Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: On June 27, 1977, respondent was charged by Information with committing the felony of leaving the scene of an accident on February 24, 1977. The accident resulted in injuries to a seventy-nine (79) year old woman, Grace Heck, who died nine (9) days later as a consequence of those injuries. Respondent pled nolo contendere to that charge and, on November 15, 1977, Judge Thomas M Coker, Jr, entered an order withholding adjudication of guilt and placing respondent on probation for a period of three (3) years, with the specific condition, among nine others, that he pay restitution for the medical expenses of the accident victim. The term of probation was later modified to one year to conform to the law. On or about July 10, 1978, respondent's probation officer filed an Affidavit of Violation of Probation stating nine violations of the terms of respondent's probation. These violations included failure to submit required reports and pay costs for supervision, failure to make restitution for the accident victim's medical expenses, carrying a concealed firearm, operating a motor vehicle on two occasions while his license was suspended, careless driving, and failure to reduce the speed of his automobile resulting in the colliding with and subsequent death of a pedestrian, John Kelly Wilkens. Effective July 13, 1978, Judge Coker revoked respondent's probation imposed for the offense of leaving the scene of an accident and sentenced respondent to one year in the county jail. Pursuant to a motion for mitigation, Judge Coker on August 18, 1978, set aside the order of adjudication of guilt and the one year sentence, and ordered that respondent be placed on a new probation for a period of one year. The original terms of probation were imposed, along with the conditions that respondent not resume the practice of medicine until an examining board determined his fitness and that he submit to a psychiatric evaluation and treatment, if required. On or about July 14, 1978, another Information was filed against respondent for the third degree felony offense of carrying a concealed weapon. After a plea of nolo contendere, adjudication of guilt was withheld and respondent was placed on probation for a period of five years by Judge Coker on January 24, 1979. Independent evidence was adduced by the petitioner with respect to both the hit-and-run accident and the carrying a concealed firearm charge. A passenger in respondent's car on February 24, 1977, testified in her deposition that respondent was driving his car, ran a red light in Fort Lauderdale and collided with a turning car containing two elderly persons. Respondent immediately left the accident scene, drove to a closed service station and stayed there for a few minutes, then drove to a school parking lot and left the car there. The deponent and respondent then walked to respondent's home, picked up another car and drove to West Palm Beach where respondent played tennis. Two officers with the Fort Lauderdale Police Department testified that their investigation of the February 24, 1977, accident confirmed that respondent was the driver of the hit-and-run vehicle. The officer who arrested respondent for carrying a concealed weapon testified by way of deposition that in June of 1978, she found respondent in his car with a fully loaded and cocked automatic weapon on the floor and live ammunition matching the weapon in his pocket. Respondent has not reported to his probation officer since October of 1979. An Affidavit of Violation of Probation has been filed against the respondent and respondent is presently the subject of an arrest warrant. His present whereabouts are unknown to his probation officer and he is considered a fugitive from justice. At the request of Judge Coker, Dr. Arnold H. Eichert, a psychiatrist, examined respondent on September 11, 1979, It was Dr. Eichert's opinion that respondent suffered from paranoid schizophrenia, Dr. Eichert seriously doubted respondent's ability to practice medicine at that time. Inasmuch as respondent had violated his probation and failed to appear at this hearing, Dr. Eichert opined that such conduct and poor judgment was consistent with his earlier diagnosis that respondent would be unable to practice medicine with reasonable skill and safety to patients. Respondent was expelled from the Broward County Medical Association on July 7, 1977, for the reason that his medical practice was detrimental to the profession, his patients or the community. No appeal was taken from this action. On November 10, 1977, respondent's medical staff privileges at Plantation General Hospital were suspended for his lack of attendance at general staff and departmental meetings. On September 30, 1977, the State Committee on Peer Medical Utilization Review (PMUR), which analyses physician treatment of Medicare patients for Blue Shield, found that respondent was guilty of "maximal overutilization of office visits, injections and laboratory procedures." This finding was made after a review of the medical records of approximately forty-five (45) of respondent's patients during the 1974 year. The charts were reviewed by Blue Shield, the Florida Medical Foundation, Inc. and a county peer review committee. Statistically, a review of respondent's patient charts illustrated that respondent was far beyond the utilization screening parameters as compared