Findings Of Fact Following a review of the complete record, the Board of Medical Examiners hereby adopts and incorporates by reference the Findings of Fact of the hearing officer, those facts alleged in the Amended Administrative Complaint, and admitted to by the Respondent.
Findings Of Fact On or about April 13, 1987, Petitioner, H.C.A. Gulf Coast Hospital, submitted its application for a Certificate of Need to operate a cardiac catheterization laboratory in Panama City, Florida. On September 22, 1987, Respondent, Department of Health and Rehabilitative Services (HRS), denied the application because the addition of a sixth cardiac catheterization lab in HRS District 2 would lower the average number of procedures below the 600 procedures required by Rule 10-5.011(1)(e)15, F.A.C. The actual reasoning behind the Letter of Denial was contained in the State Agency Action Report regarding CON 5121, the project concerned in this case, dated September 9, and 10, 1987. The relevant portions of the State Agency Action Report for purposes of this proceeding are contained on Page 8 and Page 10 of the Report. Petitioner's Composite Exhibit #4. On November 11, 1987, Petitioner requested the Respondent to reconsider its denial of its Certificate of Need for the cardiac catheterization lab. On December 3, 1987, the Respondent upheld its original denial of the Certificate of Need, citing the same rationale it had utilized earlier. Petitioner's Composite Exhibit #5. While pending reconsideration, Petitioner requested that a Section 120.57, F.S., hearing be convened on HRS's denial of Petitioner's CON, and the case was subsequently sent to the Division of Administrative Hearings to conduct the hearing. The Hospitals Petitioner is one of two hospitals located in Bay County, Florida. The other hospital and Gulf Coast Hospital's main competitor is Bay Memorial, located about ten minutes away from Petitioner's facility. Both of these hospitals are considered to be in District 2 and specifically in Subdistrict 2A for purposes of HRS CON review. District 2 consists of Bay, Calhoun, Franklin, Gadsden, Gulf, Holmes, Jackson, Jefferson, Leon, Liberty, Madison, Taylor, Washington and Wakulla Counties. See Chapter 10-5, F.A.C. Currently there are no cardiac catheterization facilities at Petitioner's hospital. The only facilities in Bay County are located at Bay Memorial. Bay Memorial has two labs at its facility. The Need Criteria All parties agreed that Rule 10-5.011, F.A.C., is the controlling rule in this case. The rule in itself requires a mathematical calculation to arrive at certain need criteria. Rule 10-5.011(1)(e)12, F.A.C. That formula is intended to calculate the number of catheterization procedures expected in a given year in the near future. In this case, the target date was January, 1989. In order to arrive at the expected number of catheterization procedures, the rule requires that one multiply the current number of catheterization procedures which have actually been performed in the applicant's intended service area per 100,000 of population times the projected population for the year service is initiated. The current number of catheterization procedures in District 2 is 3,215. In order to convert that figure to a figure per 100,000 of population, 3,215 must be multiplied by the current base population divided by 100,000. The current base population is 513,825. The first element of the need formula looks as follows: 3215 x 513,825/100,000. This calculation yields a current use criteria of 625.70 catheterization procedures per 100,000 of population. In order to arrive at the number of expected catheterization procedures in January, 1989, for District 2, it is necessary to multiply 625.70 times the projected population for January, 1989. The projected population in the year 1989 for District 2 is 543,518 persons. The calculation is as follows: 625.70 x 543,518/100,00. Based on the above calculations, the Department predicts that there will be 3,401 cardiac catheterizations performed in District 2 in January, 1989, or that there will be a need for 3401 catheterization procedures in January, 1989. Too Many Formulas The above need calculation is utilized by the Department to determine whether, under its rule, the applicant will meet the criteria and goals established in its Rule 10- 5.011, F.A.C. and obtain the goals set out in Chapter 381, F.S., and relevant local and state health plans. The Department adopted this rule in 1977. For purposes of this case and the issues involved herein, the rule has essentially remained the same since 1977. The relevant portions of Rule 10-5.011 involved in this case are as follows: 10-5.011(1)(e)6 F.A.C.: 6. Department Goal. The Department will consider applications for cardiac catheterization laboratories in context with applicable statutory and rule criteria. The Department will not normally approve applications for new cardiac catheterization laboratories