respondent as the patient. Respondent's registration to dispense controlled substances has included Schedule II drugs for 1981 and 1982. (Testimony of Jones, Dodd, Paige, Rowley, Petitioner's Exhibits 1-3, Respondents Exhibits 2, 7). Respondent's driver's license was suspended for driving infractions in October, 1976 and reinstated in June, 1978. After Respondent returned a car he had borrowed from a patient, Pierce Brereton found a Florida driver's license in the glove compartment in the name off Albert Bela Klein, but bearing a photograph of Respondent. Kein had died on June 24, 1972, but records of the Department of Highway Safety and Motor Vehicles show that three speeding Violations were charged against his license in 1977-78. (Testimony of Brereton, Petitioner's Exhibits 9-11) Pursuant to an Order issued by the Secretary, Department of Professional Regulation, on June 11, 1981, under subsection 458.331(1)(s), Florida Statutes, Respondent submitted to a psychiatric evaluation by Dr. George L Warren of Clearwater, Florida during the period July 31--August; 17, 1931. In addition, psychological testing of Respondent was performed by Dr. Richard N. Fran on August 7, 1981 As a result of the examination and testing, Dr. Warren concluded that Respondent suffered from a mild degree of impairment, most likely due to alcohol abuse which had caused some degree of brain damage, and a compulsive personality disorder. However, he did not feel that Respondent was suffering from a sufficient mental or emotional impairment which would adversely impact on his ability to practice medicine with reasonable skill and safety to patients. When he testified at the hearing, Dr. Warren disclosed that Respondent had contacted him the night before and disclosed that he had "borrowed" a driver's license during the pendency of criminal charges against him. Respondent had not disclosed this information to Warren during the previous psychiatric examination Dr. Warren testified on direct examination that the possession and use of the false driver's license by Respondent constituted antisocial behavior and than as a result of Respondent's disclosure, he would modify his opinion to find that Respondent was not able to practice medicine with skill and safety to patients. However, upon cross-examination, he stated that that fact alone would not change his opinion, but that he would have to reevaluate the case based on the factual correctness of matters contained in various hypothetical questions posed to him which were based upon the other charges in the Administrative Complaints. (Testimony of Warren, Petitioner's Exhibit 22, Respondent's Exhibit 1). Respondent has been treated by a psychiatrist during the past year and, in his opinion, Respondent is a highly intelligent, well qualified psychiatrist who is competent to practice his profession. Additionally, several psychiatrists who have known Respondent in the past are of the same opinion. (Testimony of Afield, Gardner, Silverman, Thomas, Respondent's Exhibit 9).
Recommendation That Petitioner Board of Medical Examiners revoke the license of Respondent Louis J. Tsavaris to practice medicine pursuant to Chapter 458, Florida Statutes. DONE and ENTERED this 6th day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of August, 1982. COPIES FURNISHED: Deborah J. Miller, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Grover C. Freeman, Esquire 4600 West Cypress, Suite 410 Tampa, Florida 33607 William S. Lancaster, Esquire 1715 Tampa Street Tampa, Florida 33602 Frank Ragano, Esquire 620 East Twiggs Street Tampa, Florida 33602 Dorothy Faircloth Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Michael Schwartz, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact St. Anthony's Hospital (St. Anthony) is a 434-bed nonprofit hospital located in St. Petersburg, Florida, sponsored by the Franciscan Sisters of Allegheny. It provides a full range of services, including a surgical program, a medical program, and departments of radiology, nuclear medicine and pathology. It has an established cancer treatment program which provides interrelated services such as medical and surgical oncology, tumor registry, pharmacology, pathology, an oncology committee and tumor board, social work and a pastoral care department. Radiation therapy is the only major element of cancer treatment which St. Anthony currently lacks. St. Anthony now proposes to construct, equip and operate a radiation therapy center in a separate facility located on its campus, but not physically connected to its existing hospital. It is anticipated that at least ninety% (90%) of all patients to be treated will be outpatients. It is contemplated that a separate facility will maximize ease of access for outpatients, help the patient's psychological status by removing the necessity to