Conclusions Having reviewed the Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review, dated May 12, 2009, attached hereto and incorporated herein (Ex. 1), and all other matters of record, the Agency for Health Care Administration ("Agency") has entered into a Settlement Agreement (Ex. 2) with the other party to these proceedings, and being otherwise well-advised in the premises, finds and concludes as follows: ORDERED: The attached Settlement Agreement is approved and adopted as part of this Final Order, and the parties are directed to comply with the terms of the Settlement Agreement. Each party shall bear its own costs and attorney's fees. The above-styled case is hereby closed. 1 Filed July 10, 2009 2:23 PM Division of Administrative Hearings. DONE and ORDERED this _f_day of _ ,,_of""""--"'"""'"-l""""A-'-t_f , 2cf.i inTallahassee, Leon County, Florida. Holly Benson, ecretary Agency for He th Care Administration A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW OF PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Stephen T. Maher Shutts & Bowen LLP 201 $outh Biscayne Boulevard Suite 1500, Miami Center Miami, Florida 33131 Jamie L. Jackson Assistant General Counsel Agency for Health Care Administration 2727 Mahan Drive, Bldg #3, MS #3 Tallahassee, Florida 32308 (Interoffice Mail) Jan Mills Karen Rivera Agency for Health Care Administration Laboratory Unit Manager 2727 Mahan Drive, Bldg #3, MS #3 Agency for Health Care Administration Tallahassee, Florida 32308 2727 Mahan Drive, MS #28 (Interoffice Mail) Tallahassee, Florida 32308 (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the above-named person(s) and entities by U.S. Mail, or the method designated, on this the _._8:,.._P_day of-=:......-.--=-""-7-·....,,,. '-----' 20 g:- -- Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 922-5873 To:RS09210158 CHARLIE CRIST GOVERNOR Mi,y 1l, 2009 ADMTNTSTR.ATOR B1HMf HHlth care for.,,Flor'ltlltms MOU.Y BEN50N SECReTARY CEKTlPIBD MAll. / RETURN R.ECEW'r Rl?Q STED 'PETER M WALLACH AND ST·TART F TOP.PER MOS PA 1480 N UNIVERSllY DRIVE COP.AL SPR.INGS, E'L 3307 l LlC:f.NSE NUMBER: 800004917 CAS£ #: 200900.5482 !i()J'JC& a,ViUNT TO pEEM Al'fUCA:rJmr,,lX,COM1"1.V.Il., 'ND wrrlJDBAl»'ll fRQM FURTHER gvur.w or Your tappJIClltlan for license is d.:cmod lncompleto and wlthdrnwn ftom further consideration punnuu,t 10 SQQllon 408,806(3)(b), Plorida St11-Mea, wJii\;b i1litll¢8 that "Tteque vd informition omiHod from an 11ppllc•tk,n for Uccnsure, license renewal, or obnn1io ownership, other than an lnspectjon, must be.fll•d wilh the a cncy within 21 do.y, after the llSCDcy'1 rcqu fi:il' Qmltted inform11tion or tho oppllcadon shall be deemed incomplete and shitll be withdrawn from further oon,idonition llnd the f,ot sh•ll bo forfoi d' '. You were notified by c:orrcq,o"d11m:111 dntod Fobruar)' 28, 2009 to provide furthar infonnat1o11 nddrol\ ing identified appt1rcnt c1Tnr11 or ,'lmlsslont within twenty-one da.)'I trc,m &he rcoelpt of the Agency's correspondence, Our rec:ordl lndlc1110 you received this cornr11pondcncc: by certified mllfl on Murch 09, 2009. A11 this requested Information wa. not timcl)' received by tho Agency, your application is dc:c:mcd Incomplete and withdmwn C'l'oTTI further uonsidcnuion, TI1e ou'tt)IAl\dll\Q h1sue1 rornalnlng for liconsure are: Corrected LIit ofTU!lts Performed: Tbe Pl'Clflclcney TtJstlng Comp ¦11)' Ji11red I• not CLIA approved, ·-·· .. EXPLANAJJOJ! OF RlGWl'S l'ursuant to Section 120.S69, F.S., you h1n1c the rlgt11 to rcquost ,in 1.1dn1iuilllfAtfvc bc:arins, .(n or(J¢r to obtidn a formal proc;aodina before tho Di'lision of Admlnlstrn\.lvo 'Htorin under Section 120.57(1)1 P.S., your rcq1,1 1t for on administrative hearin11 musr i.:onronn to·m requfre1no11t.li in Seotlon 28-106.%0 I, FlorldA MminlNtr'o1tiYC Code (F.A.C), nnd must state tho material fru;ts you dispula. ION AND EXPLANATION OF RICRTS IORMS. Katen Rivera, Manaa r r :.bomtory LicL.'JldUrt: U11it l.)C: Agit,1.;y Cl\lrk, MBil Stop j Legal Lnt ¢ Unit. Mnll Stop '.l T:u1an11111, Plorida 32305 Z7:z7 M11han Oriv,,MS#U Certified Adidti Nun1bcr SENDERS RECORD 111111· 1/lhCI.myflcirld•. i:cim • Vi:rn Ai'iCA !lrtllno II\ EXHIBIT I ( JUN-05-2009 16:40 From: To:9509210158 STATE OF FLOlUl)A AGENCY FOR HEALm CARE ADMlNlSTRATION RE: Pc,tor M Wall11c:h And Shari F Topper Mds P11 CASE NO: 2009005482 El,.RCTION OF RIGHTS Thill Jlh;:cti9n of Rishta form Is attaohed to II proposed Noti of lntont to Dcein Inc:omploio Rlld Withdraw fl-0111 Purther Rt!Vlew of the Agency for Hoslth Care Admi11istration (AHCA). Tua lltlc may be Nottcc ot lnlenc fO Dc:orn Incompluto and Withdraw from P'arthor Rcwlow or ,nmo otbcr notice vr •ntondcd adlon by AJiCA. An £1,sdpp oflUc,ltM muu be rclyrnecl hyJDBll or by fqr \Y.i!Jlln 21 de:m or the dg YOU rn:eh,e lhJ iHtaehefl rfgtlt:e o( Jntent to peom Tnenm111.11,s ¦qd WltLdraw,,.ftpm fynher Reylm or pny nrJ,sr PDIURl d gctJon h,y ARCA. If' an Rleclkn1 g{ Rigg with )'OUI' IClecmtd optJon i, not nctlvccl by ,'\HCA within twenty.one (21) dn)'S from the dato you rocoivcd d1i1 notice of propo_.d ac;t(Qn, you will havo given up your right to t1on1.esr rhe Agenc)''III proposed agtlon amd w ti1111l ordorwfll b,:1,.ued. (PlciU$a n::J)Jy using thi, B)ccti,:1n qf Rjght, fnnn unless you.)'Our attorney er your roprosentBtiv prc:rcr io reply ncc:ordlna to Chapter 120, Florida Statutes (2006) lllld .Rul, :28, Florida Administrative Cod ¦.) Plcase return your EL6C',CIQN 9.FRIQHTS to: Agency for HCA!th Administration AL1QnUon: Agency Clt::rk 2727 Mahnn Drive, Mail Slup N3 T•llahusao, Florida 32308 Phon,:: (8SO) 9ll-:B73 Fax: (850) 921·01S8 'PLM S.W...F-.c:r QNLY 1 op TI:JESE 3 OPTIONS, Ol''l"lON ONE (I.) I admit to tbe aJltptlons of facts and law contutned 11- tbo Notlee ofintcnt to DCIClm lncontpleta abd Withdraw from Furth•.