to other physicians in the Broward County area engaged in general practice. Specifically, the norm for visit days per patient for physicians doing general practice in the area was five days. The respondent's records indicated eight visit days per patient, or sixty percent over the screening parameter. The average number of injections per patient was 2.44. Respondent's injections per patient amounted to 17.7, or 620.08 percent over the parameter. Respondent's laboratory procedures per patient per year were 6.24, while the screening parameter was 4.96, representing 25.81 percent overutilization. By way of deposition, Dr. Frank Hodnette, Chairman of the State Committee on PMUR, testified that such statistics denote that respondent was "way out of bounds as far as his utilization of the medicare benefits as related to . . . the area of office visits, injections and laboratory work." After reviewing respondent's patient's medical charts, the various reviewing committees further concluded that respondent's practice deviated from the standard of acceptable daily practice and was not consistent with what is considered as standard good care of medical practice. A member of the Broward County Medical Association's PMUR Committee that reviewed respondent's records testified at the hearing as an expert in family and general practice. Dr. Nancy La Fuente reviewed several medical charts and found no medical justification for certain injections, multiple injections of the same substance, and an overall gross abuse of injections, particularly of vitamins. Dr. La Fuente concluded that respondent's practice significantly deviated from the standard of acceptable and prevailing medical practice in his area of expertise in Broward County.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 458.1201(1)(c), (m), (n) and (p) and that respondent's license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 6th day of June, 1980, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: William B. Wiley McFarlain, Bobo, Sternstein, Wiley and Cassedy, P.A. 666 Lewis State Bank Building Tallahassee, Florida 32301 Alfred E. Johnson, Esquire 3443 Hancock Bridge Parkway North Ft. Myers, Florida 33903 Nancy Whittenberg, Secretary Department of Professional Regulation 2009 Apalachee Parkway Tallahassee, Florida 32301 Mailed to Stephen M. Niesen, M. D. to the three addresses indicated below: 1940 South Ocean Drive Hemisphere's Apartments No. 8-P Hallandale, Florida 33309 % Probation Department Broward County Courthouse Fort Lauderdale, Florida 33301 Post Office Box 6372 Fort Lauderdale, Florida 33310
Findings Of Fact The Petitioner is a registered Nurse, and she is registered with a national organization as a respiratory therapist. A respiratory therapist works with patients who have respiratory, spinal, lung, or drug abuse problems. One procedure used by such therapists to determine if a patient is breathing properly is an arterio blood gas test. The petitioner has performed thousands of much tests. Until the Respondent adopted rules pursuant to the Florida Clinical Laboratory Law, there was no requirement for licensure to perform arterio blood gas tests. There is now a special category for licensure as a laboratory technologist in a specialty called "Chemistry-Special" which would qualify an individual to perform such tests, but no other clinical laboratory procedures. The petitioner submitted an application for licensure in the "Chemistry-Special" specialty on September 29, 1977. She did not take the test required by the Respondent, and accordingly her license application has been denied.
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 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 osteopathic 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 Osteopathic Medicine has found probable cause to suspect that the licensee has committed one or more disciplinable offenses. At all times material to this proceeding, Respondent was licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 10658. Background On February 3, 2012, T.S., a 26-year-old single mother, presented to Respondent's medical office as a new obstetrical patient. At that time, T.S. was carrying her third child. For the next five months, T.S. and Respondent enjoyed what was, by all appearances, a productive and appropriate physician-patient relationship. However, as discussed below, Respondent would transgress the bounds of that relationship during an office visit on the evening of July 11, 2012. First, though, it is necessary to sketch the relevant background. On the morning of July 11, 2012, T.S.——who was then nine months pregnant——appeared at Respondent's office for a routine examination. During the visit, T.S. advised Respondent that she was experiencing substantial cramping and discomfort. In response to these complaints, Respondent performed a pelvic examination and a sonogram, both of which yielded normal results. Later that day, at approximately 4:00 or 4:30 p.m., T.S. telephoned Respondent's office and informed his staff of a new symptom: namely, that significant pain was making it difficult to lift her right arm. Although a member of the staff advised T.S. that she could be seen immediately, logistical constraints made it impossible for her to report to Respondent's office prior to the close of business. Over the course of the next several hours, T.S. communicated with Respondent by phone and