in any service area unless additional need is indicated, as calculated by the formula in sub-paragraph 12, below, and unless the application satisfies the requirements set forth in sub-paragraph 15, below. and 10-5.011(1)(e)15.c. F.A.C.: Applications proposing to establish cardiac catheterization laboratories will not be approved if they would reduce the average volume of procedures performed by laboratories in the service area below 600 adult procedures and 275 pediatric procedures, based on projected need in the service area. At the rule's inception in 1977, the HRS staff at least two mathematical formulas to implement Rule 10.5011(1)(e)15.c F.A.C. The two formulas involved whether the need criteria outlined above should be divided by 600 and then round any resulting fractions to the nearest whole number, or by dividing the need number by the number of laboratories proposing to operate with no concomitant rounding of resulting fractions. In this case, the number of laboratories proposing to operate for January, 1989, would be six (five existing laboratories, plus the applicant Gulf Coast). The problem with the differing mathematical methodologies do not appear when both results show that there would not be enough future catheterization procedures to warrant an additional laboratory, or conversely that there would be enough procedures to warrant an additional laboratory. The anomaly of the two methodologies arises in the type of case presented here. In this case, the first calculation is represented by the methodology utilized in the State Agency Action Report on page 8. That calculation results in the Respondent concluding that in January, 1989, there is a need in District 2 for six catheterization laboratories, i.e., one additional laboratory than now exists. Gulf Coast, by requesting a Certificate of Need for a catheterization laboratory, has applied for that one additional space. The second mathematical formula is illustrated by the State Agency Action Report on page 10. There, the report concludes that six labs would be too many and divides the estimated need number by six or multiplies six by 600 which essentially yields the same result percent in essence, Respondent has concluded there is a need for six labs and then turned around and concluded there is not a need for six labs. Past Policy On Inconsistent Formulas And Its Reasons In either late 1983 or early 1984, these anomalous results were quite appropriately a concern to the Department. At that time, Gene Nelson, Petitioner's expert witness, was the Administrator of the Office of Community Medical Facilities in HRS. His duties entailed the entire oversight of the CON process for catheterization laboratories, including formulating agency policy regarding implementation of its rule on cardiac catheterization. The Department was concerned that it was reaching inconsistent results by utilizing the two mathematical methodologies outlined above and therefore were not treating applicants in a consistent manner. In order to resolve this inconsistent approach, the Department decided upon a policy that the first calculation would control the result of granting or denying an applicant's request. This policy was established in late 1983 or early 1984 and was disseminated verbally throughout Mr. Nelson's staff. The dissemination may not have been as complete as it should have been given the Agency's policy of not putting anything in writing for fear that it might be challenged as a rule. The policy apparently did not trickle down to Elizabeth Dudeck, who was then a CON applicant analyst under Mr. Nelson. The Department did not stop utilizing the second calculation. However, the second calculation was no longer considered to be the controlling methodology for purposes of granting or denying a CON application. The reason given by both Mr. Nelson and Thomas R. Porter, the then supervisor in the CON program, was to achieve internal consistency among the rules differing provisions and requirements for catheterization laboratory CON review. The differing provisions and requirements involved are Rule 10- 5.011(1)(e)9.d., F.A.C.: D. Minimum Service Volume. In order to assure quality of service, there shall be a minimum of 300 cardiac catheterizations performed annually in any adult cardiac catheterization laboratory within three years following its initiation of service. In order to assure quality of service, there shall be a minimum of 150 pediatric cardiac catheterizations performed annually in any laboratory performing pediatric cardiac catheterizations, within three years following its initiation of service. Applicants for either of these services must document that proposed laboratories can meet these minimum volume requirements. (emphasis added) and 10-5.011(1)(e)12, F.A.C.: 12. Need Determination. The need for cardiac catheterization capacity in a service area shall be determined by computing the projected number of cardiac