return to the hospital for radiation treatment services and reduce the disruption caused by construction inside the existing hospital facility. The proposed radiation therapy building will house two treatment suites, a simulator, conference rooms, examination rooms, dosimetry rooms, waiting areas and office space. The separate facility will contain 6,315 square feet and will include a 4 MV linear accelerator and a 6 MV/18MV dual linear accelerator. The estimated total project cost is $4,191,000. St. Anthony's service area contains a considerably higher than average percentage of elderly and Medicare-eligible population. Approximately 30% of the population of South Pinellas is 65 years and older, as compared to about an 18 to 20% statewide average. Approximately 70% of St. Anthony's patient load is Medicare-eligible. As the population increases, and particularly the elderly population, the incidence of cancer will likewise increase. Utilizing ICD-9-CM data, a universally accepted method of classifying patients relative to their disease or illness, St. Anthony calculated that 1,247 patients were admitted to St. Anthony's Hospital in fiscal year 1986 with a primary or secondary diagnosis of cancer. This figure could involve some double-counting of individual patients, particularly in light of the fact that many cancer patients, perhaps up to 50%, are readmitted to the hospital during the course of their disease process. The DRG data only shows 625 cancer patients being discharged by St. Anthony's Hospital in calendar year 1986. The DRG classification system is primarily for reimbursement purposes and does not always include the secondary diagnoses, whereas the ICD-9-CM data is an international classification system for coding both primary and secondary diseases. There are three major types of cancer treatment--surgery, chemotherapy and radiation therapy. Each form of treatment may be used individually or in combination with one another. Patients who receive radiation therapy are treated with either curative (with the elimination of the cancer being the objective) or palliative (with the alleviation of discomfort being the objective) intent. It is reasonable to assume that approximately 60% of all cancer patients will require radiation therapy at some time during the course of their disease. It is also reasonable to assume that the average patient receiving curative radiation therapy will receive 25 treatments and the average patient receiving palliative therapy will receive 14 treatments. Utilizing these assumptions, as well as assuming 1,247 cancer patients served by St. Anthony's, and further assuming a 50-50 split between curative and palliative treatments, St. Anthony projects a total of 14,586 visits (treatments or procedures) in its first year of operation and a 5% increase during its second year of operation. If these figures and assumptions are reasonably accurate, the proposed project is needed on an institution-specific level. Stated differently, there is a sufficient number of cancer patients presently served by St. Anthony's Hospital to justify a need for radiation therapy services without relying on referrals from others. Also, if one accepts that the economic efficiency standard per linear accelerator machine is 6,000 procedures or treatments per year, a figure found in some of the literature on the subject, it is reasonable to conclude that St. Anthony would have a need for at least two machines to adequately serve its cancer patients. St. Anthony proposes a staff of six positions for its radiation therapy center. The positions include a physicist, a chief technician/manager, a registered nurse, a technician, a dosimetrist/mold room technician and a secretary/receptionist. Some of the duties of operating the proposed radiation therapy center, such as medical records transcription, will be assumed internally by the current staff of the hospital. The proposed staffing is from three to six positions below that utilized at the Bayfront Cancer Center, and is somewhat lower than that recommended in the "Blue Book," a 1981 report of the National Cancer Institute concerning criteria for radiation oncology in multidisciplinary cancer management. St. Anthony's vice-president and assistant administrator admitted that additional staff would be needed in the near future. Based upon the volume of projected activity and projected charges, St. Anthony initially estimated that at the end of its first and second years of operations, its net income would be, respectively, $72,092 and $38,259. The evidence at hearing demonstrated that corrections to the pro formas are necessary with respect to both revenues and operating expenses, with both needing upward adjustments. The expert financial witnesses for St. Anthony and Bayfront had different opinions with regard to the