text (his cell number was available to all patients) concerning the new symptom and her preference to be seen that evening. Ultimately, Respondent informed T.S., via a text message sent at approximately 6:15 p.m., that she could meet him at his office for an examination. The Misconduct T.S. arrived at the office at 6:30 p.m., whereupon Respondent unlocked the front door and invited T.S. inside. Upon entering the lobby area, which was only partially illuminated, T.S. saw no sign of Respondent's office staff. At that point, Respondent asked T.S. to sign a form that read as follows: I give consent to be seen at Dr. Miller's office, by Dr. Miller, without an assistant present, at my request, in order to have a medically urgent need addressed. The foregoing document, although signed by T.S., is of dubious propriety, as obstetrical treatment without a chaperone present is rarely, if ever, appropriate.3/ This issue is of no moment, however, for most of what occurred next——as established by the credible testimony of T.S. and Petitioner's expert witness——was not a legitimate medical examination but, rather, nonconsensual sexual contact perpetrated under the guise of an examination. Upon the execution of the "consent" document, Respondent directed T.S. to an examination room and informed her that the likely cause of her arm pain was either a clogged milk duct or the positioning of the fetus. Respondent then requested that T.S. disrobe her upper body, at which point he left the room for a few moments. Upon his return, Respondent asked T.S. to recline on the examination table, purportedly so he could examine her right breast to rule out the possibility of a clogged duct. T.S. complied and, for the next 30 to 45 seconds, Respondent squeezed her breast in a manner quite dissimilar to examinations she had undergone in the past. In particular, T.S. thought it peculiar that Respondent "cupped" her entire breast with his hand——as opposed to examining the breast from the outside in with the pads of his fingers.4/ Even more troublingly, Respondent asked T.S., while his hand was still in contact with her breast, whether "it felt good."5/ After removing his hand from T.S.'s breast, Respondent remarked to T.S. that her arm pain was not the result of a clogged milk duct. Respondent further stated that her symptoms would be assuaged upon the baby's delivery, an event which, according to him, could be facilitated by sexual activity. Before proceeding further, it is important to note that T.S.'s symptoms of arm pain arguably warranted, at most, a legitimate breast examination. In other words, there were no symptoms or aspects of T.S.'s history that justified a pelvic examination at that time,6/ particularly since Respondent had performed such a procedure (along with a sonogram) earlier in the day. Nevertheless, Respondent informed T.S. that he "needed" to measure the dilation of her cervix; then, in a disturbing and conspicuous departure from accepted obstetrical practice,7/ Respondent applied lubricant to one of his ungloved hands. Moments later, Respondent inserted two fingers into T.S.'s vagina and, for the next 30 seconds or so, positioned his penetrating hand in such a manner that his thumb was in continuous contact with T.S.'s clitoris——something that would never occur during a proper examination.8/ Tellingly, this was not the only physical contact incongruous with a legitimate pelvic examination, for at one point Respondent used his free hand to pull on one of T.S.'s nipples.9/ By now suspicious of Respondent's conduct, T.S. attempted to maneuver her body toward the head of the examination table. As she did so, Respondent began to remove his fingers from T.S.'s vagina while stating that she "needed to have sex" in order to induce labor. This could be accomplished, Respondent further suggested, by having sex with him, an invitation T.S. sensibly declined.10/ On the heels of this rejection, Respondent told T.S. that the only other means of inducing labor would be to "strip her membranes." Owing perhaps to an urgent desire to give birth——the reader should recall that she was nine months pregnant and in significant discomfort——T.S. acceded to Respondent's suggestion. Respondent then penetrated T.S.'s vagina with his (ungloved) hand for a second time and, prior to the removal of his fingers, repeatedly implored T.S. to engage in sexual intercourse with him.11/ When T.S. refused and tried to move to the other end of the table, Respondent grabbed her by the hips and pulled his midsection into her exposed vaginal area. By virtue of this aggression, T.S. could feel that Respondent's penis, albeit clothed, was erect.12/ Wishing to extricate herself from this situation, T.S. pushed Respondent away, at which point he attempted to "laugh off" his abhorrent behavior. T.S. dressed herself and, a short time later, drove to the home of an acquaintance to seek advice. Later that evening, T.S. made a report of the incident to the appropriate authorities,13/ which ultimately resulted in the filing of the Complaint at issue in this proceeding. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Respondent is guilty of violating section 459.015(1)(l), as charged in Count I of the Complaint. It is further determined, as a matter of ultimate fact, that Respondent is guilty of violating section 456.072(1)(v) and, in turn, section 459.015(1)(pp), as alleged in Count II of the complaint.
