The Issue The issues in this case are: (1) whether Petitioner is entitled to repayment for alleged Medicaid overpayments to Respondent; and, if so, the amount of the overpayment to be repaid; (2) the amount of any fine to be imposed against Respondent; and (3) the amount of any investigative, legal, and expert witness costs to be assessed against Respondent.
Findings Of Fact The Parties Petitioner is the agency responsible for administering the Medicaid program in the state of Florida, including overseeing the integrity of that program. § 409.913, Fla. Stat.1/ Respondent is a board-certified family practice physician. During the Audit Period,2/ Respondent was an enrolled Medicaid provider authorized to receive reimbursement for covered medical services rendered to Medicaid recipients.3/ Respondent provides medical services in a rural area to an underserved population. A substantial proportion of his patients are poor and are Medicaid recipients. The Audit As part of Petitioner's duties in overseeing the integrity of the Medicaid program, it investigates and audits Medicaid providers for services rendered to Medicaid recipients. In what is commonly referred to as the "pay-and-chase system," Medicaid providers bill Petitioner for medical services rendered to Medicaid recipients and Petitioner pays these bills, which are referred to as "claims." Thereafter, Petitioner audits those claims. The audit is conducted to determine whether the medical services rendered were appropriate for the condition being treated, whether the amounts billed for services are correct based on documentation provided, and whether Medicaid covers the services provided. If Petitioner determines that the provider was paid for services that did not comply with the Medicaid program requirements, it seeks reimbursement from the provider of the payments made for noncompliant claims. Here, Petitioner audited Respondent's medical records to verify that claims paid by Medicaid during the period from January 1, 2012, through June 30, 2014 (the "Audit Period"), qualified for payment under the Medicaid program. During the Audit Period, Respondent submitted a total of 7,093 claims for billable services rendered to a total population of 854 Medicaid recipients, for which Medicaid paid a total of $448,314.06. Rather than examine the medical service provision records of all 854 recipients Respondent served during the Audit Period, using a computer program, Petitioner randomly selected a sample comprised of 35 recipients from the total population of recipients. Respondent submitted 245 claims for the 35 recipients in the sample population. Once these 35 recipients were identified, Petitioner requested that Respondent provide the Medicaid services records for the claims submitted for these recipients. Upon receiving the Medicaid services records from Respondent, Petitioner, through its nurse consultant, Karen Reynolds, and its peer reviewer, Dr. Lisa Jernigan,4/ reviewed the claims for these 35 recipients. Reynolds' review of Respondent's records consisted of identifying the claims for which Respondent provided insufficient or no documentation, as required by the 2008 and 2012 Florida Medicaid Provider General Handbooks ("Handbooks"), to support the claims. When she determined that insufficient documentation had been submitted to support a claim, Reynolds made notations on a worksheet created for that particular recipient, regarding the insufficiency of the documentation. Reynolds made her notations on the worksheets in light red ink. After Reynolds completed her review, the records were transmitted to Dr. Jernigan for a substantive review of each claim to determine whether the documentation submitted in support of a claim complied with the pertinent standards in the Handbooks for payment of the claim. Based on her substantive review, Dr. Jernigan determined, for each claim, whether the claim should be approved, adjusted, or denied.5/ Dr. Jernigan's notations regarding approval, denial, or modification of payment for each claim, as well as the basis of her determination for each claim, were made on the worksheets in green ink and in darker red ink. After Dr. Jernigan completed her review of the claims, Reynolds went back through the worksheets and made additional notations, such as "NMN" for "not medically necessary," summarizing Dr. Jernigan's substantive review, in light green ink. For each claim that Dr. Jernigan determined should be adjusted or denied, Reynolds wrote the disallowed amount in the "dis-amt" space on the worksheet for that claim.6/ Based on the competent, substantial, and persuasive evidence, the undersigned determines that the audit was properly conducted. Dr. Jernigan engaged in the peer review of Respondent's records, and Reynolds merely served as an assistant whose role was confined to the ministerial tasks of determining whether Respondent had submitted the documentation requested by Petitioner for purposes of determining compliance with the Handbooks, and, after Dr. Jernigan completed her substantive peer review of each claim, summarizing Jernigan's determinations, as appropriate, and calculating the disallowed amounts for claims that Dr. Jernigan had determined should be adjusted or denied.7/ On the basis of this review process, Petitioner determined that Respondent had been overpaid in the amount of $4,867.97 ($19.86832653 per claim) for the 245 claims in the 35- recipient sample population. Using the statistical formula for cluster sampling,8/ which extrapolates the overpayment determined from the sample population across the total population of 7,093 claims, Petitioner determined that Respondent had been overpaid the total amount of $104,951.05. Petitioner informed Respondent of this preliminary overpayment determination through its Preliminary Audit Report ("PAR")9/ issued on November 10, 2015, and gave him the option of submitting further documentation in support of the claims that had been preliminarily identified as ineligible for payment by the Medicaid program.10/ In response to the PAR, Respondent provided additional documentation, which was reviewed by Dr. Jernigan. Based on the review of the additional records Respondent provided, Petitioner issued a FAR, dated August 8, 2016. The FAR determined that Respondent had been paid an overpayment of $4,637.45 ($18.92836735 