Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent is licensed as a physician in Florida, holding license # ME 0038234. His specialty is orthopedics but he is not Board certified in that field. Respondent practices medicine, specializing in orthopedic surgery with emphasis on the spine, at the Gulf Coast Orthopedic clinic in Hudson, Florida. Among the procedures he has performed at times pertinent to the issues herein are percutaneous lumbar foraminotomy, also known as foraminectomy or foraminostomy, (PLF); percutaneous cervical discectomy, (PCD); and percutaneous cervical foraminotomy, (PCF). A PLF is an arthroscopic surgical procedure wherein instrumentation introduced through a succession of progressively larger cannulae via a posterolateral approach to the lumbar spine is utilized to remove spurs which have formed at the area of the neural foramen. A PCD involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove disc material from a cervical disc for the purpose of decompressing the nerve root at the corresponding level. A PCF involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove spurs which have formed at the area of the neural foramen at the corresponding level. The three procedures referred to above, the PLF, the PCD and the PCF, are not commonly used or widely performed in the field of orthopedic surgery in the United States. Petitioner contends they are experimental procedures. Petitioner contends that a procedure whose safety and efficacy have not been established is experimental. It asserts that physicians performing procedures whose efficacy and safety have not been established must specifically advise a prospective patient on whom such procedure is anticipated to be done of the experimental nature of the procedure as a part of obtaining informed consent prior to the procedure. However, the efficacy and safety of a procedure are not, by themselves determinative of experimentation. PCD's are a logical extension/evolution of techniques that are already in use. They are being done in various places throughout the world, including the United States, and insurance companies have, in the past, paid for both PLDs, conceded by the Board to be non-experimental, and PCDs. The instant procedures in issue, including PLFs, which are done by physicians around the world, and the PCFs are not radical departures from present concepts. Though innovative, they are the natural evolution of existing techniques and procedures. For example, chemonucleolysis, recognized by the medical profession as non-experimental, is a percutaneous procedure in which enzymes are injected into the intervertebral disc in order to dissolve it. There is little difference between this procedure, which has been used for approximately ten years and the PCD, save the injection of the enzyme. Another percutaneous procedure which is widely done is the use of the nucleotome, a reciprocating suction cutter consisting of a steel tube with a spinning blade. This is not considered by the medical profession to be an experimental procedure. To be sure, Dr. Abram, a Board certified orthopedic surgeon with extensive experience in treating spinal pathology, is the only expert witness who practices in Florida. He has, however, by his own admission, not done any percutaneous or arthroscopic procedures involving the back or neck. On the other hand, Respondent's experts, Dr. Gristina, also a Board certified orthopedic surgeon, but who is not licensed in Florida, has extensive experience in orthopedic surgery. He was formerly Associ ate Professor of orthopedic surgery and associate to the chairman of that department at New York University Hospital; he was chairman of the Department of Orthopedic Surgery at Bowman Gray Hospital at Wake Forest University; and at present he is President and Senior Scientist at the Medical Sciences Research Institute and practices orthopedic surgery in northern Virginia. For the year just prior to this hearing, he was associated with the Northern Virginia Spine Institute, and though he has not been lead surgeon in the near term, he has associated with the director of the institute in the performance of major spinal surgery. Under the circumstances, as a scientist his opinion as to what constitutes an experimental procedure and what is mere innovation is pertinent to the resolution of that issue. Dr. Sherk, testifying for the Respondent, is a Board certified orthopedic surgeon and professor of surgery and chief of the division of orthopedics and rehabilitation at the Medical College of Pennsylvania. He is familiar with and has performed percutaneous procedures on the spine, most specifically chemonucleolysis and laser discectomy, and is familiar with Dr. Bonati and the percutaneous procedures he performs from having heard Respondent's presentations at international conferences on orthopedics. As a practitioner and academician, his opinion regarding the experimental nature of the procedures in issue is pertinent. Dr. Hopkins, a Board certified orthopedic surgeon, came to percutaneous disc surgery through the microdiscectomy process and the percutaneous laser procedure which he still uses. He also has performed in the neighborhood of two hundred percutaneous disc surgeries, about half with the nucleotome and half with laser. He has done percutaneous foraminectomy procedures. Some time ago, while working for a laser company in Minneapolis, he became aware of Respondent's practice in percutaneous disc surgery. As a result, he came to GCOC on two occasions and observed Respondent perform the procedure on both lumbar and cervical discs. He has presented papers on percutaneous disc surgery at international conferences and gave a course on percutaneous procedures at the American Academy of Orthopedic Surgery in San Francisco approximately two years ago. Taken together, and with all due respect and credence being afforded the opinion of Dr. Abram, the evidence of the experimental nature of the PLF, the PCD and the PCF is not persuasive and it is found that the procedures, though new and innovative, are logical extensions of and new uses of established procedures and are not experimental. Respondent's records reflect that in each case in issue, written consent was obtained from the patient. The records also reflect that each patient was informed about the surgery, the pathology and the treatment to which the patient had agreed. An informed consent was also obtained by the anesthesiologist. Under the circumstances, it having been found that the percutaneous procedures are not experimental procedures, the informed consent obtained by the Respondent was adequate. Clearly, Dr. Bonati's clinic is very well organized. As explained by Respondent and various members of his staff, once Respondent recommends surgery, the patient is given printed brochures and materials which explain the proposed procedure. If the patient is unclear as to the nature of the procedure or has any questions about it, he or she is given the opportunity to voice his or her concerns either to Respondent or to a nurse, and no further action is taken unless all questions are answered to the satisfaction of the patient. Each patient is also given a video tape describing the procedure to be performed, and once the tape is viewed by the patient, further opportunity to ask questions is afforded. Respondent and a nurse meet with each patient so that he can explain to the patient what the proposed procedure consists of, how it is to be performed and the risk involved. The patient is also advised of alternative methods of treatment which include physical therapy. Each patient is advised that an open procedure is also an alternative to the percutaneous procedure. The patient is under only a local anesthetic during the percutaneous procedure and is aware of what is going on. The patient actually assists the surgeon by reporting feelings and sensations experienced. Respondent claims an anesthesiologist is present in the operating room during the surgery and talks with the patient throughout the procedure. There was no evidence introduced that any patient had ever complained after the procedure that what was done was not what had been explained beforehand. Generally, patients are referred to the in-house physical therapist after surgery, and there was no indication any patient had complained of that either. AS TO THE PATIENT M.A. In August, 1989, Patient M.A., a 21 year old female, presented to the Respondent complaining of neck and back pain. Respondent had the patient undergo an MRI on the area. On September 12, 1989 he informed her that the MRI studies revealed posterior disc bulge at C3/C4 through C6/C7 levels, with the largest bulging at C4/C5 through C5/C6 levels. Additional MRI studies were done of the patient which, on November 17, 1989, Respondent interpreted as showing a grade II bulging at the C5/C6 and C6/C7 levels. On or about December 5, 1989, Respondent performed a PCD on this patient for a grade II bulge at the C5/C6 level on the left. Further MRI studies performed on this patient on or about October 30, 1990, indicated there was no change in the bulge at the C5/CB level as a result of Respondent's surgery. As a result, the Board's expert concluded that the surgery performed on this patient by the Respondent was not needed because the MRI's failed to show a condition requiring surgery and Respondent incorrectly interpreted them to indicate they did. The evidence shows, however, that in her visits to Dr. Bonati, the patient complained of pain in an area associated with the 6th nerve root, and evidence of the emergency room visit she made refers to a diagnosis of possible 6th nerve root involvement. Respondent's medical records for this patient reflect that before he recommended surgery, he waited out a period of conservative non-surgical treatment which included physical therapy. He also had her undergo another MRI on November 17, 1989, before the surgery, which showed a bulge at C5/C6. Respondent believed this bulge could be creating all the symptoms being experienced by the patient. In light of this additional evidence, to which Petitioner fails to refer in its Proposed Findings of Fact, it cannot be reasonably be found that the evidence of record is clear and convincing that Respondent performed unnecessary surgery. AS TO THE PATIENT R.L. On or about May 1, 1990, R.L., a 36 year old male, was seen by Dr. Jeffrey S. Walker, a Board certified neurosurgeon for evaluation of neck and back injuries sustained in a then-recent motor vehicle accident. Dr. Walker had this patient undergo an MRI which was interpreted by a Board certified radiologist as showing no large disc herniations and only minimal posterior bulging of the C4/C5 disc associated with degenerative disc disease. As a result of this test and interpretation, Dr. Walker diagnosed the patient as having severe cervical and lumbar strain with no evidence of radiculopathy or myelopathy. Radiculopathy is disease of the spinal nerve root, and myelopathy is a disturbance or disease of the spinal cord. Dr. Walker concluded that this patient's condition did not require surgery and recommended a conservative, non- surgical treatment. Nonetheless, on June 25, 1990, this patient went to see Dr. Bonati complaining of persistent neck and back pain. On this visit, the patient showed Dr. Bonati the MRI taken for Dr. Walker on May 31, 1990. When Respondent reviewed this MRI he noted a bulging disc at C4/C5 and recommended the patient undergo a PCD at that level. Before any surgery was done, however, another MRI was done on June 26, 1990 which Respondent interpreted as showing a 1 mm posterior disc bulge at L4/L5 and a 2 mm bulge at L5/S1, and as a result, Respondent recommended a PLD also be done. On July 12, 1990, Dr. Bonati performed a PCD on this patient at C4/C5 left, and on July 31, 1990 he also performed a PCD at C4/C5 right. Thereafter, on August 21, 1990, Respondent performed a PLF at L5/S1 on this patient. While the Board claims this was done to decompress the S1 nerve root, both the Board and Dr. Bonati indicate it is impossible to decompress the S1 nerve root by a foramenectomy at that level. The Respondent claims the procedure was done to remove the pressure on the L5 nerve root, and this was deemed possible by the testimony of Dr. Sherk. This would seem to be a more accurate description of what was done. In any case, Dr. Bonati also performed a PLD at L5/S1 right that same day in order to relieve the pressure on the S1 nerve root. In short, taken together, the evidence indicates that the surgery on the left was to relive pain on the left side and that on the right to relieve pain on the right side. There is a discrepancy in Respondent's records relating to the above surgery wherein left side pain is indicated where right side pain was intended. A review of these records, however, reveals that the patient complained of pain on both sides from the very beginning and clearly traces the course of pain from the first visit through the surgeries. The Board contends that Respondent failed to correctly interpret the MRIs done on this patient. It asserts these MRI's, when coupled with the patient's complaints, fail to indicate a need for surgical intervention and that Respondent's subsequent surgery performed on the patient was, therefore, inappropriate. This conclusion was stated by the Board's expert, Dr. Abram, who cited Respondent's own publications to the effect that a PLD is not indicated until a disc bulge is 4 mm or greater. Apparently Respondent had taken the position that a disc bulge of 3 mm or less does not merit surgery. It would appear Respondent's published indications also call for a certain amount of non- operative treatment to be provided, as well. It must be recognized, however, that there can be no hard and fast exclusionary rule regarding