long-term financial feasibility of the proposed project. In evaluating the project's financial feasibility, St. Anthony utilized historical financial information from its own facility, as well as the experience of two other Florida hospitals within the Allegheny health care system, and determined that the project would be profitable on a long-term basis. Bayfront, on the other hand, evaluated St. Anthony's pro formas largely on the basis of its own experience in operating the Bayfront Cancer Center, and determined that the facility would operate at a loss after its second year of operation. The parties stipulated that the proposed project would be financially feasible on a short-term basis. The provision of services to a large percentage of Medicare patients, as well as the provision of 90% outpatient services, is a financial benefit with regard to cost-base reimbursement services. Existing facilities offering radiation therapy services both on an inpatient and outpatient basis within St. Anthony's service area include Bayfront Medical Center, one unit adjacent to Palms of Pasadena Hospital and a freestanding center across the street from Humana Northside Hospital. There was no evidence presented regarding the utilization of the latter two facilities. Bayfront Medical Center is located about 15 blocks from St. Anthony's Hospital. Bayfront is a 518-bed not-for-profit hospital leased from the City of St. Petersburg. It is the primary provider of indigent and charity care in the area, and operates a large indigent care program, called the Tumor Clinic, as a part of its cancer center. The Bayfront Cancer Center originated in 1978 as the Gulf Coast Oncology Center. It now operates with three linear accelerators and is accredited by the American College of Surgeons. In 1984, the Bayfront Cancer Center (BCC) served 1,048 patients. In its fiscal year 1987, it served 853 patients and performed 19,275 treatments or procedures. For the fiscal year July 1, 1988 through June 30, 1989, BCC projects that 20,500 procedures will be performed at its 3-unit facility. No patient has had to wait to obtain radiation therapy at BCC, though, on occasion, Bayfront has had to operate its facility from 7:00 a.m. to as late as 8:30 to 9:00 p.m. due to patient demand. It is opined that Bayfront's present equipment and staff has the capacity to perform an additional 3,000 to 4,000 treatments per year. Though no studies were conducted as to which facilities St. Anthony's cancer patients currently utilize to receive their radiation therapy treatments, Bayfront predicts a dramatic adverse impact upon its cancer center if St. Anthony were to initiate similar services. The impact would be in the areas of quality of care, the provision of indigent care and the economic viability of both the hospital and the cancer center. Even if Bayfront were to lose only a third of its current patient volume to St. Anthony's proposed new service, it is projected that Bayfront may have to decommission one of its three accelerators and cut back on staffing, indigent care and its student training program. It is further projected that its cancer center would change from a profitable venture to one having a loss in an amount close to its total operating margin. Staffing cutbacks could result in Bayfront losing its certification from the American College of Surgeons. An important component of the treatment of cancer patients is continuity of care. At present, inpatients of St. Anthony needing radiation therapy services must either delay treatment until discharged, be transferred to an inpatient facility which provides such services or be transported back and forth for the treatments. It is often not in the patient's best interests to delay radiation therapy once the need for such treatment has been determined. Transporting a patient back and forth is disruptive to the patient and expensive. Transferring a patient to another inpatient facility is disruptive to the patient-physician relationship and the multidisciplinary team approach to cancer care. Inpatients at St. Anthony needing radiation therapy would benefit by the proposed project. However, the benefit with respect to patient comfort would not be particularly significant in light of the fact that the St. Anthony patient would still have to be transported out of the building to another building on campus, as opposed to another building some 15 blocks away. HRS has no promulgated rule setting forth a methodology for predicting the need for community radiation therapy services. In performing its analysis in this case, as it did in one other application for similar services, HRS evaluated need primarily on the basis of institution-specific data from the applicant, and further analyzed the utilization figures from another hospital- based facility, Bayfront, to