- Rovti!W. o, other notice ot lnte•dod acdun by ABCA aad I waive my rli:bt to object and bavi, a hcnrln1, I 1.tndermnd that by Jiving up my rigbt lO A h•ring, a tlnal order will be 1,,cued that adopts tbc prop0scd agency nction and impoao11 the: proposed pcn11lty, fine= or nction. OP'flON TWO (2) I 11dmit to tha allcuation1 or taotl tOJ1C1ln111d In tbc N1,1Uce ur lnt.:Pt to 0111-,sn lnaompl"to 11.,d.Wllhdraw rrom 11'ut111or Rovlew, or olbcr propoKd aetfoa by AHCA, but I w,,h to be bcurtl at 011 Informal prooeeclln1 (pursuant to Se<:tion 120.57(2), f'luridA Statute:1) where I mtiy submit testimony and wtincn cvld nce to tbc Agency tu shuw t..hat the proposed administrative llC: ion i, too 11cverc or that Lhc floe sbou Id bv roduccd. OPTION 1".l-lltf:E (3) _ - I cU11p11te the ancsatloo» uffatt contained In tho Notice otlntont fo Ocam I11completo •nd Wlthdnn, fmrn Further luview or other proposed acdoo by AHCA, And I r1:q11est a tormal hearing (pursuant to Sc:ctiun 120.57(1). Floridn Statuto1) before an . Adminis1ntlvc Law Judge l\J)pointed by the Divlsil)n of Administrative Hc11rin1:s, fl.,lliASE,.NOTE: Choo11in1 OPTIOii THREE (3), by i oit, l» u9-I tufflclcnt to obtain n f1mr..aJ hcarlni;. Yuu ahm mu t nte II writtan petition in order to obtnin a formal hc11ring before tho ...,... ., · - _,.. -' .. ,- = ••n?:. ,_ U.nr:... ......,4,.,. c:.. 1-..,..,.tfn" 1')0 <i7f1' f.'lnl'l.-fn L'\tUtell. It must be JUN-05-2009 16:41 From: To:8509210158 P.17,,.17 recelv(:d b)' the Agency Clerk ut tha address above within 21 clllys o( receipt or lhls proposed adminislrutivc aotlon. The roqut:u1L for rorrnal h rlng m1Jsl. cottform tc;, thi: requirements of Rule lR- 106.201. Florida Administrntivc Code, which willim lhat it contnin: l. The T!M1\: and addre'5 of coch agi;noy llfl'ect(:d ond each agency's 1tfe or ldi,ntJfielldon nurnbor. If known: Your numc, addn1111, and telephone numoor, 111td th nimc, uddrcs!I, and telephone number of )'Our rcpti,acntativo or l1twyor, If any: An 9pJanation of how yoUl' sub1tantl11I Interests will be affected by Ihc Agency's proposed action; A statement of when and how you rccoivod notice ot'tho Agency's proposed action: A statement of tlll disputed issues of nmwria1 fact, If there arc nunc, you must s111tc that thon:t arc none; _ A concise statement of me ultimate f111:1:S allc9cd. including the specific facts you contend wnmint rav rsJl or modi.flcatlon of the Aaency's proposed nclion; · A 6tati:nient of the spc:oific rules or su.tu.tcs )'OU c;lnlm require ri:,vorsal or modlflcAtion of the Agcn )"I proposed aotlon; and A 1tfttcment of the r¢lli=f yo1,1 are sceklns, stating ex.,ctly what uc.tion you wi1h th Agcnt:-y to take with respeet to It., proposed 11otion. (Medl11tlon under Section 120.S73, Florida. Statutes. may bo avaUablci in thill matter If the Agen y agrees,) License type: clinical laborntocy T..iccr.is= number: 800004917 Lfccn cc Nnme: Peter M Wallach And Shari F Topper Meis Pn Contact l)crson: ·------ Name 'i'itle Ad Ms:. _ Streot and numb(tt' -··· ··clty Zip Code Telephone No. Fax No•. Email (optional). _ 1 hereby eortify that J. pm duly authQTl d ro submit this Notice of Election of Righis to the Agency for Meahh Caro Adrninhitmtlon on behalf of th lictn$eo referred to 11bova. Signed; Dat9; Print Namo:. 'rittc: ·------- USPS -Track & Confirm Page 1 of 1 Hl2trul I t.il.lJI I SlgnJn Track & Confirm Search 'Results Label/Receipt Number: 7180 390198481045 5162 Service(s): Certified Mall"' Status: Delivered Your item was delivered at 12:27 PM on May 18, 2009 in MIAMI, FL 33144. Detailed Results: Delivered, May 18, 2009, 12:27 pm, MIAMI, FL 33144 Notice Left, May 15, 2009, 11:22 am, MIAMI, FL 33144 Jrack & Confirm •!!i_ o.nQp i ..._ _ Track & Confirm by email _ _ _ Get current event information or updates for your Item sent to you or others by email. (oii> ) Return Receipt (Electronic) Verify who signed for your item by email. (iii) ,..,,.,. f.;f<" I:lll!!!ll. Pdyat:y Polk:y Terms of Us uslness customer GatewllV Copyright© 2009 USPS. All Rights Reserved. No FEAH Act EEO Data FOIA { 1\i t1! f. •"ti(:1•:: 1\: "1·'<'• -1 t'. h••'.J. • http://trkcnfrml.smi.usps.com/PTSinternetWeb/InterLabelinquiry.do 05/19/2009 STATE OF FLORIDA
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact. Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the state of Florida, having been issued license number ME 0036970. Respondent worked at the Cruz Blanca Clinic from approximately February of 1984 through either October or November of 1985. During that time Respondent worked as a general practitioner and was also the medical director of the Cruz Blanca Clinic. As medical director, Respondent was responsible for the supervision and control of all medical practice at the clinic. Respondent's normal working hours at the Cruz Blanca Clinic were from approximately 8:00 or 8:30 in the morning until approximately 2:30 or 3:00 in the afternoon. During those working hours, Respondent was usually the only licensed medical doctor present on the premises of the Cruz Blanca Clinic. The patients who attended the Cruz Blanca Clinic paid a fee for the privilege of attending the clinic and receiving medical services. The monthly fee was between ten and fifteen dollars per family. Patients requiring general medical services attended the clinic during Respondent's working hours. During the afternoon hours, from approximately 2:00 p.m. until 5:30 p.m., certain medical specialists would see clinic patients by appointment. At all times material, Julio Diaz owned the Cruz Blanca Clinic. At all times material, Julio Diaz, Norma Rodriguez, and Magali Acosta were licensed to practice medicine in a foreign country, but they were not licensed to practice medicine in the state of Florida, nor were they licensed as physician's assistants in the state of Florida. Respondent knew that Diaz, Acosta, and Rodriguez were not licensed to practice medicine in the state of Florida. During 1984 and 1985 while Respondent was the medical director at the Cruz Blanca Clinic, Julio Diaz, Norma Rodriguez, and Magali Acosta frequently and regularly held themselves out as, and acted as, medical doctors or physicians at the Cruz Blanca Clinic. Specifically, they regularly saw patients, took medical histories, checked blood pressure, drew blood samples, took urine and fecal samples, and performed