bulge size when determining whether surgery should be done. In the instant case, the records show that the patient continued to report pain which increased and diminished in cycles. The size guidelines are but one indicator of the need for surgery and Respondent cannot be faulted for doing surgery on a bulge smaller than that noted in his guidelines when other factors are present which indicate surgery is appropriate. AS TO THE PATIENT E.M. On or about April 4, 1991, Respondent saw patient E.M., a 51 year old male, who complained of pain in the lower back, the hip, groin and sciatic areas. Respondent had the patient undergo MRI studies which he interpreted as showing bulging discs at L4/L5, L5/S1, C4/C5 and C5/C6 levels. As a result of these indications, Respondent recommended the patient undergo both PLD and PCD procedures. Thereafter, on May 9, 1991, Respondent performed a PLF on this patient at L4/L5 left and a PLD at L4/L5 left. On June 19, 1991, he performed a PLF at L3/L4 left. He then performed a a PCD on this patient at C4/C5 left on July 1, 1991, and on July 18, 1991, performed a PLD at L5/S1 left. Finally, on August 6, 1991, he also performed a PCD at C5/C6 right on patient E.M. The bulges at C4/C5 and C5/C6 were categorized by the Respondent as grade II bulges. Respondent has previously stated that grade II bulges are normal pathology for which surgical treatment is not indicated. He performed three PLD procedures on this patient on three separate occasions rather than performing them simultaneously, and he performed the two PCD procedures separately rather than performing them simultaneously. The Board claims that to do this was inappropriate and constituted exploitation of the patient for financial gain. Dr. Gristina, however, indicates an alternative way of looking at the situation. He suggests that Dr. Bonati was following a plan to relieve the patient's symptoms utilizing the least invasive procedure available. Gristina suggests that Bonati's plan was to take the relief step by step, doing only so much surgery as was anticipated by him to be necessary to relieve pain. That a procedure was needed in each of five separate locations is unfortunate but not clearly shown by the Petitioner's evidence to be unnecessary. Petitioner must present evidence to show clearly that Respondent's actions were inappropriate. Petitioner's expert opinion must be considered, however, in light of the expert testimony to the contrary. The Board also notes that whereas this patient's medical records indicate the first procedure to be performed on May 9, 1991 was the PLD at L5/S1, in reality the initial PLD was performed at the L4/L5 level and there is no indication in the record as to why this was done. It also contends that Respondent attributed this patient's continued pain in the right leg to the L3/L4 level, and the performance of a PLD at that level without further diagnostic studies was a failure to practice medicine within standards. Dr. Abram also concluded that in light of the above, the Respondent's medical records for this patient, in failing to reflect the justification and appropriateness of his treatment of the patient, were inadequate. It would again appear that Petitioner has not given a complete reading to Respondent's medical records for this patient. His notes regarding the visits the patient made to the office reveal the patient was complaining of pain in the neck, shoulder and arms on both sides and indicate Respondent's concern that the patient might need surgery at L4/L5 as well as at L5/S1, and consent forms were obtained from the patient relating to both areas. An additional claim of Respondent's misconduct is made in regard to the Respondent's failure to do additional diagnostic studies before performing the PLD at L3/L4. However, Respondent contends that, contra to the importance placed on ancillary tests, he considers clinical examination of the patient and the patient's history as more significant. This position would appear to be supported by the testimony of Dr. Hopkins who opined that where, after a surgery has been done, if the patient is able to describe his or her condition, and nothing happened in the interim to cause the doctor to suspect any other problems, he would proceed without subjecting the patient to additional diagnostic procedures. All matters being considered, this would appear to be the more conservative approach. AS TO THE PATIENT P.H. Respondent first saw Patient P.H. in January, 1989 at which time he ordered an MRI be done which was interpreted as showing disc degeneration at L5/S1. When this was considered along with the patient's history, going back to 1970, of two disc removals, three spinal fusions and a laminectomy without relief, Respondent concluded a less conservative approach was demanded. Thereafter, on January 30, 1989, Respondent performed both a PLD and a PLF on this patient at L3/L4. No evidence was presented to clarify the apparent level discrepancy. The medical records indicate that after this surgery, Respondent prescribed Keflex, an antibiotic, and Colchicine, a gout treatment, for the patient. According to Dr. Abram, neither medication is justified in the medical records. The use of an antibiotic after surgery is not at all unusual nor inappropriate, however, especially in light of the fact that the surgery was done on an outpatient basis and the patient did not remain in the hospital, under observation, for a period of recuperation after the procedure. As to the Colchicine, a careful examination of the records pertaining to this patient reveals that a prior administration of the substance was indicated, and even Dr. Abram admitted that this drug could properly be used to treat back pain. The use of neither substance, therefore, was inappropriate. One year later, the patient again came to Respondent complaining of foot paralysis, and on February 1, 1990, Respondent performed a PLD on the patient at L4/L5. Twenty days later, on February 20, 1990, Respondent performed a repeat PLD on the patient at L4/L5. In the interim between the February 1 and February 20 procedures, notwithstanding Petitioner's contention that Respondent did not perform any diagnostic studies to determine whether further surgical intervention was necessary, the records indicate Respondent had clinical testing of the patient done on February 7, 1990, and a Physical Assessment Test was conducted which showed several anomalies which Respondent correlated to the MRI findings. Petitioner also claims that surgery at the L4/L5 disc space cannot treat the L5 nerve root compression that Respondent's tests showed in this patient. Both Dr. Bonati and Dr. Gristina agree, however, that the surgeon can reach the L5 nerve root from the L4/L5 disc space. This opinion by Dr. Gristina would apply equally as well to arthroscopic surgery as practiced by Respondent as to the more classical and conservative open procedures more widely done. Respondent billed the patient for all three surgeries performed. Evidence introduced at hearing, in the form of the opinion testimony of Dr. Abram, would seem to indicate surgery was not appropriate for this condition, and that the performing of the three surgeries was exploitation of the patient for financial gain. He also is of the opinion that the medical records fail to justify the course of treatment the Respondent rendered this patient. However, the evidence of record tends to indicate that a second surgery at a place where surgery has already been done is not unusual. Symptoms can recur and problems, thought to be resolved, can again surface. The evidence indicates that this patient had very little relief from discomfort and, in fact, the symptoms persisted for three weeks after the initial surgery. When results obtained from surgery do not produce an expected change in the patient's symptomology, Dr. Gristina concludes it is logical to again operate at any time after a procedure has been done. AS TO THE PATIENT M.M. Respondent first saw patient M.M. in July 1990 for symptoms of a back injury which he attributed to the S/1 nerve root and which had been present for over one year. The patient history for this patient reveals that she had approximately fifteen months without relief from pain before seeing Respondent and indicate that after Respondent had treated her for a week to ten days, the symptoms changed which caused Respondent to then attribute the cause to the L5 nerve root. An MRI showed a 4 mm bulge at L4/L5, and on September 6, 1990, Respondent performed both a PLD and a PLF at L4/L5. More than six months later, on May 7, 1991, M.M. went to Dr. Zubillaga, a Board certified neurologist, for treatment of pain running from the head to the sacrum. Dr. Zubillage took a complete patient history and reviewed the MRIs which had been taken by or for the Respondent. His examination indicated to him that no surgical intervention was indicated, and he recommended a more conservative treatment including stretching exercises and physical therapy. Dr. Abram concluded that Respondent's medical records for this patient contain inconsistencies in the examination and diagnostic tests. The patient's symptoms and the findings of diagnostic imaging should match up before the patient is offered surgical treatment. In the instant case, the records indicate a strength deficit of 26 percent at S1 and an L5 deficit of 16 percent, yet the treatment is directed against the L5 nerve root, even though the initial impression is that it was the S1 nerve root that was compressed, and Dr. Abram is of the opinion that is below the acceptable standard of care. Unexplained, it well may be. AS TO THE PATIENT D.R. On or about July 18, 1990, Dr. Bonati performed both a PLD and a PLF at L5/S1 on this patient for back and leg pain but the patient failed to improve after the surgery. Thereafter, on October 24, 1990, Respondent performed both a PLD and a PLF on the patient at L4/L5. Still later, on March 13, 1991, the patient saw Dr. Thomas Freeman, a Board certified neurological surgeon, who reviewed the patient's medical records, the discogram and the two MRI scans which had been done by Respondent both before and after the July 18, 1990 surgery, none of which showed an extruded disc. By the same token, a previous MRI done by a prior treating physician, Dr. Feldman, failed to disclose it as well. According to Dr. Freeman, the two MRI's done by Respondent were essentially identical with no change in the patient's condition following the surgery. Based on his examination of the patient, Dr. Freeman diagnosed the patient as having a large extruded disc at L5/S1 which, he claims, was shown in the MRI's taken by the Respondent. The evidence is in conflict on that point, however. It is Dr. Freeman's professional opinion that extruded discs are normally very difficult to remove by a percutaneous procedure. In fact, Respondent's own publications indicate that a percutaneous procedure is contraindicated in the case of an extruded disc. As a result of his evaluation, Dr. Freeman subsequently performed open back surgery on this patient removing the discs at L4/L5 left and at L5/S1 left and right. It is Dr. Abram's position that Respondent's failure to do an open procedure instead of a percutaneous procedure in this case, especially after the first procedure was unsuccessful, was below acceptable standard. It would appear, however, that none of the physicians who saw this patient were able to make a positive determination that there was an extruded disc. There is a difference between an extruded disc which is still in contact with the annulus and one which has broken free from the annulus and extruded through the posterior longitudinal ligament to enter the spinal canal. It is this latter situation which Respondent's writings denote as contraindication to a percutaneous procedure. The disc had not extruded in the instant case and, therefore, a percutaneous procedure was not necessarily contraindicated. Dr. Abram also asserts that Respondent's medical records for this patient contain a discrepancy between the admissions form and the general rule regarding the gravity and location of the patient's pain, which, he claims, is considered below standard. In fact, the admission form is set up so that the patient can describe the current severity of the leg pain and the back pain independently of each other. It does not attempt to compare them. AS TO THE PATIENT L.Q. Sometime between January and April, 1990, the patient, L.Q. saw Respondent complaining of pain in the neck and arm. Respondent took an MRI of the patient which indicated a grade I impression of the thecal space at both the C4/C5 and the C5/C6 levels. Even though Respondent's own publications regarding the PCD suggest that a grade I impression does not require surgery, Respondent recommended the patient undergo a PCD at C4/C5. Before agreeing to the surgery, however, on April 30, 1990, prior to what was described as the onset of significant pain compromising the 5th nerve root, the patient went to see Dr. Michael Slomka, a Board certified orthopedic surgeon who, without an MRI or CT scan, upon examination, found a normal neurological evaluation and a normal cervical spine x-ray. Based on his findings Dr. Slomka saw no basis for surgery and recommended a program of activity and rehabilitation for the patient. Thereafter, however, the patient returned to Respondent on May 14, 1990 and Respondent did a PCD at C4/C5. While Petitioner claims there was no justification shown for the surgery completed in this case, there is evidence in the patient records that the patient underwent an extended period of constant pain in the shoulder, injections into the shoulder by another physician prior to the visit to Respondent, continued medication for the discomfort claimed, and other symptoms and discomfort