catheterization procedures in the service area. The following formula shall be used in this determination: Nx= Uc X Px Where: Nx = N Number of catheterization procedures x projected for Year X; Uc = Actual use rate (number of procedures per hundred thousand population) in the service area for the 12 month period beginning 14 months prior to the Letter of Intent deadline for the batching cycle; Px = Projected population in the service area in Year x; and Year X = The year in which the proposed cardiac catheterization laboratory would initiate service, but not more than two years into the future. (emphasis added) and Rule 10-5.011(1)(e)15.c., F.A.C., noted earlier. As can be readily seen from the language of the rule, the various provisions listed above have differing time provisions for accomplishing the requirements that the particular rule provision addresses, or does not state any time provisions. The first calculation achieved consistency between these differing time requirements by recognizing that a new catheterization lab would be unlikely to achieve 600 procedures in two years in light of the fact that only 300 procedures are required in three years. Thus, the first calculation allows the time elements to be flexible and more reflective of reality and the start-up of a new business. The second calculation does not achieve this flexibility and internal consistency within the rule, and in fact, results in a very rigid rule which in effect presumes that a new lab will achieve 600 procedures in two years, regardless of whether it, in fact, can or desires to do so. Petitioner's application illustrates this point since its plan predicts Petitioner will perform only 325 procedures within three years from start up. In essence, Petitioner's new lab is nearly equal to 1/2 of a fully functional lab under the expectations of the Department's rule. The Department's original policy was given public recognition in Lee Memorial Hospital and Ft. Myers Community Hospital vs. HRS Case Numbers 82-1659 and 83-1518, 6 FALR 6774, (November 19, 1984). In that case, the Department specifically rejected a Recommended Order by a DOAH Hearing Officer who utilized the second calculation in recommending denial of the Petitioner's Certificate of Need. As in this case, the Hearing Officer was confronted with the situation where the first calculation recommended approval and the second calculation recommended denial. The Department specifically rejected the second methodology as being controlling and found that the first calculation was the controlling calculation and approved the Certificate of Need for the applicants. Since 1984, numerous other decisions of the department have followed the policy established by Mr. Nelson. See Humana Inc. v. DHRS, 6 FALR 2874 (1984), Plantation General Hospital v. DHRS, 6 FALR 6796 (1984), Humana Inc. v. DHRS, 492 So.2d 388 (Fla 4th DCA 1986), Humana Inc. v. DHRS, 469 So.2d 889 (Fla 1st DCA 1985), South Sarasota County Memorial Hospital Association, Inc. v. DHRS, 7 FALR 1345 (1985), Adventist Health Systems/Sunbelt d/b/a Medical Center Hospital v. DHRS, 7 FALR 3500 (1985) and Lawnwood Regional Medical Center v. DHRS, 9 FALR 2646 (1987). It is clear that Petitioner's CON would be granted under the Department's past policy. The New Policy and Its Reasons As noted earlier, during Mr. Nelson's tenure, and Mr. Porter's tenure Miss Dudeck, the Department's expert witness, was one the staff personnel who examined CON applications. She was also one of the staff personnel who believed the second mathematical method was the controlling calculation for purposes of CON approval or denial. Sometime after May of 1985, Miss Dudeck was promoted to occupy the space once filled by Mr. Porter, i.e., Supervisor in the CON Program. According to Miss Dudek's testimony, the Department apparently decided to change its policy regarding which mathematical methodology would be controlling in CON approval or denial approximately two years ago. The Department decided, again with nothing written down, that the second mathematical calculation would be the controlling factor in CON review. The only rationale given by the agency at the hearing for its changed course of action was stated by Miss Dudeck to be the result of a change in agency personnel and the fact she thought it was required by the rule. There was no rulemaking engaged in by the agency and no formal written statements or informal memos rendered by the agency. Additionally, there is no credible evidence that there is any established method by which a member of the public could deduce this change in policy. In effect, the Department's change in position has achieved an impossibility by its own rule. On the one hand, the Department is saying six labs are needed in District 2. On the other hand, the Department by another statistic has made that goal impossible to achieve. The Department has established a system where it bases its decision on