determine whether that existing facility was being adequately used. Other than reference to a previously-declared invalid methodology for determining numeric need for radiation therapy units, neither the State Health Plan nor the local District Health Plan contain specific standards or guidelines for the review of such units in the Certificate of Need process. The State Health Plan does stress continuum of care as a goal. The District plan contains general policies regarding review to determine the impact upon providers of a large amount of indigent care and to determine the adequate and effective utilization of existing services prior to the commencement of new services. As noted above, 90% of the patients served by the proposed facility will be outpatients. Recent changes in the Certificate of Need laws make the provision of outpatient services no longer reviewable by HRS. Although St. Anthony desires to provide services to both outpatients and inpatients at its proposed facility, it might elect to construct and operate a radiation therapy center which only serves outpatients if its present application is denied.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application of St. Anthony's Hospital to construct, equip and operate the proposed radiation treatment center be approved. Respectfully submitted and entered this 1st day of August 1988, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of August 1988. APPENDIX (Case No. 87-2029) The parties' proposed findings of fact have been fully considered and are accepted and/or incorporated in this Recommended Order, with the following exceptions: Bay front: 1. The word "only" is rejected as contrary to the evidence. 3. First two sentences rejected as argumentative and contrary to the evidence. 5. Second sentence rejected. 8 and 9. Rejected as argumentative. Discussed in conclusions of law section. Rejected as contrary to the evidence. 28. Accepted only if `need" is defined in terms of "necessity." 30. Same as above with regard to last sentence. 33. Second sentence rejected, but discussed in conclusions of law. 34, 35. Rejected as contrary to the evidence with regard to inpatients at St. Anthony. 36-38. Accepted as being an accurate representation of the witness's opinion, but ultimate opinions rejected insofar as they do not take into account the completeness of St. Anthony's cancer program, patient choice and the patient-physician and multidisciplinary team approach to cancer care. 39-41. Accepted as potential occurences should another facility enter the community, but not determinative of the issues, as discussed in the conclusions of law. 42-44. Rejected as unsupported by competent substantial evidence. Third sentence rejected as contrary to the greater weight of the evidence. Accepted only with regard to pure "numeric" need. Rejected, as contrary to the evidence. Rejected as to Palms of Pasadena and non-hospital outpatient facilities as unsupported by competent evidence. 57, 58. Accepted as reasonable statements of potential impacts, but not established as resulting solely from the proposed project or determinative of the issues. HRS: 1, 3, 5. Accepted, but not included as irrelevant to the issues in dispute. 26. Accepted as only one of many factors to be considered and balanced against other criteria. 31. Rejected as not supported by competent substantial evidence. 46. Rejected insofar as it fails to consider other existing or future facilities. St. Anthony: 4. First two sentences rejected as irrelevant. 9, 10. Rejected as irrelevant. 36. Rejected as to the word "committed," as not supported by the evidence. 53. Rejected as not supported by competent, substantial evidence with regard to the number of units. 57-59. Rejected insofar as it attempts to state legal conclusions, as opposed to factual findings. 118-120. Rejected as to impacts on other existing facilities unsupported by any evidence. 137. Rejected as contrary to the evidence. 140. Rejected as not supported by competent, substantial evidence. 147. Partially rejected as to certain goals. COPIES FURNISHED: Leslie Mendelson, Esquire Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ivan Wood, Esquire The Park in Houston Center 1221 Lamar, Suite 1400 Houston, Texas 77010-3015 Kenneth Hoffman, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Judith S. Marber, Esquire Southeast Financial Center Two Biscayne Blvd., Suite 3700 Miami, Florida 33131-2359 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether or not Respondent, Walter Ray Deal, M.D., violated Subsection 458.331(1)(t), Florida Statutes, and, if so, what discipline should be imposed?