physical examinations. Julio Diaz and Norma Rodriguez went far beyond the routine tasks described above and were in total charge of the medical treatment of some of their patients. Patients with gynecological problems were usually assigned to Norma Rodriguez, pediatric patients were usually assigned to Magali Acosta, and Julio Diaz usually saw the general practice patients. Respondent knew that Diaz, Acosta, and Rodriguez were examining, treating, diagnosing, and prescribing for patients at the Cruz Blanca Clinic. Respondent also knew that at least some of the examining, treating, diagnosing, and prescribing activities of Diaz, Acosta, and Rodriguez were being done without Respondent's supervision. During 1984 and 1985, Maria Rodriguez was a frequent patient at the Cruz Blanca Clinic during the time periods when Respondent was the only licensed medical doctor on the premises of the clinic. On only one occasion Maria Rodriguez was seen by Respondent. On all of her other visits the only doctors', she saw were Julio Diaz or Norma Rodriguez. When Maria Rodriguez was being seen by Julio Diaz or Norma Rodriguez, there was no one present supervising either of the "doctors." Maria Rodriguez believed that Julio Diaz was a medical doctor and he treated her for back problems. Thereafter, Maria Rodriguez was usually seen by Norma Rodriguez, who she also believed to be a doctor. In 1985 Norma Rodriguez injected Maria Rodriguez as part of the treatment of the latter's blood pressure problems. On several occasions Maria Rodriguez saw both Julio Diaz and Norma Rodriguez filling out prescriptions, and on several occasions they both diagnosed and treated her. The prescriptions filled out by Julio Diaz and Norma Rodriguez were signed by Respondent. Barbara Socorro was another patient of the Cruz Blanca Clinic during 1984 and 1985. She was treated at the Clinic for such conditions as common colds, stomach flu, viruses, and gynecological problems. The only "doctor" who examined or treated Barbara Socorro at the Cruz Blanca Clinic was Norma Rodriguez. Norma Rodriguez performed at least one gynecological examination on Barbara Socorro at the Cruz Blanca Clinic. Norma Rodriguez wrote several prescriptions for Barbara Socorro. Barbara Socorro never saw Respondent at the Cruz Blanca clinic. Barbara Socorro believed that Norma Rodriguez was a medical doctor and was told by the receptionist at the Cruz Blanca Clinic that Norma Rodriguez was a gynecologist. Marisol Vilato was another patient of the Cruz Blanca Clinic who during 1984 and 1985 was seen several times for gynecological problems. The only "doctor" seen by Marisol Vilato was Norma Rodriguez. Norma Rodriguez examined Marisol Vilato, including internal gynecological examination; diagnosed and treated her condition; and filled out prescriptions for her. While employed as the medical director at the Cruz Blanca Clinic, Respondent frequently and regularly signed prescriptions filled out by Diaz, Acosta, and Rodriguez because as unlicensed doctors their signatures on prescriptions would not be honored by pharmacies. Without this aid and assistance by Respondent, it would not have been possible for Diaz, Acosta, and Rodriguez to prescribe for the patients at the Cruz Blanca Clinic.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medical Examiners enter a Final Order to the following effect: Dismissing the charges alleged in Counts, 2, 3, and 6 of the Administrative Complaint: Finding Respondent guilty of violations of Section 458.331(1)(g), (t), and (w)' Florida Statutes, as alleged in Counts 1, 4, and 5 of the Administrative Complaint, and Imposing on Respondent appropriate penalties authorized by Section 458.331(2), Florida Statutes. In determining the appropriate penalty to recommend, I have given particular consideration to the nature of the violations; to the fact that although unlicensed practice of medicine was permitted, there was no evidence of harm to any patient; and to the fact that Respondent appears to be an elderly man who is not in the best of health. With those considerations in mind, it is recommended that the Board's Final Order include the following specific penalties: (a) A So-day suspension of Respondent's license to practice medicine; |(b) A one-year period of probation to follow the suspension, with a condition of probation that Respondent work under the supervision of another licensed physician and that he attend continuing education courses specified by the Board with an emphasis on the legal duties and responsibilities of physicians; and (c) An administrative fine in the total amount of S. 00 DONE AND ORDERED this 28th day of October, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1986 COPIES FURNISHED: Michael J Cohen, Esquire CO BN & MEE, P A 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Frank Diaz Silveira, Esquire DIAZ SILVEIRA 6 ASSOCIATES, P A 2153 Coral Way, Suite 607 Miami, Florida 33145 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings Slocum Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the proposed findings of fact submitted by both of the parties. Proposed findings submitted by Petitioner Paragraphs 1, 2, 3, 4, and 5: These paragraphs are accepted. Paragraph 6: The first sentence of this paragraph is rejected as constituting commentary about conflicts in the evidence rather than a proposed finding of fact. The remainder of this paragraph is accepted in substance. Paragraph 7: This paragraph is accepted in substance. Paragraph 8: The first eight sentences of this paragraph are accepted in substance. The last sentence is rejected as argument rather than a proposed finding of fact. (The argument is a correct argument, but it is not a proposed finding.) Paragraphs 9 and 10: These paragraphs are accepted. Paragraph 11 and the five unnumbered paragraphs following paragraph 11: These paragraphs are rejected as primarily constituting arguments rather than proposed findings of fact. (These arguments are essentially correct, but are nevertheless arguments and do not belong in the findings of