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 Osteopathic Medicine finding Respondent guilty of Counts I and II of the Administrative Complaint; revoking Respondent's license to practice osteopathic medicine; and imposing a fine of $10,000.00. DONE AND ENTERED this 30th day of July, 2014, 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 30th day of July, 2014.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, as well as the factual stipulations of the parties, the following relevant facts are found: Petitioner suffers from various medical problems, is a recipient of Medicaid benefits and is potentially eligible for supervision under the Florida Medicaid recipient case management program. The HRS policies governing recipient case management are set forth in Rule 10C-7.065, Florida Administrative Code. The purpose of the case management program is to limit inappropriate utilization of Medicaid services by recipients by enrolling them in a four-level program which includes education, counseling, a requirement of prior authorization for non-emergency medical services and "lock-in" to a single primary care provider for non-emergency services, as well as a single pharmacy provider. In a prior proceeding, Rule 10C-7.065 (formerly 10C-7.065) was challenged by the petitioner. The final result of that challenge was that those portions of the rule which require prior authorization for reimbursement of non- emergency, but medically necessary services were invalid. The remaining portions of the rule were declared valid. In an effort to remedy the defects found in the rule governing the recipient case management program, HRS now proposes two amendments to the prior rule. The first proposed amendment adds additional language to subsection (8)(c)(3) of Rule 10C-7.065. That subsection requires that a provider of services to a Level Three Medicaid recipient must contact the case manager and obtain payment authorization prior to the provision of services. The proposed amendatory language reads as follows: "Providers of medically-necessary services to a recipient at such times as the Case Manager is not available for prior authorization, such as after working hours, or on weekends, need only notify the Case Manager at a reasonable time, defined by the Department as the next working day, following provision of such services." Other provisions of Rule 10C-7.065(8)(c) pertaining to Level Three recipients require the recipient to contact the case manager prior to using his Medicaid identification card to obtain non-emergency services, require a case manager's verification on the provider claim form that prior authorization was obtained and provide that all other provider claim forms shall be denied Medicaid payment. HRS is not proposing any amendatory language to these subsections. The second challenged amendment proposed by HRS adds additional language to subsection (8)(d) 5 of Rule 10C-7.065. That portion of the rule pertains to Level Four recipients and requires such a recipient to utilize or be "locked-in" to a single primary care provider for all non-emergency services, except transportation. Subsection (8)(d) 5 requires the Level Four recipient to contact the lock-in primary care provider prior to using his Medicaid identification card to obtain non-emergency services and requires the lock-in provider to provide all necessary non-emergency care either directly or by referral. The proposed amendatory language adds the following words to subsection (8)(d) 5: "Referral by the lock-in primary care provider to a referred provider includes, but is not limited to, an acute care hospital provider for admission, or to another medical practitioner for professional consultation, special medical treatment, or temporary relief of lock-in responsibilities while on vacation, out of town, or otherwise unavailable to the recipient." The rule also provides that a lock-in pharmacy provider may be designated for Level Four recipients who have a utilization problem with prescribed drug services. In such an event, all prescribed drugs must be obtained from the lock-in pharmacy provider and no other pharmacy provider's claim forms will be reimbursable except for drugs provided in an emergency situation. Rule 10C- 7.065(8)(d) 8 and 10. No amendatory language has been proposed for those subsections of the rule pertaining to pharmacy providers. In proposing the added language to Rules 10C-7.065 (8)(c) 3 and (8)(d) 5, it was the intention of HRS to assure that reimbursement would be allowed for services provided a Level Three recipient when the case manager was not available for prior authorization and for services to Level Four recipients when the lock-in primary care provider was not available and had arranged for a referred provider.