hypothetical need. The Department then establishes a presumption that all facilities operating will be operating at a level of 600 catheterization procedures within two years. This presumption has absolutely no basis in fact, as was evidenced by the continued examples given by all parties where a lab, in fact, would not be operating at either the 600 or the 300 catheterization level within two years, and as was further evidenced by Petitioner's application. Moreover, the Department's original 1984 policy recognized that new businesses do not start at a 600 level, but are only required to achieve a 300 level after three years. When the 600 level is to be achieved is not stated in the rule, nor did anyone seem to know who testified. Similarly, there are no resulting consequences to an operating lab which does not attain the 600 or even the 300 level of procedures. The Department's newest policy clearly does not allow for the other provisions of its Rule and is not consistent with those provisions or Chapter 381, F.S.
Recommendation Based on consideration of the foregoing, it is RECOMMENDED: That the Department of HRS grant Gulf Coast's - application for a Certificate of Need for a new cardiac catheterization service. DONE and ORDERED this 11th day of March, 1988, in Tallahassee, Florida. DIANE CLEAVINGER 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 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4761 Petitioner's proposed Findings of Fact Numbers 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 14, 15, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31 and 32 have been adopted, in substance, insofar as material. Petitioner's proposed Findings of Fact Number 8 has been adopted as representing the correct figures in this case. The first three sentences and the fifth and sixth sentences of Petitioner's proposed Findings of Fact Number 17 have been adopted. The 4th sentence is subordinate. The - reference to exclusive method in the 6th sentence was not shown by the evidence. The evidence showed the method to be controlling. Petitioner had no proposed Findings of Fact Numbers 13 or 21. Respondent's proposed Findings of Fact Numbers 1, 2, 3, 4, 5, 6, 9 and 12 have been adopted in substance, insofar as material. Respondent's proposed Findings of Fact Numbers 7, 10, 11 and 13 were not shown by the evidence. Respondent's proposed Findings of Fact Number 8 reflects the correct math, but the evidence did not demonstrate that the rule requires either the mathematical procedure or the result. COPIES FURNISHED: Thomas Beason, Esquire MOYLE, FLANIGAN, KATZ, FITZGERALD & SHEEHAN 118 North Gadsden Street Tallahassee, Florida 32301 Stephen Presnell, Esquire MCFARLANE, FERGUSON, ALLISON & KELLY 215 South Monroe Street, 8th Floor Tallahassee, Florida 32302 Douglas J. Sale, Esquire BROWN & SMOAK Post Office Box 426 Panama City, Florida 32402 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0955 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0955 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0955 =================================================================
The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Medicine has found probable cause exists to suspect that the physician has committed one or more disciplinable offenses. At all times relevant to this proceeding, Respondent was a physician licensed in the State of Florida, having been issued license number ME 47469. Respondent's address of record is Gastroenterology Consultants, 4700-M Sheridan Street, Hollywood, Florida 33021. Respondent, who has practiced medicine in the State of Florida since 1984 and is board-certified in the specialty of gastroenterology, has not been the subject of prior disciplinary action by the Board of Medicine. At all times pertinent to this matter, Respondent enjoyed surgical privileges at Memorial Hospital West in Pembroke Pines, Florida. The Allegations On December 2, 2010, patient V.C., a 59-year-old registered nurse, presented to Respondent's medical office to seek treatment for gastrointestinal issues. During the appointment, Respondent recommended that V.C. undergo a colonoscopy (for routine screening purposes), as well as an esophagogastroduodenoscopy——an upper endoscopy, or "EGD"——to address her symptoms of indigestion. Following a discussion of the risks and benefits of both procedures, V.C. provided informed, oral consent for Respondent to perform both procedures on a subsequent date. As is customary in the medical field, Respondent delegates scheduling tasks to one or more of his employees.3/ Consistent with this practice, a member of Respondent's staff scheduled V.C.'s colonoscopy and EGD for February 4, 2011, at Memorial Hospital West. Several weeks before the scheduled procedures, one of Respondent's assistants telephoned V.C. and informed her (V.C.) that her health insurance carrier would not pay for the EGD because she had yet to exceed her $5,000 annual