Findings Of Fact The Petitioner, Darall J. Moore, graduated from the Ohio College of Podiatric Medicine in 1983 with a D.P.M. degree. T. 10. The Petitioner took the podiatry examination in July 1986, and did not receive a passing grade. On October 1, 1986, the Petitioner conducted a review of his examination. He arrived at 8:30 a.m. and left the review session at 1:30 p.m. R. Ex. 1. The review was conducted pursuant to the procedures outlined in P. Ex. 1, a copy of which was provided to the Petitioner by the Respondent before the review took place. The purpose of the review was to give the Petitioner an opportunity to examine the answer key and the questions asked on the examination, and to note in writing (on challenge sheets provided) his objections to the grading of particular questions by number. The procedure for examination review also provided that: Candidates may not copy any material provided for the review. No reference materials or electronic recording or photographic equipment may be brought into the review. No material may be taken out of the review. All reviews are subject to Departmental security requirements in order to insure the integrity of the examination. The review session on October 1, 1986, was conducted in a small room. The room was used by other people as well, and during the review there were conversations of people, phones ringing, and people coming in and out. Nonetheless, there does not appear to be any direct evidence that these distractions substantially impaired the Petitioner's ability to review his examination. During the review, the Petitioner submitted challenges to 20 examination questions by number. R. Ex. 1. Each of these written challenges identifies the examination question by number and provides a space for comments concerning the challenge. The procedure for examination review and challenge provides in part that "[a]ll objections must be submitted within sixty (60) days from the date of your request for a review. Objections will be analyzed by a committee of the Board of Podiatry and you will be notified of any decision." P. Ex. 1. (E.S. in original.) Before the review took place, the Petitioner was informed that he had a right "to appeal" from the "results" of his examination review. The "appeal" was to be initiated within thirty (30) days of his "receipt of . . . examination review results." The "appeal" was to contain specific reasons for the challenge, including why the Petitioner was "appealing," "what actions of the examiner(s) were unfair, and any objections made at your review." P. Ex. 1. (E.S. in original.) The Petitioner timely requested a formal administrative hearing. At the formal administrative hearing, the Petitioner presented evidence concerning five examination questions. T. 30. None of this evidence was by expert testimony, but the Petitioner referred to expert treatises in the field. The first question was to state the nerve located around the neck of head of the fibula. T. 30. Petitioner contends that his answer to the question, the common peroneal, is correct. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The second question challenged at the hearing by the Petitioner was "what dorsal cutaneous nerve communicates with the sural nerve." T. 44, 45. The Petitioner contends that the correct answer to this question, his answer, is the lateral dorsal cutaneous nerve. Id. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The third question challenged by the Petitioner at the hearing was "what is the largest reservoir of blood in the body." T. 46. The Petitioner contends that his answer, the veins, is the correct answer. T. 47. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fourth question challenged by the Petitioner at the hearing was what is the characteristic of metatarsus adductus. T. 48. The Petitioner contends that his answer, "styloid process, prominent styloid process, based on the concave in the concavity being reversed," is the correct answer. T. 49. This question is not discussed or objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2; T. 71. The fifth question challenged by the Petitioner at the hearing was never clearly stated by the Petitioner, but concerned "pathopneumonic of gouty arthritis." T. 49. The Petitioner never clearly identified the answer that he gave, but contended that his answer was partially right and that there was no other answer that he could have chosen. T. 49-50. It appears that this question was discussed and objected to in the written exam item challenges prepared by the Petitioner at the review session on October 1, 1986. R. Ex. 2, question 88. However, since the Petitioner never clearly demonstrated what the question was, or what the answer was, the testimony of the Petitioner was too unclear for there to be a finding that the answer he gave to the question was correct. The Petitioner admitted that during the review session (see R. Ex. 2) he did not provide the Respondent with all of the questions to which he had objections. T. 38. The Petitioner did not provide the Respondent with written objections to the first four questions discussed above within sixty (60) days of the review, and indeed, did not provide any such notice to the Respondent until the formal administrative hearing began. There is no evidence that the Petitioner would have passed the examination if the Respondent accepted his answer to the fifth question. The Petitioner testified that his ability to prepare for this hearing was impaired because he was not allowed to take anything into the review session and was not permitted to take anything out of the review session. He states that he could not adequately prepare for the hearing because he did not have references during the review session, and did not have a copy of the questions objected to in the review session or a copy of the examination for use at the hearing. The Petitioner represented himself without representation of a lawyer. There is no evidence that the Petitioner knew about the procedures for conducting discovery prior to a formal administrative hearing, and there is no evidence that prior to the hearing he sought any discovery of the written objections he made during the review session or of the examination questions.
Recommendation For these reasons, it is recommended that the Department of Professional Regulation, Board of Podiatry, enter its final order finding that the Petitioner, Darall Jerome Moore, has not proven by a preponderance of the evidence that his 1986 examination for licensure as a Podiatrist was improperly graded, that the procedures for review of his examination were unfair, or that he should be given a passing grade on the 1986 examination. DONE and ENTERED this 10th day of July, 1987. WILLIAM C. SHERRILL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 87-1725 The following are rulings upon findings of fact proposed by the parties, by number, which have been rejected. Findings of fact proposed by the Petitioner: 1. The record does not contain evidence (testimony or exhibits) to allow any conclusion as to the numerical grade received by the Petitioner. Thus, the finding proposed that the grade was 71.9 is rejected. There is insufficient evidence that the distractions during the review in fact substantially impaired the ability of the Petitioner to review the examination. The Petitioner did not testify that the noise or traffic caused him to be unable to concentrate or to fail to review the entire exam. See T. 28-29. The Petitioner completed twenty objections and left at 1:55 P.M., three hours before 5:00 P.M. The first sentence is rejected as not relevant. The Petitioner did not present any evidence to show how he was caused to be unable to prepare his case due to the scheduling of the hearing. It is officially recognized that the case was set for final hearing to commence August 10, 1987, by an order dated and entered May 1, 1987, and that the hearing date was changed to June 8, 1987, at the request of an attorney, Marc A. Tenney, received May 4, 1987. For these reasons, the second sentence is also rejected. Rejected for the reasons set forth in conclusions of law 2-4. The finding that it was very difficult to prepare for final hearing is rejected in finding of fact 19 and conclusion of law 6. Rejected in finding of fact 19 and conclusion of law 6. These findings are rejected in finding of fact 19 and conclusion of law 6. Rejected in findings of fact 11 through 14. Rejected in findings of fact 11 through 14. Findings of fact proposed by the Respondent: 2. The second sentence is rejected for lack of evidence in the record. COPIES FURNISHED: Marcelle Flanagan Executive Director Board of Podiatry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Darall Jerome Moore, D.P.M. 5455 27th Street South, Apt. 87 St. Petersburg, Florida 33712 Chester G. Senf, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Nina Udenze was born on April 19, 2013, at Memorial Hospital in Jacksonville, Florida. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Nina's medical records. In medical reports dated February 8 and March 12, 2016, Dr. Willis made the following findings and expressed the following opinion: I have reviewed the medical records, pages 1-505 for the above individual. The mother, . . . was a 34 year old G3 P2002 with a twin pregnancy. Nina was the B twins [sic]. The mother had a history of two prior Cesarean deliveries. * * * Repeat Cesarean section was done in early labor. Fetus B (Nina Udenze) was in a transverse lie. The baby was converted to breech and delivered. Birth weight was 2,152 grams (4 lbs 11 oz’s). Apgar scores were 6/9. The baby initially had a poor respiratory effort and required bag and mask ventilation for 45 seconds with good response. Apgar score was 9 by five minutes. The baby was taken to the NICU. The operative note indicated cord blood gases were done for both babies. However, only one cord blood gas result was seen in the available records (page 298). It was not labeled A or B and was apparently a venous sample. The pH was normal at 7.31 with a BE of -5. Hospital discharge was on DOL 4. The baby failed the newborn hearing test. Placental pathology was normal. There does not appear to be a birth related hypoxic brain injury based on available, but medical records are limited. No head imaging studies were available. It would be helpful if we could get the cord blood gas for fetus B. Thank you for allowing me to review this case. I will be available to review any additional records if they become available. Specifically, any head imaging studies and the cord blood gas for fetus B would be helpful. * * * Additional medical records were reviewed for the above individual, which included two MRI studies. The first MRI was done at about 8 months of age. A posterior fossa cyst was identified as well as findings suggestive of cerebral volume loss. MRI of the spine on the same day showed scoliosis. A follow-up MRI was done at about 2 ½ years of age, again identified the posterior fossa arachnoid cyst and also described partial absence of the Falx. It is also my understanding a cord blood gas for this child was not done at birth. The cord blood gas in the medical records was for the twin sibling. The additional medical records do not change the opinion given in the previous letter dated 02/08/2016. There does not appear to be a birth related hypoxic brain injury or mechanical trauma resulting in brain or spinal cord injury. In an affidavit dated April 1, 2016, Dr. Willis reaffirmed his ultimate opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Dr. Willis was deposed on May 26, 2016, wherein he testified in pertinent part as follows: Q. Okay. Do the records show that any mechanical devices such as forceps or vacuum extractions was used in the delivery? A. No. Q. You also note that her apgar scores were six and nine. Could you explain what an apgar score is? A. Yes. The apgar scores are given to the babies for a couple of reasons. The apgar score, the first apgar score is at one minute. And apgar scores can be anywhere from zero to ten. And the apgar score at one minute tells you how much resuscitation the baby requires at time of birth. An apgar score of seven or above would be considered normal. An apgar score below seven would be considered low. The one- minute apgar score is six. So, it was slightly lower than expected. However, by five minutes, the apgar score was nine, which would be a very good score showing that the baby transitioned well after birth. Babies that have significant oxygen deprivations during time of delivery, usually it takes a longer time for them to transition and recover. The baby seemed to recover fairly quickly. Q. Had there been oxygen deprivation at the time of delivery, what types of symptoms would you expect to see? A. Babies that have significant oxygen deprivation during the birthing process will be depressed and require resuscitation. They usually have respiratory distress. So, they’ll need some type of oxygen bag, mask ventilation, intubation. And then they will go to the neonatal intensive care nursery at -- which sometimes they will often have abnormalities in many of their different organ systems. For instance, seizure disorders are very common after brain injury at time of birth. You can also have renal failure, elevated liver function studies, blood clotting abnormalities. So, babies that have significant oxygen deprivation at birth will usually have some combination of these problems in the nursery. A baby that goes to the nursery and has a relatively benign newborn course in the nursery would not be consistent with significant oxygen deprivation during labor or delivery. Q. And in Nina’s case, what did the records indicate regarding her newborn course? A. The newborn course looked pretty uncomplicated. In fact, the newborn records pretty much just show normal newborn care, no significant problems in the newborn period. And the baby was discharged home on the third day of life. So, no prolonged hospital stay. * * * Q. All right. And based on your second letter dated March 2016, which is Exhibit 3, your final opinion was that there does not appear to be a birth-related hypoxic injury or mechanical trauma resulting in brain or spinal cord injury. Is that still your opinion today? A. That’s correct. Q. During your review of the medical records, did you find that Nina Udenze suffered oxygen deprivation occurring in the course of labor/delivery or resuscitation in the immediate postdelivery period that would have resulted in brain injury? A. No. Q. During review of the medical records, did you find that Nina Udenze suffered a mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period that would have resulted in brain injury or injury to her spinal cord? A. No. Q. And have your opinions today been rendered within a reasonable degree of medical certainty? A. Yes. Dr. Willis' opinion that there was no apparent obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post-delivery period, is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Nina. Dr. Duchowny reviewed Nina's medical records and performed an independent medical examination on her on February 3, 2016. In an affidavit dated April 4, 2016, Dr. Duchowny made the following findings and summarized his evaluation as follows: It is my opinion that: In SUMMARY, Nina's neurological examination reveals findings consistent with a substantial mental and motor impairment. Although Nina is walking, her gait is unstable with abnormal motor functioning and hyerreflexia. Her epicanthal folds were acquired prenatally and her unilateral hearing loss is unexplained. She also has microcephaly. A have had an opportunity to review the medical records which were sent on January 28, 2016. They reveal that Nina’s mother went into labor at 36 weeks gestation after experiencing spontaneous rupture of her membranes. Nina and her fraternal twin brother were delivered by urgent cesarean section. The fetal heart rate was stable. Nina was 4 pounds 11 ounces at birth and had 1 and 5 minute Apgar scores of 6 and 9. She required positive pressure ventilation for 45 seconds but then stabilized and did not experience subsequent respiratory complications. There was no evidence of multiorgan system involvement. Nina was discharged from Memorial Hospital Jacksonville on the 5th day of life. The medical records do not include the results of brain imaging studies. Before making a final determination, I would request to review the salient imaging studies. * * * I have now reviewed neuroimaging studies including MR brain imaging. The images do not reveal findings consistent with either an intra-partum hypoxic-ischemic insult or a mechanical injury. It is my opinion that together with the record review and neurological evaluation, the imaging findings confirm that Nina did not suffer from a birth-related neurological injury, and I am therefore not recommending inclusion within the NICA program. Dr. Duchowny's opinion that Nina did not suffer from a birth-related neurological injury is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain or spinal cord occurring in the immediate post- delivery period. Dr. Willis’ opinion is credited. Dr. Duchowny’s opinion that, although Nina has a substantial mental and motor impairment, she did not suffer from a birth- related neurological injury, is credited.