in an area consistent with the diagnosis, which were supported by a physical assessment test and consistent with the MRI. These factors may well justify surgery when all else has failed. The Petitioner asserts that Respondent's medical records do not reflect justification for the surgical intervention, but the above information disputes that conclusion. AS TO THE PATIENT R.H. This patient was seen by Respondent several times between July, 1991 and April, 1992 for treatment for neck and shoulder pain. An MRI of the patient ordered by the Respondent was interpreted by him as showing a grade I impression at both C3/C4 and C4/C5, and a grade II impression at C5/C6. On December 4, 1991. Respondent did a PCD on this patient at C5/C6, but the medical records maintained by Respondent on the patient show no improvement following the surgery. The Respondent's medical records relating to this surgery do not reflect he had any discussion with the patient before surgery about the risks or benefits of surgery, the anticipated outcome or alternative treatment options. On May 30, 1992, the patient went to see Dr. Michael Piazza, a Board certified orthopedic surgeon who also took an MRI of the patient. This scan revealed very mild degenerative disc disease at C5/C6 without any evidence of disc herniation or other operable lesion. He could see no indication for or reason to do surgery on the patient. The patient was 54 years old when she was seen by Dr. Piazza. The doctor indicated that approximately 90 percent of the adult population have as much arthritis in the neck by that age as does this patient. Therefore, he recommended non-operative treatment, including therapy, and the patient's condition improved markedly with this regimen. Here again the Respondent contends that Petitioner draws a misleading conclusion from the evidence and attempts to minimize the severity of the patient's long-term complaints of pain, failed conservative treatment and disc bulge which is attributed to arthritis. Respondent also contends that the use of a minimally invasive percutaneous procedure was appropriate in light of the circumstances, especially in light of the fact that there was a four month hiatus between the cited entries in the medical records. These contentions by Respondent are supported by the testimony of his experts. Respondent's records regarding this patient, are less than appropriate, however. They reflect the patient had full range of shoulder motion, albeit with pain, but also contain a diagnosis of frozen shoulder and capsulitis. This would indicate a marked reduction in the patient's range of shoulder motion. The records also indicate a degenerative labral tear in the biceps tendon, but there was no such tear indicated on the MRI. This tear was, however, located by Respondent through a diagnostic arthroscopy. In Dr. Abram's opinion, these inconsistencies rendered the records below acceptable standard. AS TO THE PATIENT O.J.P. This patient was seen at the Respondent's clinic, by Dr. Merken, on April 14, 1992, for an evaluation of the patient's strength related to the neck. The doctor's opinion was that the patient's neck strength was normal though, even as Dr. Abram admits, he found abnormalities of the neck resulting in painful flexion, lateralization and extension. Several days later, the patient underwent several MRIs which covered the left shoulder and the cervical and lumbar spine in which Respondent saw bulges of 2 mm, 3 mm, and 4 mm in the lumbar spine. When, on May 12, 1992, the Respondent discussed the results of the MRI's with the patient he noted a significant weakness in the patient which had not been noted by Dr. Merken earlier. Even though the patient's medical record does not reflect any long-standing weakness or participation in an extensive rehabilitative program, Respondent nonetheless recommended the patient undergo a PCD at C6/C7 left and a PLD at L4/L5 left. The surgery was not done, however. Instead, on July 16, 1992, the patient went to see Dr. Glen Barden, a Board certified orthopedic surgeon, because of persisting neck and back pain. Dr. Barden did an examination of the patient and reviewed Respondent's medical records on her. Dr. Barden's diagnosis was that the patient exhibited mild symptoms of disc disease without neurological deficits. He concluded that surgery was not needed or appropriate for the condition at that time but recognized that surgical intervention to the neck might be required. In fact, Dr. Barden's records show he found " cervical intervertebral disc disease, moderately severe, involving C4-5, C5-6. C6-7 and C7-T1, as well as degenerative lumbar disc disease", among other problems, all of which, Dr. Barden admits, can cause pain and restriction of motion without a neurological deficit. As such, surgery can be justified even where there is no neurological deficit. Notwithstanding Petitioner claims the medical records kept by Respondent on this patient did not reflect any long-standing weakness or conservative care, the patient history clearly reflects numerous complaints of pain and limitations on movement following a 1978 car accident. In addition, the records reflect the patient had been taking medication and received chiropractic treatment in addition to the physical therapy prescribed by Respondent prior to surgery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaints in DOAH Cases 94-1866 and 94-1867, except for Counts Six and Fifteen of Complaint 94-1867, of which Respondent, ALFRED O. BONATI, should be found guilty, be dismissed, and that his license be reprimanded. RECOMMENDED this 21st day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 94-1866 AND 94-1867 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 7. Accepted and incorporated herein with the addition, as to #7, of the phrase, "in the U.S." 9. - 8. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. & 15. Accepted. 16. & 17. Accepted. 18. - 21. Accepted. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Rejected as not proven. 27. - 29. Accepted. 30. - 35. Accepted and incorporated herein. 36. - 38. Rejected as not proven by clear and convincing evidence. 39. Rejected except for last sentence which is accepted. 40. Accepted. 41. & 42. Rejected as not proven. 43. - 53. Accepted and incorporated herein. 54. Accepted that surgery was done, but not for the purpose stated. 55. Accepted and incorporated herein. 56. Accepted and incorporated herein. 57. - 62. Rejected as not proven. 63. Rejected as not proven. 64. Accepted as to what record states, but rejected as to the lack of a complaint on the right side, as contra to the weight of the evidence. 65. Rejected as not proven. 66. - 68. Accepted but considered of little probative value. 69. Accepted. 70. & 71. Rejected as not proven. 72. & 73. Accepted and incorporated herein. 74. & 75. Accepted and incorporated herein. 76. - 80. Accepted and incorporated herein. 81. - 84. Rejected as not proven. 85. Accepted. 86. - 92. Rejected as not proven. 93. Accepted. 94. - 97. Rejected as not proven, and 97 is duplicative of 84 and 84. 98. - 104. Accepted and incorporated herein. 105. - 109. Rejected as not proven. 110. Accepted and incorporated herein. 111. Rejected as unproven. 112. & 113. Accepted and incorporated herein. 114. Rejected as unproven. 115. - 117. Accepted. 118. & 119. Rejected as unproven. 120. Accepted. 121. Rejected as unproven. 122. - 128. Accepted and incorporated herein. 129. - 132. Rejected as unproven. 133. Accepted. 134. & 135. Rejected as unproven. 136. - 148. Accepted and incorporated herein. 149. - 152. Rejected as unproven. 153. - 159. Accepted, but 158 is duplicative of 146 160. & 161. Rejected as unproven. 162. - 168. Accepted and incorporated herein. 169. Rejected as unproven. 170. Accepted and incorporated herein. 171. - 175. Rejected as unproven. 176. Accepted. 177. & 178. Rejected as unproven. 179. - 191. Accepted and incorporated herein. 192. - 194. Rejected as unproven. 195. Accepted. 196. & 197. Rejected as unproven. 198. - 208. Accepted and incorporated herein. 209. - 211. Rejected as unproven. 212. Accepted. 213. Rejected as unproven. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. & 10. Accepted. 11. & 12. Accepted. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. & 20. Accepted. 21. - 23. Accepted and incorporated herein. 24. Accepted. 25. First sentence accepted. Second sentence not proven. 26. & 27. Accepted. 28. Accepted and incorporated herein. 29. Accepted. 30. - 32. Accepted. 33. Accepted. 34. & 35. Accepted since the contrary was not proven. 36. Accepted as represented. 37. Accepted since the contrary was not proven. 38. Accepted that the treatment and records were within standards. COPIES FURNISHED: Britt Thomas, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathan W. Lubell, Esquire 750 Lexington Avenue New York, New York 10022 Salvatore A. Carpino, Esquire 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 Jerome W. Hoffman General Counsel Agency for health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint December 19, 2005, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See § 455.225, Fla. Stat. (2009). The Board is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See § 458.331(2), Fla. Stat. (2009). At the times pertinent to this proceeding, Dr. Achong was a physician licensed by the State of Florida, having been issued license number ME38304, and his medical office was located at 690 East 49th Street, Hialeah, Florida. Dr. Achong specialized in obstetrics and gynecology, although he was not board-certified in these areas of practice. Dr. Achong has not previously been the subject of disciplinary action by the Board of Medicine, and he is not currently practicing medicine, having retired with a disability in 2006. At the times pertinent to this proceeding, Dr. Achong had hospital privileges at Hialeah Hospital and at North Shore Medical Center ("Medical Center"). Both facilities had his home telephone number and his beeper number. It was his practice to keep his beeper close to him at all times. When he was in the delivery room, it was his practice to give his beeper to the circulating nurse, who would be responsible for alerting him whenever someone tried to reach him on his beeper. The beeper he used in 2004 gave only the telephone number of the person trying to reach him, but he was able to recognize the number of Hialeah Hospital and the Medical Center. On February 12, 2004, Patient L.H. went to her gynecologist, Ramon Hechavarria, M.D., for a routine examination. Patient L.H. was, at the time, a 27-year-old who was 32 weeks' pregnant, and she had previously had one live birth. Dr. Hechavarria's examination revealed that Patient L.H.'s blood pressure was elevated, and Dr. Hechavarria admitted her to Medical Center for 24 hours for observation. On February 12, 2004, Dr. Hechavarria ordered blood and laboratory tests done in the Medical Center. The blood tests included a Disseminated Intravascular Coagulopathy ("DIC") profile and a Fibrinogen Degradation Profile ("FDP"); the results of these blood tests were normal. Patient L.H.'s hemoglobin and her platelet count were normal, and, although there was a slight trace of protein in her urine, that is considered normal. On February 13, 2004, Dr. Hechavarria discharged Patient L.H. with a diagnosis of chronic hypertension and a prescription for 250 milligram tablets of Aldomet, to be taken three times per day. Aldomet is a medication that treats hypertension by lowering the blood pressure. Patient L.H. was in good, stable condition when she was discharged on February 13, 2004. Readings from a fetal heart monitor taken during the time Patient L.H. was in the Medical Center indicated that the fetus was alive. Dr. Hechavarria considered Patient L.H.'s to be a high risk pregnancy in part because of her hypertension but also because she came in late for prenatal care, missed two appointments, and was overweight. Dr. Hechavarria left town for a vacation on February 13, 2004, and Dr. Achong was to cover his patients during his absence under an arrangement whereby Dr. Hechavarria and Dr. Achong provided coverage for each other when one or the other was out of town or otherwise unavailable to see patients. Under the arrangement, Dr. Achong was expected to go to the hospital if one of Dr. Hechavarria's patients were in labor or if a patient were to go to the emergency room complaining of vaginal bleeding or any other obstetrical or gynecological condition. Whenever coverage of patients was passing from one physician to the other, Dr. Hechavarria and Dr. Achong advised each other of any patient that was in the hospital for gynecological, obstetrical, or any other medical reason. They did not advise each other of patients that had recently been discharged from the hospital, and, therefore, Dr. Hechavarria did not discuss Patient L.H. with Dr. Achong because she had been discharged from the Medical Center before Dr. Achong began covering Dr. Hechavarria's patients. Patient L.H. presented at the Medical Center at approximately 2:00 a.m. on February 15, 2004, complaining of abdominal pains. She was seen by labor and delivery nurse Jennifer Williams, a registered nurse with 20 years' nursing experience, with 13 years' experience in the Medical Center's labor room, and with training as a mid-wife. Nurse Williams had worked with Dr. Achong at the Medical Center since 1991. Subsequent to Patient L.H.'s arrival at the Medical Center, Nurse Williams interviewed her, took her medical history, examined her, and entered the pertinent information on the Medical Center's Admission Assessment. The Admission Assessment form was dated February 15, 2004, and the time was noted as 2:45 a.m. The time written by Nurse Williams' signature on the Admission Assessment form was 3:00 a.m., and it appears that