deductible.4/ (V.C.'s insurer was, however, willing to assume the cost of the colonoscopy). In response, V.C. advised Respondent's staff member, during the same telephone conversation, that she no longer wanted the EGD on February 4, 2011, and wished to delay that particular procedure until later in the year——at which time, presumably, V.C.'s deductible would be satisfied. Unfortunately, and for reasons that are not apparent from the record, Respondent's assistant never informed him of V.C.'s instruction to cancel the EGD. On February 4, 2011, V.C. appeared at Memorial West Hospital to undergo her scheduled colonoscopy. At 1:30 p.m., a hospital nurse presented V.C. with a two-page document, which V.C. agreed to sign, titled "Consent to Surgery / Procedure." The pre-printed section of the consent form provided, in relevant part: I hereby authorize the physician(s) listed below and such assistants (which may include, without limitation, surgical resident and medical assistants employed by Memorial HealthCare System) as may be selected by him/her to perform the procedure known as . . . . On the first page of the document, immediately below the above- quoted language, "colonoscopy" was handwritten in prominent (and legible) block script; no other procedures were listed. At approximately 4:15 p.m., a member of the hospital staff presented Respondent with a copy of V.C.'s consent to surgery form. Consistent with his normal routine, Respondent signed, but did not examine, the consent document; as a consequence, Respondent did not notice the conspicuous absence of the EGD procedure from the form.5/ Fifteen minutes later, V.C., who lay on a gurney and had yet to be placed under anesthesia, was moved to the surgical suite. Thereafter, at 4:48 p.m., while V.C. was still fully conscious, Respondent conducted a "timeout." That is, Respondent announced, to the members of his team, the identity of the patient, her date of birth, any allergies the patient may have had, and the procedures he intended to perform: a colonoscopy and an EGD. No member of the team objected, and, for reasons that are unclear, V.C.——who, by that time, had been fasting for more than 16 hours and has no recollection of what occurred during the "timeout"——remained silent. Following the "timeout," a gastroenterology assistant, Rene Mendoza, instructed V.C. to open her mouth so that a bite block could be placed between her upper and lower teeth. Mr. Mendoza also informed V.C. that the bite block was intended to protect her teeth from the endoscope. V.C., although cooperative with the request, made no affirmative response to Mr. Mendoza's statements. Moments later, general anesthesia was administered to V.C., at which point Respondent performed a colonoscopy and an EGD. Soon after the procedures were completed, Respondent examined V.C.'s consent document and noticed that an EGD had not been listed. In lieu of an investigation into the matter (Respondent had not spoken personally with V.C. since the initial appointment on December 2, 2010), Respondent's immediate reaction was to add "upper endoscopy" next to "colonoscopy" on V.C.'s consent document. Wisely, however, Respondent quickly changed his mind and crossed through the added language. Shortly thereafter, and prompted by the content of the consent document, Respondent learned for the first time of V.C.'s decision to delay the EGD. In a subsequent letter to Memorial West, Respondent chalked the incident up to a miscommunication between himself and one of his staff: From what I know at this present time, the insurance company . . . would not cover for an upper endoscopy, however this is the fact that I learned after the procedures had been performed on 2/4/11 . . . . Following the procedure I did look at the consent form and asked why only colonoscopy was written and why an endoscopy was not included. There was miscommunication between my medical assistant and myself initially not knowing this above information . . . . Unfortunately, due to the multiple areas of miscommunication despite our time-outs, things were missed and we will place better constraints to verify this does not happen again. (emphasis added). On or about February 9, 2011, Respondent made contact with V.C. and advised that he would waive all costs associated with the EGD. With her financial concerns alleviated, V.C. is, at present, satisfied with Respondent's services, and, in retrospect, grateful that the EGD was performed. Summary of Evidence / Findings of Ultimate Fact Notwithstanding V.C.'s satisfaction with the final outcome, Respondent lacked V.C.'s authorization to conduct an EGD at the time it was performed——a fact of which Respondent should have been aware when the procedures were carried out. As detailed above, V.C. decided, based upon financial circumstances, to proceed only with the colonoscopy; this decision was communicated to one of Respondent's employees several weeks in advance of February 