Findings Of Fact Based on the evidence and the testimony of witnesses presented and the entire record in this proceeding, the following findings of fact are made: Petitioner, Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, Chapter 456, Florida Statutes, and Chapter 458, Florida Statutes. Respondent, Walter Ray Deal, M.D., is and has been, at all times material to the Administrative Complaint filed in this matter, a licensed physician in the State of Florida, having been issued license number ME 0056589. At or around 6:25 p.m. on April 6, 2000, Patient E.R. presented at the Emergency Room of Morton Plant Mease Health Care/North Bay Hospital, with pain and swelling in the right lower extremity. The Emergency Triage/Assessment Form, which is completed by nurses in the Emergency Room, reports that Patient E.R., who was first seen at 6:30 p.m., was 73 years old and had a chief complaint of "pain to RLE [right lower extremity] for a very long time, swollen . . ." This form also contains information on Patient E.R.'s current medical status including medications and a medical history. Respondent first examined Patient E.R. at approximately 7:15 p.m.; she reported her chief complaint to be chronic pain in the right knee which had worsened since Dr. Zaidi, a rheumatologist, had drained the knee. During his examination, Respondent checked (placed a checkmark) on the Emergency Physician Record indicating that in his examination he found the patient's heart had regular rate and rhythm and normal heart sounds. At 7:30 p.m., Respondent noted in Patient E.R.'s treatment plan: "Labs, Pain Meds, IV Antibx." This record reflects that Respondent ordered that the patient be administered 50 mg of Demerol and 50 mg Phenergan and 500 mg of Leviquin intramuscularly and the ESR (erythrocytic sedimentation rate), which is a nonspecific test for inflammatory responses. The pain medication appears to have been administered almost immediately (7:35 p.m.); the antibiotic at approximately 8:12 p.m. There is controversy about what "Labs" were ordered by Respondent. His testimony indicates that he ordered the CBC, the comprehensive metabolic, and the urine laboratory chemistries. The hospital records indicate that the following additional diagnostic tests were ordered: Cardiac Enzymes and Troponin chemistries, an E.K.G. and portable chest x-ray. It appears from the hospital records that a different writing instrument (the ink colors are different) and, perhaps, a different hand ordered the diagnostic tests mentioned in this paragraph. The results of the chemistries ordered by Respondent are reported on the Emergency Physician Record; the Emergency Physician Record does not contained results of an E.K.G. or x- ray. In addition, laboratory reports for non-cardiac-related chemistries are on Lab Acn# 54968; laboratory reports for cardiac related chemistries are on Lab Acn# 54984. While the sample collection time for the blood tests is 7:20 p.m., the cardiac-related tests were conducted later in the evening than the non-cardiac related tests. The controversy regarding what tests were ordered by Respondent is further clouded by the testimony of Rajesh Dave, M.D., who in the late evening of July 6, 2000, admitted Patient E.R. to the hospital, and Respondent's narrative letter dated February 1, 2001, directed to the Agency for Health Care Administration, in which he acknowledges ordering all of the diagnostic tests mentioned hereinabove. Prior to hearing, Respondent retracted the admission contained in his letter to the Agency for Health Care Administration to ordering the Cardiac Enzymes and Troponin chemistries, the E.K.G. and chest x-ray. The retraction was based on confusion between Respondent and his attorney which was confirmed by the testimony of Edward Copeland, Esquire, the attorney who prepared the narrative letter signed by Respondent. I find that the testimonies of Respondent and Mr. Copeland are credible and find that someone other than Respondent ordered the diagnostic tests which are in question. Dr. Dave denied ordering the cardiac-related tests; he denies even being in the hospital that evening. His testimony is in conflict with Respondent's and Emergency Room Nurse Don Giffin's nursing notes, which state: "Dr. Dave here to examine patient and wrote orders." Dr. Dave became responsible for Patient E.R.'s care and treatment when she was ordered admitted to the hospital at 9:45 p.m. Respondent testified that he had two conversations with Dr. Dave on July 6, 2002; the first, a telephone conversation, immediately prior to first seeing Patient E.R. and the second, a face-to-face conversation, at approximately 9:30 p.m. at the front desk of the Emergency Room. After the second conversation, Respondent wrote orders to admit Patient E.R. for a "23 hour admission" to the hospital as Dr. Dave's patient and ordered consultations with other physicians. He wrote other admission orders, ordered medications and "ivf d5 1/2 NS 40 meq kcl/l @ 125cc hr" (intravenous fluids one-half normal saline