The Issue The issue presented for decision in this case is whether Respondent should be subjected to discipline for the violations of Chapter 458, Florida Statutes, alleged in the Administrative Complaint issued by Petitioner on April 24, 1997.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: Petitioner is the state agency charged with regulating the practice of medicine in the State of Florida, pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Pursuant to Section 20.43(3), Florida Statutes, Petitioner has contracted with the Agency for Health Care Administration to provide consumer complaint, investigative, and prosecutorial services required by the Division of Medical Quality Assurance, councils, or boards. At all times relevant to this proceeding, Respondent was a licensed physician in the State of Florida, having been issued license no. ME 00276678. At the time of Patient R.M.’s treatment, Respondent practiced orthopedic medicine. Respondent voluntarily ceased his orthopedic surgery practice in December 1994. He is currently employed as an assistant professor in the Department of Occupational Medicine at the University of South Florida College of Public Health. On July 28, 1993, Patient R.M., a 41-year-old female, presented to Respondent for an evaluation of right knee pain. Patient R.M. told Respondent that on November 1, 1992, she twisted her knee at home and heard a pop. Prior to this event, she had no knee problems. She told Respondent that she went to the emergency room at Brandon Hospital and was evaluated by the emergency room physician. The emergency room physician prescribed pain medication and placed her in a knee brace, gave her crutches, and advised her to see an orthopedic physician. Patient R.M. told Respondent that she had continued to experience swelling, occasional locking and giving-way of her knee over the intervening months. Respondent examined Patient R.M.'s right knee. He noted no obvious effusion or swelling, but did note tenderness over the medial joint line. Respondent noted that the right knee had a "full ROM" (range of motion), but his records did not quantify the patient's range of motion. Respondent noted a "markedly positive" McMurray's test. McMurray's test evaluates the stability of the knee meniscus. A positive McMurray's test is consistent with injury to meniscal structures. Respondent's records indicated that X-rays of the knee revealed no abnormalities. Respondent did not record the details of the X-rays, such as which planes were pictured or whether the X-rays were of the patella femoral joint or a standing lateral view of the knee. Respondent's records indicated to no examination or testing of the patella femoral joint. Dr. Harry Steinman, a board-certified orthopedic surgeon, opined that patella femoral problems can masquerade as meniscal problems in some situations, and that it is thus "mandatory" for the orthopedist to examine the patella femoral joint to rule it out as the locus of pathology. On the basis of his examination and Patient R.M.'s subjective complaints, Respondent's diagnostic impression was a tear of the medial meniscus, and his recommendation was an arthroscopic examination to evaluate and repair the tear. Respondent discussed his examination findings and treatment recommendation with Patient R.M. and explained the surgical procedure, including possible risks, complications, and alternatives. Patient R.M. subsequently signed a surgical consent form acknowledging that Respondent explained the necessity of the surgery, its advantages and disadvantages, its possible complications, and possible alternative modes of treatment. On August 6, 1993, Respondent performed an arthroscopic repair of the meniscus of Patient R.M.'s right knee. Respondent placed two sutures within the body of the meniscus, attaching it to the posterior medial capsule. Respondent made a second incision in the posterior medial aspect of the right knee. The posterior incision allowed Respondent to expose the capsule of the knee joint so that he could directly view the sutures as he passed them from the inside to the outside of the knee capsule, where he tied down the sutures and repaired the torn meniscus. This direct visualization was designed to ensure that any neurovascular structures were not impinged by the sutures. On August 11, 1993, Patient R.M. returned to Respondent for her first post-surgery examination. Respondent noted that the patient seemed to be doing well and her wounds were healing without difficulty. Respondent prescribed a Bledsoe brace, an articulated brace that allows for various ranges of motion, and advised Patient R.M. that she could begin partial weight-bearing with the use of crutches. Respondent advised Patient R.M. to return in three weeks for re-evaluation. Less than two weeks later, on August 23, 1993, Patient R.M. returned, complaining of numbness on the medial side of her right calf. On this visit, Patient R.M. was examined by Respondent's partner, Dr. Stuart Goldsmith, not Respondent. Dr. Goldsmith noted no effusion, redness, inflammation, or signs of infection. Dr. Goldsmith noted that Patient R.M. was wearing the Bledsoe brace "significantly tight," which could explain the numbness in the medial side of her calf. He advised the patient to loosen the straps on the brace, continue with range of motion exercises, and return to see Respondent in one week. Patient R.M. understood and agreed with Dr. Goldsmith's advice, and indicated she would return in one week. On September 1, 1993, Patient R.M. returned to Respondent for evaluation. She complained of decreased sensation along the medial side of her calf. Respondent noted that his evaluation revealed "what I determine to be almost normal sensation." Respondent also noted that he wondered whether Patient R.M. had a little irritation of the infrapatellar branch of the saphenous nerve at the site of the anterior medial stab wound. Respondent recommended that Patient R.M. begin range of motion exercises without the Bledsoe brace and commence physical therapy. He advised her to return in three to four weeks for re-evaluation. Patient R.M. returned two weeks later, on August 15, 1993, complaining that she heard a pop in the knee the night before. She told Respondent that she had not commenced physical therapy, but had been doing quite well prior to hearing the pop. Respondent noted that "sensation has apparently returned to normal." Respondent noted some tenderness along the medial aspect of the knee joint. He noted no effusion and a full range of motion, though again his records did not quantify the range of motion with numeric values. Respondent concluded that Patient R.M. had pulled apart some mild scar tissue, and again recommended commencement of physical therapy. He advised her to return in about one month for re-evaluation. On October 11, 1993, Patient R.M. returned to Respondent for evaluation. She continued to complain of decreased sensation along the anterior medial aspect of her right calf. She told Respondent that she had sensation, but that it was "different." Respondent noted that he wondered if the cause of this complaint might be that a portion of the infrapatellar branch of the saphenous nerve was nicked during surgery. Patient R.M. complained of pain extending from the inferior pole of her patella distally. Respondent noted that this pain was alleviated by bringing the patella medially, and that he had ordered a brace that he hoped would offer relief. Respondent advised Patient R.M. to continue therapy at home and to return in a couple of months. Patient R.M. never returned to Respondent's office. On November 16, 1993, Patient R.M. presented to Dr. John Okun, an orthopedic surgeon, for a second opinion. Dr. Okun took her history and performed an examination, including pinprick and light touch tests, and Tinel's sign, which indicates irritability of a nerve. Respondent testified that he had also performed these tests, but did not note them in his records. Dr. Okun suspected that a branch of the saphenous nerve had either been transected or caught in a suture during Respondent's operation, and believed that Patient R.M. would be best served by an exploration of the posterior aspect of the knee to see if anything could be done to restore nerve function. Dr. Okun noted that he discussed the situation at length with Patient R.M., advised her of the options, and received her assurance that she would consider the options and call him with any problems or changes. On December 3, 1993, Dr. Okun performed a surgical exploration of the nerve. He identified a loop of suture wrapped around the saphenous nerve. He removed the suture and freed the tissues surrounding the nerve. Dr. Okun followed Patient R.M.'s progress until March 1995. She generally reported improvement, but continued to complain of paresthesia and showed positive Tinel's signs in her lower leg. On March 8, 1994, Dr. Okun noted persistent nerve symptoms, and further noted that this was not surprising considering the degree of nerve compression. On May 5, 1994, Dr. Okun noted probable permanent damage to the nerve, but advised waiting another six months to one year before concluding that she had reached maximum improvement. Dr. Okun testified that, during his course of treatment, he never identified a significant patella tracking problem with Patient R.M. Dr. Okun also testified that Patient R.M. had a definite medial meniscus tear, and that "it looks like it was repaired fine" by Respondent's arthroscopic procedure. Dr. Steinman agreed at the hearing that there was a tear of the medial meniscus, and noted that Patient R.M. no longer complained of swelling, giving-way, or locking after the arthroscopic procedure. The evidence at hearing established that the surgical procedure performed by Respondent was within the standard of care. Respondent repaired a tear of the medial meniscus. The experts agreed that impingement of the saphenous nerve by a suture is a known and relatively common complication of the procedure performed by Respondent, despite the precaution of making an incision in the posterior aspect of the knee to visualize the posterior capsule. The experts further agreed that such impingement of the nerve during this procedure does not, of itself, establish that Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Petitioner's allegations thus relate to Respondent's actions prior to and after the surgical procedure itself. The Complaint alleges that, prior to surgery, Respondent failed to perform an appropriate initial examination, failed to appropriately diagnose Patient R.M.'s condition, and failed to attempt conservative therapy prior to performing surgery. Dr. Steinman testified that Respondent should have examined the patella femoral joint in order to rule that out as a cause of the patient's symptoms. While conceding that Patient R.M.'s symptoms were all consistent with meniscal pathology, and that Respondent arrived at the correct diagnosis, Dr. Steinman opined that the patient was entitled to a full examination irrespective of the final outcome, and that the standard of care required an examination of the patella femoral joint. Dr. Steinman's testimony is credited on this point. However, the impact of his critique is lessened by that fact that Respondent's diagnosis was correct, the fact that Dr. Richard Goldberger examined the records and concluded that the patient was not suffering from a patella femoral joint problem, and the fact that Dr. Okun, who actually treated Patient R.M. for more than a year, also found no reason to believe that Patient R.M. had a patella tracking problem. Dr. Goldberger further observed that Patient R.M.'s only complaint regarding patellar pain was made after the surgery, not before. Under the circumstances, the worst that can be said of Respondent is that he went directly to the true cause of Patient R.M.'s complaint without affirmatively ruling out another possible cause. The evidence established that Respondent discussed a conservative course of therapy with Patient R.M. The evidence also established that a conservative course of therapy would have accomplished no tangible improvement in the tear of the medial meniscus. Dr. Richard Goldberger testified that physical therapy was not indicated for this patient. Dr. Goldberger testified that the only reason he would recommend physical therapy in this situation would be for the peace of mind of the patient, to assure a reluctant candidate for surgery that all conservative avenues had been exhausted. Even Petitioner's expert, Dr. Steinman, agreed that he would have discussed arthroscopy with the patient after the first visit, given her stated history and examination results. Dr. Steinman testified that after the initial examination, he would not have been convinced the patient had a meniscal tear, and would have recommended other treatments to confirm the diagnosis. However, he also stated that if Respondent was firm in his diagnosis of a meniscal tear, then diagnostic arthroscopy is what orthopedic surgeons generally would recommend. Respondent noted that Patient R.M.'s right knee showed a normal range of motion, though he did not note numeric values for the range of motion. This was not a deviation from the standard of care because loss of range of motion was not related to Patient R.M.'s pathology. Under the circumstances, it was sufficient for Respondent to note that range of motion was observed and found to be normal. Respondent failed to describe the X-rays he examined in reaching his diagnosis. Again, this was not a deviation from the standard of care because