the information was obtained and entered on the form between 2:00 a.m. and 3:00 a.m. Pertinent to this matter, Nurse Williams maintained several other documents recording Patient L.H.'s condition and observations and actions taken by Nurse Williams relating to Patient L.H. Nurse Williams began maintaining a Labor Flow Record at 2:07 a.m. and she made periodic entries on the Labor Flow Record related to, among other things, Patient L.H.'s vital signs, the results of vaginal examinations and fetal monitoring, uterine activity, and pain intensity at different times during the night and morning. In addition, Nurse Williams entered on the Labor Flow Record the time and content of her communications with Dr. Achong; the first recorded contact between Dr. Achong and Nurse Williams was recorded on the Labor Flow Record as 2:30 a.m. Nurse Williams also maintained Progress Notes in which she recorded her observations of Patient L.H. and her conversations with Patient L.H. The first entry in the Progress Notes was at 2:35 a.m.2 Nurse Williams' Progress Notes reflect that, at 2:35 a.m., Patient L.H. advised Nurse Williams that she had contractions and believed she had been in labor since 6:00 p.m. the previous evening but had waited to come to the Medical Center until she was certain she was in labor. Patient L.H. also reported abdominal pain in her upper abdomen that did "not go away," and Nurse Williams observed that Patient L.H. was distressed by the pain in her abdomen. Patient L.H. also told Nurse Williams that she had no ruptured membranes or vaginal bleeding. Nurse Williams noted that she examined Patient L.H. and felt contractions but was unable to detect a fetal heart tone. Nurse Williams reported in the Admission Assessment form that Patient L.H. was having uterine contractions of moderate intensity and 60 seconds' duration, that her cervix was dilated 1-to-2 centimeters, that she had vaginal bleeding that was bright red, that her blood pressure was 159/118, which she described as "elevated," and that Patient L.H.'s abdominal pain was the "worse" pain on a pain scale ranging from 1 to 10; there is, however, no indication on the Admission Assessment form that the pain was constant. Nurse Williams also noted on the Admission Assessment form that she heard no fetal heart rate. Although the time noted on the Admission Assessment form was 2:45 a.m., it is apparent from a review of the relevant records that the information included on the Admission Assessment form was obtained by Nurse Williams over a period of time extending from the time Patient L.H. presented to her until 3:00 a.m., the time on the Admission Assessment form beside Nurse Williams' signature. Nurse Williams reported in the "Physician /CNM in/Called Report" section of the Labor Flow Record that she contacted Dr. Achong at 2:30 a.m. and conveyed to him the following information: "[P]atient arrived in ER c/o contractions since 6 pm last night & observation that no FHT [fetal heart tone] and contractions palpated." Nurse Williams telephoned Dr. Achong using his home telephone, even though his beeper number was also on file at the Medical Center. There is nothing in the report Nurse Williams gave to Dr. Achong at 2:30 a.m. that would require that he proceed to the Medical Center and examine Patient L.H., and he did not violate the standard of care by failing to do so. Because Dr. Achong did not know Patient L.H., Nurse Williams' normal procedure would have been to advise Dr. Achong of Patient L.H.'s history, including the medications she was taking, and her vital signs, including her blood pressure. No notation appears in the Labor Flow Record to confirm that she gave Dr. Achong this information during her conversation with him at 2:30 a.m., nor is there a notation in the 2:30 a.m. entry in the Labor Flow Record that Nurse Williams told Dr. Achong about the results of her examination of Patient L.H.'s cervix, Patient L.H.'s complaint of abdominal pain, or the presence of vaginal bleeding of bright red blood.3 Nurse Williams indicated in her entry in the "Physician/CNM in/Called Report" section of the Labor Flow Record that Dr. Achong ordered a "stat," or expedited, obstetrical sonogram during the 2:30 a.m. contact with Nurse Williams. The purpose of the obstetrical sonogram was to determine if the fetus was alive. Although not noted in the Labor Flow Record, the Labor and Delivery Orders form completed by Nurse Williams indicates that, at 2:30 a.m., Dr. Achong ordered a complete blood count, which is routine with a patient in labor; a DIC profile; and a Comprehensive Metabolic Panel ("CMP"). The Labor and Delivery Orders form contains standard orders for a woman in labor, but the DIC profile and the CMP tests were not included on the form but were ordered specifically by Dr. Achong. A DIC profile is used to determine if a patient has a problem with blood clotting. The DIC includes an assessment of prothrombin time and partial thromboplastin time, both of which indicate different levels at which a patient's blood is able to clot. It is important to know whether a woman in labor and delivery has a clotting problem, or coagulopathy, because of the danger of bleeding, and the classic situation in which DIC profiles are ordered is when there is fetal demise. Because Patient L.H. had the high risk factors of overweight and hypertension and because Nurse Williams could detect no fetal heart tone, Dr. Achong's order for the DIC profile was appropriate and met the standard of care. It is also appropriate to order a DIC profile when there is a concern about placental abruption, which is the separation of the placenta from the walls of the vagina. A placental abruption causes a great deal of bleeding, and can cause death when not treated, because the fetus is still in the womb and the uterus is not able to contract and constrict the large blood vessels that attach to the placenta. Although hypertension is one risk factor for placental abruption, the symptoms of placental abruption also include fetal demise, bleeding, constant pain, a decrease in hematocrit, and a number of other conditions. There is no indication in Patient L.H.'s medical records that Dr. Achong had sufficient information at 2:30 a.m. that would indicate that Patient L.H. had a possible placental abruption, and he ordered the DIC profile because of the lack of fetal heart tones.4 The CMP includes tests for kidney and liver function and for uric acid. It is used to determine if a woman has pre-eclampsia, or pregnancy-induced hypertension. Given Patient L.H.'s history of hypertension and the level of her blood pressure as reflected in the Admission Assessment form, Dr. Achong's order for the CMP was appropriate and met the standard of care in ordering the CMP. All orders for blood tests for women in labor and delivery are treated as "stat" orders and are processed ahead of all other test orders except those from the emergency room. When the situation warrants, a physician may order that the tests be performed more quickly than the usual "stat" order would require, and it would be possible to obtain blood-test results within 45 minutes. There is, however, no indication in Patient L.H.'s medical records that Dr. Achong had any information at 2:30 a.m. that might indicate that he should further expedite Patient L.H.'s blood tests. Nurse Williams reported in her Progress Notes that, at 2:40 a.m., Patient L.H. reported a "gush of something down there," and Nurse Williams noted that she observed a large amount of blood; there is, however, no notation in the Progress Notes regarding the color of the blood. Nurse Williams also included a notation in the Progress Notes that Patient L.H.'s cervix was "3cm dilated, 50% effaced, -3 station" to describe the progress of Patient L.H.'s labor. Nurse Williams reported in the Labor Flow Record that she contacted Dr. Achong at 2:45 a.m. and conveyed to him the following information: "Dr. Achong notified of gush of vaginal bleeding. VE [vaginal examination] 2-3, 50% effaced, -3 station and that we are awaiting sonogram." The results of Nurse Williams' vaginal examination of Patient L.H. showed that Patient L.H. was in active labor. The information that Patient L.H. experienced a "gush of vaginal bleeding" did not indicate to Dr. Achong that there was anything more than one episode of bleeding, which he attributed to an especially heavy "bloody show," which is the bleeding that occurs when the cervix is dilating. The notation indicates that Dr. Achong told Nurse Williams to call him if Patient L.H. went to delivery. The information conveyed to Dr. Achong at 2:45 a.m., as reflected in the notation in the Labor Flow Record, was not sufficient to indicate that Patient L.H. was not proceeding through labor normally to a vaginal delivery of the dead fetus, which is preferred over delivery by a Cesarean Section. Nurse Williams did not include in her records a notation that she advised Dr. Achong that the "gush of vaginal bleeding" consisted of a large amount of bright red blood, which would have been an indication of a possible placental abruption. Some bleeding is normal during labor, but it is usually a dark color from having been in the uterus and in a small amount or tickle, although there could be a "gush of blood" during normal labor. When Dr. Achong was advised by Nurse Williams that Patient L.H. had a "gush of blood," however, it was his responsibility to inquire into the amount of blood, the color of the blood, and the persistency of the bleeding to determine if Patient L.H. was proceeding with normal labor or if she was experiencing a hemorrhage or other abnormal condition. Nurse Williams made no entries in the Progress Notes for Patient L.H. between 2:40 a.m. and 3:40 a.m., when she reported that the ultrasound had been completed. She further noted in her Progress Notes: "Report of no fetal heart tones to Dr. Achong. Orders given." Nurse Williams additionally made a notation in the Labor Flow Record that, at 3:40 a.m., she contacted Dr. Achong and reported to him the following: "Ultrasound report No FHT's given to Dr. Achong. Orders received." Nurse Williams did not, however, indicate in her notations what orders were given. Nurse Williams contacted Dr. Achong through his home telephone number, which was normal procedure during the nighttime hours. When the sonographer, that is, the person performing the sonogram, entered Patient L.H.'s room to perform the sonogram, he noted that Patient L.H. was sitting upright in bed, was combative, and was in a lot of pain. He also noted that there was a fair amount of blood on the bed sheets. The sonographer was able to get Patient L.H. to lie on the bed, and he performed "a very short ultrasound,"5 and pulled the machine out of the room and into the hall. He powered the machine back up and read the numbers off the worksheet on the machine. He confirmed that the fetus was dead and that the placenta appeared to be balled up rather than lying smoothly against the uterine wall, as is normal. While he was writing down the information from the worksheet on the machine, Nurse Williams approached him and told him that she had Dr. Achong on the telephone. He told her that he had "a placental abruption and fetal demise."6 He then wrote up his report, left a copy for Nurse Williams, and went downstairs to process the sonogram images.7 The results of the sonogram were reported on a form headed "Obstetrical Preliminary Report," which was completed by the sonographer. A radiologist is usually present at the Medical Center during daytime hours to read sonograms, but on the off-hours, it is the practice of the sonographer to present a sonographer's impression of what was seen during the sonogram. The sonographer who performed the sonogram on Patient L.H. noted on the report that her history included obesity, hypertension, heavy vaginal bleeding, and contractions. He included the following comments in the report: "Ant/Rt [unintelligible] placenta appears to be 'balled up[.]' Suggestion of placental abruption," and, on a separate line, "NO FETAL HEART MOTION SEEN PT IS COMBATIVE." Finally, at the bottom of the report, the sonographer noted that a copy of the report was given to Nurse Williams. There was no notation as to the time the sonographer gave the report to Nurse Williams, but, even if she had the report, she did not read it to Dr. Achong; rather, she put the copy of the report in Patient L.H.'s chart for Dr. Achong to review when he came to the hospital and gave him only a verbal report. Nurse Williams did not tell Dr. Achong during the 3:40 a.m. telephone conversation that the sonographer had reported a possible placental abruption.8 Dr. Achong was familiar with and had treated placental abruptions prior to February 15, 2004, and he always treated patients with placental abruptions on an emergency basis because both the mother and the baby could die if treatment was not received as soon as possible. Had Nurse Williams advised Dr. Achong that the sonographer had told her that he found a placental abruption or that the sonogram report included a reference to a possible placental abruption, he would have gone to the Medical Center immediately. At 3:45 a.m., Nurse Williams noted in her Progress Notes that she gave Patient L.H. Nubain and Phenergan for her painful contractions. There is no mention of continued vaginal bleeding in this entry in the Progress Notes. At 4:15 a.m., Nurse Williams noted in her progress notes that Patient L.H. was sleeping quietly and was relaxed and that Pitocin had been administered in accordance with Dr. Achong's orders. Pitocin is used to induce labor, augment labor, or to stop bleeding. In this case, Dr. Achong ordered the Pitocin to regulate Patient L.H.'s contractions. There is no mention in the 4:15 a.m. entry in the Progress Notes of continued vaginal