fact.) Paragraph 12: This paragraph is also rejected as constituting argument rather than proposed findings. Proposed findings submitted by Respondent This paragraph is rejected as constituting a proposed conclusion of law rather than a proposed finding of fact This paragraph is rejected as constituting summaries of testimony (some of which is conflicting) rather than proposed findings of fact. Counsel for all parties are reminded that summaries of testimony may be a useful technique to support an argument in favor of a particular proposed finding, but such summaries do not constitute proposed findings, especially when the summaries include conflicting testimony. The findings of fact in this Recommended Order contain specific findings regarding the activities engaged in by unlicensed physicians, which findings are based on competent substantial evidence and are consistent with the greater weight of the evidence. The first sentence of this paragraph is rejected as constituting a summary of a portion of the testimony rather than proposed finding of fact. The second sentence of this paragraph is rejected as constituting a summary of a portion of the evidence rather than a proposed finding of fact. Further, the details summarized for the most part relate to subordinate details that are irrelevant or unnecessary to the disposition of this case. This paragraph is rejected as constituting a summary of a portion of the evidence, or as constituting argument about the evidence, rather than a proposed finding of fact. Further, the factual assumptions implicit in this paragraph are contrary to the greater weight of the evidence. This paragraph is rejected as constituting argument instead of proposed findings of fact. This paragraph is rejected as constituting a summary of testimony rather than proposed findings of fact. Further the details summarized are subordinate and irrelevant or unnecessary details. This paragraph is rejected as constituting argument instead of proposed findings of fact. ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, PEDRO F. BERNAL, M.D., DPR CASE NOS. 0055322 DOAH CASE NO. 85-1758 Respondent. LICENSE NO. ME 0036970 /
The Issue This is a proceeding pursuant to the Florida Equal Access To Justice Act, Section 57.111, Florida Statutes, and Rule 22I-6.035, Florida Administrative Code. Petitioner seeks to recover his attorney's fees and costs incurred when defending an action brought against him by the Department of Professional Regulation, Board of Medicine. The issue for determination is whether Respondent, the state agency charged with regulation of the professional conduct of physicians in the State of Florida, was substantially justified with regard to the initiation of disciplinary proceedings against Petitioner, a licensed physician, in DOAH Case No. 90-4205, DPR Case No. 89-05921, and whether, in the absence of such substantial justification, Petitioner is entitled to the award of the amount of attorney's fees and costs sought, or if there exists special circumstances which would make an award unjust.
Findings Of Fact Respondent is a state agency which initiated a proceeding with the filing of an Administrative Complaint against Ronald F. David, M.D. As stipulated, Petitioner's Attorney's Fees and Costs are not unreasonable. Petitioner was the prevailing small business party in the underlying case, Department of Professional Regulation v. Ronald F. David, M.D., DOAH Case No. 90-04205, DPR Case No. 89-05921, when the case against Dr. David was dismissed on January 25, 1991. As stipulated, there are no known circumstances which would make an award of attorney's fees and costs unjust. The one remaining issue of fact to be determined is whether sufficient evidence was presented to the Probable Cause Panel of the Board of Medicine to support a finding of probable cause against the Petitioner, and whether the Panel properly considered that evidence. S. A. was a premature infant who had a patent ductus arteriosus (PDA). Petitioner, a pediatric surgeon with credentials to do general surgery, pediatric surgery, and chest surgery, was consulted by S. A.'s pediatrician. Petitioner, in turn, consulted Dr. Johnston, a thoracic cardiovascular surgeon, concerning surgery to close S. A.'s PDA. Dr. Johnston performed the surgery with Petitioner as assistant surgeon on May 31, 1986, at the Orlando Regional Medical Center. Petitioner had assisted in numerous such surgical procedures in the past but did not hold himself out as competent to perform them on his own. At surgery the left pulmonary artery was mistakenly ligated instead of the PDA. S. A.'s condition deteriorated and tests indicated the probable mistaken ligation. The baby was transferred to Shands Hospital where she died before a second operation could be performed. Autopsy revealed the mistaken ligation and the pathologist implicated the compromised cardiopulmonary system as a cause of death. No anatomical anomalies of the vessels were noted at autopsy. On the basis of a closed claim report to the Department of Professional Regulation, the circumstances surrounding the death of S. A. were reviewed by a physician employed by the Department's Division of Medical Quality Assurance. Petitioner was informed of this review on January 13, 1989. Review of the medical records resulted in cases being opened against three of the seven physicians who participated in the care of S. A. Petitioner was notified of the case by certified mail on August 1, 1989. Petitioner was interviewed on August 10, 1989. Dr. Johnston was interviewed by the same investigator on August 25, 1989. According to the investigator's notes, Petitioner stated that Dr. Johnston did not consult him during the surgery, that the anatomy did not appear to be the same as in prior cases, but that he did not question Dr. Johnston's decision as to which vessel to ligate. Dr. Johnston stated that he asked Petitioner to examine the anatomy when he (Johnston) had located what he thought was the ductus, and that Petitioner obliged by examining the operation field, but