4, 2011, and reflected in the consent document that Respondent had in his possession before the EGD was performed. It is determined, as a matter of ultimate fact, that Respondent performed an unauthorized procedure (an EGD), and is therefore in violation of section 456.072(1)(bb), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Medicine: Finding that Respondent violated section 456.072(1)(bb), Florida Statutes, as charged in Count I of the Complaint; Issuing Respondent a letter of concern; Imposing a fine of $750.00; Ordering Respondent to complete five hours of risk management education; and Ordering Respondent to attend a one-hour lecture on wrong-site surgeries. DONE AND ENTERED this 21st day of September, 2012, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 2012.
The Issue Whether Petitioner has met the requirements for licensure by examination as set forth in Chapter 458, Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Petitioner is 48 years old and resides at 210 Tibet Avenue, No.L-2, Savannah, Georgia 312406. Petitioner attended City College of Medicine, Cebu City, Philippines during the 1962-63 school year. While at City College, Petitioner failed four out of the five courses he was taking which, along with his father's financial hardship, forced Petitioner to drop out of medical school. Petitioner enrolled in medical school at Southwestern University, Matias H. Azklnar, Memorial College of Medicine, Inc., Villa Aznar, Cebu City, Philippines (Southwestern) for the school year 1965-66. During the 1965-66 school year at Southwestern Petitioner passed, among others, those courses which he had failed at City College during the 1962-63 school year. During the 1966-67 school year Petitioner failed pharmacology 2 and physical diagnosis but passed those courses during the 1967-68 school year, while failing surgical pathology which he passed during the 1968-69 school year. During the 1968-69 school year Petitioner failed pharmacology 3 in the first and second semester. Although Petitioner testified that he passed pharmacology 3, Petitioner's transcript from Southwestern does not indicate that Petitioner passed pharmacology 3 before graduating from Southwestern University in 1971. Petitioner graduated from and received his medical degree from Southwestern in 1971. Southwestern is registered by the World Health Organization. Petitioner served an internship at Detroit-Macomb Hospital Association from July 1, 1982 until June 30, 1983. Petitioner received an overall evaluation of "good" on his internship and was recommended as qualified and competent. Petitioner took the Federation Licensing Examination (FLEX) in December 1982, June 1983, December 1983 and December 1984, and failed the examination each time. In June 1985, Petitioner took the FLEX examination again and passed Component 2 but failed Component 1 by one point. In December 1985, Petitioner took Component 1 again and passed. Petitioner successfully passed the medical examination portion of the Educational Commission For Foreign Medical Graduates (ECFMG) examination on January 21, 1981 and the English examination portion on July 22, 1981 and was issued certificate number 245-840-4 on January 8, 1982. That ECFMG has remained valid since that date. Before passing the ECFMG examination in 1981, Petitioner had failed that examination six times. Petitioner is licensed to practice medicine in the states of Michigan and Georgia, and has been licensed in those states since March 3, 1986 and June 11, 1986, respectively. However, other than serving an internship, Petitioner has never practiced medicine in the state of Michigan. Petitioner's licenses to practice medicine in the state of Michigan and Georgia have never had any disciplinary action taken against them. Petitioner practiced medicine at Central State Hospital (a mental institution) at Milledgville, Georgia as a general physician in family practice, working also in the area of psychiatry, from April 1, 1988 until his resignation on October 24, 1988. At the time of the hearing, Petitioner had been practicing medicine as an emergency room physician for approximately 8 months at Stattanall Memorial Hospital near Savannah, Georgia, and had been working as the physician in charge at the Immediate Med Clinic near Savannah, Georgia for a couple of months. Petitioner also practiced medicine for a brief period at Folkston Memorial Hospital in Folkston, Georgia, but terminated this employment due to the long distance from Savannah, Georgia where Petitioner resided. Although Petitioner was a staff member at Central State Hospital, he did not have staff privileges in that he was not authorized to admit patients to Central State Hospital. Petitioner did not have staff privileges at any other hospital or clinic where he practiced medicine in that he was not authorized to admit patients. Petitioner is an active member of the American Medical Association (AMA) in good