bleeding. The next entry in Nurse Williams' Progress Notes was made at 5:15 a.m., when Nurse Williams reported that she had observed vaginal bleeding, that a vaginal examination showed dilation of four centimeters, and that Patient L.H. was very restless and moving around the bed. Nurse Williams received the laboratory report showing the results of the blood tests ordered by Dr. Achong at or around 5:00 a.m. According to the laboratory report, the blood for these tests was drawn at or about 3:20 a.m.; the report did not show any critical values in the blood sample. Nurse Williams attempted to contact Dr. Achong to convey these results to him. She noted on the Labor Flow Record that, at 5:15 a.m. "Dr. Achong beeped re lab results. Phone message left on home phone to call LR [Labor Room]." Nurse Williams made another entry on the Labor Flow Record that, at 6:55 a.m., she left a "message to Dr. Achong answering machine at home re labor progress update and labs." Dr. Achong was not, however, at home to receive the telephone calls or the messages. At or about 5:00 a.m. on February 15, 2004, Dr. Achong received a telephone call on his home telephone from Hialeah Hospital advising him that one of his patients or one of Dr. Hechavarria's patients was in active labor and about to deliver. Shortly after receiving the telephone call, Dr. Achong left his home to travel to Hialeah Hospital. He carried his beeper with him, but he did not receive any calls on the beeper. When he arrived at Hialeah Hospital and prepared to go into the delivery room, he gave it to the circulating nurse in case he should receive a beeper call while he was in the delivery room. Nurse Hayes, who had replaced Nurse Williams when Nurse Williams' shift had ended at 7:00 a.m., made a notation on the Labor Flow Record that, at 7:15 a.m., she called Dr. Achong and left a message. At 7:25 a.m., while he was in the delivery room, Nurse Hayes called his beeper. The circulating nurse had his beeper, and she notified him that he had received a call and told him the number. He recognized the number of the Medical Center, and he told the nurse to call the Medical Center and let them know that he was in the delivery room at Hialeah Hospital. Nurse Hayes asked that he call back as soon as possible. Blood for additional blood tests was drawn at or about 7:30 a.m., and the results, which were available within 15 minutes, showed several critical values that indicated that Patient L.H. was entering coagulopathy. At 7:38 a.m., as soon as he finished the delivery, he called the Medical Center and spoke with Nurse Hayes, who gave him a report on the status of Patient L.H. She told him that Patient L.H. had heavy bleeding and that the vaginal examination showed no change in the cervix. Dr. Achong ordered the Pitocin turned off. When Dr. Achong arrived at the Medical Center at 7:56 a.m., he found Patient L.H. very combative, bleeding, and with very bad vital signs. He ordered a "stat" Cesarean Section and ordered a blood transfusion. Patient L.H. died at 8:38 a.m., before any of the measures ordered by Dr. Achong could be implemented. The cause of death was recorded as placental abruption. Summary In summary, the evidence presented by the Department is not of sufficient weight to establish that Nurse Williams conveyed to Dr. Achong the information necessary for him to conclude that he should personally conduct a clinical evaluation of Patient L.H.; that he should consider the possibility that Patient L.H. had placental abruption; or that he should have provided medical assistance to Patient L.H. prior to his contact with Nurse Hayes at 7:38 a.m. Nurse Williams' Progress Notes report only two remarkable items: There were no fetal heart tones detected by physical examination or by sonogram; and, at 2:40 a.m., Patient L.H. reported a "gush of something" and Nurse Williams observed a large amount of blood. Neither Nurse Williams' entries in the Labor Flow Record regarding her contacts with Dr. Achong nor her testimony, to the extent that it has been found persuasive, is sufficient to establish that she advised Dr. Achong that she had observed a large amount of red blood at 2:40 a.m. or that the sonographer detected a possible placental abruption in the sonogram. Finally, Nurse Williams did not follow the protocol that required her to contact Dr. Achong through his beeper when she did not get an answer on his home telephone; she tried his beeper only once, at 5:15 a.m., and when she failed to reach him, left three messages on his home telephone. The Department presented no evidence to establish that Nurse Williams attempted to reach Dr. Achong by beeper between 5:15 a.m. and 7:55 a.m., the time of her last call to Dr. Achong's home telephone. Furthermore, the Department did not present evidence of sufficient weight to establish that Dr. Achong failed to initiate the appropriate procedures after he arrived at the Medical Center and examined Patient L.H. at or around 8:00 a.m. The evidence presented by the Department is, however, of sufficient weight to establish that Dr. Achong should have questioned Nurse Williams further when she advised him at 2:45 a.m. that she had observed a "gush" of vaginal bleeding. Even though vaginal bleeding may not be not unusual during labor, a report of a "gush" of blood should have alerted Dr. Achong to a potential problem. Although a physician practicing obstetrics is meeting the standard of care when relying on labor room nurses to advise him or her of the clinical status of labor and delivery patients and of any unusual symptoms exhibited by the patients, it is also incumbent on the physician to inquire further if a patient is presenting unusual symptoms. The persuasive evidence establishes that Dr. Achong violated the standard of care when he failed to ask Nurse Williams for additional information on Patient L.H.'s status during their 2:45 a.m. telephone conversation. Had he inquired further, Dr. Achong would have been alerted to the possibility that Patient L.H. had a placental abruption and would have gone to the hospital to provide appropriate care for Patient L.H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order finding that Dr. Achong violated Section 458.331(1)(t), Florida Statutes, by failing to elicit further information from Nurse Williams regarding the gush of blood she observed in Patient L.H and imposing the following penalties: Issuance of a letter of reprimand; Imposition of administrative fine in the amount of $2,500.00; and Six months' probation under such conditions as the Board of Medicine determines appropriate, should Dr. Achong ever resume the practice of medicine. DONE AND ENTERED this 4th day of January, 2010, in Tallahassee, Leon County, Florida. PATRICIA M. HART 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 4th day of January, 2010.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against a licensed medical doctor. By means of a two-count Administrative Complaint, the Respondent is charged with violations of Sections 458.331(1)(m) and 458.331(1)(t), Florida Statutes, by allegedly failing to keep written medical records justifying the course of treatment of a patient, and by failing to practice medicine with the required level of care, skill, and treatment. The Respondent denies the violations charged in the Administrative Complaint, and also asserts that the Administrative Complaint should be dismissed by reason of the Petitioner's failure to timely investigate and prosecute the subject charges.
Findings Of Fact Findings stipulated by the parties4 The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida. The patient R. C. presented with a history of diabetes and hypertension. The Respondent did not attempt or make any contact with the primary care physician of patient R. C. Brevital was administered intravenously to the patient R. C. without the use of an IV pump. Resuscitative drugs and equipment should always be immediately available. There is no documentation of respiratory monitoring during the administration of anesthetics and the surgical procedure performed on patient R. C. It is well below the standard of care to both administer a general anesthesia and perform the surgical procedure. Findings based on evidence At all times material, the Respondent has specialized in urology. The Respondent is not board certified in urology. At all times material to this case, the Respondent was associated with a clinic named Instituto Latino Americano de Impotencia y Diagnostico (ILAID). One or two days each week, the Respondent would see patients at ILAID that were potential candidates for penile implant surgery. At all times material to this case there were at least two other licensed physicians associated with ILAID who often were the first physicians to see patients who came to ILAID with complaints of impotency. The subject patient (Patient R. C.) went to ILAID for the first time on May 24, 1993. On that day the patient signed a form titled "Patient Information," which contains little more than patient identification information, and a form titled "Patient's Declaration and Agreement."5 The patient probably saw a physician at ILAID on May 24, 1993, because a blood sample was taken from the patient that day and the results of the blood tests were reported back to ILAID on May 25, 1993. However, there is no documentation that the patient was seen by a physician at ILAID on May 24, 1993. Specifically, there is no medical chart documenting that on that day a physician took a history from the patient, examined the patient, evaluated the patient, ordered any tests of the patient, or otherwise treated or cared for the patient. At all times material to this case, the routine practice and procedure of ILAID regarding patients who went to ILAID with complaints of impotency was to have the patients seen by a physician associated with ILAID. It was also the routine practice and procedure at ILAID for the physician who first saw the patient to prepare a-medical record documenting the patient's visit. Such a medical record would routinely document a patient history, an examination of the patient, the physician's evaluation of the patient, and any treatments given or tests ordered by the physician. The impotency patients at ILAID were also routinely put through an evaluation procedure to determine the extent of and the nature of their impotency before implant surgery was recommended or performed. The results of the evaluation procedure were also routinely documented in the patient's medical chart. The Respondent first saw the subject patient on July 13, 1993, at the ILAID facility. On that date there were no patient records regarding the subject patient prepared by any other physician associated with ILAID for the Respondent to review. In the absence of any medical documentation, the Respondent apparently assumed that the patient had been through the normal routine at ILAID and proceeded to go forward on that assumption. On July 13, 1993, the Respondent took a brief, limited history from the patient and conducted a limited physical examination of the patient. The physical examination was limited to the patient's abdomen and urogenital area. Based on that limited history and examination, the Respondent concluded that penile implant surgery was an appropriate course of treatment, subject to the patient receiving medical clearance for the surgery. The Respondent did not perform any objective tests for impotence on the patient. The Respondent did not obtain a detailed medical history from the patient. The Respondent did not obtain a detailed history regarding the nature, extent, or duration of the patient's impotence. The Respondent did not conduct a complete physical examination of the patient. Prior to performing penile implant surgery, a physician should perform objective tests to determine if the surgery is indicated. Two objective tests that should always be performed are blood tests to determine the patient's testosterone level and prolactin level.6 Depending on the details elicited during the patient history, other objective tests may also be indicated. The Respondent failed to have tests done to determine the testosterone level and the prolactin level of the patient. The failure to perform these two objective tests is a departure from acceptable standards of medical care recognized by a reasonably prudent similar physician. Prior to performing penile implant surgery, a patient's condition must be assessed by a physician to determine whether surgery is indicated. The surgeon does not have to personally perform all aspects of the assessment of the patient's condition, but the surgeon must at least verify that an adequate assessment has been performed by another physician, and that the assessment has been documented in the patient's medical records. Adequate assessment of a patient's condition requires, at a minimum, a detailed medical history, a complete physical examination, and the performance of any objective tests indicated by the history and physical examination. The performance of surgery without either performing an adequate assessment of the patient's condition or verifying that such an assessment has been documented by another physician is a departure from acceptable standards of care recognized by a reasonably prudent similar physician. The Respondent did not obtain a detailed medical history from the patient, did not perform a complete physical examination of the patient, and failed to order at least two objective tests that were indicated by the patient's complaints. The Respondent also failed to verify that documentation existed which showed that any other physician had obtained a detailed medical history from the patient, had performed a complete physical examination of the patient, and had ordered the objective tests indicated by the