per claim) for the 245 claims in the 35-recipient sample population. As with the PAR, Petitioner employed the statistical formula for cluster sampling to determine the alleged probable overpayment for the total population of 7,903 claims paid during the Audit Period. This analysis yielded a probable overpayment of $97,121.42, with a 95-percent probability that the actual overpayment is equal to or greater than that amount. Petitioner also sought to impose a fine of $19,424.28 as a sanction for violating Florida Administrative Code Rule 59G- 9.070(7)(e), and to require Respondent to pay $1,708.08 in investigative, legal, and expert witness costs, as authorized by section 409.913(23), Florida Statutes. Subsequent to issuance of the FAR, Petitioner and Respondent conducted a peer-provider meeting. As a result of that meeting, as well as subsequent discussions between the parties, Respondent was afforded several opportunities to submit additional documentation to support his claims. As a result of the documentation Respondent provided, Petitioner has further reduced the alleged overpayment amount to $72,084.43, which is now the amount at issue in this proceeding. Petitioner also seeks to impose a fine consisting of 20 percent of this overpayment amount, or $14,416.89. Additionally, if Petitioner prevails in this proceeding, it seeks to recover its investigative, legal, and expert witness costs. Grounds Stated in FAR for Denial or Reduction of Claims The FAR states four grounds, or "Findings," for Petitioner's determination that Respondent was overpaid by Medicaid for certain medical services he provided, based on cited provisions in the 2008 Florida Medicaid Provider General Handbook ("2008 Handbook"), 2012 Florida Medicaid Provider General Handbook ("2012 Handbook"), 2010 Physician Services Coverage and Limitations Handbook ("2010 Handbook"), 2012 Practitioner Services Coverage and Limitations Handbook, and 2014 Practitioner Services and Limitations Handbook ("2014 Handbook").11/ The FAR does not allege that Respondent committed any Medicaid fraud or abuse in this proceeding. Finding No. 1 Finding No. 1 in the FAR alleges that Respondent provided incomplete records, as defined in the 2008 and 2012 Handbooks, for some claims for which he billed and was paid, such that any payments for which incomplete records were submitted constitutes an overpayment that Petitioner is entitled to recover. The 2008 and 2012 Handbooks, "Provider Responsibility" section, states, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: Have actually been furnished to the recipient by the provider prior to submitting the claim; * * * Are provided in accord with applicable provisions of all Medicaid rules, regulations, handbooks, and policies and in accordance with federal, state and local law; and Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The 2008 and 2012 Handbooks, "Requirements for Medical Records" section, states in pertinent part: Medical records must state the necessity for and the extent of services provided. The following requirements may vary according to the service rendered: Description of what was done during the visit; History; Physical assessment; Chief complaint on each visit; Diagnostic tests and results; Diagnosis; Treatment plan, including prescriptions; Medications, supplies, scheduling frequency for follow-up or other services; Progress reports, treatment rendered; The author of each (medical record) entry must be identified and must authenticate his entry by signature, written initials or computer entry; Dates of service; and Referrals to other services. The 2008 and 2012 Handbooks, "Record Keeping Requirement" section, states: Medicaid requires that the provider retain all business records as defined in 59G- 1.010(30) F.A.C., medical-related records as defined in 59G-1.010 (154) F.A.C., and medical records as defined in 59G-1.010 (160) F.A.C. on all services provided to a Medicaid recipient. Records can be kept on paper, magnetic material, film, or other media including electronic storage, except as otherwise required by law or Medicaid requirements. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamped signatures must be initialed. The records must be accessible, legible and comprehensible. The 2008 Handbook, "Incomplete Records" section, states that "providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." The 2012 Handbook, "Incomplete or Missing Records" section, similarly states: "Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid shall recover payment for services or goods when the provider has incomplete records or does not provide the records." The following claims, which are in dispute in this proceeding, were denied on the ground stated in Finding No. 1: Recipient 2, claim nos. 2 and 21; Recipient 6, claim nos. 1, 2, 3, and 4; Recipient 8, claim no. 6; Recipient 9, claim no. 4; Recipient 10, claim no. 10; Recipient 13, claim no. 3; Recipient 16, claim nos. 2, 3, 4, 6, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 27, 30, 31, 32, 33, 34, 35, 37, 38, 41, 43, 54, and 57; Recipient 18, claim nos. 2, 3, 4, and 5; Recipient 24, claim no. 1; Recipient 33, claim no. 9; Recipient 34, claim nos. 4 and 7; Recipient 35, claim nos. 5 and 6.12/ A total of 47 claims are in dispute on the ground stated in Finding No. 1. Finding No. 2 Finding No. 2 in the FAR alleges that the medical necessity of some services for which Respondent billed and was paid were not supported by the documentation he provided. The 2008 and 2012 Handbooks, in the section titled "Provider Responsibility," state in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are Medicaid-covered goods or services that are medically necessary[.] Additionally, as noted above, the 2008 and 2012 Handbooks, "Provider Responsibility" section, state, in pertinent part: When presenting a claim for payment under the Medicaid program, a provider has an affirmative duty to supervise the provision of, and be responsible for, goods and services claimed to have been provided, to supervise and be responsible for preparation and submission of the claim, and to present a claim that is true and accurate and that is for goods and services that: * * * Are documented by records made at the time the goods or services were provided, demonstrating the medical necessity for the goods or services rendered. Medicaid goods or services are excessive or not medically necessary unless both the medical basis and the specific need for them are fully and properly documented in the recipient’s medical record. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 2: Recipient 2, claim nos. 11, 13, 19, and 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 36, 39, 41, 43, 45, and 47; Recipient 24, claim no. 1; Recipient 34, claim nos. 4 and 7; and Recipient 35, claim no. 4. A total of 20 claims are disputed on the ground stated in Finding No. 2.13/ Finding No. 3 Finding No. 3 in the FAR states that some services that Respondent provided to established patients were billed and paid as having been rendered to new patients. The 2010, 2012, and 2014 Handbooks, "Established Patient Visit" section, defines an "established patient" as "one who has received professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." These Handbooks define a "new patient" as "one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years." The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 3: Recipient 21, claim no. 1; Recipient 23, claim no. 1. A total of two claims are disputed on the ground stated in Finding No. 3. Finding No. 4 Finding No. 4 in the FAR states that the level of service for some claims for which Respondent billed and was paid was not supported by the documentation submitted to support the claim. The 2010 Handbook, "Medically Necessary" section, states in pertinent part: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider’s service. In addition, the services must meet the following criteria: * * * Be individualized, specific, consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the recipient’s needs; * * * Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide[.] The 2012 and 2014 Handbooks, "Medical Necessity" section, state in pertinent part: Medicaid reimburses services that are determined medically necessary and do not duplicate another provider’s service. Rule 59G-1.010 (166), F.A.C. defines "medically necessary" or "medical necessity" as follows: The medical or allied care, goods, or services furnished or ordered must: (a) Meet the following conditions: * * * 2. Be individualized, specific, and consistent with symptoms or confirmed diagnosis of the illness or injury under treatment, and not in excess of the patient’s needs. * * * 4. Reflect the level of services that can be safely furnished, and for which no equally effective and more conservative or less costly treatment is available statewide. The following claims, which are disputed in this proceeding, were denied on the ground stated in Finding No. 4: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; Recipient 16, claim nos. 29, and 52; Recipient 17, claim no. 1; Recipient 21, claim no. 2; Recipient 22, claim no. 2; Recipient 30, claim no. 3; Recipient 32, claim no. 2; Recipient 35, claim no. 1. A total of 12 claims are disputed on the ground stated in Finding No. 4. In sum, a total of 69 claims are disputed on the grounds set forth in Finding Nos. 1 through 4. Medical Record-Keeping Purpose and Requirements Medical records should consist of a simple, complete, organized record that documents the patient's medical condition, needs, and the medical services rendered, so that the physician preparing the record, as well as any other physician——whether or not familiar with the patient or the record-keeping system, including an electronic health record ("EHR" system) used——is able to follow the patient's course of health and treatment. Additionally, medical records must be sufficiently complete and clear for purposes of billing, and in the case of Medicaid, for payment. For claims for services provided to Medicaid recipients to be payable under the Medicaid program, the medical records must meet the requirements set forth in the pertinent Medicaid Handbooks. As discussed above, among these requirements are that the records be true and accurate; demonstrate the medical necessity of, and level of service for, the services provided; contain certain specified components, such as a description of what was done during the visit, the patient's medical history, physical assessment of the patient, the patient's chief complaint on a particular visit, diagnosis, and treatment plan; and be comprehensible, individualized, specific, and consistent with the symptoms or confirmed diagnosis of the illness or injury treated. Dr. Jernigan opined, persuasively, that in the medical context, the term "comprehensible" means that the medical records are sufficiently intelligible and understandable such that another physician or other medically-trained individual could read the record and have a solid picture of the patient's medical history and general condition, as well as the treating physician's specific physical findings and reasons why a particular treatment or service was provided to the patient. Dr. Jernigan testified, credibly and persuasively, that when a medical record contains conflicting or inconsistent information, it is incomprehensible. If the medical record is incomprehensible, it cannot be determined to support the billed service, in which case, the claim for that service must be adjusted or denied. The Intergy EHR System During the Audit Period, Respondent used the "Intergy" EHR system to prepare and keep his medical records for his patients, including the Medicaid recipients he treated and whose claims he billed under the Medicaid program. Dr. Jernigan does not use the Intergy EHR system in her own practice. However, the components of the Intergy EHR system are the same or similar to the components of other commonly-used EHR systems with which she is familiar.14/ Dr. Jernigan explained the purpose of each component of the Intergy EHR template used to compile the medical records for a patient. The purpose of the first component of the Intergy template, "Reason for Visit," is to document the reason why the patient is seeking medical services. The second component, "History of Present Illness," serves to provide a chronological description of the issues surrounding the patient's chief complaint and the reason for the visit. In essence, this portion of the medical record documents the commencement of the patient's medical complaint; the length of time the patient has experienced that condition; its