standing. Petitioner has never been a defendant in a medical malpractice suit. Petitioner has established facts to show that he is qualified and competent to practice medicine with reasonable skill and safety, notwithstanding that it took him 7 years to complete a five-year medical curriculum, that it took him 6 tries before passing the ECFMG examination, that it took him 5 tries before passing the FLEX examination, that he has practiced in Georgia for only approximately 2 years mainly in general practice and, his performance in his medical education and training. There was no evidence that Petitioner had "exhibited a consistent pattern of less than successful or borderline performance" in his "medical education and training". Respondent Board did not present any evidence from an expert or "person with special expertise" or anyone else to show a rational relation between Petitioner taking 7 years to complete a 5-year medical school curriculum, Petitioner failing the ECFMG examination 6 times before passing, Petitioner failing the FLEX examination 5 times before passing, Petitioner's practice in Georgia and his medical school education and training performance; and the ability of Petitioner to practice medicine with reasonable skill and safety.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.165, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 459, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed osteopathic physician, having been issued license number OS 006021 by the State of Florida. Dispensing practitioner inspections are conducted by Petitioner to evaluate compliance with the legal requirements imposed on dispensing practitioners. The complete legal requirements imposed upon dispensing practitioners are listed on the "Investigative Services Inspection Form for Dispensing Practitioners", with citations to the proper authority. Practitioners subject to inspections are provided with copies of the inspection forms. On July 19, 1991, Jeannie Lewis, a Department investigator, conducted a routine dispensing practitioners inspection of Respondent's office and prepared an inspection form. During the July 19, 1991 inspection, the following violations were discovered and reported: Respondent was not writing prescriptions for dispensed medication; Respondent was not certifying drugs prior to patient receipt; Respondent was not on the premises when dispensing of drugs occurred; Respondent failed to post a generic drug sign; Respondent failed to initial and date all controlled drug prescriptions dispensed; Respondent's controlled substance prescriptions failed to include the patient's address; Respondent's controlled substance prescriptions failed to include Respondent's DEA number; Respondent failed to place dispensed medication in a child proof container; Respondent's controlled substance prescriptions were not properly maintained. Respondent had no prescriptions for controlled substances dispensed. A deficiencies form was issued and signed by Respondent, following the July 17, 1991 inspection. A second inspection of Respondent's office was conducted on December 17, 1992, and a second dispensing practitioners inspection form was completed. During the December 17, 1992 inspection, Investigator Lewis was accompanied by Charles C. Lewis, then Senior Pharmacist for Petitioner. During the December 17, 1992 inspection by Investigator Lewis and Charles C. Lewis, the following violations were discovered and reported: Respondent was not writing prescriptions for dispensed medication; Respondent was not certifying drugs prior to patient receipt; Respondent was not on the premises when dispensing of drugs occurred; Respondent failed to post a generic drug sign; Respondent failed to initial and date all controlled drug prescriptions dispensed; Respondent's controlled substance prescriptions failed to include the patient's address; Respondent's controlled substance prescriptions failed to include Respondent's DEA number; Respondent's controlled substance prescriptions were not properly maintained; Respondent's controlled substance purchase records were not properly maintained or readily retrievable; Respondent's DEA 222 forms were not completed properly and not available. Respondent's nurse refilled and dispensed medications when Respondent was not on the premises. On February 9, 1993, a Final Order of the Board of Osteopathic Medicine was entered in the case of DPR v. Richard Heston Beers, D.O., DPR Case Number 00-95528. This Final Order adopted the provisions of a Consent Agreement signed by Respondent on November 6, 1992, in which Respondent agreed to receive a Letter of Concern, pay a $2,000 fine, attend a Continuing Medical Education course on the ethical prescription of abusable drugs, and to utilize sequentially numbered triplicate prescription forms for a year following the date of the Order. The Consent Agreement, adopted into the Final Order, also provided that copies of the