patient's complaints. If the Respondent had attempted to verify the existence of such documentation, he would have discovered that the documentation did not exist. The Respondent's performance of surgery on the patient without performing an adequate assessment of the patient's condition, or without verifying that such an assessment had been documented by another physician, was a departure from acceptable standards of medical practice. The Respondent made arrangements for additional blood tests and for an EKG to be administered to the patient. The Respondent also believed that he had made arrangements for one of the other physicians at ILAID to medically clear the patient for surgery. Anticipating no problems regarding the medical clearance, the Respondent also contacted the director of ILAID, Rogelio Medel, and asked him to arrange a location for the implant surgery. In view of the patient's financial circumstances and his lack of medical insurance, it was decided that the surgery would be done in an operating room at a physician's clinic, which would be somewhat less expensive than performing the surgery in a hospital operating room. Rogelio Medel contacted Dr. Francisco A. Prado and arranged for the use of one of the operating rooms at Dr. Prado's clinic. Rogelio Medel had made similar arrangements with Dr. Prado twice before. The arrangement with Dr. Prado was that Dr. Prado would provide not only the use of the operating room, but would also provide all necessary supplies (including the anesthesia medications), as well as the services of a nurse anesthetist, Eduardo Perez, who worked for Dr. Prado on a regular basis. The surgery was scheduled for early in the afternoon on July 16, 1993. Unbeknownst to Rogelio Medel and to the Respondent, Eduardo Perez was not a licensed nurse anesthetist. The Respondent did not inquire of Eduardo Perez regarding the latter's qualifications or licensure status. Rather, relying on the representations of Dr. Prado, the Respondent assumed that Eduardo Perez possessed the necessary qualifications and licensure to function as a nurse anesthetist. While it is clear that Eduardo Perez was not licensed as a nurse anesthetist, there is no clear and convincing evidence in the record as to whether Eduardo Perez was or was not trained in the use of anesthetics, was or was not trained in the use of respiratory and cardiac monitoring equipment, or was or was not trained in the use of resuscitative drugs and equipment.7 The Respondent assumed that Eduardo Perez was trained in these matters, based on the assumption that Eduardo was a licensed nurse anesthetist. In view of the representations of Dr. Prado, it was reasonable for the Respondent to make that assumption.8 The Respondent was not trained in the techniques and procedures of advanced cardiac life support. The Respondent was not trained in the use of a defibrillator. The Respondent was not trained in the use of anesthetics. Prior to performing surgery on the subject patient, the Respondent had received a copy of the laboratory results dated July 16, 1993. He had also received a copy of the EKG report prepared by Dr. Freddie Rodriguez. Prior to performing the surgery, the Respondent had not received any written medical clearance for the patient to undergo the planned implant surgery. The Respondent never received any written medical clearance for the patient to undergo surgery, because the patient was never medically cleared. The Respondent did not receive any telephonic verification that the subject patient had been medically cleared for surgery, because no other physician had cleared the patient for surgery.9 Prior to performing surgery, it is the responsibility of the surgeon to verify that the patient has been medically cleared for the proposed surgery. Under similar conditions and circumstances, a reasonably prudent similar physician would not perform surgery without verification that the patient had been medically cleared for the proposed surgery. It is a departure from minimum standards of medical practice for a surgeon to perform surgery without such verification. Early in the afternoon on July 16, 1993, the Respondent performed penile implant surgery on the subject patient. The surgery was conducted in one of the operating rooms at Dr. Prado's clinic, as previously arranged with Dr. Prado. During the surgery the patient was anesthetized with the anesthetic agents Versed and Brevital. These anesthetic agents were administered by Eduardo Perez, who was functioning as a nurse anesthetist. Eduardo Perez was present during the entire surgical procedure, during which time he monitored the administration of the anesthetic agents, monitored the patient's vital signs, and otherwise performed the functions that would be performed by a nurse anesthetist. At all times material, the Respondent believed, based on the representations of Dr. Prado, that Eduardo Perez was a licensed and qualified nurse anesthetist who regularly worked in that capacity for Dr. Prado. When the surgical procedure had been completed, the Respondent left the patient in the care of Eduardo Perez while the Respondent left the operating room to change clothes. When the Respondent left the operating room the patient appeared to be normal. When the Respondent returned to the operating room a few minutes later, he noticed that the patient had become pale and sweaty. The Respondent also noticed that the patient had very little pulse or blood pressure. The Respondent and Eduardo Perez initiated cardiopulmonary resuscitation and also called fire rescue for assistance. The Respondent and Eduardo Perez continued their cardiopulmonary resuscitation efforts until the fire rescue personnel arrived a few minutes later. The fire rescue personnel initiated advanced cardiac life support measures and subsequently transported the patient to a hospital emergency room, where further efforts were made to resuscitate the patient. Shortly thereafter the patient was pronounced dead in the emergency room. Following an autopsy and investigation into the cause of death, the Dade County Medical Examiner was of the opinion that it could not be stated with any degree of medical certainty that the death of the subject patient was caused by the surgery. In order to have medical records sufficient to justify penile implant surgery, a physician must have written medical records that document at least the following matters: (a) a detailed patient history; (b) a complete physical examination of the patient; (c) a consideration of alternative therapy options; and (d) a pre-operative medical clearance. With regard to the subject patient, the Respondent does not have, and never did have, written medical records documenting any of the four matters itemized immediately above. By failing to keep written medical records documenting such matters with regard to the subject patient, the Respondent failed to keep records justifying the course of treatment of the patient.10
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case concluding that the Respondent has violated Sections 458.331(1)(t) and 458.331(1)(m), Florida Statutes, imposing a penalty consisting of the imposition of administrative fines totaling $6,000. 00, and the suspension of the Respondent's license to practice medicine for a period of 90 days. DONE AND ENTERED this 23rd Day of September, 1998, in Tallahassee, Leon County, Florid __________________________________ MICHAEL M. PARRISH 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 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1998.
The Issue The issue for determination in this case is whether Respondent's license to practice medicine should be revoked or otherwise disciplined for the alleged violations of Section 458.331(1), Florida Statutes, set forth in the Administrative Complaint.
Findings Of Fact Petitioner, Department of Health, is the state agency vested with the statutory authority to enforce the disciplinary standards for the practice of medicine under Chapters 455 and 458, Florida Statutes. Respondent, Lehel Kadosa, M.D., is, and at all material times was, a physician licensed to practice medicine in Florida, having been issued license no. ME 0041277. At all relevant times, Respondent was the owner and operator of the Tampa Bay Back Institute, 7208 North Sterling Avenue, Tampa, Florida. The business stationery of the Tampa Bay Back Institute stated that Respondent is "Board Certified" in "Neurological & Orthopedic Surgery," "Pain Management," and "Neurothermography." Respondent is in fact not board-certified in neurological or orthopedic surgery by the American Board of Neurological Surgery or the American Board of Orthopedic Surgery. The American Board of Medical Specialties does not recognize a board of "pain management" or "neurothermography." Thus, no physician could claim to be "board certified" in those claimed specialties. Patient A.M. presented to Respondent on July 3, 1991, with subjective complaints of extreme pain in her neck, right shoulder, right arm, lower back, and right leg. Patient A.M. testified that she had suffered back and neck pain for 26 years, since she had a back spasm requiring hospitalization. She testified that due to a boating accident and a fall on the sidewalk, the pain had become more acute in the two years prior to her coming to Respondent. She testified that she had gone to at least five doctors over the years for her neck and back pain, but nothing they did offered her any lasting relief. Patient A.M. testified that she was at her "wit's end" when she called to make an appointment with Respondent. She needed something done then and there to help her problem, and was willing to do whatever was necessary to obtain relief for her back. Respondent was not seeing patients the week of July 1, 1991, because he was planning to leave for a visit to his native Hungary, and because he was overseeing renovations to his offices. However, Patient A.M. appeared to be in such severe pain and so desperate for relief that Respondent agreed to see her on July 3. On June 30, 1991, the Tampa Bay Back Institute had run an advertisement in the Tampa Tribune, touting its expertise in "non- surgical treatment of back pain, neck pain & headaches." The advertisement advised that immediate appointments were available and offered a "Free Initial Consultation." Respondent’s name did not appear in the advertisement. The advertisement did not contain the disclaimer language set forth in Section 455.24, Florida Statutes. The same advertisement appeared as late as the August 11, 1991, issue of the Tampa Tribune. Patient A.M. testified that she called Respondent specifically because of his newspaper advertisement, and that she knew nothing about Respondent other than the contents of the advertisement. Patient A.M. testified that the advertisement led her to expect not to be charged for the initial visit. She could not recall whether she mentioned the advertisement when she made the appointment over the telephone, or whether she brought the advertisement with her at the time of her appointment. Patient A.M. testified that she did remember making a point of telling Respondent's staff she was there as a result of the advertisement. She could not recall whether she discussed the matter directly with Respondent. Melinda Kadosa, Respondent’s daughter, testified that she was working in the office when Patient A.M. called for her first appointment. Ms. Kadosa testified that Patient A.M. never mentioned the advertisement; rather, she told Ms. Kadosa that she had heard of Respondent through other doctors and patients. Ms. Kadosa testified that the usual practice in Respondent’s office was to make a notation on the chart of any patient who mentioned the "free consultation." There was no such notation on the chart of Patient A.M. Respondent billed Patient A.M. for a "new patient comprehensive exam" in the amount of $200. Patient A.M. disputed this amount. She admitted that Respondent conducted a full physical examination, but believed that this examination should have been included as part of the "free initial consultation." There was inconclusive expert testimony as to whether the term "consultation" includes a physical examination. Dr. Joseph Uricchio testified that it depends on the context of the situation. Dr. John McCutchen testified that, in his opinion, "consultation" includes a physical examination, but conceded that there is "room for debate" on the question. The advertisement containing the questioned language was not directed at physicians but at laypersons; thus, expert testimony as to a physician's understanding of the term "consultation" is beside the point. The question is resolved by determining whether it was reasonable for Patient A.M., as a layperson of ordinary intelligence and experience, to believe that the term "free initial consultation" included the physical examination to which she admittedly consented. It is found that the term "free initial consultation" is at best ambiguous as to the services it encompasses, and that it was reasonable for Patient A.M. to expect that the "free initial consultation" would include a physical examination. Ms. Kadosa’s testimony that Patient A.M. made no mention of the advertisement is irrelevant. The advertisement itself made an unqualified offer of a "free initial consultation." There was no requirement that the prospective patient make reference to the advertisement in order to obtain the free services. Mr. Rodney Thompson, an employee of Respondent, testified that the advertisement was placed by a hired consultant, without the permission or approval of Respondent. He testified that the advertisement appeared in the Tampa Tribune three or four times, only on Sundays. Even crediting Mr. Thompson’s version of events, the analysis remains the same. Respondent was