did not object to the procedure. The medical records of S. A. were obtained by subpoena from the Orlando Regional Medical Center. On February 5, 1990, both Petitioner's and Dr. Johnston's investigative files were sent to Dr. William Price, a thoracic and vascular surgeon, for his review. The letter requesting his opinion clearly separates the actions of Petitioner and Dr. Johnston to be considered. On February 21, 1990, Dr. Price's analysis stated, "The assistant, Dr. Ronald David, should have been accomplished enough to recognize the proper anatomy, but the ultimated [sic] responsibility was not his." (Respondent's exhibit 2, 3) The cases, Department of Professional Regulation v. Ronald F. David, M.D., DPR Case No. 89-05921, and Department of Professional Regulation v. Alan Johnston, M.D., DPR Case No. 89-05922, were prepared for the Probable Cause Panel meeting scheduled for May 11, 1990. Materials were sent to the three Panel members and their counsel at least one week in advance of the meeting. Materials sent to the panel included the complete investigative case file, including any exhibits, and a recommendation from the Department. Present at the meeting of the Panel on May 11, 1990 were: Dr. Robert Katims, Chairman of the Probable Cause Panel, Dr. Marilyn Wells and Mr. Gilbert Rodriguez, members of the Panel; Ms. Catherine Lannon, Assistant Attorney General and counsel to the Panel; Mr. Carlos Ramos and Ms. Stephanie Daniel, attorneys from the Department of Professional Regulation, and Mr. Brian Lynch, Administrative Assistant at the Department, whose duty it was to prepare and distribute materials for the Panel's consideration. Ms. Lannon instructed the Panel members to direct any questions concerning their legal duties and interpretation of laws or rules to her. She cautioned the Panel members that any factual questions concerning the investigation or why a certain recommendation was made were to be directed to the Departmental attorneys. She asked if the members had sufficient time to review all the materials sent to them; each member replied in the affirmative. And she cautioned the members that it must be clearly stated or implied from the record that the members are making independent judgments on the cases and that they are discussing the correct case. The Panel first considered Dr. Johnston's case. The Department recommended that an Administrative Complaint be filed alleging that Dr. Johnston practiced below the standard of care in that, "[He] inadvertently ligated the left pulmonary artery instead of the patient ductus arteriosus, by relying on the anesthesiologist's observation that the murmur had disappeared and the surgical assistant's failure to object or recognize the proper anatomy." (Respondent's exhibit 1, page 4-5) The Panel was informed that Petitioner's companion case was on the agenda. The Panel at this time discussed Petitioner at some length, including Petitioner's role as the referring physician, that Petitioner assisted at the surgery, that Petitioner was not a chest but a pediatric surgeon, and that Dr. Johnston and Petitioner disagreed as what was said and done by whom at the operation. Dr. Wells acknowledged that the surgeon in charge in the "captain of the ship"; the Chairman, Dr. Katims, in response to a question from Ms. Lannon, denied that the assistant surgeon is exonerated from all responsibility. Thereupon Probable Cause was found in Dr. Johnston's case and the Panel voted to file an Administrative Complaint. (Respondent's exhibit 1, page 7-8) The Panel later in the meeting considered Petitioner's case. The Department had recommended that Probable Cause be found and a letter of guidance be issued. Mr. Ramos presented the basic facts to the Panel. Both physicians on the Panel immediately disagreed with the Department's recommendation and requested an Administrative Complaint to be filed against Petitioner. The Panel affirmed its two main concerns: that Petitioner referred the patient to Dr. Johnston, and that at surgery Dr. Johnston said he specifically asked the Petitioner to review his ligation. (Petitioner's exhibit 4, page 6-7) Consideration of the transcripts of both Dr. Johnston's and Petitioner's cases reveals that there was considerable discussion and awareness by the panel of the specifics of S. A.'s case, that they were quite sensitive to the fact that Petitioner was the assistant surgeon and that he denied he was asked to verify the procedure. The vote was unanimous that Probable Cause be found and that an Administrative Complaint be filed against Petitioner. The Administrative Complaint was duly filed on May 22, 1990, alleging Petitioner fell below the standard of care by failing to object to any part of the procedure performed by Dr. Johnston and by failing to point out the proper anatomy for ligation. (Petitioner's Exhibit 1) In a subsequent meeting of the Probable Cause Panel, the Department presented it's recommendation that Petitioner's case be closed without prosecution based on a second expert's opinion that " . . . ligation of the wrong vessel was a known but although unfortunate complication of this procedure but not necessarily below the standard of care . . . " (Petitioner's Exhibit 12, 1). This recommendation was eventually accepted. The ultimate dismissal of the complaint does not negate the fact that at the time that probable cause was found, the panel had sufficient and competent information upon which it made its decision. It had conflicting statements by the two physicians; it had an expert's opinion; and it had extensive medical reports. It was not required to seek out sufficient evidence to assure success in a formal hearing on the complaint.
The Issue Whether, as alleged in the administrative complaints, disciplinary action should be taken against Respondent's license to practice as a physician, based on separate violations of the following statutes for each patient as indicated below: DOAH Case No. 97-0337 Patient Statute T. D. 458.331(1)(g), 458.331(1)(t) F. R.-1 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) S. M. 458.331(1)(g), 458.331(1)(t) F. R.-2 458.331(1)(g), 458.331(1)(m), 458.331(1)(t) T. M. 458.331(1)(g), 458.331(1)(t), 766.411 L. F. 458.329, 458.331(1)(j), 458.331(1)(m), 458.331(1)(t), 458.331)1)(x) C. G. 458.331(1)(k), 458.331(12)(m), 458.331(1)(n), 458.331(1)(t) DOAH Case No. 97-0338 J. S. 458.331(1)(m), 458.331(1)(q), 458.331(1)(t).