with 40ml equivalents of potassium chloride per liter at 125 cc per hour). North Bay Hospital protocol does not allow an Emergency Room physician to admit a patient to the hospital. Respondent was acting as a scrivener for Dr. Dave when he entered the orders admitting Patient E.R. to the hospital. At 8:17 p.m. the laboratory reported to the Emergency Room that Patient E.R. had a low serum potassium level. Petitioner's expert witness opined that Respondent fell below the standard of care when, after becoming aware of the low serum potassium level (which the expert deemed "critically low"), he did not immediately order an E.K.G. to determine the appropriate speed of potassium supplementation. He further opined that Respondent either did not read the E.K.G. or did not properly evaluate it. He further opined that the rate of potassium supplementation as ordered by Respondent was completely inadequate. The results of the Cardiac Enzymes and Troponin tests were normal. The E.K.G. test was given and the results simultaneously published at 10:04 p.m. The E.K.G. showed a run of non-sustained ventricular tachycardia which is a potentially fatal arrhythmia. After being ordered admitted as a 23-hour admission as Dr. Dave's patient at 9:45 p.m., Patient E.R. arrived at the 23- hour floor at 10:30 p.m. The hospital records reflect that at 10:20 p.m., the floor nurse was advised by the Emergency Room nurse of the low serum potassium, of the physician's orders for potassium supplementation, and that the potassium supplementation ordered was not available in the Emergency Room. The 23-hour floor nurse's notes reflect that she "advised that we have none at this time." Following Patient E.R.'s admission, at approximately 10:45 p.m., Dr. Dave was called and advised of the admitting orders including the rate of potassium supplementation. While he changed some of the orders, he did not change the rate of potassium supplementation. He did change Patient E.R.'s admission from a 23-hour admission to a full admission which necessitated transferring Patient E.R. to the Third Floor of the hospital. At 11:10 p.m. the 23-hour floor nurse received a bed assignment on the Third Floor and gave a report to the Third Floor nurse; the 23-hour floor nurse's notes include the following: "report . . . including low K [potassium] and need for D5 1/2 NS c 40 meq KCL [the ordered potassium supplementation] she said they had on 3rd floor and will be able to start fluids." The 11:55 p.m. Third Floor nurse's notes reflect that the "IVF started." Patient E.R. expired shortly after 3:00 a.m. Respondent's expert witness opined that Respondent did not fall below the standard of care in his treatment of Patient E.R.; that is, that Respondent practiced medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. He opined that Respondent rendered appropriate treatment to Patient E.R., who presented with knee pain and had no cardiac or respiratory complaints. He further opined that, while the serum potassium level was low and needed to be addressed, no symptoms or complaints were demonstrated pertaining to low potassium level and nothing was evident that raised cardiac issues; the low potassium was not critically important in this clinical situation and was a common presentation for an older person. He opined that based on the clinical evaluation and findings by the Emergency Room staff and physician, even with the low potassium, no E.K.G. was warranted. I find the opinion rendered by Respondent's expert witness to be more credible than the opinion offered by Petitioner's expert witness and accept the opinion of Respondent's expert. Respondent's expert's opinion was reinforced, in part, by the continuing treatment afforded Patient E.R. by Dr. Dave after she was admitted to the hospital.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order finding that Respondent is not guilty of violating Subsection 458.331(1)(t), Florida Statutes, as alleged in the Administrative Complaint. DONE AND ENTERED this 2nd day of July, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 2nd day of July, 2002. COPIES FURNISHED: Ephraim D. Livingston, Esquire Agency for Health Care Administration Post Office Box 14229, Mail Stop 39A Tallahassee, Florida 32317-4229 William Taylor, Esquire Macfarlane, Ferguson & McMullen Post Office Box 1531 Tampa, Florida 33601 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R.S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue Whether Respondent violated Subsection 456.072(1)(aa), Florida Statutes (2003),1 and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with the regulation of medicine pursuant to Chapters 20, 456, and 458, Florida Statutes. Dr. Weiner, is and was at all times material to this proceeding, a licensed physician in the State of Florida, having been issued license