responsible for the advertising placed on behalf of his business by his paid consultant. Patient A.M. was in no position to know that Respondent had not approved the advertisement. Respondent made no effort to disclaim the advertisement. Indeed, Ms. Kadosa’s testimony indicated that Respondent honored the advertisement when patients specifically mentioned it. Prior to the initial examination, Patient A.M. filled out a "Patient’s History Form," in which she described her present complaints as "extreme pain in neck, right shoulder and arm, lower back, right leg." Patient A.M. also provided Respondent with a set of X-rays taken by one of her previous physicians. Respondent performed a physical examination on Patient A.M. of the head, ears, eyes, nose and throat, the thoracic cage, cervical spine, thoracic spine, and lumbar spine. Respondent also performed a neurological examination of Patient A.M. After performing the physical examination, Respondent ordered X-ray studies of the cervical, thoracic, and lumbosacral spine, pelvis, and right elbow. Based on the history, examination, and X-rays, Respondent recorded the following medical impressions: chronic cervical sprain/strain with myofascitis; chronic lumbosacral sprain/strain with myofascitis; spondylosis of the cervical and lumbosacral spine by X-ray studies; chronic lower back pain; right cervical radiculitis; right lumbosacral radiculitis; chronic sprain of the right elbow; bursitis of the right knee; degenerate disc disease, L5-S1; and arthritis of the sacroiliac joints. Respondent recorded that he expressly ruled out cervical reflex dystrophy of the right upper extremity. Based on the listed impressions, Respondent ordered the following tests: Cervical spine: magnetic resonance imaging ("MRI"), X-rays, and thermography. Thoracic spine: X-rays and thermogaphy. Lumbar spine: MRI, X-rays, and thermography. Right upper extremity: X-rays, thermography, nerve conduction velocity ("NCV") studies. Left upper extremity: X-rays, thermography, and NCV studies. Right lower extremity: thermography. Left lower extremity: thermography. Sacrum: X-rays. Patient A.M. testified that Respondent informed her, prior to ordering the listed tests, that they could cost thousands of dollars. She testified that at the time she didn't know what some of the tests were. Nonetheless, she agreed to undergo the tests, telling Respondent that she wanted to do "whatever was necessary in order to try to get some relief" for her back. Respondent also ordered a one-month course of physical therapy for Patient A.M. All three testifying experts agreed that the physical therapy was appropriate and well within the standard of practice. Patient A.M. did not complete the course of physical therapy. Patient A.M. only returned to Respondent’s office once, and never saw Respondent in person after the initial visit. The bulk of the relevant expert testimony concerned the timing and necessity of the listed tests. Petitioner presented the deposition testimony of John W. McCutchen, M.D., a Florida- licensed, board-certified physician in orthopedic surgery. Dr. McCutchen testified that he reviewed Respondent’s file on Patient A.M., though he did not see the actual X-rays or MRIs. From his review of the record, Dr. McCutchen saw no medical problems with the manner in which Respondent performed the physical on Patient A.M. Dr. McCutchen testified that he questioned the diagnosis of spondylosis of the cervical lumbosacral spine, because such a diagnosis requires X-ray studies and he saw no evidence in the record that X-rays had been taken. Dr. McCutchen was apparently unaware that Respondent was in possession of X-rays taken by one of A.M.’s previous physicians, and could have based his initial impression on those X-rays. Dr. McCutchen questioned Respondent’s ordering X-rays of the cervical, thoracic, and lumbar spine, because the record did not indicate the requisite complaint by Patient A.M. of mid- thoracic pain. However, Dr. McCutchen also testified that he did not have a "big objection" to the X-rays, merely that he would not have ordered them. He testified that these X-rays were within the standard of care. Dr. McCutchen testified that he had no argument with Respondent’s ordering X-rays of the lumbar spine, the pelvis, and the right elbow. Dr. McCutchen testified that the MRIs of the sacral spine and cervical spine ordered by Respondent were not indicated at this juncture of Patient A.M.’s treatment. He testified that he would first want to review the X-rays, and find that the X-rays show changes "that are severe in nature." He would also need to see the results of a neurological examination indicating "nerve root injury or disc rupture or something like that" to justify an MRI of the cervical and lumbar spine. The MRI report stated that A.M. had "loss and reversal of the normal lordotic curvature of the cervical spine, central disc herniation at the C5-6 level, disc bulges at the C3-4, 4-5 and 6-7." Dr. McCutchen testified that this report merely confirmed that there were some disc bulges, and that these were normal for Patient A.M.’s age group. Dr. McCutchen testified that nothing in the MRI report justified Respondent’s ordering of the MRIs. There were no neurological symptoms, history, or any other indication for the MRI of the lumbar spine. He concluded that ordering the MRIs was an excessive diagnostic tool. Thermography is a technique for sensing and recording on color film hot and cold areas of the body by means of an infrared detector that reacts to blood flow, its intended purpose being to detect disease states that manifest themselves by increased or decreased blood flow. Dr. McCutchen was dismissive of thermography as a diagnostic tool. He testified that it was used years ago, but has been disused for the past ten to twelve years. He testified that the theory in cases such as Patient A.M.’s would be that the thermograph would show changes in skin warmth that in turn would indicate nerve dysfunction; however, he testified that thermography has proven inaccurate and of no value in providing any information to assist in the treatment of a patient. Even accepting arguendo that thermography works according to theory, Dr. McCutchen testified that nothing in the medical record indicated the neurological changes that would validate the need for thermography as a diagnostic tool. While Dr. McCutchen believed the thermography was completely useless, he testified that he was unaware of any standard in the medical community regarding the use of thermography. Dr. McCutchen next testified as to the need for the NCV studies on the arms and legs of Patient A.M. He stated that, to justify NCV studies, he would expect to see something in the record concerning nerve dysfunction in the affected areas. Dr. McCutchen testified that elements of nerve dysfunction would be some difficulty in the ability to move the extremities, or some weakness, atrophy or paralysis, or a loss of sensation in a nerve root. These elements would be discovered through the history and physical examination, but Dr. McCutchen testified that he saw no such documentation in the patient records. Dr. McCutchen testified that the neurological examination for Patient A.M. was grossly within normal limits for muscle tone, bulk, and strength of all major muscle groups of the upper and lower extremities. The deep tendon reflexes were within normal limits. Patient A.M. was able to walk in steps, on tiptoe, and heel walk within normal limits. Thus, Dr. McCutchen concluded there was no justification for ordering the NCV studies of the upper or lower extremities. Dr. McCutchen also noted that the records for Patient A.M. show no indication of an interpretation of the thermograms or of the NCV studies, although the billing records show charges for those interpretations. Dr. McCutchen concluded that a "variety of things" done by Respondent in the course of his treatment of Patient A.M. were "totally excessive." He testified that the patient presented with some cervical lumbar pain and some right arm pain, and received an unnecessary MRI of the lumbar spine and NCVs of all four extremities. Dr. McCutchen concluded that Respondent’s course of treatment fell below the level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as acceptable under similar conditions and circumstances. Respondent presented the expert testimony of Joseph Uricchio, M.D., an orthopedic surgeon licensed in Florida since 1965. Dr. Uricchio testified that in recent years his practice has tended to specialize in patients with complaints of chronic pain similar to those of Patient A.M. After discussing the patient’s complaints and the diagnostic tests ordered by Respondent, Dr. Uricchio opined that, based upon his understanding of the facts, the ordering of the tests was within accepted standards of medical care in the practice of medicine in the State of Florida. Dr. Uricchio testified that his opinion was based on his understanding of the discussions that occurred between Respondent and Patient A.M. as to her complaints and desired outcome. Dr. Uricchio stated that his impression was that Patient A.M. told Respondent that her back problems were longstanding and that she was anxious to investigate any reasonable course of treatment that might eliminate her problem. Dr. Uricchio's understanding was generally consistent with the testimony of Patient A.M. Dr. Uricchio agreed that the gradual application of physical therapy for Patient A.M. was "singularly appropriate." Dr. Uricchio testified that, given this particular patient and her professed interest in finding the root cause of all her problems, it was within the range of acceptable medical practice to order NCV tests of the left arm; X-ray studies of the coccyx, pelvis, and thoracic spine; and thermography scans of the cervical spine, thoracic spine, upper extremities, lumbosacral spine, and lower extremities. Dr. Uricchio testified that it is unusual to order this array of tests for the typical patient, and admitted that he could not recall having ordered all these tests at once. However, he testified that ordering the tests was acceptable in this instance because Respondent was dealing with a patient who had a 25-year history of unexplained, chronic problems and a shorter history of increasing problems with her neck and back, with pain going into her extremities. Dr. Uricchio recalled Patient A.M.'s statements that she was "at her wit's end" and desperate to find out "what’s going on." He testified that this was an unusual set of circumstances and a difficult diagnostic and therapeutic challenge. Dr. Uricchio testified that NCV studies are legitimate diagnostic tools appropriate for a patient complaining of an unexplained pain radiating into an extremity, and that Patient A.M. had complained of arm, leg, and shoulder pain coupled with her longstanding neck and back pain. He testified that the NCV studies of the left arm were appropriate, though Patient A.M. complained of pain in her right arm. Dr. Uricchio testified that thermography is a test that has been done for a long time historically, and has enjoyed a "resurgence of interest" in the past 20 years. This testimony was in marked contrast to Dr. McCutchen’s testimony that thermography has fallen into disuse over the past ten years. Dr. Uricchio acknowledged that thermography is controversial in some areas, but that it is a well accepted, expected test to be run in cases of people dealing with chronic pain and chronic pain management. Dr. Uricchio testified that thermogaphy complements NCV testing. The NCV study tests motor nerves to determine if they are conducting nerve impulses well, while thermogaphy tests sympathetic nerves to determine if they are irritated. Dr. Uricchio testified that it was appropriate for Respondent to order both X-rays and MRIs because they show different things. X-rays give a picture of the bone. MRIs give a picture of the dural sac where the spinal cord and nerve roots run, showing the nerve roots as they go out between the bones. Dr. Uricchio testified that an X-ray would not reveal a herniated disc, but that an MRI would. Dr. Uricchio testified that if economy of medical care were a consideration, then a physician might take the course of ordering X-rays and examining those before ordering MRIs. However, because in this instance Patient A.M. appeared unconcerned about the cost of the procedures and was desperate to learn the cause of her condition, Dr. Uricchio found it acceptable to order both X-rays and MRIs at the same time. Dr. Uricchio concluded that the array of tests was justified because the tests are all different: the thermogram looks for sensory nerves or reflex sympathetic dystrophy; the X-ray looks at the integrity of the bone; the MRI finds whether there is a ruptured disc pinching a nerve; radiography or video fluoroscopy tests for abnormal motion or subluxations or any other change in the movement of the neck. Respondent also presented the testimony of Nicholas T. Zervas, M.D., a board certified neurosurgeon and the director of neurosurgery at Massachusetts General Hospital, Harvard Medical School. Dr. Zervas testified that his specialty is patients with brain tumors, though he also deals with spinal problems, disc problems, spinal tumors, peripheral nerve tumors, and general neurosurgery. Dr. Zervas testified that in his practice at Harvard Medical School he tends to treat difficult and complicated cases in which patients have seen a number of doctors without success and have moved "up the ladder of expertise." Dr. Zervas reviewed the patient records regarding Patient A.M., and concluded that she was a "problem patient" in that she had chronic pain for many years and had apparently seen a number of physicians without a specific diagnosis ever having been made. Dr. Zervas