the information to be found in an X-ray was unrelated to the soft tissue injury that Respondent diagnosed in Patient R.M. Under the circumstances, it was sufficient for Respondent to note that X-rays were taken, examined, and found to be normal. In summary, Petitioner failed to establish by clear and convincing evidence that Respondent failed to meet the standard of care as regards his pre-operative treatment of Patient R.M. As to post-operative care, Petitioner alleges that Respondent failed to perform testing on the saphenous nerve when Patient R.M. complained of medial side numbness in the lower right leg, and failed to refer Patient R.M. to a neurologist for evaluation of a possible saphenous nerve injury. As noted above, Respondent employed a surgical technique by which he made a posterior incision in the knee, exposed the knee capsule, passed the suture from the inside to the outside of the knee, tying the suture under direct visualiztion. Respondent contended that use of this technique allowed him reasonably to assume that no injury to the saphenous nerve had occurred due to a suture being tied directly on it. This assumption explains why Respondent's post-surgery notes record his suspicions of a problem with the infrapatellar branch of the saphenous nerve. Respondent's technique would not have allowed him to observe an injury to the infrapatellar branch, because that injury would have occurred during placement of the surgical port on the medial aspect of the knee. Dr. Steinman testified that Respondent's observations were inconsistent with Patient R.M.'s complaints. He stated that the infrapatellar branch comes off the medial kneecap and travels in a medial to lateral direction. If the infrapatellar branch was interrupted, the area of numbness or abnormal sensation would have been on the lateral aspect of the patella, whereas the patient's complaints were along the anterior or medial aspect of the calf and ankle, outside the autonomous area of this nerve. Dr. Steinman testified that Patient R.M.'s complaints could lead only to the conclusion that the sartorial branch of the saphenous nerve had been jeopardized in some way. Dr. Steinman observed that Respondent appeared aware that there was a nerve problem, but that he was in error as to which nerve. Dr. Steinman testified that Respondent should have commenced some form of testing for a saphenous nerve problem no later than the October 11, 1993, visit, when she reiterated her complaints of decreased sensation along the medial aspect of her right calf and Respondent noted for the second time his suspicions regarding a saphenous nerve problem. Dr. Okun testified that if he had performed a meniscus repair and the patient presented these symptoms, he would probably have gone back into the knee and tried to snip the suture or at least explore the incision. However, he also testified that if he were comfortable that he had done everything properly and there was not a very high chance that he had trapped a nerve, he would wait for a period of three to six months to see if the problem would resolve on its own. Dr. Okun was unsure whether a definite standard of care could be stated for this situation. Dr. Okun also testified that whatever damage the nerve sustained was probably done at the time of the initial surgery, and would not get worse from having the constriction of the suture around it. He stated this was another reason why he might wait to perform a second procedure. Dr. Steinman strongly disagreed that the surgeon's degree of confidence in his work should play any role in his post-surgical treatment. The fact that the patient has complained of symptoms in a problematic area is evidence enough that there may be a problem, particularly where the complication is as common as this one, regardless of the surgeon's conviction that his suture missed the nerve. Dr. Goldberger testified that Respondent met the standard of care. Respondent was aware of the complaints of numbness and mentioned them and their severity in his notes. Dr. Goldberger stated that the saphenous is a sensory nerve and is not considered vital. Because the nerve has no motor function, the physician must rely on the subjective complaints of the patient regarding the symptoms. Some patients accept the symptoms and do not feel they are impaired by them. Dr. Goldberger testified that it was reasonable for Respondent to observe the patient's clinical course and pay attention to her complaints, without taking aggressive action. The weight of the evidence leads to a finding that Respondent might have been more aggressive in treating what he suspected was a saphenous nerve problem, and might have referred Patient R.M. to a neurologist to rule out a systemic problem, but that Respondent did not clearly deviate from the standard of care in choosing a more conservative course or failing to make a referral. Dr. Steinman severely criticized Respondent's post- surgical records in their failure to thoroughly document the sensory tests that Respondent testified he performed on Patient R.M. Respondent was not charged with failure to maintain adequate medical records. Thus, it is not necessary to address the merits of Dr. Steinman's critique of Respondent's 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 dismissing the April 24, 1997, Administrative Complaint against the Respondent, Steven A. Field, M.D. DONE AND ENTERED this 6th day of July, 2000, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of July, 2000. COPIES FURNISHED: John E. Terrel, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Christopher J. Schulte, Esquire Shear, Newman, Hahn, Rosenkranz, P.A. 201 East Kennedy Boulevard, Suite 1000 Post Office Box 2378 Tampa, Florida 33601-2378 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue Whether petitioner should take disciplinary action against respondent for the reasons alleged in the administrative complaints?
Findings Of Fact Respondent Patrick J. McCarthy has practiced obstetrics and gynecology in Tallahassee, Florida, since 1976. He "qualified as a doctor in 1958" (T.215) at the University of Wales, did residencies in Canada, including three years in obstetrics and gynecology at McGill University, and practiced in New Hampshire, before coming to Florida, where he is duly licensed to practice. Board certified here and abroad, Dr. McCarthy now delivers 200 to 250 babies a year. Over his career, he estimates, he has delivered 7,000 to 8,000 infants. T.225. In 1981, he "recertified in obstetrics and gynecology in the American boards." T.236. C.H. On November 1, 1984, Dr. McCarthy admitted C.H., a 23-year old mother of one whom he had been seeing in his office during her second pregnancy. Labor had begun shortly after midnight, about five hours before C.H. arrived at the hospital. At quarter past six that morning, when C.H.'s cervix had dilated to a diameter of seven or eight centimeters, respondent did not accede to C.H.'s request for epidural anesthesia. At 6:36 a.m., however, C.H. received Demerol and Phenergen, medicines Dr. McCarthy ordered, and later got local anesthesia, a "pudendal block" designed to numb the area in which an episiotomy was eventually performed. Four minutes later C.H. was taken to the delivery room. C.H.'s cervix was fully dilated by ten of seven. At 6:58 a.m., Dr. McCarthy applied a vacuum extractor, but he did not succeed in delivering the baby's head until 7:20, after he had resorted to low forceps. His head out, the baby's shoulder lodged behind his mother's pubic symphysis. All ten pounds and seven ounces were stuck. Once the head is delivered, the rest of the baby should be delivered within five or six minutes to avoid the risk of damaging or losing the child. The umbilical cord's function can be compromised if it is pinched between the baby and strictures in the birth canal. At this point, Dr. McCarthy performed what he called a Wood's maneuver. Wood's maneuver, also known as the corkscrew maneuver, was unquestionably acceptable practice at the time, if properly performed "by applying pressure on the back of the [baby's] shoulders." T.134. Currently the preferred initial response to shoulder dystocia is to bend and raise (if she is supine) the mother's legs to reposition the pubes. Named after a Dr. McRoberts, this approach was used in Tampa in 1984, but was apparently unknown to Dr. McCarthy at that time. In describing C.H.'s baby's birth, which took place at 7:23 on the morning of November 1, Dr. McCarthy wrote in the chart: "Marked shoulder dystocia -- shoulders rotated through 180o." Joint Exhibit No. 1. Later, asked about these events while under oath, he answered: I rotated the head and shoulders. Q. How did you do that? A. Thats called -- it's a thing called Wood's maneuver, where you are using -- you rotate the head so that the shoulders will follow it. The posterior shoulder then comes under the symphysis of the pubic. It's lower than the anterior. When you have that, then you have the baby up. Q. And in that process do you place a downward pull on the baby's head? A. No, you rotate. . . . Q. From the process of this delivery was there any injury to this baby? A. Yes, the baby had a brachial plexus palsy. Q. How did the brachial plexus palsy occur? A. Presumably when I turned the head, it stretched the nerves in the brachial plexus at the base of the neck. Q. That would have been when you turned the head in the last maneuver that you attempted or would that have been in the first maneuver when you are pulling down on the head? A. Usually when you turn the head. Q. In this case do you know when the injury occurred? A. Usually it happens when you turn the head. It's a twisting motion, because this is the greatest stretch motion. Petitioner's Exhibit No. 2, pp. 51-3. Dr. McCarthy's testimony at hearing that he did not turn the baby's head (except by turning the baby's shoulders) in performing what he called a Wood's maneuver has not been credited. Whether or not (as Dr. McCarthy assumed) the twisting caused the brachial plexus palsy with which the child is afflicted, rotating the baby's head "so that the shoulders w[ould] follow it" was a departure from minimally acceptable practice. On this point, every expert who testified was in agreement. The records do not indicate whether C.H. was catheterized before her delivery. Presumably she was not, but petitioner did not allege and the evidence did not show that she needed a urinary catheter. Petitioner did not establish any dereliction on respondent's part in his keeping of records on C.H. or her delivery, aside from the elliptic description he gave of his rotary manipulation. M.B. Before the day she was delivered, M.B. had been under the care of M. J. Moreton, M.D., who was apparently unavailable at twenty past eleven o'clock on the morning of October 9, 1984, when M.B., then the 28-year-old mother of one child, arrived at Tallahassee Memorial Regional Medical Center. Irregular contractions had begun earlier that morning, and persisted until that afternoon, when Dr. McCarthy, who had undertaken M.B.'s care, directed that she be given a drug "to get her into good labor." Joint Exhibit No. 2. The drug to induce regular contractions was administered at four o'clock. She received epidural anesthesia at intervals. Vomiting, begun at ten o'clock that night, a half hour before her cervix was fully dilated, interfered with M.B.'s ability to push. Sporadically, the fetal monitor indicated pulse rates as low as 70. Dr. McCarthy used a vacuum extractor to deliver the baby's head, and encountered shoulder dystocia. At hearing, Dr. McCarthy recounted his use of a procedure called Hibbald's maneuver, one of a number of accepted techniques for dealing with shoulder dystocia: . . . I told the nurse to apply fundal and suprapubic pressure and I grasp[ed] the head and pulled it down approximately a forty-five degree angle . . . I was applying moderate traction to the head and the baby delivered. T.258-9. Two or three minutes after the delivery of the head, M.B.'s baby was born at 10:47 p.m. on October 9, 1984. "The only unusual thing about the baby, apart from the brachial plexus palsy, was that there was a cord around the shoulder," (T.259) presumably the cause of the intermittently depressed fetal pulse rate. Dr. McCarthy acknowledged that he "could have used many maneuvers," (T.260) other than Hibbald's. He ascribed his exclusive use of Hibbald's maneuver to the shortness of the time it took to deliver the baby. At some point, reliance on a technique that is not succeeding, to the exclusion of others that might dislodge a baby without causing brachial plexus palsy, a known complication of shoulder dystocia, falls below minimally acceptable standards of practice. During the two- or three-minute interval between delivery of the baby's head and extrication of his shoulder, Dr. McCarthy "checked the baby to see if there was a cord around the neck," (T.261) and suctioned fluid from the baby's nostrils. The evidence did not clearly show how long he applied traction before the baby was delivered. An expert testifying for petitioner said that a patient with epidural anesthesia "in general is unable to void . . . and . . . the bladder can enlarge . . . and can interfere . . . [so that] it's good obstetrics, before performing a forceps or vacuum delivery to catheterize. . . ." T.55. But there was no testimony that failure to catheterize fell below minimally acceptable standards, nor any testimony to establish M.B.'s particular circumstances. The evidence established no deficiencies in respondent's recordkeeping with regard to M.B. or her delivery.