Findings Of Fact Based on the evidence presented in this proceeding, the following facts were found: Respondent is, and has been at all times material hereto, a licensed physician, having been issued license number ME 0056554 by the State of Florida. The Respondent was licensed in Florida in 1989. Prior to his licensure in Florida, he underwent residency training in OB/GYN at the State University of New York in New York City and St. Agnes Hospital in Baltimore, Maryland. Following his residency the Respondent performed a two-year fellowship in perinatology at the State University of New York in Syracuse. Patient J. S. On December 10, 1992, Patient J. S., a 19 year-old female, presented to Respondent for evaluation and medical care concerning her pregnancy. The patient was transferred from Orlando Birthing Center where she had her entire prenatal care. Upon presentation, Patient J. S. was at 42 weeks gestation. After examination in Respondent's office, Respondent subsequently made arrangement for admittance to Princeton Hospital for induction and delivery the following day. On December 11, 1992, at approximately 6:45 a.m., Patient J. S. was admitted to Princeton Hospital. At approximately 11:30 a.m., Pitocin, a legend drug, was administered by the staff as directed by Respondent. Pitocin, a derivative of the pituitary gland, is a commonly used substance to stimulate the uterus to contract. However, it is not risk free and must be used carefully. If the muscle is over-stimulated causing too much contraction, there can be interference with the blood supply to the placenta or it can cause the uterus to rupture. The use of Pitocin must be carefully monitored. Variability and reactivity of the fetal tracing was within normal limits at that time. At approximately 5:30 p.m., on December 11, 1992, Patient J. S.'s membranes were artificially ruptured and an internal fetal scalp monitor was placed. At approximately 7:30 p.m., the nursing assessment revealed that J. S. was 2 centimeters (cm) dilated, 70 percent effaced, and at minus 2 station. At approximately 10:10 p.m., Patient J. S. experienced a deceleration in the heart rate. At approximately 10:35 p.m., the patient experienced two more decelerations indicative of fetal distress. This resulted in the nurse on duty turning off the Pitocin. A vaginal examination revealed that Patient J. S. was still 2cm dilated, 70 percent effaced with the baby at a minus 2 station though the Pitocin had been running continuously for approximately 11 hours. During this period the Respondent was not on the premises. At approximately 11:50 p.m., Pitocin was re-initiated, and variable and late decelerations were again noted. Respondent was notified at approximately 1:10 a.m. and no new orders were given. Patient J. S.'s Pitocin was subsequently increased. Following the increase of Pitocin, Patient J. S. suffered an episode of variable decelerations which lasted approximately three minutes. The fetal heart rate was noted to be 64 beats per minute. Respondent was notified and Patient J. S.'s Pitocin was subsequently discontinued. However, Patient J. S. continued to suffer episodes of severe variable and late decelerations. In the early morning hours of December 12, 1992, Patient J. S.'s uterine contractions increased followed by late decelerations. Pursuant to Respondent's orders, Pitocin was restarted at 9:30 a.m. At approximately 10:00 a.m., Respondent arrived at the hospital. By approximately 1:45 p.m., poor variability was noted. At approximately 2:00 p.m., Patient J. S.'s fetal heart rate became unstable and decelerations became more profound. Evaluation revealed that the fetal heart tracing showed a distress pattern with repeated episodes of bradycardia and moderate to severe variable deceleration while the station of the baby never proceeded beyond minus 1 station. Respondent subsequently increased Pitocin. Despite poor fetal tracing, Respondent indicated that he intended a vaginal delivery. Patient J. S. was given an epidural with a bolus at approximately 8:00 p.m. At approximately 9:13 p.m., following four hours of full dilation, Patient J. S. was transferred to Labor and Delivery for a trial forceps set-up. Respondent applied Tucker/McLean forceps to the fetal head. At this time, fetal heart rate tracing was noted to be 80-90 beats per minute. Respondent subsequently determined that the infant could not be delivered and a Cesarean section was performed approximately 40 minutes later. The delay in delivery was the result of the need to wait for the surgical assistant to arrive, who was on-call, and for the anesthesia to take effect before he could operate. The infant was delivered with visible forcep marks including a skin lesion. The infant appeared to be emaciated and also displayed behavior indicative of a seizure shortly after delivery. A subsequent CT Scan revealed a subdural hemorrhage. The infant was later diagnosed as suffering from right facial nerve paralysis. Respondent failed to practice medicine within the acceptable level of care in that Respondent failed to appropriately monitor Patient J. S.'s progress during labor. Respondent failed to pursue the appropriate plan of treatment for Patient J. S. Patient J. S.'s poor response to Respondent's initial attempts to initiate labor indicated that Respondent should have pursued an alternative plan of treatment. Respondent failed to practice medicine within the acceptable level of care by failing to proceed to the hospital to evaluate Patient J. S.'s condition following the episode of bradycardia on the evening of on or about December 11, 1992. Respondent failed to practice medicine within the acceptable level of care by allowing Patient J. S. to