progression; effective and ineffective treatments; the specific location of the condition on or in the patient's body, including whether it is on the left or right side of the body, or both; and other information regarding the temporal and physical aspects of the patient's medical condition. The purpose of the "Past Medical/Surgical History" component is to document the patient's past medical or surgical history relative to the patient's current condition at the time of the particular visit. The purpose of the "Social History" component is to document the patient's social history or habits as related to the patient's medical condition presented at the visit.15/ The "Family History" component is to enable the provider to document any family history that may be relevant to diagnosing and treating the patient's condition.16/ The purpose of the "Review of Systems" component is to document the patient's medical condition at the time of the visit. This component includes a review of body systems involved in the patient's complaint, to determine and document whether there may be other health issues that could present with the same symptoms. This component enables the provider to document relevant information regarding the involvement of other body systems that may affect the diagnosis or treatment for the primary complaint or reason for a particular visit. The "Physical Findings" component is the portion of the medical record in which the provider documents the information regarding his or her findings resulting from a physical examination of the patient. The "Assessment" component is where the provider documents his or her conclusion, or diagnosis, as to the nature, identity, or cause of the patient's condition. The "Therapy" component enables the provider to describe and document the chosen course of treatment for the patient. The "Counseling/Education" component enables the provider to describe and document the matters discussed with the patient, such as the nature of the patient's medical condition and prognosis, the provider's chosen course of treatment or therapy, recommendations regarding the patient's actions to assist in treating the condition, and instructions provided to the patient. The "Plan" component describes the course of treatment for the medical condition and the reasons for choosing this course of treatment. The "Practice Management" component is included to implement certain meaningful use regulatory requirements. The Intergy EHR system has time-saving features, such as a "carry-forward" feature, which allows patient information from previous visits to be "carried forward," or copied and pasted, into the records for subsequent visits. Dr. Jernigan opined, credibly, that although the "carry-forward" feature is convenient, improper use or overuse of this feature can result in the records for a patient's subsequent visits containing all of the information from previous visits, rather than only the information pertinent to the particular subsequent visit. This may render the medical records outdated and inaccurate with respect to the patient's medical condition in subsequent visits. Additionally, carrying forward information from previous visits can render the records for subsequent visits incomprehensible, in that the patient's reason for that particular visit, the symptoms exhibited at that visit, and the specific treatment provided in that visit cannot be determined from the mass of comprehensive information that was carried forward from previous visits and included in the record for that particular visit. Here, the competent, credible evidence shows that Respondent was not trained in, and experienced difficulty in using, the Intergy EHR system. The competent, credible evidence shows that Respondent frequently used Intergy's "carry-forward" feature in preparing his medical records, and this was the likely cause for many of the records for his Medicaid patients including extensive carried-forward information from visit to visit——to the point that in numerous cases, it was difficult to identify which, if any, additional medical conditions, physical findings, treatments, or other services were provided to patients in their subsequent visits. The competent, credible evidence also shows that the Intergy EHR system has numerous flaws that render it difficult to use and not optimally functional in producing electronic medical records that are sufficiently accurate or comprehensible to be used for Medicaid billing purposes. As a result of the Intergy EHR system's flaws, as well as Respondent's apparent overuse of the system's "carry-forward" feature, his medical records were, in many cases, redundant, outdated, contradictory, and inaccurate with regard to documenting a patient's medical condition, physical findings, treatment, basis for services provided, and other key information for a particular visit. This rendered those records untrue, inaccurate, and incomprehensible, and, therefore, not in compliance with the Handbooks' requirements regarding documentation of services sufficient to support billed claims. Overpayment Determinations Rather than presenting evidence on each of the 69 total claims denied or adjusted on the grounds stated in Finding Nos. 1 through 4, the parties presented testimony and related evidence on selected representative claims for each Finding. The parties stipulated, with respect to Finding Nos. 1, 2, and 4, that Dr. Jernigan's analysis of Respondent's medical records, and her opinions regarding whether those records complied with the pertinent standards in the Medicaid Handbooks for payment purposes, applied to all claims for which the grounds in a particular Finding were cited as the basis for denial or modification of payment of that claim. It is important to note that Petitioner did not stipulate to the correctness of Dr. Jernigan's analyses and opinions——only that her analyses and opinions applied to all of the disputed claims denied on the grounds set forth in Finding Nos. 1, 2, and 4 in the FAR. Due to the small number of claims (two) that were denied or adjusted on the grounds cited in Finding No. 3, the parties presented testimony on each of those claims. Finding No. 1 – Insufficient Documentation to Support Claim For Finding No. 1, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 6, claim nos. 1 through 4; Recipient 