testified that with such a "problem patient," it is appropriate to do every reasonable, non-invasive test available to "cover the waterfront" and make sure that everything possible is being done to isolate the causes of the patient’s problems. Dr. Zervas testified that he has made little use of thermography in the last ten years. He further testified that in 1991, when Respondent ordered the tests, thermography was recognized within the medical community as an appropriate diagnostic study and was widely used. Dr. Zervas stated that his research indicated that the medical community’s reliance on thermography began to wane in about 1994, but that prior to that time there was "tons of literature on the value of thermography." Dr. Zervas testified that the thermography was the only test he would not have ordered. He disagreed with the suggestion that thermography went into disuse because it was inaccurate. Dr. Zervas stated that when MRIs and CT scanning came on the scene, they presented an easier way of finding things through direct imaging, replacing reliance upon the circumstantial evidence provided by thermography. Dr. Zervas justified Respondent’s ordering thermography as a "resort to secondary testing" to give him a hint as to whether this was nerve root disease, "since he wasn’t able to find a specific, positive, objective finding." Dr. Zervas’ justification for thermography in this case cannot be credited. The thermography was ordered at the same time as the other tests, before the results of the X-rays and MRIs could be read and interpreted to find "a specific, positive, objective finding." Thus, this "resort to secondary testing" was at best premature. Dr. Zervas testified that all of the tests ordered by Respondent were medically appropriate and within the standard of care, in light of Patient A.M.’s condition at the time she was examined by Respondent. Dr. Zervas testified that he often takes the same approach with such patients, utilizing all tests available that might show where an abnormality might lie, so that he can move ahead and begin treatment as soon as possible. Dr. Zervas found the numerous X-rays justified because it is difficult to isolate the source of chronic neck and back pain, meaning that X-rays of the cervical, thoracic, and lumbar spine, the pelvis, the sacrum, and the coccyx would be required to ensure that all possibilities were covered. Dr. Zervas found the MRIs of the cervical and lumbar spine an appropriate, non-invasive means of "trying to sort out what is present in the spinal canal and bones around it," as well as a means of ensuring that the cause of the pain is not a disc or a tumor. Dr. Zervas was questioned as to why NCV studies of both the left and right arms were appropriate, given that Patient A.M. complained of pain only in the right arm. Dr. Zervas answered that one of the first things taught in medical school is to compare side to side. If readings were done only on the right side, there would be no comparative basis for determining whether the readings were abnormal. Dr. Zervas testified that the X-rays and MRIs revealed extensive degenerative spinal disease in the neck and lumbar regions, more extensive in the cervical region, with extensive narrowing of the intervertebral frame, and bulging discs at several levels of the cervical and lumbar regions. Dr. Zervas believed these findings would be significant once correlated with the clinical syndrome. Dr. Zervas noted that the findings were significant enough to indicate surgery once she was seen by a neurosurgeon at a later date. He could not offer his own opinion on whether surgery was justified, saying that his own course would have been extensive physiotherapy and referral to a pain clinic. Dr. Zervas testified that in his opinion Respondent did not exercise influence on Patient A.M. to exploit her for his own financial gain. Dr. Zervas testified that Respondent did not deviate from the accepted standard of care in treating Patient A.M. Dr. Zervas testified that the records kept by Respondent justified his course of treatment of Patient A.M. It is found that the weight of the expert evidence establishes that all of the tests ordered by Respondent were clinically justified, except for the thermograms. All of the experts agreed that it is somewhat unusual for a physician to order X-rays, MRIs, and NCV studies simultaneously after a patient’s initial visit. However, it is found that these orders were clinically justified under the peculiar circumstances presented at Patient A.M.: longstanding back and neck pain having recently increased to the point where the patient described the pain as nearly unbearable; years of visits to various physicians without either relief from the pain or a specific diagnosis; and the patient’s express statements that she was unconcerned with the cost of treatment. It is found that Petitioner proved clearly and convincingly that thermography was an unnecessary diagnostic test. Even granting Dr. Zervas’ statements that thermography may be a useful "secondary" test in instances where primary tests are inconclusive, Respondent prematurely ordered the thermograms. Thermography might have been justified had the MRIs and NCV studies previously been reviewed and found inconclusive, assuming that thermography is of value at all. Dr. McCutchen’s testimony that thermography is of no value in providing information useful in patient treatment is credited, in part because even Dr. Zervas testified that he has made little or no use of thermography over the past decade, and Dr. Uricchio's endorsement was tempered by his acknowledgement that thermography is controversial. It is found that Respondent failed to keep sufficient records to fully explain the course of treatment that he ordered. The experts were forced to derive much of their information regarding the course of treatment from Respondent’s itemized billing records, because the actual medical records created by Respondent were too cursory to provide useful information. On a related issue, Petitioner alleged that Respondent billed Patient A.M. for services that were not rendered. Specifically, it is alleged that Patient A.M. was billed for interpretations of the X-rays, NCV studies, and thermographic scans, when these interpretations are not documented in the medical record. The weight of the evidence indicates that the interpretations were in fact performed, but that Respondent failed to document those interpretations in his medical records.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Health, Board of Medicine, enter a final order finding the Respondent, Lehel Kadosa, guilty of violating Section 458.331(1)(d), (g), (m), (t), and (x), Florida Statutes, as alleged in the complaint, and imposing upon the Respondent the penalty of a reprimand, supervised probation for a period of three years, and an administrative fine in the amount of $20,000. DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999. COPIES FURNISHED: Albert Peacock, Esquire Agency for Health Care Administration Legal Department Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn & Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Tampa, Florida 33629 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact At all times material hereto, Respondent has been licensed as an osteopathic physician in the State of Florida, having been issued license number OS-0001053 in 1954. According to Respondent's office records for a patient named Barry Belikoff, Respondent saw Belikoff in his office on twenty-five (25) occasions between September 5, 1980, and July 24, 1981, and during this time wrote twenty-four (24) prescriptions for a total of 344 Quaaludes (Methaqualone) with a dosage of 300 mg. each. According to his patient records, Respondent also saw Belikoff on thirteen (13) occasions between October 31, 1981 and June 18, 1982 and wrote four (4) prescriptions for controlled substances, including Talwin, Restoril, and Percodan. Respondent was treating Belikoff for back pains and insomnia. According to expert testimony, the records kept by Respondent of this patient's office visits were inadequate and do not provide the required documentation which would support and explain the controlled substances prescribed in this case. In addition, a proper course of patient care would not include the on-going prescription of Quaaludes over almost a one year period at a rate of over one a day without a record of additional tests, x-rays, or neurological exams during this period. Belikoff's patient records do not show any such additional tests, x- rays or exams. Without such documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Belikoff were without medical justification, excessive and inappropriate, according to expert testimony. Respondent was treating a patient named Lyndon Ellis during 1981 and 1982. Ellis was hospitalized on four occasions while under Respondent's care, and according to expert testimony the level of care and medical records for this patient, while hospitalized, were excellent. As a result of office visits by Ellis, Respondent wrote thirty-eight (38) prescriptions for controlled substances between April 20, 1981 and September 29, 1982 which included Percocet 5, Demerol, and Fiorinal. Ellis was being treated by Respondent for chronic headaches and pain from accident injuries, and also for a problem with his toe. However, according to expert testimony, the records kept by Respondent on Ellis' office visits were inadequate and do not provide documentation which would support and explain the controlled substances prescribed in this case. The absence of a thorough patient medical history, exam, evaluation, x- rays and lab tests in this patient's office records is explained by Respondent by the fact that this information was available in hospital records for this patient. Nevertheless, Respondent's office records for Ellis are totally inadequate. These office records do reflect that Respondent was aware of Ellis' overuse of controlled substances and the need to detoxify this patient on October 29, 1982. Yet he prescribed Percocet, a controlled substance, on five additional occasions after October 29, 1982. Without adequate documentation in the patient's records, the prescriptions for controlled substances written by Respondent for Ellis were without medical justification, excessive and inappropriate, according to expert testimony. Between July 14, 1980 and April 23, 1982, Respondent treated a patient named Alan Fogler. During this time Respondent wrote twelve (12) prescriptions for a total of 464 Percodan, a controlled substance. Respondent was treating Fogler for headaches, whiplash and a concussion reported by the patient, as well as allergies, but patient records reveal no x- rays, brain scans, lab work or neurological exams. According to expert testimony, patient records in this case are inadequate and do not justify the treatment rendered which consisted primarily of prescriptions for Percodan. Without adequate patient medical records, the prescriptions for controlled substances were without- medical justification, excessive and inappropriate, accordingly to expert testimony. While treating patients Belikoff, Ellis and Fogler, Respondent repeatedly reissued prescriptions for controlled substances without a substantiation of medical reasons in the patients' office medical records. According to expert testimony concerning the standards expected of osteopathic physicians in keeping office medical records on patients, Respondent did not perform with reasonable skill, nor meet the standards expected of physicians in this aspect of their practice. Vicki Cutcliffe, a deputy sheriff with the Broward County Sheriff's Office, saw Respondent in his office on March 30, April 11 and April 25, 1984 using the alias "Vicki Tarra". After taking a brief medical history which revealed that "Tarra" used alcohol daily, Respondent began treating her for situational anxiety by prescribing controlled substances, including Librium and Tranxene. On April 25 "Tarra" told Respondent she wanted some extra pills for her friend named Jo Ann and asked him to write her friend a prescription. Respondent said he could not do that, but did give "Tarra" a prescription for Tranxene and two refills, after initially giving her a prescription which allowed for only one refill. He told her that she could give some of the pills to her friend and then she could refill the prescription twice. Respondent knew that "Tarra" wanted the extra pills for a friend and that she would give them to her friend who was not a patient of Respondent. According to expert testimony, the treatment given to "Tarra" by Respondent, which consisted simply of prescriptions for controlled substances without adequate documentation of the reasons for this course of treatment in the patient's medical records, was totally inappropriate. Increasing a prescription when a patient says they want some extra pills for a friend is never justified and constitutes malpractice, according to expert testimony.
Recommendation Based upon the foregoing it is recommended that a Final Order be issued suspending Respondent's license for a period of two ( 2) years. DONE and ENTERED this 30th day of September, 1985, at Tallahassee, Florida. DONALD D. CONN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 3 2301 (904) 488- 9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1985. COPIES FURNISHED: Stephanie A. Daniel, Esq. Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 John W. Gaul, D.O. 11360 Tara Drive Plantation, FL 33325 Dorothy Faircloth Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, FL 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 Salvatore A. Carpino, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32301 ================================================================ =