number ME76902. He has been practicing medicine for 23 years and has not previously been the subject of a disciplinary proceeding. Dr. Weiner is board-certified in anesthesiology. S.M. has been a patient of Dr. Weiner since 1999. S.M. sought treatment from Dr. Weiner for his lower back pain that he suffered as a result of a golf cart injury. Over the course of his care under Dr. Weiner up until the date of the incident, S.M. received numerous treatments for his back pain, including radiofrequency ablation and epidural steroids. Radiofrequency ablation uses a specific frequency of radio waves to help put specific pain nerves that go to the joints of the spine to sleep for a period of time. In this procedure a steroid is deposited inside the epidural space outside the spine. The procedure can help to treat back pain as well as pain extending down the legs of the patient. On January 29, 2005, S.M. presented to Dr. Weiner with complaints of lower back pain. After examining S.M., Dr. Weiner recommended that S.M. undergo a radiofrequency ablation procedure. Dr. Weiner ordered the radiofrequency ablation procedure and instructed his office to coordinate with the Center for Digestive Health and Pain Management (Center), to have the procedure scheduled. The Center, which is a separate facility from Dr. Weiner's office, scheduled S.M.'s treatment for February 19, 2004. The Center scheduled S.M. for a Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, rather than the radiofrequency ablation procedure. A Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, involves placing a needle down near the tailbone. A catheter is inserted through the needle into the space around the spine. A steroid medication is injected through the catheter. The purpose of the procedure is to decrease irritation and inflammation of the nerves as well as the discs. S.M. could have derived some benefit from the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach. Patient charts at the Center are separate from the patient charts at Dr. Weiner's office. The Center's charts are made up by the Center staff and consist of forms for the specific procedure, a template of the procedure for the specific procedure, the nursing notes, billing sheets, and other administrative paperwork. When the Center erroneously scheduled S.M. for a Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, the Center prepared paperwork necessary for the provision of that technique, including consent forms. On February 19, 2004, S.M. went to the Center with the belief that he was going to receive the radiofrequency ablation procedure. During this visit, S.M. was in a lot of pain and was eager to receive treatment for his back. Upon arrival to the Center, S.M. signed a consent form that referenced a Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach procedure. The nurse then confirmed with S.M., the technician, and Dr. Weiner that S.M. understood this procedure. Dr. Weiner also explained the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, to S.M before administering the treatment and also told S.M. that this was the first time he had undergone this procedure while under Dr. Weiner's care. Subsequent to signing the consent form, S.M. got undressed and was hooked up to an IV. He was then moved to another bed, and Dr. Weiner started to perform the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, on S.M. Dr. Weiner administered a local anesthesia and began to insert the tip of a needle into S.M.'s back. After partially inserting the needle in S.M.'s back, Dr. Weiner stopped the procedure and reviewed S.M.'s chart. He requested that S.M.'s chart that was in Dr. Weiner's office be brought to the Center. The chart revealed that the Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, was not the procedure that was originally ordered at S.M.'s appointment on January 29, 2004. Once he realized the discrepancy, Dr. Weiner apologized to S.M. and explained that he began to do the wrong procedure. S.M. was then taken to the recovery room, and Dr. Weiner ordered the radiofrequency ablation procedure for a later date. S.M. did not receive the complete Fluoroscopic Epidural Steroid Injection, RACZ Technique, caudal approach, procedure on February 19, 2005. In or about March 2004, S.M. returned to the Center and had the radiofrequency ablation procedure completed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that James P. Weiner, M.D., violated Subsection 456.072(1)(aa), Florida Statutes; issuing a reprimand; imposing a $1,000 fine; requiring 25 hours of community service; and requiring five hours of risk management education. DONE AND ENTERED this 31st day of March, 2006, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 31st day of March, 2006.