Recommendation Although later adopted and, therefore, not determinative, see Willner v. Department of Professional Regulation, 563 So.2d 805 (Fla. 1st DCA 1990), Rule 21M-20.001(2)(t), Florida Administrative Code, specifies penalties for violating Section 458.331(1)(t), Florida Statutes (1991), ranging from two years' probation to license revocation, together with a fine of $250 to $5000, depending on aggravating and mitigating circumstances set out in Rule 21M- 20.001(3), Florida Administrative Code. Upon consideration of the foregoing findings and conclusions, and the length of time that has elapsed since the birth of C.H.'s baby, it is RECOMMENDED: That the Board of Medicine place respondent on probation for a period of five (5) years, on condition that he attend a minimum of thirty (30) hours per year of category I continuing medical education courses, including, within the first ninety (90) days of probation, ten (10) hours of courses on how to manage shoulder dystocia; and on further condition that he perform 250 hours of community service under the auspices of the county health department, if needed, during each year he is on probation; provided, however, that the question of penalty be reopened, in the event respondent fails to abide by the conditions of probation or to make reports to the Board on or before the tenth day of each month, reflecting compliance with the conditions of probation. DONE and ENTERED this 4th day of February, 1993, at Tallahassee, Florida. ROBERT T. BENTON, II, 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 4th day of February, 1993. APPENDIX Petitioner's proposed findings of fact Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, both 17s, the first 18 and 19 regarding C.H. and Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, and 16 regarding M.B. have been adopted, in substance, insofar as material. With respect to petitioner's proposed findings of fact Nos. 16 and the second 18 regarding C.H., respondent unquestionably exposed the baby to the risk of serious injury, and more than likely caused the brachial plexus palsy. With respect to petitioner's proposed findings of fact Nos. 12, 18, 19, 20, 25 and 27 regarding M.B., Dr. Brauner's testimony that persisting with Hibbald's maneuver for longer than 60 seconds would fall below minimally acceptable standards has been credited, but the evidence was not clear and convincing as to the exact length of time Dr. McCarthy applied traction. Petitioner's proposed findings of fact Nos. 17, 22, 26, and 28 and 29 regarding M.B. pertain to subordinate matters. With respect to petitioner's proposed findings of fact Nos. 21 and 23 regarding M.B., the evidence did not clearly and convincingly establish that respondent's use of the Hibbald maneuver caused the brachial plexus palsy, although it is entirely possible that it did. With respect to petitioner's proposed finding of fact No. 24 regarding M.B., the evidence showed that Dr. McCarthy intervened to accelerate delivery of the head, but his deployment of the vacuum extractor was not alleged to have been below standards, and may well have been justified by the intermittently depressed pulse the baby exhibited and the mother's difficulty pushing. Respondent's proposed findings of fact Nos. 1, 2, 3, 4, 10, 12, 14, 15, 20, 27, 28, 29, 30, 31, 32, 37 and 40 have been adopted, in substance, insofar as material. With respect to respondent's proposed finding of fact No. 5, C.H. arrived at the hospital before 5:45. Respondent's proposed findings of fact Nos. 6, 7, 8, 9, 11, 17, 18, 22, 33 and 34 pertain to matters that are subordinate or immaterial altogether. With respect to respondent's proposed finding of fact No. 13, Wood's maneuver requires pressure on the shoulders, not the head. With respect to respondent's proposed finding of fact No. 16, use of the vacuum extractor preceded knowledge of the shoulder dystocia. With respect to respondent's proposed findings of fact Nos. 19 and 21, he did not perform the maneuver properly. With respect to respondent's proposed finding of fact No. 23, the "clarification" has not been credited. With respect to respondent's proposed findings of fact Nos. 24 and 25, the obstetrician does not have discretion to fail to meet minimum standards. With respect to respondent's proposed finding of fact No. 26, the precise etiology of the brachial plexus palsy was not established. With respect to respondent's proposed findings of fact Nos. 35, 36, 38, 39, and 41, petitioner failed to prove clearly and convincingly that respondent's management of the shoulder dystocia in M.B.'s case fell below standards, but neither did the evidence establish that it met standards. COPIES FURNISHED: Gerald B. Sternstein, Esquire 600 First Florida Bank Building Post Office Box 2174 Tallahassee, FL 32316-2174 Richard A. Grumberg, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, FL 32399-0750 Jack McRay General Counsel 1940 North Monroe Street Tallahassee, FL 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation Medicine Board 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue is whether Petitioner overpaid Respondent for medical services for 20 patients under the Medicaid Program from February 22, 1997, through February 22, 1999, and, if so, by how much.
Findings Of Fact At all material times, Respondent, who is a licensed physician, was authorized to provide medical services to Medicaid recipients, provided medical services to Medicaid recipients, billed Petitioner for these services, and received payment for these services. The Medicaid program provides for periodic audits of each Medicaid provider, after which Petitioner may seek repayment of amounts revealed by audit to have been overpaid to the provider. After conducting such an audit of Respondent for services rendered from February 22, 1997, through February 22, 1998, and exchanging post-audit information, Petitioner informed Respondent, by letter dated March 1, 2002, that it had overpaid him $238,069.09 for claims that were, in whole or in part, not covered by Medicaid, and demanded repayment of this amount. The letter states that the overpayment was extrapolated from the overpayment amount determined from auditing the records of a random sample of 21 patients for whom Respondent had submitted 423 claims. The actual overpayment amount, before extrapolation is $11,248.14. Petitioner later removed one of the patients from the sample due to a billing error. Among the 21 patients covered by the audit, the deleted patient is identified as Patient 20. The age of each patient set forth below is his or her age at the time of the first office visit during the audit period. Where a series of payments are set forth below, they are listed in the order of the procedures discussed immediately above the payments. Patient 1, who was 17 years old first saw Respondent on March 27, 1998. Petitioner allowed payments for Patient 1's first two visits. On March 27, 1998, Respondent performed an abdominal echogram and other services for abdominal pain of three or four months' duration, and, on April 14, 1998, Respondent performed a doppler echocardiograph and other services for chest pain of three or four days' duration. On April 27, 1998, Patient 1 presented at Respondent's office with fever and chills since the previous day. Patient 1 complained of nausea, frequent and painful urination, and pain in the abdomen and lower back. Without first performing a urinalysis or urine culture, Respondent performed a renal echogram April 27, based on his diagnosis of urosepsis and to rule out a urinary tract infection. Renal echography was not medically necessary to rule out a urinary tract infection, at least until Respondent had first performed a urinalysis and urine culture and considered the results from this laboratory work. Respondent's diagnosis of urosepsis lacks any basis in his records. If Patient 1 had suffered from urosepsis, which is a life-threatening condition that requires urgent treatment--not echography--Respondent should have treated the matter as a medical emergency. Petitioner proved that it overpaid $61.57 for this service. Petitioner allowed a payment for medical services, which did not include any echography, on May 4, 1998. On June 1, 1998, Patient 1 presented at Respondent's office complaining of acute abdominal pain for three or four days. Respondent performed a physical examination and detected an enlarged spleen. He then performed an echogram of the spleen and found a normal spleen without inflammation or cyst. Respondent proceeded with the echography without first performing routine blood work, such as a white blood cell count, to detect infection. The echogram of the spleen was not medically necessary, at least until Respondent had performed routine blood work to confirm or rule out infection. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to this payment, so Petitioner did not overpay for this service. Petitioner allowed a payment for a medical service on June 5, 1998. On June 19, 1998, Patient 1 presented at Respondent's office complaining of weakness, fainting, dizziness, fatigue, palpitations, shortness of breath, heartburn, rectal discomfort, and skin rash. After performing a physical examination, Respondent suspected hypothyroidism and performed a thyroid echogram, which revealed a normal thyroid. Again, thyroid echography is not medically necessary without first performing routine laboratory tests of thyroid function. Petitioner proved that it overpaid $45.24 for this service. On August 3, 1998, Patient 1 presented at Respondent's office complaining of weakness in his arms and hands of three to four weeks' duration. A physical examination revealed that Patient 1's grip was weak and his wrists painful upon pressure. Suspecting carpal compression, Respondent conducted three types of nerve conduction velocity tests (NCV), including an H-Reflex test, all of which test nerve function. Patient 1 had a psychiatric diagnosis, as Respondent was aware at the time of this office visit. Before conducting the NCV, Respondent contacted Patient 1's psychiatrist and obtained her approval of the test. Also, before conducting the NCVs, Respondent obtained blood work, so as to determine the blood levels of the psychotropic medications that Patient 1 was taking. Petitioner failed to prove that it overpaid for these services. Patient 1 visited Respondent's office on August 7, August 25, September 16, and October 30, 1998, but Petitioner is not disallowing any of these payments. On November 23, 1998, Patient 1 presented at Respondent's office complaining of pain in his right ankle after tripping and falling the previous day. Respondent conducted a physical examination and found mild swelling, applied an elastic bandage, prescribed Motrin and physical therapy for three weeks, and ordered an X ray. Petitioner claims that Respondent misbilled the procedure. Respondent billed a 73000, which is a procedure under the Current Procedure Terminology manual (CPT), and Petitioner claims that the correct CPT code is 73600, which would generate an overpayment of 59¢. However, as noted in the Preliminary Statement, the evidence fails to support this claim by Petitioner, so Petitioner failed to prove that it overpaid for this service. Patient 2, who was a 57 years old, had seen Respondent for three years. Patient 2 visits the office "constantly," according to Respondent. Petitioner has disallowed payments for services rendered on March 2, March 31, April 28, June 1, August 17, August 28, September 24, October 2, November 3, November 9, December 1, and December 21, 1998, and January 8, 1999. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to the aerosol treatment on August 17 and the level of service of the office visit on August 28. On March 2, 1998, Patient 2 presented at Respondent's office with acute onset the previous day of left flank pain, now radiating to the left lumbar and genital areas. Patient 2 denied passing any stones in his urine, although he complained of frequency and pain of urination. Respondent found Patient 2's abdomen distended and liver enlarged. He performed a renal echogram to rule out kidney stones or urinary retention. The results were normal. Respondent's testimony failed to establish the medical necessity of this renal echography. The symptoms are too nonspecific to justify this diagnostic procedure at this time, so Petitioner proved that it overpaid $61.57 for this service. On March 31, 1998, Patient 2 presented at Respondent's office with complaints of leg pain and cramps at night, which arose after walking a block and alleviated with rest. Diagnosing this obese patient with peripheral vascular disease, Respondent performed doppler procedures of the lower extremity veins and arteries. The results revealed mild atheromatous changes in the lower extremities. Petitioner failed to prove that the two procedures billed by Respondent for the March 31 office visit were medically unnecessary, so Petitioner failed to prove that it overpaid for these services. On April 28, 1998, Patient 2 presented at Respondent's office with nausea of three or four days' duration, vomiting associated with indigestion, fatty food intolerance, flatulence, and bitter taste. Patient 2, whom Respondent presumed was alcoholic, had an enlarged liver, as Respondent had noted in previous examinations of Patient 2. Respondent performed a liver echogram, after ordering a laboratory report on January 29, 1998. The results confirmed the presence of liver echogenicity or fatty liver. 