Findings Of Fact Ruth Rogers is a licensed medical physician authorized to practice medicine in this state. The Complaint allegations centered around testimony of the Respondent, Ruth Rogers, during a custody proceeding in which the Child Protective Services (a State Agency) was attempting to gain custody of one Dena (Nikki) Decker based on facts which will be set forth in detail hereinafter. Jack McGowan, a medical doctor engaged primarily in pediatrics in Fort Pierce, Florida, testified that he first treated Dena Decker during August of 1973, at which time Decker was approximately seven weeks old. Dr. McGowan made subsequent treatments of Dena Deckur on a regular basis through December of 1976. During December, Dr. McGowan noted that Decker's lymph glands were enlarged and he ordered that certain lab work be performed, the results of which were returned to him sometime during early January of 1977. Based on the lab results, Dr. McGowan tentatively diagnosed Dena Decker as being a patient suffering from acute leukemia. To confirm this diagnosis, he referred her to the Shands Teaching Medical Center in Gainesville, wherein Dr. McGowan's diagnosis was confirmed. The treating physicians of Patient Decker at Shands Teaching Hospital were Drs. Jerry L. Arbosa and David Pockmore. It was their medical opinion that Dena was in fact suffering from acute lymphoblastic leukemia and that this disease should be treated by chemotherapy at Shands Teaching Hospital in Gainesville. Drs. Barbosa and Rockmore explained to the parents of Dena Decker the benefits and side effects of chemotherapy treatment, and they suggested that this was the best method of treating a patient such as Dena Decker, who was suffering from acute lymphoblastic leukemia. They noted, however, that there were some side effects, such as loss of hair and the destruction of certain "good" cells as well as "bad" cells. Dema Decker's parents requested time to consider the chemotherapy treatment and Drs. Barbosa and Rockmore stressed to her parents that "time was of the essence". After a few days, the parents of Dena Decker declined the treatment and at that juncture, Drs. Barbosa and Rockmore called in the Child Protective Services of Gainesville wherein a custody proceeding was convened, with the State seeking a custody award of Dena Decker. During that proceeding, Dr. Ruth Rogers, Respondent, testified that she would treat such a patient suffering from acute lymphoblastic leukemia with natural foods, herbs and optimal psychological support. It was Drs. Barbosa and Rockmore's opinion that the method of treatment outlined by the Respondent would be futile and that the patient would die in a short period of time. There was no evidence that the Respondent, Ruth Rogers, counseled with Dena Decker's parents or that she at any time treated Dena Decker by the method to which she testified during the custody proceeding in Gainesville. Following the conclusion of the Petitioner's case, Respondent's counsel moved for a directed verdict, summary judgment, or a judgment based on a failure on the Petitioner's part to establish a prima facie case. After some consideration, the undersigned concluded that, based on the evidence adduced during the Petitioner's case in chief, insufficient evidence was offered to establish that the Respondent had violated Chapter 458.1201(m), Florida Statutes, as alleged. Section 458.1201 is the section of the Medical Practices Act which deals with the power of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in pertinent part: "458.1201l--Demial, suspension, revocation of license; disciplinary powers-- The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the follow- ing: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m))." Subsection (m) sets forth as grounds for. . . discipline of a physician, the following facets of misconduct: "(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or will- ful misconduct. Unprofessional conduct shall be any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established; when the same is committed in the course of his practice whether committed within or without this state." (Emphasis supplied) The administrative charge herein claimed to be proscribed by the above- quoted section of the statutes deals only with the testimony of the Respondent as to a method of treatment that she would use for treating acute lymphoblastic leukemia. Based on my examination of this record and an analysis of the reported case law, I conclude that the giving of such testimony is not proscribed unprofessional conduct as that term is included within this particular subsection of Chapter 485.1201(m). As the Court of Appeals stated in Lester v. Department of Professional and Occupational Regulation, Fla.App., 348 So.2d 923 (1977), the Court stated: "In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its prescriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably pro- scribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee." This being so, I conclude that the above-cited conduct claimed to be violative of Chapter 458 is not proscribed by Chapter 458.1201(m) and I shall recommend that the Board enter a final administrative order dismissing the instant action against the Respondent.
Recommendation Based on the foregoing findings and conclusions, hereby RECOMMEND: That the Administrative Complaint filed herein against the Respondent be DISMISSED. RECOMMENDED this 28th day of August, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 David Rogers, Esquire 3101 Maguire Boulevard Post Office Box 20065 Orlando, Florida 32814 George S. Palmer, M.D. Execuivo Director State of Florida, Board of Medical Examiners 2009 Apalachee Parkway, Suite 220 Tallahassee, Florida 32301