8, claim no. 6; Recipient 16, claim nos. 3, 6, 15, 18, and 21. Recipient 6 Claim No. 1 Based on Dr. Jernigan's review, Petitioner denied Recipient 6, claim no. 1, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation to support the claim. The Reason for Visit noted that the patient was visiting due to "increased pains," but the documentation did not describe the location or nature of the pain, so was incomplete. The History of Present Illness component for this claim consisted of a bullet-point list of complaints, rather than a discussion of the development of those complaints over time. Additionally, this component contained incomplete and contradictory information. Specifically, this component contained a notation stating that the patient was suffering from hand pain and a range of other joint pain, without specifying which hand and joints (i.e., on the right side, left side, or both sides of the body) were painful. Additionally, the notation stated "no musculoskeletal symptoms," which conflicts with the notations regarding the existence of hand and other joint pain. The Review of Systems component for this claim also contained conflicting or contradictory notations. For example, there were conflicting descriptions of the patient's state of malaise, and conflicting notations documenting both the presence and the absence of night sweats. The Physical Findings component for this claim also contained contradictions and insufficient information. For example, the notations state both "wheezing was heard" and "no wheezing was heard"; that vomiting was observed and that the patient is to call the provider if vomiting develops; and that muscle spasms and tenderness in the back, as well as numerous trigger points, were observed, but that there was an overall finding of "normal" for the musculoskeletal system. Further, the notes did not identify whether these findings applied to the left or right side of the body, or both. The Assessment component consisted of a wide-ranging list of conditions, likely due to the carry-forward of all or much of the information from previous visits. Many of the conditions listed in this component were not supported by the information recorded in the History of Present Illness, Review of Systems, or Physical Findings components. For example, the assessment states that the patient suffers from hyperlipidemia, testicular dysfunction, viral syndrome, and upper respiratory infection, none of which are sufficiently supported by the information documented in any other component in the patient's medical history. The Therapy component states that Respondent provided pain management counseling and pain management by medication; however, the medication prescribed for the patient was not identified or documented in the medical record. The Counseling/Education component lists numerous matters on which counseling ostensibly was provided, including use of tobacco, alcohol, and illicit drugs, none of which were supported by any findings or notations in the patient's medical record. The Plan component for this claim diagnoses the patient as suffering from impotence of organic origin and suggests referring the patient to a urologist. Dr. Jernigan credibly testified that this diagnosis is not supported by the information documented in the other components of the patient's medical record, thus highlighting the point that if this diagnosis is accurate, the medical records for this claim are incomplete because they do not sufficiently document the basis for this diagnosis and course of treatment. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 1 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 1 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 1 for Recipient 6 should be denied. Claim No. 2 Claim no. 2 is a follow-up visit for the same patient that took place on August 3, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from most of the same deficiencies as did the documentation for claim no. 1. Specifically, the Reason for Visit was incomplete because it failed to document and describe the location or nature of the "increased pains." The History of Present Illness component consisted of the carried-forward information recorded in that EHR component for the previous visit, and, as such, suffered from the same deficiencies. Specifically, it did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead contained the same series of descriptive bullet points. Further, as previously discussed, several of the conditions described in these bullet points were contradictory. The Review of Systems component also appeared to carry-forward the same information contained in the same component from the previous visit, so suffers from the same deficiencies. Additionally, this component is inaccurate because it did not accurately reflect the patient's current medical condition at the time of the follow-up visit. The Physical Findings component also contained mostly carried-forward information from the same component in the record of this patient's previous visit, so contained the same inconsistencies and contradictions as the records submitted in support of claim no. 1. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so it also suffered from the same deficiencies as the Assessment for claim no. 1. As discussed in detail above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. In the Plan component for this claim, the urological diagnosis was deleted; however, the Plan did not specifically address or prescribe any treatments specific to the medical conditions identified in other components of the medical record for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 2 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that as a result of these deficiencies, the medical records submitted to support claim no. 2 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 2 for Recipient 6 should be denied. Claim No. 3 Claim no. 3 is a follow-up visit for Recipient 6 that took place on August 15, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirms, that the documentation for this claim suffers from several of the same deficiencies as did the documentation for claim nos. 1 and 2. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. Additionally, as before, this component did not document and describe the location or nature of the "increased pains" also listed as a reason for the visit. As before, the History of Present Illness component consisted of carried-forward information, so continued to suffer from some of the previously discussed deficiencies. This component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points, some of which contained contradictory information. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Physical Findings component also contained carried-forward information from the same component in the record of this patient's previous visit, so some of the previous contradictions in the notations, such as "wheezing was heard" and "no wheezing was heard," continued to be included. Additionally, the record still did not identify the specific location——i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted, so was incomplete. The Assessment component also appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1 and 2. As discussed above, many conditions listed in this component were not supported by the information documented in the other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 3 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, thus, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 3 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Based on the foregoing, it is determined that claim no. 3 for Recipient 6 should be denied. Claim No. 4 Claim no. 4 is a follow-up visit for Recipient 6 that took place on November 21, 2012. Dr. Jernigan credibly testified, and a review of the medical record for that visit confirmed, that the documentation for this claim suffered from several of the same deficiencies as claim nos. 1, 2, and 3. The Reason for Visit component for this claim was incomplete because although it referenced that one of the reasons for the visit was a "medication refill," the medical record for this visit did not contain any documentation regarding the medication prescription being refilled. This component also failed to describe the location or nature of the "increased pains" that are listed as a reason for the visit. As before, the History of Present Illness component consisted of the carried-forward information, so continued to suffer from some of the previously discussed deficiencies. As before, this component did not provide a chronological history of the presentation of the medical condition or its progression or treatment, but instead consisted of a series of descriptive bullet points. New information regarding the patient's self- monitoring of blood glucose was added, but the blood glucose levels observed at various times of the day were not listed, rendering this notation incomplete. Additionally, this component continued to be incomplete due to lack of information regarding precise location of musculoskeletal and neurologic conditions. The Current Medication component, added into the medical records for this patient on this follow-up visit, was incomplete because it did not list the medications the patient is taking. The Review of Symptoms component also appeared to consist mostly of carried-forward information that contained the same contradictory information as with the previous claims. In addition, new contradictory provisions documented the presence of "no sore throat" and "[s]ore throat," "no cough" and "cough causing vomiting," and "[a]nxiety" and "[n]o anxiety." The Past Medical/Surgical History component stated "Pediatric: Failure to thrive." Because this patient is a 73-year-old adult rather than a pediatric patient, this information is inaccurate. As before, the Review of Symptoms component contained carried-forward information from this patient's previous visits, so perpetuated contradictions previously noted, such as "night sweats" and "no night sweats," and "no wheezing" and "wheezing worse during upper respiratory infection." The Physical Findings component still did not identify the specific location—i.e., left or right side of the body——of the musculoskeletal and neurological conditions noted. Additionally, necessary information, such as vital signs and lab testing results, was not documented. The Assessment component again appeared to be a carry- forward of all or much of the information from the previous visit, so suffered from the same deficiencies as the Assessment for claim nos. 1, 2, and 3. As previously discussed, many conditions listed in this component, such as "adult failure to thrive," "vascular dementia," and "chronic fatigue syndrome," were not supported by the information documented in the other components of the medical records. The Therapy Component noted that the patient's pain was being managed by medication, but there was no notation regarding the type of medication prescribed. Additionally, the patient was directed to perform a "self-examination" with no detail regarding what part of the body was to be examined, and the "addiction counseling" notation was unsupported by any other mention of addiction in the medical record. The Counseling/Education component continued to contain extensive carried-forward information, and also contained an extensive list of newly-added counseling notations that were not supported by other components of the medical record. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 4 for Recipient 6 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 4 for Recipient 6 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 4 for Recipient 6 should be denied. Recipient 8 Claim No. 6 Based on Dr. Jernigan's review, Petitioner denied Recipient 8, claim no. 6, for services provided by Respondent on February 29, 2012, on the basis of insufficient documentation. Dr. Jernigan noted that much of the medical record for this visit appeared to be an exact carry-forward from the previous visit, so did not specifically address or reflect the patient's current condition at the time of her follow-up visit. Additionally, several of the components for this visit contained contradictory or clearly inaccurate information. She noted that when inconsistencies are repeated in medical records, it is very difficult to determine the patient's condition or course of treatment for a particular visit. Here, the History of Illness was again a bullet-point list of symptoms or conditions, rather than a chronological narrative of the patient's medical condition presented for this visit. Additionally, although