26. Petitioner failed to prove that this echography was not medically necessary, so Petitioner failed to prove that it overpaid for this service. On June 1, 1998, Patient 2 presented at Respondent's office with complaints of pain on urination, increased frequency of urination, the need to urinate at night, and chills. Respondent performed an echogram of the prostate to rule out cancer; however, Respondent's records did not disclose any laboratory test, which is more appropriate for detecting prostate cancer. Respondent's testimony establishes that this echogram was not medically necessary, so Petitioner proved that it overpaid $51.34 for this service. On September 24, 1998, Patient 2 presented at Respondent's office with a complaint of low back pain after slipping and falling down three days earlier. Respondent performed three NCVs, including an H-Reflex test. Respondent's notes state an intention to do X rays, although the records fail to reveal whether X rays were ever done. Petitioner failed to prove that the three NCV tests were not medically necessary. Petitioner also downcoded the office visit on this date, but, as noted in the Preliminary Statement, due to the failure to produce a CPT manual, Petitioner failed to prove that it overpaid $10.74 for this service. On October 2, 1998, Patient 2 presented at Respondent's office with a complaint of shortness of breath. Respondent administered an aerosol with Ventolin, which is a drug used to combat asthma. This is the same aerosol that Dr. Hicks decided to allow on August 17 upon further review, and the medical necessity for this aerosol is the same as the earlier aerosol, so Petitioner failed to prove that it overpaid $10.62 for this service. On November 3, 1998, Patient 2 presented at Respondent's office with complaints of malaise, fatigue, weakness, and weight gain. Respondent performed a thyroid echogram in connection with a diagnosis of hypothyroidism, and the test results were normal. Patient 2, who suffered from chronic obstructive pulmonary disease (COPD), had not actually gained weight over 1998. Without the results of other tests of thyroid function, a test to measure the size of the thyroid was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On November 9, 1998, Patient 2 presented at Respondent's office with complaints of continuing chest pain and palpitations. Respondent had seen Patient 2 three days earlier for the same complaints and performed an electrocardiogram, whose results were abnormal, although not acute. Based on this test, Respondent had referred Patient 2 to a cardiologist. Given the proper referral of Patient 2 to a cardiologist, the ensuing doppler echocardiogram was not medically necessary. The record is devoid of any evidence that Respondent could adequately care for the cardiac condition suffered by Patient 2, so this diagnostic service performed no useful function. Petitioner proved that it overpaid $117.23 and $51.34 for these services. On December 1, 1998, Patient 2 presented at Respondent's office with chest congestion and cough, with some shortness of breath, of three days' duration. Respondent administered an aerosol with medications to treat Patient 2's bronchial asthma and COPD by functioning as a bronchodilator. This treatment was preceded by a spirometry, which tests respiratory function. Petitioner failed to prove that either the diagnostic or therapeutic service provided by Respondent on December 1 was not medically necessary. On December 21, 1998, Patient 2 presented at Respondent's office with the same complaints from his visit nearly three weeks earlier. Respondent performed two duplex scans of the lower extremities to check his circulatory state, These scans were not medically necessary. Although Patient 2 was also complaining of a slow progression of leg pain and cramps, Respondent had performed a diagnostic procedure for these identical symptoms nine months earlier. The absence of any recorded treatment plan in the interim strongly suggests that diagnostic echography is displacing actual treatment. Respondent also performed another spirometry, less than three weeks after the prior spirometry. There was no medical necessity for this second procedure because Patient 2's symptoms and complaints had remained unchanged. Petitioner proved that it overpaid $97.96, $72.39, and $15.70 for these services. On January 8, 1999, Patient 2 presented at Respondent's office, again with respiratory complaints. Respondent claims to have administered a maximum breathing test, but he submitted no documentation of such a test to Petitioner, so Petitioner has proved that it overpaid $9.82 for this service. Patient 3, who was 13 years old, saw Respondent only one time--April 28, 1998. On this date, she presented at Respondent's office with menstrual complaints, abdominal pain, anxiety, and urinary disorders in terms of frequency and urgency. After performing a physical examination (limited as to the pelvic area due to the demands and cultural expectations of the patient and her family) and ordering blood work, Respondent performed pelvic and renal echograms, choosing not to subject the patient to X rays due to her young age. When Respondent later received the blood work, he found evidence supporting a diagnosis of a urinary tract infection. Although the menstrual history should have been developed in the records, the pelvic echogram could have uncovered an ovarian cyst, and legitimate reason existed to avoid an X ray and an extensive pelvic examination. However, the renal echogram was not medically necessary. The proper means of diagnosing a urinary tract infection is the blood work that Respondent ordered. The records mention the possibility of kidney stones, but this condition did not require ruling out based on the complaints of the patient, findings of the physical examination, and unlikelihood of this condition in so young a patient. Petitioner proved that it overpaid $61.57 for the renal echogram, but failed to prove that it overpaid for the pelvic echogram. Patient 4, who was eight years old, first saw Respondent on November 11, 1998. Patient 4 presented with a fever of two days' duration, moderate cough, and runny nose. His grandmother suffered from asthma, but nothing suggests that Patient 4 had been diagnosed with asthma. After conducting a physical examination and taking a history, Respondent diagnosed Patient 4 as suffering from acute tonsillitis, allergic rhinitis, bronchitis, and a cough. Apparently, Respondent misbilled Petitioner for an aerosol treatment because Respondent testified, and his records disclose, that no aerosol was administered, so Petitioner proved that it overpaid $10.62 for this service. Respondent administered a spirometry, which he justified on the basis of the grandmother's asthma. Although the results of the spirometry indicated pulmonary impairment, the test was not medically necessary, given the history and results of the physical examination, so Petitioner proved that it overpaid $32.06 for this service. On February 15, 1999, Patient 4 presented at Respondent's office with a fever of two days' duration, moderate cough, and clear nasal discharge. Again, Respondent administered a spirometry, which again revealed pulmonary impairment, and, again, the test was not medically necessary. Again, Respondent displayed a fondness for diagnostic procedures that yielded no plan of treatment. Petitioner proved that it overpaid $16.94 for this service. Patient 5, who was 61 years old, presented at Respondent's office with a history of weekly visits, as well as osteoarthritis and high blood pressure. On March 26, 1998, Patient 5 presented at Respondent's office with a complaint of left hip pain of three days' duration, but not associated with any trauma. She also reported dizziness and occasional loss of consciousness after faintness. Patient 5 noted that her neck swelled three or four months ago. Respondent billed for two views of the hip, but nothing in his records indicates more than a single view, so Petitioner proved that it overpaid Respondent $6.68 for this aspect of the X-ray service. Respondent also performed a duplex scan of the carotid artery. The scan, which was justified due to Patient 5's dizziness, faintness, and loss of consciousness, revealed atherosclerotic changes of the carotid arteries, so Petitioner failed to prove that it overpaid for this service. On April 9, 1998, Patient 5 presented at Respondent's office with complaints of left flank pain, nasal stuffiness, headaches, and urinary incontinence on exertion. Interestingly, the report from the thyroid echogram, which was performed on the March 26 office visit and allowed by Petitioner, revealed an enlargement and solid mass at the right lobe, but Respondent's records contain no conclusions, diagnosis, or treatment plan for this condition, focusing instead on cold and other minor symptoms described above. Respondent performed kidney and bladder echograms, to rule out stones, cysts, or masses, and a sinus X ray. However, he did not first perform a urinalysis--instead ordering it simultaneously--to gain a better focus on Patient 5's condition, but his records contain no indication of the results of this important test. Petitioner proved that it overpaid $61.57 and $39.73 for the renal and bladder echograms, both of which were normal, although the left kidney revealed some fatty tissue. Although the results were normal, the sinus X ray was medically necessary, so Petitioner failed to prove that it overpaid for this service. On May 13, 1998, Patient 5 presented at Respondent's office with a complaint of chest congestion, "chronic" cough (despite no prior indication of a cough in Respondent's records), and shortness of breath of two or three days' duration. Respondent administered a spirometry. Respondent justified this test, in part, on Patient 5's "acute exacerbation of COPD," but Respondent's records reveal no other symptoms consistent with a diagnosis of COPD. Administering spirometry when confronted with common cold symptoms is not medically necessary, so Petitioner proved that it overpaid $30.06 for this service. On June 29, 1998, Patient 5, who was diabetic, presented at Respondent's office with complaints of gradual onset of leg pain on exertion, alleviated by resting, and cramping at night. A physical examination revealed no right posterior pedal pulse, grade 2 edema and dermatitis, and bilateral varicose veins. Previous blood work had revealed high cholesterol, triglycerides, and low-density lipoprotein cholesterol. Respondent performed a doppler study of the arteries of the lower extremities, which Petitioner allowed. He also performed a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities, both of which Petitioner disallowed. Petitioner also downcoded the office visit. Given Patient 5's diabetes and the laboratory work, the disallowed study and scan were justified. Petitioner failed to prove that the services were medically unnecessary or, as noted in the Preliminary Statement, due to the absence of the CPT manual, that the office visit should be downcoded, so Petitioner failed to prove that it overpaid for these services. On July 20, 1998, Patient 5 presented at Respondent's office with complaints of diffuse abdominal pain and nausea without vomiting. Respondent found that her liver was enlarged and tender and performed a liver echogram. Petitioner's disallowance of this service suggests an unfamiliarity with the subsequent report dated August 28, 1998, that states that a CT scan of the abdomen revealed possible metastatic disease of the liver and suggested correlation with liver echography. The liver echogram was medically necessary, so Petitioner failed to prove that it overpaid for this service. On August 13, 1998, Patient 5 presented at Respondent's office with complaints of low back pain of months' duration and related symptoms. Respondent performed three NCVs, including an H-Reflex. The NCVs suggested light peripheral neuropathy. Petitioner failed to prove that these tests were not medically necessary. On August 18 and 28, 1998, Patient 5 visited Respondent's office and received injections of vitamin B12 and iron. However, the medical necessity for these injections is absent from Respondent's records. Respondent testified that the iron was needed to combat anemia, but this diagnosis does not appear in the August 18 records. The August 28 records mention anemia, but provide no clinical basis for this diagnosis. Neither set of records documents the injections. Petitioner proved that it overpaid $94.25 and $37.70 for these services. On October 21, 1998, Patient 5 presented at Respondent's office with complaints of chest congestion, cough, and moderate shortness of breath of one day's onset, although she had visited Respondent one week earlier with the same symptoms. Petitioner allowed an aerosol treatment, but disallowed a maximum breathing procedure. Respondent testified that the service was the administration of oxygen, which is documented in the records and medically necessary. Petitioner's worksheets, which are Petitioner Exhibit 19, contain a handwritten note, "no doc[umentation]," but the shortcomings in Petitioner's evidence, as noted in the Preliminary Statement, prevent Petitioner from proving that it overpaid for this service. On November 11, 1998, Patient 5 presented at Respondent's office with complaints of weakness and fatigue of five or six months' duration. Respondent has previously diagnosed Patient 5 with hypothyroidism, and Respondent believed that she was not responding to her medication for this condition. Without ordering blood work to determine thyroid function, Respondent performed a thyroid echogram. However, this echography was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On December 4, 1998, Patient 5 presented at Respondent's office with complaints of left chest and ribs pain and recent faintness. Respondent ordered an X ray of the ribs and conducted a physical examination, which revealed a regular heart rhythm. The following day, Respondent performed an echocardiogram and related doppler study. He had performed these tests seven months earlier, but the results were sufficiently different, especially as to new mitral and aortic valve regurgitation, so as to justify re-testing. Given Patient 5's poor health, these tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On December 17, 1998, Patient 5 presented at Respondent's office with complaints of cervical pain of three or four days' duration and radiating pain into the arms and hands. Noting a decreased grip on both sides and relevant aspects of Patient 5's history, Respondent performed two NCVs, including an H-Reflex, and ordered a cervical X ray. One NCV revealed abnormalities, but the H-Reflex did not. These tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On January 12, 1999, Patient 5 presented at Respondent's office with complaints of blurred vision, loss of memory, dizziness, and fainting over several months' duration. Respondent performed a carotid echogram, as he had on March 26, 1998. The results of the new carotid echogram were the same as the one performed nine months earlier. The problem is that, again, Respondent betrays his fondness for diagnosis without treatment, as he never addressed the abnormalities detected in the earlier echogram, except to reconfirm their existence nine months later. Petitioner proved that the second carotid echogram was not medically necessary, so it overpaid $99.14 for this service. On February 1, 1999, Patient 5 presented at Respondent's office with continuing complaints of leg pain and cramps. Respondent responded by repeating the doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities that he had performed only seven months earlier and another duplex scan. The main difference in results is that Respondent had suspected from the earlier tests that Patient 5 suffered from "deep venous insufficiency," but he found in the later tests that "mild vein insufficiency is present." Again, though, the tests performed on February 1 lack medical necessity, partly as evidenced by the failure of Respondent to design a treatment plan for Patient 5 after either set of test results. Petitioner proved that it overpaid $99.14, $37.92, and $110.50 for these services. On December 4, 1998, Patient 6 presented at Respondent's office complaining of leg pain, mild shortness of breath, and a cough. Except for the leg pain, the symptoms were of two days' duration. Patient 6 was 35 years old and had a history of schizophrenia and obesity. Respondent performed a physical examination and found decreased breathing with scattered wheezing in both lungs and decreased peripheral pulses, presumably of the lower extremities, although the location is not noted in the medical records. Respondent also found varices on both sides with inflammatory changes and swelling of the ankles. Respondent ordered duplex studies of the vascular system of the lower extremities and a doppler scan of the lower extremities. The results revealed diffuse atheromatous changes in the left lower extremity. Petitioner failed to prove that these services were not medically necessary. On the same date, Respondent performed a spirometry, which was "probably normal." Petitioner proved that this procedure was not medically necessary because of the mildness of the respiratory symptoms and their short duration. Petitioner overpaid $32.06 for this service. Respondent saw Patient 6 on December 9, 12, and 15, 1998, for abdominal pain, but Petitioner has