continue in labor prior to the delivery of the infant given that the infant continued to suffer from unstable and variable heart rates. Respondent failed to practice medicine within the acceptable level of care by delaying delivery approximately four hours following full dilation. Respondent failed to practice medicine within the acceptable level of care by failing to appropriately apply forceps in attempts to deliver the infant. Respondent failed to maintain medical records which justified his course of treatment for Patient J. S. Respondent failed to appropriately utilize Pitocin. The continued usage of Pitocin following initial attempts to induce labor was inappropriate given Patient J. S.'s failure to progress during labor. Patient T. D. On or about August 24, 1992, Patient T. D., an 18 year- old female, presented to Respondent complaining of vaginal and abdominal pain during the previous two days. Respondent conducted a pelvic examination. Respondent did not observe vaginal bleeding. Respondent ordered the performance of an obstetrics ultrasound which revealed a viable 15-week intrauterine pregnancy. Respondent did not perform further tests to determine if Patient T. D. was experiencing premature labor. Patient T. D. was sent home and directed to go to the hospital if bleeding began. Later that evening, Patient T. D. presented to Princeton Hospital at which time she aborted. On August 26, 1992, Patient T. D. returned to Respondent for evaluation. Respondent performed an ultrasound and prescribed Methergine for bleeding. Patient T. D. presented with indications of premature labor on August 24, 1992. Respondent did not appropriately evaluate Patient T. D. for premature labor. Respondent failed to appropriately diagnose Patient T. D.'s condition or failed to pursue the appropriate plan of treatment. Patient F. R.-1 On September 20, 1992, Patient F. R.-1, a 38 year-old female, was hospitalized for abdominal pain and vaginal bleeding following a positive pregnancy test conducted at the hospital emergency room. During the hospitalization, Patient F. R.-1's, levels of human chorionic gonadotropin (HCG) declined, and she underwent a pelvic ultrasound. The test indicated that the patient had a non-viable pregnancy. Following her release from the hospital, on or about September 23, 1992, Patient F. R.-1, presented to Respondent with abdominal pain and bleeding and a history of a tubal ligation and non-viable pregnancy. Respondent performed a pelvic examination and asked her to return if the symptoms persisted. On or about October 8, 1992, Patient F. R.-1 presented to Respondent with the same symptoms, at which time Respondent initiated Patient F. R.-1 on Provera and Estrace. On or about October 15, 1992, Patient F. R.-1 presented to Respondent with irregular bleeding and abdominal discomfort. Patient F. R.-1 was advised to return in two weeks for evaluation. On or about October 29, 1992, Patient F. R.-1 returned to Respondent with continued complaints of abdominal pain. Respondent performed a pelvic ultrasound on Patient F. R.-1 which revealed normal follicular cysts in the ovaries. While treating Patient F. R.-1, Respondent failed to evaluate her HCG levels. Declining levels of HCG indicate that Patient F. R.-1 suffered an early miscarriage. Respondent failed to appropriately assess Patient F. R.-1's condition, failed to diagnose a probable early miscarriage, and failed to accurately observe the contents of the uterine cavity. Respondent failed to attain a conclusive diagnosis of Patient F. R.-1's condition. Respondent inappropriately treated Patient F. R.-1 with Provera and Estrace (hormones). The prescribing of hormones following an abortion is below the standard of care. Respondent failed to maintain medical records which justified his plan of treatment for Patient F. R.-1. Patient S. M. On or about July 13, 1992, Patient S. M., a 31 year-old female, presented to Respondent with complaints of pain and cramps. Patient S. M. presented with a history of two Cesarean sections, a tubal ligation, and an appendectomy. Patient S. M. presented subsequent to the performance of a pelvic sonogram, which suggested a small fibroid in the uterus. The sonogram was performed by another physician. On or about July 13, 1992, Respondent performed a second sonogram, and diagnosed multi-cystic ovaries and heavy menses. Respondent noted that Patient S. M.'s pelvic examination was normal. In the course of the office visit, Respondent scheduled M. for an exploratory laparotomy. On or about August 5, 1992, Patient S. M. presented to Princeton Hospital for the performance of an exploratory laparotomy, a lysis of adhesions, and a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture. Respondent performed the procedure. Following the operation, pathology report revealed normal ovaries. On or about July 13, 1992, Respondent did not misdiagnose Patient S. M.'s condition or fail to appropriately assess her complaints. Respondent failed to appropriately perform the surgical procedure on or about August 5, 1992. The repair of the ovaries by chromic suture is inappropriate for 1992 surgical techniques and will ensure the formation of adhesions post-operatively. Patient F. R.-2 On or about July 3, 1992, Patient F. R.-2, a 37 year- old female, presented to Respondent for the performance of a gynecologic examination. Respondent performed a normal pelvic examination. Respondent's examination revealed heavy menses, and he diagnosed yeast vaginitis and pelvic pain. Patient F. R.-2 presented with a history of several operations on her kidneys and gallbladder, an appendectomy, and a tubal ligation. Approximately six weeks later, Patient F. R.-2 returned to Respondent for the performance of a pelvic sonogram which revealed a single cyst on one ovary, and several cysts on the other ovary. Respondent subsequently scheduled Patient F. R.-2 for the performance of a wedge resection of the ovaries. On or about September 23, 1992, Patient F. R.