triplicate prescription forms were to be made available to Petitioner's investigators upon request. Following the second inspection of Respondent's office and the issuance of the Final Order, Respondent sent a letter to Lewis dated March 26, 1993, claiming compliance with the dispensing practitioners requirements and inviting her to re-inspect his office at any time. At the request of the Board of Osteopathic Medicine, a third inspection of Respondent's office was conducted on July 7, 1993, and a third dispensing practitioners inspection form was completed. During this third inspection, the following violations were discovered and noted: Respondent failed to properly label medication for dispensing; Respondent was not properly maintaining his controlled substance prescriptions, in that Respondent did not stamp them with a red letter "C" and store them separately from non-controlled drug prescriptions; Respondent's DEA 222 forms were not completed properly (not available). Respondent failed to utilize sequentially numbered triplicate prescription forms when dispensing medications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent be found guilty of violating Sections 459.015(1)(g) and (bb), Florida Statutes. It is further RECOMMENDED that: Respondent shall pay an administrative fine in the amount of five thousand dollars ($5,000.00) to the Board of Osteopathic Medicine within one hundred eighty (180) days of the Final Order of the Board. Respondent shall receive a reprimand from the Board of Osteopathic Medicine. Respondent shall surrender his DEA license for a minimum of two (2) years, and not reapply unless or until he appears before the Board and demonstrates that he can prescribe, maintain, and inventory controlled substances with skill, safety, and within the legal requirements imposed upon dispensing practitioners. Respondent's license to practice medicine shall be placed on probation for a period of one (1) year, including indirect supervision, a review of Respondent's medical records by a monitoring physician, and any additional terms deemed reasonable and necessary by the Board. DONE and ENTERED this 12th day of September, 1994, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 12th day of September, 1994. APPENDIX The following constitutes my specific rulings, in accordance with section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Proposed findings of fact submitted by Petitioner. Accepted in substance: paragraphs 1 through 20. Proposed findings of fact submitted by Respondent. Respondent did not submit proposed findings of fact. COPIES FURNISHED: Hugh R. Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Richard Heston Beers, D.O. 7505 Aloma Avenue Winter Park, Florida 32792 Harold D. Lewis, Esquire Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303 Sam Power, Agency Clerk Agency for Health Care Administration 325 John Knox Road Tallahassee, Florida 32303
Findings Of Fact Petitioner took the podiatry licensure examination administered by the Respondent in July, 1989, receiving a grade of 66.9%, with 241 correct answers. A score of 75%, with 270 correct answers, is required to pass the examination for licensure. This podiatry examination was developed by the Bureau of Examination Services in conjunction with consultants who served as "item writers", and Florida licensed podiatrists. Five Florida licensed podiatrists selected items written by the various consultants from a bank of questions available for the 1989 examination. Competent substantial evidence was not introduced on behalf of the Petitioner to establish that the examination was in any way flawed in its preparation or method of selecting the actual questions used on this exam. There is a lack of competent substantial evidence in the record to establish that the grades which the Petitioner received on the July, 1989, podiatry licensure examination were incorrect, unfair, or invalid, or that the examination, and subsequent review session, were administered in an arbitrary or capricious manner.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the Petitioner's challenge to the grades he received on the July, 1989, podiatry licensure examination. RECOMMENDED this 7th day of May, 1991 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 7th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2803 Despite waiting an additional seven days until April 25, 1991, as requested by counsel for the Petitioner in his letter filed on April 19, 1991, no proposed recommended order was filed on behalf of the Petitioner. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 2 and 3. COPIES FURNISHED: Melvyn G. Greenspahn, Esquire 3550 Biscayne Boulevard Suite 404 Miami, FL 33137 Vytas J. Urba, Esquire Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esquire Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford Executive Director Board of Podiatry 1940 North Monroe Street Tallahassee, FL 32399-0792