not disallowed any of these services. On December 28, 1998, Patient 6 presented at Respondent's office with complaints of neck pain with gradual onset, now radiating to the upper and middle back, shoulders, and arms, together with tingling and numbness in the hands. Respondent performed three NCVs, including an H-Reflex, even though the physical examination had revealed active deep reflexes and no sensory deficits or focal signs. The results revealed mild abnormalities, which Respondent never discussed in his notes or addressed in a treatment plan. Petitioner proved that these services were not medically necessary, so Petitioner overpaid $195.12, $73.96, and $21.64 for these services. On February 2, 1999, Patient 6 presented at Respondent's office complaining of three days of chills without fever, left flank pain, and urinary frequency. Without first performing a urinalysis, Respondent performed a kidney echogram to rule out kidney stones. The echogram revealed no abnormalities. Petitioner proved that the renal echogram was not medically necessary, so it overpaid $62.37 for this service. On August 25, 1998, Patient 7, who was 58 years old, presented to Respondent's office with complaints of leg pains and cramps of five or six months' duration and some unsteadiness, as well as progressive numbness in her legs and feet. Patient 7 also complained of moderate shortness of breath, anxiety, and depression. The physical examination revealed decreased expansion of the lungs and decreased breath sounds, limited motion of the legs and back, decreased peripheral pulses (presumably of the legs), edema (again, presumably of the lower extremities), varices, and sensorial deficit on the external aspect of the legs. Blood work performed on August 25 was normal for all items, including thyroid function, except that cholesterol was elevated. Respondent ordered a chest X ray and electrocardiogram, which Petitioner allowed, but also ordered doppler studies of the veins and arteries of the lower extremities, an associated duplex scan, a spirometry, three NCVs (including an H-Reflex), and a somatosensory evoked potential test (SSEP), all of which Petitioner denied. Like the NCV, the SSEP is also an electrodiagnostic test that measures nerve function. The NCVs suggested mild peripheral neuropathy, which required clinical correlation, but the SSEP revealed no abnormalities. The doppler studies produced findings that "may represent some early arterial insufficiency" and "may represent some mild venous insufficiency," but were otherwise normal. The spirometry revealed "mild airway obstruction." The results of the tests do not support their medical necessity, nor do the complaints and findings preceding the tests. Petitioner proved that both doppler studies, the duplex scan, all three NCVs, the SSEP, and the spirometry were not medically necessary. Petitioner overpaid $66.48, $38.75, $108.58, $195.12, $73.96, $21.64, $42.68, and $17.70 for these services. Two days later, on August 27, 1998, Patient 7 presented at Respondent's office with swelling of her anterior neck and pain for two weeks. She complained that her eyes were protruding and large and that she had suffered mild shortness of breath for two days. Respondent ordered an echogram of the goiter, which Petitioner denied. Respondent's records contain no acknowledgement of the fact that, two days earlier, blood work revealed normal thyroid function. Even if the laboratory results were not available within two days of the draw, Respondent had to await the results before proceeding to ultrasound. Petitioner proved that the goiter echogram was not medically necessary, so it overpaid $43.24 for this service. On September 21, 1998, Patient 7 presented at Respondent's office with complaints of chest pain, palpitations, and shortness of breath. The physical examination revealed no abnormalities. Respondent performed an echocardiogram and related doppler study, largely, as he testified, to rule out thyrotoxicosis. However, as noted above, the blood work one month earlier revealed no thyroid dysfunction, and the medical records fail to account for this blood work in proceeding with a thyroid rule-out diagnosis. Petitioner proved that these services were not medically necessary, so it overpaid $117.23 and $51.34 for these services. On October 6, 1998, Patient 7 presented at Respondent's office with complaints of gradual loss of memory, fainting, and blurred vision. Respondent performed a carotid ultrasound, which revealed mild to moderate atheromatous change, but no occlusion. Petitioner failed to prove that this test was not medically necessary. Petitioner also downcoded the office visit, but, for reasons set forth above, its proof fails to establish that the billed visit should be reduced. On the next day, October 7, Patient 7 presented at Respondent's office in acute distress from pain of three days' duration in the legs, swelling, heaviness, redness, and fever. The physical examination revealed swelling of the legs and decreased peripheral pulses. Concerned with thrombophlebitis, Respondent ordered a chest X ray to rule out an embolism and a duplex scan of the lower extremities, neither of which revealed any significant abnormalities. Petitioner failed to prove that these tests were not medically necessary. On November 12, 1998, Patient 7 presented at Respondent's office with complaints of abdominal pain and vaginal discharge. One note states that the pain is in the left upper quadrant, and another note states that the pain is in the lower abdomen. The physical examination was unremarkable, but Respondent ordered echograms of the pelvis and spleen, which were essentially normal. Petitioner proved that the echograms were not medically necessary, so it overpaid $46.03 and $51.34 for these services. On November 30, 1998, Patient 7 presented at Respondent's office with complaints with worsening neck pain radiating to the shoulders and arms and decreased muscle strength on both sides. The physical examination uncovered decreased grip, normal pulses, and no focal findings. Respondent ordered three upper-extremity NCVs, including an H-Reflex, and an SSEP. The tests did not produce significantly abnormal results, such as to require any treatment beyond the anti-inflammatory medications typically used to treat the osteoarthritis from which Patient 7 suffered. Petitioner proved that the tests were not medically necessary, so it overpaid $193.12, $73.96, $21.64, and $42.68 for these services. One month later, on December 28, Patient 7 presented at Respondent's office with continuing complaints of neck pain and decreased muscle strength. Although the same three NCVs had revealed nothing significant only one month earlier, Respondent performed the same three tests. Petitioner proved that these tests were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 8, 1999, Patient 7 presented at Respondent's office with complaints of right upper quadrant abdominal pain of three days' duration with vomiting and urinary disorders. The physical examination suggested tenderness in the right upper quadrant of the abdomen. Respondent performed liver and renal echograms, which were normal. Petitioner allowed the liver echogram, but not the renal echogram. Petitioner proved that the renal echograms were not medically necessary, so it overpaid $62.37 for this service. On April 7, 1998, Patient 8, who was 48 years old and suffered from diabetes, presented at Respondent's office with an ulcer on her right foot with tingling, numbness, and muscle weakness in both legs. Relevant history included the amputation of the right toe. The physical examination revealed an ulcer on the right foot, but no tingling or numbness. Respondent ordered an electrocardiogram and a doppler study of the arteries of the lower extremities, both of which Petitioner allowed. However, Petitioner denied a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities and three NCVs of the lower extremities, including an H-Reflex. The venous doppler study disclosed a mild degree of venous insufficiency and suggested a mild to moderate peripheral vascula disease without occlusion. The NCVs showed abnormal sensory functions compatible with neuropathy. In place of a report on the H-Reflex test, a report on an SSEP indicated some abnormalities. At the end of the visit, Respondent sent Patient 8 to the hospital for treatment of the infected foot ulcer. Petitioner failed to prove that the NCVs, including the H-Reflex or SSEP, and the venous doppler study were not medically necessary. For reasons already discussed, Petitioner also failed to prove that the office visit should be downcoded. On August 18, 1998, Patient 8 presented at Respondent's office with complaints of neck pain of two or three weeks' duration, dizziness, blurred vision, and black outs. Respondent ordered a carotid ultrasound, which revealed no abnormalities. Given the compromised health of the patient, Petitioner failed to prove that this service lacked medical necessity. On August 26, 1998, Patient 8 presented at Respondent's office with gastric complaints of three days' duration radiating to the upper right quadrant and accompanied by vomiting and occasional diarrhea. Patient 8 continued to complain of neck pain. Since yesterday, Patient 8 reported that she had had a frequent cough and shortness of breath. Her history includes fatty food intolerance, nocturnal regurgitations, and heartburn. The physical examination revealed a soft, nontender abdomen and normal bowel sounds. With "diagnoses" of epigastric pain, abdominal pain, and shortness of breath, Respondent performed, among other things, a spirometry. Given the short duration of Patient 8's respiratory complaints, Petitioner proved that the spirometry was not medically necessary, so Petitioner overpaid $17.70 for this service. On September 29, 1998, Patient 8 presented at Respondent's office with complaints of low back pain, malaise, chills, fever, and urinary disorders, all of three days' duration. The physical examination was unremarkable, but for unrelated findings in the lower extremities. Respondent performed an echogram of the kidneys, which revealed no significant problems. Petitioner proved that this ultrasound procedure was not medically necessary, so it overpaid $61.57 for this service. Respondent also billed for a diabetes test, but the test results are omitted from the medical records. Petitioner proved a lack of documentation for the diabetes, so it overpaid $11.50 for this service. On December 11, 1998, Patient 8 presented at Respondent's office with complaints of moderate neck pain, numbness and weakness of the shoulders and arms, and tingling of the hands, all of three or four months' duration. Diagnosing Patient 8 with cervical disc disease, cervical radiculitis, and diabetic peripheral neuropathy, Respondent ordered three NCVs, including an H-Reflex. The NCVs revealed some abnormalities, but evidently not enough on which Respondent could make a diagnosis and form a treatment plan. Although this Recommended Order finds an earlier set of NCVs of the lower extremities medically necessary, even though Respondent did not act on them, these NCVs are different for a couple of reasons. First, at the time of the lower- extremity NCVs, Respondent was preparing to send Patient 8 to the hospital, where follow-up of any abnormalities could be anticipated. Second, the lower-extremity NCVs were of the part of the body that had suffered most from diabetes, as Patient 8 had lost her toe. The NCVs performed on December 11 were basically in response to persistent or recurrent complaints about neck pain with an inception, for the purpose of this case, in mid-August. The record reveals that Respondent exerted some effort to diagnose the cause of the pain, but apparently never found anything on which he could base a treatment plan, because he never treated the pain, except symptomatically. From this point forward, Respondent could no longer justify, as medically necessary, diagnostic services for Patient 8's recurrent neck pain, but instead should have referred her to someone who could diagnose any actual disease or condition and provide appropriate treatment to relieve or eliminate the symptoms. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 12, 1999, Patient 8 presented at Respondent's office with complaints of leg pain and heaviness of "years'" duration. She "also" complained of lower abdominal pain, more to the left side, of mild intensity, "but persistent and recurrent," as well as a burning sensation in the vagina. The physical examination is notable because Patient 8 reportedly refused a vaginal examination. Failing to order a urinalysis, Respondent proceeded to perform a pelvic echogram, as well as a doppler study of the veins of the lower extremities and two duplex scans of the arteries and veins of the lower extremities. The omission of a urinalysis and a vaginal examination--or at least a compelling reason to forego a vaginal examination--renders the pelvic ultrasound, whose results were normal, premature and not medically necessary. Except for the duplex scan of the arteries, Respondent had performed these lower-extremity procedures nine months earlier, just prior to Patient 8's hospitalization. Absent a discussion in the notes of why it was necessary to repeat these tests when no treatment plan had ensued earlier in 1998, these procedures were not medically necessary, so Petitioner overpaid $51.78, $99.14, $37.92, and $110.50 for these services. On January 29, 1998, Patient 9, who was 62 years old, presented at Respondent's office with complaints of weakness and numbness in his legs and fear of falling. A physical examination revealed limited range of motion of both knees. The deep reflexes were normal. Respondent performed three NCVs, including an H-Reflex, and an SSEP, all of the lower extremities. The SSEP was normal, but the NCVs produced results compatible with bilateral neuropathy. Petitioner failed to prove that these services were not medically necessary. On January 31, 1998, Patient 9 presented at Respondent's office with complaints of chest congestion and coughs of three days' duration, accompanied by shortness of breath. This record adds COPD to his history. The physical examination revealed normal full expansion of the lungs, but rhonchis and wheezing on expiration. Respondent ordered a spirometry, which revealed a mild chest restriction. Given the chronic pulmonary disease, Petitioner failed to prove that this service was not medically necessary. On April 14, 1998, Patient 9 presented at Respondent's office with complaints of abdominal pain of three days' duration with vomiting and diarrhea. His history included intolerance to fatty foods. The physical examination found the abdomen to be soft, with some tenderness in the right and left upper quadrants, but no masses, and the bowel sounds were normal. Respondent performed a liver echogram, which was normal. Petitioner proved that the liver echogram was not medically necessary, so it overpaid $44.03 for this service. On May 8, 1998, Patient 9 presented at Respondent's office with complaints of chest pain of moderate intensity behind the sternum, together with palpitations that increased on exertion and eliminated on rest. The physical examination revealed regular heartbeats, a pulse of 84, and blood pressure of 150/90. Respondent performed an electrocardiogram, echocardiogram, and doppler echocardiogram. The electrocardiogram revealed a cardiac abnormality that justified the other