Findings Of Fact Respondent is Paula Kay Spears. She is a licensed registered nurse and holds license number 1435502. At all times pertinent to these proceedings, Respondent was employed as a registered nurse at Lakeland Regional Medical Center in Lakeland, Florida. Caren Hicks worked as a unit coordinator in the cardiovascular surgery unit of the hospital where Respondent was also employed as a registered nurse. Hicks and Respondent worked together for approximately five years. In April of 1988, Hicks witnessed Respondent using for the first time what Hicks believed to be a drug commonly called "crank". Hicks also used the substance on that occasion. Hicks purchased the substance from Respondent on only one later occasion; although she and Respondent engaged in joint use of the substance on several subsequent occasions. They ingested the substance by "snorting" it through the nose. Hicks provided crank on some occasions for the joint use of herself and Respondent. The two used the drug while on duty in the cardiovascular unit to which they were assigned. The last occasion of their joint usage of the drug was September 11, 1988. When she nasally inhaled the drug, Hicks observedthat her pulse rate and energy level increased. While she experienced fatigue when the effects of the drug wore off, Hicks never experienced any sense of confusion. She compared the effects of the substance to that of a drug commonly called "speed". Tommy Smith is the head nurse for the cardiovascular unit where Respondent and Hicks were employed in September of 1988. He confronted Respondent with the accusation that she and Hicks had used crank while on duty. Respondent denied the charge. Smith offered Respondent continued employment in her position, provided she submit to drug screening and rehabilitative treatment for drug abuse. Respondent rejected the offer. Subsequently, Respondent's employment with the hospital was terminated. Later, Smith made the same offer to Hicks. Hicks accepted the offer, attended a drug rehabilitation program and is still employed at the hospital. Expert testimony of Martin Zfaz, M.D., establishes that crank is a form of methamphetamine, a central nervous system stimulant which is regulated in accordance with Chapter 893, Florida Statutes, as a controlled substance and a schedule II drug. Crank, over a period of time, can cause confusion in the user's mental acuity. Depression follows use of the drug when its effects wear off. Usage can lead to dependence, with the possibility of resultant acute psychosis. Poor, impaired or confused judgement in the user can result. The substance is highly addictive, with limited medical use. Medical uses for crank include treatment for narcolepsy and hyper- activity in children. The substance is also prescribed as a balance to phenobarbital medication of epileptic patients. Although it depresses appetite, its usage for this purpose has decreased. Use of crank would have a negative effect on a medical nurse's judgement and performance.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered by the Board of Nursing finding Respondent in violation of Section 464.018(1)(i) and Section 464.018(1)(h), Florida Statutes. IT IS FURTHER RECOMMENDED that such Final Order suspend Respondent's license pending Respondent's completion of a drug dependency evaluation and provision by her of a report of that evaluation to the Board and demonstration to the Board that she is capable of safely practicing the profession of nursing. IT IS FURTHER RECOMMENDED that such Final Order place Respondent's license on probationary status for a period of three years upon satisfaction of the foregoing requirements for termination of license suspension with specific conditions of such probation to include periodic drug dependency reevaluations and reports as may be determined by the Board and payment of an administrative fine of $500. DONE AND ENTERED this 3rd day of November, 1989, in Tallahassee, Leon County, Florida. DON W.DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Fl 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1989. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-2. Accepted. 3. Weight of the evidence demonstrates that Respondent ingested the drug by "snorting" it. Finding rejected. 4.-14. Accepted 15. Rejected. Not consistent with the weight of the evidence. 16.-17. Rejected, unnecessary to result reached. Respondent's Proposed Findings. None submitted. COPIES FURNISHED: Michael A. Mon), Esq. Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Paula Kay Spears 1240 Sarasota Avenue Lakeland, FL 33805 Kenneth Easley, Esq. General Counsel Department of Professional Regulation The Northwood Centre, Suite 60 1940 N. Monroe St. Tallahassee, FL 32399-0750 Judie Ritter Executive Director Board of Nursing Department of Professional Regulation 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32201