-2 presented to Princeton Hospital for the performance of a bilateral wedge resection of the ovaries with repair of the ovaries by chromic suture, and lysis of minimal pelvic adhesions. The post-operative pathology report revealed sections of normal ovaries. Respondent did not appropriately diagnose, assess, and treat Patient F. R.-2's condition. Respondent failed to appropriately perform the surgical procedure on or about September 23, 1992. The repair of ovaries by chromic suture is inappropriate for 1992 surgical techniques, and will ensure the formation of adhesions post-operatively. Respondent failed to maintain medical records which justify his course of treatment for Patient F. R.-2. Patient T. M. On or about July 20, 1992, Patient T. M. presented Respondent with a complaint of irregular bleeding and pain. Respondent performed a pelvic examination of the patient and noted that Patient T. M. was taking birth control pills. On or about July 28, 1992, Patient T. M. returned to Respondent with continued abdominal and pelvic pain. In addition to his examination, Respondent performed an office ultrasound. Respondent made a diagnosis of polycystic ovarian disease. He also treated Patient T. M. for a urinary tract infection. On or about July 29, 1992, Respondent performed a second sonogram and noted no change in the pelvic cysts. Following the performance of the second sonogram, Respondent scheduled Patient T. M. for a wedge resection of the ovaries. On or about July 31, 1992, Respondent admitted Patient M. to Princeton Hospital for the performance of a wedge resection of the ovaries. The post-operative pathology report indicated that the removed portion of the ovaries were normal. Respondent failed to appropriately diagnose, assess, and treat patient T. M.'s condition. Respondent failed to attain a conclusive diagnosis of Patient T. M.'s condition. On or about July 31, 1992, Respondent inappropriately performed a surgical procedure on Patient T. M., which was not indicated, given that her ovaries were normal and some other reason was the likely cause of her bleeding. Respondent failed to appropriately perform the surgical procedure on or about July 31, 1992. The surgical techniques utilized by Respondent were inappropriate in that Respondent should have used a non-reactive suture. Respondent failed to maintain medical records which justify his course of treatment for Patient T. M. Patient L. F. On or about Friday, May 7, 1993, Patient L. F. was hired to work for Respondent as an insurance clerk. On or about Monday, May 10, 1993, Patient L. F. Reported for work at Respondent's office. Patient L. F. was agitated and nervous and complained of stomach pain. Patient L. F. left the office for the day around noon. On or about May 11, 1993, Patient L. F.'s second day of employment, L. F. reported to work, but went home at the beginning of the day complaining of stomach problems. She later reported back to work at approximately 12:15 p.m. Patient L. F.'s testimony that after she returned to work, Respondent inquired into how Patient L. F. was feeling; that Respondent invited Patient L. F. into an examination room for the purpose of performing an examination; that during the examination, Respondent touched Patient L. F.'s vaginal area with an ungloved finger; that Respondent placed his finger or fingers on L. F.'s genitalia area and started rubbing that area; that Respondent placed his palm on L. F.'s breast, then rubbed the side of her face with his knuckles, and told her how pretty she was; and that there was no other female present during the examination is not credible. On May 11, 1993, Respondent was in his office seeing patients until approximately 12:30 p.m. Shortly thereafter, he left the office and traveled to Princeton Hospital to do rounds. Respondent arrived in a Patient Lightfritz's room at approximately 1:00 p.m., and then examined at least two other patients. He then returned to the office, arriving shortly after 2:00 p.m.; Respondent began seeing patients for the remainder of the afternoon. Patient L. F. remained on the job for the remainder of the afternoon and left for the day at approximately 5:30 p.m. She did not return to work the next day, or thereafter. Respondent did not perform a physical exam of L. F. and she was, therefore, not a patient of Respondent. Patient C. G. On or about May 12, 1993, Patient C. G., a 29 year-old female, presented to Respondent with complaints of a backache and vaginal discharge. Respondent conducted an examination of Patient C. G., including a pelvic sonogram. Following the examination, Respondent administered an injection of Depo-Provera to the patient. Respondent contemporaneously prepared medical records on Patient C. G. justifying the course of treatment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that in regard to DOAH Case No. 97-0337, Respondent be found guilty on Counts One, Two, Three, Four, Five, Six, Seven, Eight, Nine, Ten, Eleven, Twelve, Thirteen, and, it is RECOMMENDED that Respondent be found not guilty on Counts Fourteen, Fifteen, Sixteen, Seventeen, Eighteen, Nineteen, Twenty, and Twenty-one; and, it is RECOMMENDED that, in regard to DOAH Case No. 97-0338, Respondent be found guilty on Counts One, Two, and Three; and, it is further RECOMMENDED that the Respondent shall have his license to practice as a physician suspended for a period of one year; pay a civil penalty of $10,000, plus the costs of this prosecution; and the suspension be followed by a two-year period of probation, under such reasonable terms and conditions as the Board may require, including continuing medical education and evaluation. DONE AND RECOMMENDED this 1st day of April, 1998, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of April, 1998. COPIES FURNISHED: Gabriel Mazzeo, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Richard A. Simon, Esquire Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A. 201 East Pine Street 15th Floor Orlando, Florida 32801 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Dr. Marm Harris, Executive Director Department of Health Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