procedures, so Petitioner failed to prove that these services were not medically necessary. On June 4, 1998, Patient 9 presented at Respondent's office with complaints of malaise and fatigue, which had worsened over the past couple of weeks. The physical examination showed the lungs to be clear and the heartbeat regular. Patient 9's pulse was 76 and blood pressure was 130/80. Respondent performed a chest X ray and another electrocardiogram, both of which were normal. Petitioner proved that these services were not medically necessary, as the chest X ray was unjustified by the symptoms and physical examination, and an electrocardiogram had just been performed one month earlier, so Petitioner overpaid $18.88 and $15.74 for these services. On July 1, 1998, Patient 9 presented at Respondent's office with complaints of ongoing knee pain. Patient 9 had been re-scheduled for knee surgery and required another clearance. Respondent performed another electrocardiogram, even though he had performed one only three weeks ago, and the results had been normal, as were the results from the July 1 procedure. Petitioner proved that this service was not medically necessary, and it overpaid $15.74 for this service. On August 14, 1998, Patient 9 presented at Respondent's office with complaints of pain in his hands and wrists of three or four months' duration, accompanied by tingling in the fingers and a loss of strength in the hands. Respondent performed two NCVs, which revealed findings compatible with neuropathy, but the records reveal no action by Respondent in forming a treatment plan or referring the patient to a specialist. Petitioner proved that these services were not medically necessary, so it overpaid $195.12 and $73.96 for these services. On March 9, 1998, Patient 10, who was three years old, presented at Respondent's office with a sore throat with fever and malaise. His history included asthma, and he had suffered from mild shortness of breath and a dry cough of three days' duration. The physical examination was unremarkable, except for congested tonsils and scattered rhonchis, but no wheezes. Respondent administered an aerosol, which was appropriate, given the young age of the patient and his asthmatic condition. Petitioner failed to prove that this service was not medically necessary. On the next day, Patient 10 again presented at Respondent's office in "acute distress." Although his temperature was normal, his pulse was 110. The findings of the physical examination were the same as the prior day, except that the lungs were now clear. Respondent billed for another aerosol treatment, but the medical records omit any reference to such a treatment. Petitioner proved that Respondent failed to maintain documentation for this treatment, so Petitioner overpaid $10.03 for this service. On May 21, 1998, Patient 10 presented at Respondent's office with a cough, chest congestion, and mild shortness of breath, but no fever. A physical examination revealed scattered rhonchis, but no wheezes, and the boy's chest expression was full. Diagnosing the patient with acute bronchitis, Respondent administered a spirometry and an aerosol. Again, due to the age of the patient and his asthma, Petitioner failed to prove that the spirometry or aerosol was not medically necessary. On August 18, 1998, Patient 10 presented at Respondent's office with chest congestion, cough, and moderate shortness of breath, all of three days' duration. The physical examination showed that the lungs were free of wheezes. Respondent administered an aerosol and a chest X ray. The aerosol was appropriate given the age of the patient and his asthma. However, the chest X ray was inappropriate given the clear condition of the lungs. Petitioner proved that the chest X ray was not medically necessary, so it overpaid $18.88 for this service. On August 6, 1998, Patient 11, who was three years old, presented at Respondent's office with a fever and sore throat, both since the prior day, as well as abdominal pain of two or three weeks' duration. The physical examination disclosed that the abdomen was normal, as were the bowel sounds. Respondent performed a kidney echogram, which was normal. Given the age of the patient, his overall health, and the lack of confirming findings, Petitioner proved that the echogram was not medically necessary, so it overpaid $61.57 for this service. On October 1, 1998, Patient 12 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 12 during the audit period, so there is no dispute as to Patient 12. On March 9, 1998, Patient 13, who was 30 years old, presented at Respondent's office with complaints of back pain, chills, burning urination, and general malaise, all of three days' duration. She also complained of lower abdominal pain, vaginal discharge, and pain during intercourse, but denied abnormal genital bleeding. The physical examination disclosed pain in the cervix on motion, but a normal temperature. Respondent performed echograms of the kidneys and pelvis to address his diagnoses of an infection of the kidneys and pelvic inflammatory disease. However, he ordered no blood work. The ultrasounds of the kidneys and the pelvis were normal. The symptoms and findings justified a pelvic echogram, but not a kidney echogram. Petitioner proved that the kidney echogram was not medically necessary, so that it overpaid $61.57 for this service. Petitioner failed to prove that the pelvic echogram was not medically necessary. On March 17, 1998, Patient 13 presented at Respondent's office with complaints of moderate chest pain behind the sternum with palpitations and anxiety. Diagnosing chest pain, mitral valve prolapse, and anxiety, Respondent ordered an electrocardiogram, which Petitioner allowed, and an echocardiogram and doppler echocardiogram, which Petitioner denied. The results from the latter procedures were normal. Petitioner failed to prove that these two procedures were not medically necessary. On June 12, 1998, Patient 13 presented at Respondent's office with complaints of leg pain of two to three months' duration with heaviness and discomfort, especially at night. Patient 13 also complained of mild shortness of breath and moderate cough. The history included bronchial asthma. The physical examination found normal full expansion of the lungs, but scattered expiratory wheezes in both lungs, as well as a possible enlarged and tender liver. The ankles displayed moderate inflammatory changes. Respondent diagnosed Patient 13 with varicose veins with inflammation and bronchial asthma. Respondent performed a doppler study of the veins of the lower extremities, a duplex scan of these veins, and a spirometry, which Petitioner denied, and an aerosol, which Petitioner allowed. The doppler study suggested a mild degree of venous insufficiency with bilateral varicose veins and edema. The spirometry revealed a moderate chest restriction and mild airway obstruction. Petitioner failed to prove that any of these services were not medically necessary. On March 10, November 16, and December 18, 1998, Patient 14 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 14 during the audit period, so there is no dispute as to Patient 14. On March 18, 1998, Patient 15 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 15 during the audit period, so there is no dispute as to Patient 15. On March 16 and 19 and April 8,1998, Patient 16 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 16 during the audit period, so there is no dispute as to Patient 16. On September 4, 1998, Patient 17, who was 52 years old, presented at Respondent's office with complaints of leg pain after exertion and cold feet, as well as low back pain of several years' duration that had worsened over the past two to three weeks. Patient 17 also complained of low back pain that had persisted for several years, but had worsened over the past two to three weeks. The history included an heart bypass. The only abnormalities on the physical examination were decreased expansion of the chest, edema of the ankles, decreased peripheral pulses, and cold feet. Respondent performed a duplex scan of the arteries of the lower extremities, a spine X ray, and an injection to relieve back pain, all of which Petitioner allowed. Respondent also performed an electrocardiogram, which Petitioner denied. Even though the electrocardiogram revealed several abnormalities, nothing in the symptoms, history, or examination suggests any medical necessity for this procedure. Petitioner proved that the electrocardiogram was not medically necessary, so Petitioner overpaid $15.74 for this service. Four days later, on September 8, Patient 17 presented at Respondent's office with complaints of continuing low back pain, now radiating to the legs. The history and findings from the physical examination were identical to those of the office visit four days earlier. Respondent performed three NCVs, including an H-Reflex, which revealed a mild neuropathy. However, the symptoms and history did not justify these diagnostic procedures focused on the legs when the back was the longstanding problem area, nor did Respondent have any treatment plan for the back problem. Eventually, according to Respondent's testimony, a month or two later, he sent this patient to the hospital, where he could receive treatment for this painful condition. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On October 2, 1998, Patient 17 presented at Respondent's office with complaints of chest pain on exertion of three days' duration. The physical examination disclosed decreased breath sounds in the lungs, but a regular rhythm of the heart. Respondent performed an echocardiogram, doppler echocardiogram, and duplex scan of the extracranial arteries. Given the patient's history of coronary artery disease and heart bypass, Petitioner failed to prove that these services were not medically necessary. On December 10, 1998, Patient 17 presented at Respondent's office with complaints of left flank pain and bilateral back pain of three days' acute duration, as well as urinary disorder and nausea. The physical examination was unremarkable. Respondent performed a kidney echogram, which was negative, to address his working diagnoses of urinary tract infection and kidney stones. However, Respondent performed no urinalysis, and the complaints did not justify elaborate diagnostics to rule out the improbable condition of stones. Petitioner proved that the kidney echogram was not medically necessary, so it overpaid $59.57 for this service. On October 9, 1998, Patient 18, who was 35 years old, presented at Respondent's office with complaints of chest pain and palpitations of gradual onset over nearly one year, unrelated to exertion and accompanied occasionally by moderate shortness of breath. Patient 18 reported that she had smoked heavily for several years and suffered from intermittent smoker's cough and phlegms. Relevant history included asthma and bronchitis. The physical examination revealed that the lungs were clear and the chest expanded fully. Petitioner allowed several cardiac diagnostic procedures, but denied a spirometry and aerosol, the former as medically unnecessary and the latter as lacking documentation. The spirometry revealed severe chest restriction. Given the results of the spirometry and the history of Patient 18 as a heavy smoker, Petitioner failed to prove that the spirometry was not medically necessary, but, given the mild symptoms at the time of the treatment, without regard to whether Respondent provided documentation, Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.62 for this service. On October 16, 1998, Patient 18 presented at Respondent's office with complaints of persistent neck pain, radiating to the arms and hands. The physical examination disclosed a substantial limitation in range of motion of the neck, but no focal signs. Respondent performed three NCVs, including an H-Reflex, and an SSEP of the upper extremities, which revealed some abnormalities. Notwithstanding the positive findings, the absence of any treatment plan undermines the medical necessity of these diagnostic procedures. In response to these findings, Respondent merely changed Patient 18's anti- inflammatory medication, which he obviously could have done with negative NCVs and an SSEP. Petitioner has proved that the three NCVs and SSEP were not medically necessary, so it overpaid $195.12, $73.96, $21.64, and $42.68 for these services. On October 17, 1998, Patient 18 presented at Respondent's office with complaints of pelvic pain and vaginal discharge with left flank pain and urinary disorders. She also complained of leg pain and fatigue after standing. A previously performed urinalysis had revealed blood in the urine. The physical examination found vaginal discharge and pain in cervix motion to the right and left sides. It also found normal peripheral pulses and normal movement in all limbs, although some varicosities and inflammatory changes were present. Respondent performed echograms of the kidneys and pelvis and a doppler study and duplex scan of the veins of the lower extremities. Although both echograms were normal, these procedures were justified due to the symptoms and findings. The procedures performed on the lower extremities, which revealed a mild degree of venous insufficiency, were not justified by the complaints or findings. Petitioner failed to prove that the echograms were not medically necessary, but proved that the doppler and duplex procedures were not medically necessary, so it overpaid $38.75 and $108.58 for these services. On November 18, 1998, Patient 18 presented at Respondent's office with complaints of weakness of two to three months' duration and eating disorders. The physical examination uncovered a palpable, enlarged thyroid, even though, one month earlier, the physical examination found the thyroid to be non- palpable. Although the medical records indicate that Respondent ordered laboratory tests of thyroid function, no such reports are in his medical records, and, more importantly, he performed a thyroid echogram, which was normal, prior to obtaining the results of any laboratory work concerning thyroid function. Petitioner proved that the echogram was not medically necessary, so it overpaid $45.24 for this service. On January 21, 1999, Patient 19, who was four months old, presented at Respondent's office with a cough. Eight days earlier, Patient 19 had presented at Respondent's office with the same condition, and Respondent had recommended that the patient's mother hospitalize him if the symptoms worsened. A physical examination revealed that the lungs were clear and the chest fully expanded. Respondent administered an aerosol. Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.97 for this service. On February 2, 1998, Patient 21, who was 46 years old, presented at Respondent's office with complaints of generalized headache and chest discomfort. For the past two weeks, Patient 21 had also suffered from painful urination. The relevant history included non-insulin-dependent diabetes and paranoid schizophrenia. The physical examination indicated that Patient 21's heart beat in regular rhythm. Patient 21's blood pressure was 190/105, and his cholesterol and triglyceride were high. His femoral and popliteal pulses were decreased. Respondent performed an electrocardiogram, which Petitioner allowed, and, after learning that the results were borderline abnormal, an echocardiogram and doppler echocardiogram, which Petitioner denied. Given the symptoms, Respondent was justified in proceeding with additional diagnostic tests, especially given the difficulty of treating a schizophrenic patient. Petitioner failed to prove that the echocardiogram and doppler echocardiogram were not medically necessary. On March 2, 1998, Patient 21 presented at Respondent's office with complaints, of four months' duration, of leg pain when standing or walking a few blocks. The physical examination revealed decreased peripheral pulses. Respondent performed a doppler study and duplex scan of the veins of the lower extremities, which were both normal. Given the diabetes and schizophrenia, these diagnostic procedures were justified. Petitioner failed to prove that these services were not medically necessary. On April 2, 1998, Patient 21 presented at Respondent's office with complaints of worsening leg pain, now accompanied by numbness and tingling in the feet and sensorial deficit on the soles of the feet. The physical examination was substantially the same as the one conducted one month earlier, except that the deep reflexes were hypoactive. Respondent performed three NCVs, including an H-Reflex, on the lower extremities, and they revealed abnormal motor functions. However, the failure of Respondent to prepare a treatment plan or refer Patient 21 to a specialist precludes a finding of medical necessity. Petitioner has proved that these NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On April 30, 1998, Patient 21 presented at Respondent's office with complaints of difficulty urinating for the past three or four days. A physical examination revealed an enlarged, tender prostate. Forming a working diagnosis of prostatitis and chronic renal failure, Respondent performed prostate and kidney echograms, which were both normal, but no laboratory work on the urinary problems. Petitioner failed to prove that the prostate echogram was not medically necessary, but proved that the kidney echogram was not medically necessary, so it overpaid $61.57 for this service. On July 3, 1998, Patient 21 presented at Respondent's office with complaints of visual disorders, dizziness, blacking out, and fainting, all of several months' duration. Respondent performed a carotid echogram, which was normal. Petitioner failed to prove that this service was not medically necessary. On August 4, 1998, Patient 21 presented at Respondent's office with complaints of moderate neck pain of five or six months' duration, radiating to the shoulders and arms and accompanied by tingling and numbness of the hands. The physical examination disclosed decreased femoral and popliteal pulses, limited motion in the neck and shoulders, pain in the shoulders upon manual palpation, pain in the wrists upon passive movements, and decreased grip on both sides. Respondent performed two NCVs, including an H-Reflex, and an SSEP, all of the upper extremities. The NCVs suggested bilateral carpal tunnel syndrome, and the SSEP showed some abnormalities of nerve root function. Respondent responded to these data with a prescription for physical therapy three times weekly. Petitioner failed to proved that the two NCVs and SSEP were not medically necessary. On September 1, 1998, Patient 21 presented at Respondent's office with complaints of "chest oppression" and hypertension since the previous day. Patient 21 also complained of moderate neck pain and urinary discomfort of three days' duration. His blood pressure was 160/100, and his heart was in regular rhythm. Respondent performed an electrocardiogram, which Petitioner allowed, and a 24-hour electrocardiogram with a halter monitor, after learning that the results of the initial electrocardiogram were abnormal. Petitioner disallowed the latter procedure, but failed to prove that it was not medically necessary. On October 6, 1998, Patient 21 presented at Respondent's office with complaints of chest pain, dizziness, fainting, excessive hunger and weight gain, and weakness. His blood pressure was 170/100, and his pulse was 88. His heart beat in a regular rhythm, and his thyroid was enlarged, but smooth. Respondent performed an echogram of the thyroid, even though he had not ordered laboratory work of thyroid function. He performed an echocardiogram and a doppler echocardiogram. All echograms were normal, although Patient 21 suffered from some mild to moderate sclerosis of the aorta. Petitioner proved that these echograms were not medically necessary because the thyroid echogram was not preceded or even accompanied by laboratory work of thyroid function, and the other procedures of repeated diagnostic tests that Respondent had performed eight months earlier and were normal at that time. Petitioner thus overpaid $43.24, $61.96, and $29.31 for these services. On November 6, 1998, Patient 21 presented at Respondent's office. Petitioner downcoded the office visit, but, as discussed above, the failure of Petitioner to produce the CPT manual prevents a determination that Respondent overbilled the visit. On January 4, 1999, Patient 21 presented at Respondent's office with complaints of flank pain of four months' duration accompanied by several urinary disorders, chills, and occasional fever. The physical examination revealed a distended and soft abdomen and tenderness in the flanks and right upper quadrant. Respondent performed a kidney ultrasound, despite having performed one eight months earlier and obtained normal results, but learned this time that the left kidney had a cyst consistent with chronic renal failure. Petitioner failed to prove that this service was not medically necessary. On January 29, 1999, Patient 21 presented at Respondent's office with complaints of moderate back pain of two weeks' duration, radiating to the legs, and weakness in the legs. The physical examination revealed pain on bending backward or forward and muscle spasm. Respondent performed a lumbar X ray, which Petitioner allowed, and three lumbosacral NCVs, including an H-Reflex, which Petitioner denied. The NCVs revealed mild neuropathy, although an SSEP, evidently billed as an H-Reflex, was normal. Petitioner failed to prove that these services were not medically necessary. The total overpayments, before extrapolation, from Petitioner to Respondent are thus $5952.99.
Recommendation It is RECOMMENDED that the Agency of Health Care Administration enter a final order determining that, prior to extrapolation, Respondent owes $5952.99 for overpayments under the Medicaid program. DONE AND RECOMMENDED this 26th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2006. COPIES FURNISHED: Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Jeffries H. Duvall Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig A. Brand Law Offices of Craig A. Brand, P.A. 5201 Blue Lagoon Drive, Suite 720 Miami, Florida 33126 Oscar Mendez-Turino 2298 Southwest 8th Street Miami, Florida 33135
The Issue The issues are whether Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and, if so, what penalty, if any, should be imposed.
Findings Of Fact 1. Stipulated Facts Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in Florida holding license number ME 0009772. Respondent's last known address is 9430 Turkey Lake Road, Orlando, Florida 32819-8015. Respondent is Board certified in orthopedic surgery. Respondent provided medical treatment to two male patients between 1990 and 1991. Patient 1 was treated from approximately April 29, 1991, through August 12, 1991. At the time, Patient 1 was approximately 34 years old. Patient 2 was treated from approximately May 14, 1990, through June 20, 1991. Patient 2 was approximately 29 years old. Patient 1 Patient 1 had a history of hip dislocation with aseptic necrosis, chronic back and leg pain, and foot numbness associated with degenerative disc disease and lumbar stenosis. Lumbar stenosis is compression of the spine. Spine compression was particularly significant between the fifth lumbar and first sacral vertebrae. Prior to April 29, 1991, Patient 1's treatment was conservative and nonsurgical. On April 29, 1991, Patient 1 presented to Respondent to explore alternative therapy. Patient 1 complained of pain and numbness in his back, hip, and legs. Respondent diagnosed Patient 1 with lumbar spinal stenosis and possible disc herniation. Respondent recommended a myelogram. A myelogram was performed on May 13, 1991. The myelogram confirmed Respondent's diagnosis of lumbar spinal stenosis and possible disc herniation. The myelogram revealed a disc defect on the right side of L5-S1 as well as severe spinal and lateral recess stenosis. On June 11, 1991, Respondent performed a laminectomy on Patient 1, an L5-S1 disc excision, and an internal spinal stabilization using Harrington rods attached with lamina hooks. Use of lamina hooks resulted in the compression of Patient 1's underlying neural tissue. Compression of the underlying neural tissue caused Patient 1 to suffer perineal numbness. Respondent's medical records of June 17, 1991, show that Respondent knew Patient 1's perineal numbness was a result of compression of the sacral nerve root at L5-S1. On June 17, 1991, Respondent again performed surgery on Patient 1. Respondent replaced the lamina hooks with alar hooks. Respondent also replaced and adjusted the tension of the Harrington rods. On August 1, 1991, Patient 1 was admitted to Sandlake/Orlando Regional Medical Center ("ORMC") for surgical removal of the implanted hooks and Harrington rods. Respondent surgically removed the Harrington rods and attachment hooks. On August 12, 1991, Respondent's medical records showed that Patient 1 suffered from persistent numbness of the sacral nerve root areas. The area of numbness included the perineum, scrotum, and penis. Respondent did not perform an L5-S1 bone fusion during any surgery. Patient 2 On May 14, 1990, Patient 2 presented to the Emergency Room ("ER") at ORMC with primary complaints of back and right leg pain. The ER physician diagnosed Patient 2 with a herniated nucleus pulposus at L4-L5. The nucleus pulposus is the soft central portion of the intervertebral disc. Respondent admitted Patient 2 on May 14, 1990, and treated him with intravenous muscle relaxants. On May 15, 1990, a computerized axial tomography ("CAT") scan revealed a bulging, herniating disc at L4-L5. On May 17, 1990, Respondent discharged Patient 2 with instructions regarding back care and an exercise program. On August 24, 1990, Patient 2 presented to Respondent with recurrent disabling sciatic pain. A magnetic resonance imaging ("MRI") scan was performed on August 28, 1990. The MRI revealed a prominent disc bulging at L4-L5 with material intruding into the spinal cord. On September 7, 1990, Respondent performed a lumbar laminectomy and disc excision at L4-L5. Respondent discharged Patient 2 on September 12, 1990. On December 11, 1990, Patient 2 presented to Respondent with recurrent back and right leg pain. Respondent prescribed analgesics including Soma with codeine and Naprosyn. On January 14, 1991, Patient 2 presented to Respondent with back and right leg pain. Patient 2 underwent a CAT scan to determine if recurrent disc herniation was present. The CAT scan failed to indicate any obvious asymmetric changes which would confirm Respondent's diagnosis of recurrent disc herniation. On January 21, 1991, Respondent performed a decompressive laminectomy on Patient 2. Respondent's operative report for January 21, 1991, indicates that Respondent found no evidence of a herniated disc. On February 26, 1991, Patient 2 presented to Respondent with complaints of recurrent leg and back pain. Respondent referred Patient 2 to Dr. William Bradford for treatment utilizing epidural blocks. On April 16, 1991, Patient 2 again presented to Respondent. Respondent placed Patient 2 in a molded, fiberglass body jacket. Back and leg pain subsided while Patient 2 wore the fiberglass jacket. On May 14, 1991, Respondent performed surgical stabilization of the lower lumbar spine utilizing Harrington rods. On June 17, 1991, Patient 2 presented to Respondent with persistent numbness of the perineal area as well as bowel and bladder incontinence. Respondent determined that the numbness and incontinence were caused by sacral nerve root irritation associated with the Harrington rod hooks. Respondent surgically adjusted the Harrington rods on June 20, 1991. Respondent did not perform vertebral bone fusion during any surgery. 2. Standard Of Care Respondent failed to practice medicine in his treatment of Patient 1 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent improperly seated lamina hooks in Patient 1. As a result, Patient 1 suffered compression of underlying neural tissue. Respondent improperly used Harrington rods and hooks to achieve transient spinal decompression without performing essential vertebral bone fusion. Use of Harrington rods in the lumbar spine is an obsolete technology. It is fraught with dangers. Among other things, it eliminates the lordosis, or natural spinal curvature. Respondent failed to practice medicine in his treatment of Patient 2 with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent performed numerous surgeries on Patient 2 when CAT scans and other examinations failed to confirm recurrent disc herniation. In addition, Respondent failed to perform essential vertebral bone fusion on Patient 2. 3. Proximate Cause And Severity Of Injury Respondent's failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances was the proximate cause for permanent neurological damage to Patient's 1 and 2. Both patients suffered sacral nerve root paralysis. Sacral nerve roots feed functions in the pelvis, bladder bowel, and sphincter. Both patients suffered permanent incontinency, including loss of bladder and bowel function. Each patient requires a colostomy and must wear diapers. Patient 1 has suffered sexual dysfunction in that he has lost the sensation necessary for a natural erection. The neurologic injuries to Patients 1 and 2 are major and permanent. Nothing can restore the functional loss suffered by either patient.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order finding Respondent guilty of violating Section 458.331(1)(t) in his treatment of Patients 1 and 2, imposing an administrative fine of $7,500, and restricting Respondent's practice as follows: Respondent shall not perform any spinal surgery on patients unless and until Respondent appears before the Board of Medicine and demonstrates to the satisfaction of the Board that he is able to do so with skill and safety; and The Board of Medicine may place other reasonable conditions on Respondent's practice of orthopedic surgery at such time as the restriction in the preceding paragraph is lifted. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of October, 1994. DANIEL MANRY 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 6th day of October, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3966 Petitioner's Proposed Findings of Fact 1. -39. Accepted as stipulated fact 40.-41. Rejected as recited testimony Accepted in substance Rejected as recited testimony Accepted in substance 45.-51. Rejected as recited testimony Respondent's Proposed Findings of Fact Respondent stipulated to Petitioner's proposed findings of fact, paragraphs 1- 39. Respondent's only additional proposed finding of fact is unnumbered and is rejected as not supported by persuasive evidence. COPIES FURNISHED: Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold D. Lewis, Esquire Agency For Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack L. Gresham, M. D. 9430 Turkey Lake Road Orlando, Florida 32819-8015