one of the stated reasons for this visit was "infected hands after burns," this component contained the contradictory statement "no skin symptoms." Further, in the Past Medical/Surgical component, it is noted "Pediatric: Failure to thrive." Because the patient is an adult, this was an inaccurate notation in the record. The Social History component stated in part: "Abuse and Neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst." Dr. Jernigan opined that this statement was inconsistent with the fact that the patient is obese. The Functional component describes the patient as "unable to lift more than" and "unable to drive more than," but did not contain a complete description of these limitations from which the patient suffered. Additionally, the statements "able to walk" and "difficulty walking unassisted" appeared to be contradictory. The Review of Systems also contained several contradictory statements. Specifically, the Reason for Visit component stated that one of the reasons for this visit was "infected hands after burns," but the Review of Symptoms component stated that the patient exhibited "no skin lesions." Additionally, this component stated that the patient exhibited "no polydipsia" and "polydipsia," "vertigo" and "no vertigo," and "no sensory disturbance" and "tingling of the hands and feet, a burning sensation, and numbness of the hands and feet (distal)." The Physical Findings also contained contradictory and incomplete information. For example, the stance and gait were shown as being both "abnormal" and "normal." Further, the description of the burns on the patient's hands did not specify whether they were first-, second-, or third-degree burns, and although her hands were burned, the skin was described as "general appearance was normal" and having "no skin lesions." The Assessment consisted of an extensive list of conditions, many of which were unsupported by the Review of Systems and Physical Findings components. The Therapy component consisted of an extensive list of items, many of which were unsupported by information in the other components of the medical record. For example, addiction counseling for alcohol and opioids is noted, but there was no information documenting addiction to these substances in other parts of the medical record. Additionally, "psychoactive medication management" was listed as a therapeutic item, but the specific medication was not identified and the other components did not support this therapy. Similarly, "pain management by medication" was listed, but the specific medication was not identified. "Education and instructions" also was listed but there was no description of the specific subjects. The Counseling/Education component consisted of an extensive list of subjects about which the patient ostensibly was counseled or education on this visit, but most of them were unsupported by the information in the other components of the medical record for this visit. Dr. Jernigan noted that it appeared that the EHR system "dumped" a laundry list of unrelated items into the notes for this component, making it difficult to know precisely what type of counseling and education was actually provided for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 8 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, it is determined that claim no. 6 for Recipient 8 should be denied. Recipient 16 Recipient 16 was a young male patient. During the Audit Period, this patient had numerous visits to Respondent, resulting in a total of 59 claims. Of those, 33 are in dispute in this proceeding. Dr. Jernigan testified about claim nos. 3, 6, 15, 18, and 21 as representative of her analysis and opinions regarding claims denied or adjusted pursuant to the grounds stated in Finding No. 1. Claim No. 3 Dr. Jernigan again noted incomplete documentation and inconsistencies with respect to the notations in the various components of the medical record for this claim. Specifically, she noted that in the Social History, there is a notation of "Abuse and neglect: Receiving insufficient liquids and abandonment which resulted in hunger or thirst," but this notation was not consistent with or supported by the information in the other components of the medical record for this visit. In the Review of Symptoms component, there was an inconsistent notation of "earache" and "no earache." In the Physical Findings component, no vital signs were recorded, rendering the medical record incomplete. Additionally, there were several inconsistent observations documented, including a notation of "no distress," notwithstanding that "vomiting was observed." The Assessment component contained extensive carried- forward information from previous visits, rendering that information inaccurate with respect to this particular visit. Additionally, the medications of Phenergan and Bentyl IM apparently were administered, but no dosage was documented. The Counseling/Education component listed subjects about which the patient ostensibly was counseled, such as tobacco, alcohol, and illicit drug use, but these items were not supported by information in the Social History component or in other components in the medical record for this visit. Ultimately, Dr. Jernigan determined that this claim, which was for an injection to treat nausea with vomiting, should be denied because no dosage for the injected medication was provided, as required by the Handbooks for the claim to be payable. Accordingly, it is determined that claim no. 3 for Recipient 16 should be denied. Claim No. 6 Although the Reason for Visit component referred to test results, the types of tests and results thereof were not addressed or otherwise documented in the medical record for this visit. The History of Present Illness again was presented in a bullet-point list, rather than a chronological narrative of the patient's medical condition and its progression and treatment. There was no information regarding when or for how long the list of conditions existed, or whether they existed at the time of this specific visit. The notation in the Physical Findings that there was "no nasal discharge seen" and "no sinus tenderness" was inconsistent with the Review of Symptoms notations documenting the presence of sinus pain and nasal discharge, and the notation that the oropharynx was "abnormal" and "inflamed" was inconsistent with the notation that it also was "normal." The Counseling/Education component notations stated that the patient again was counseled about tobacco, alcohol, and illicit drug use, but as before, there was no information in the other components to support this counseling for this visit. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 6 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 6 for Recipient 8 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 6 for Recipient 16 should be denied. Claim No. 15 The Reason for Visit component for this claim did not address the reason for the patient's visit or identify the test results that would be reviewed during that visit. As with previous claims, the History of Illness component for this visit was a bullet-point list of symptoms rather than a chronological narrative of the patient's condition. Additionally, it contained contradictory information regarding the presence or absence of pulmonary symptoms. The Review of Systems component for this visit contained multiple contradictions similar to those noted in the previous claims for this patient. Specifically, there were contradictory notations regarding the presence of "neck pain" and "no neck pain," the presence of "neck stiffness" and "no neck stiffness," the presence of "sore throat" and "no sore throat," and the presence of "localized joint stiffness" and "no localized joint stiffness." The Physical Findings component lacked information regarding the patient's vital signs, and contained contradictory notations regarding normal and abnormal breath sounds and the presence and absence of wheezing. The Assessment component contained extensive information that was unsupported by information documented in the other components of the medical record for this visit. Moreover, this patient had been documented in a previous visit as weighing 168 pounds and suffering abuse and neglect resulting in hunger or thirst, so the notation that he was at risk for obesity hypoventilation syndrome appeared inaccurate and inconsistent with his previously documented condition. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 15 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 15 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 15 for Recipient 16 should be denied. Claim No. 18 As with the medical records for previous claims, the Reason for Visit component for this claim lacked key information, such as information regarding the reason for the visit and the test results to be reviewed. The History of Illness component once again consisted of a bullet list of observed conditions, rather than a chronological narrative of the history of the patient's condition, its progression, and its response or lack of response to treatments. The Review of Systems contained many of the previously noted inconsistencies regarding the presence and absence of neck pain and stiffness and presence and absence of sore throat. Additionally, this component contained the contradictory notations of "heartburn" and "no heartburn." The Physical Findings component of this visit also contained many of the same contradictions as noted for previous claims for this patient. Specifically, there was a notation of normal and abnormal pharynx, normal and abnormal lungs, the presence of wheezing and absence of wheezing, and the presence of both an abnormal and normal gait. The Assessment component again consisted of an extensive list of conditions, many of which were not supported by information documented in the other components for this medical record. The Plan component was non-specific and did not address any of the diagnoses listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 18 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 18 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 18 for Recipient 16 should be denied. Claim No. 21 Claim no. 21 for Recipient 16 suffered from many of the same deficiencies as previously identified for other claims for this patient. The Reason for Visit component did not specifically identify the reason for this particular visit, and the laboratory test results to be reviewed were not identified. The History of Present Illness component consisted of a bullet-point list, rather than a chronological narrative, and it did not discuss the history and progression of the patient's condition and response or lack of response to treatment. Additionally, it contained the same or similar contradictory statements as were previously discussed with respect to this component for other claims for this patient. The Review of Symptoms component contained many of the same contradictions previously noted with respect to other claims for this recipient. Specifically, "no facial pain" and "facial pain and sinus pain," "neck pain" and "no neck pain," "no sore throat" and "sore throat," "heartburn" and "no heartburn," and "dizziness" and "no dizziness" were noted in this component. The Physical Findings component also contained contradictory information, such as abnormal and normal orolarynx, wheezing and no wheezing being heard, and abnormal and normal gait and stance. The Assessment component again appeared to be a carried-forward list of numerous conditions, such as acne, anemia, arthropathy, fatigue, thyroid issues, and obesity that were not supported by documentation in the other components of the medical record for this visit. The Plan was non-specific and did not address the diagnosed conditions listed in the Assessment component. Taking these deficiencies into account, Dr. Jernigan credibly opined that the medical records submitted to support claim no. 21 for Recipient 16 were internally inconsistent and contradictory, and lacked sufficient documentation to support the treatment provided, and, therefore, were incomplete, untrue and inaccurate, and incomprehensible. Dr. Jernigan credibly and persuasively opined that due to these deficiencies, the medical records submitted to support claim no. 21 for Recipient 16 did not comply with the pertinent standards in the Handbooks. Accordingly, claim no. 21 for Recipient 16 should be denied. Summary of Grounds for Denial of Claims Under Finding No. 1 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 1 was that Respondent's documentation was not sufficiently clear and accurate to enable a reviewer to discern the reason for a particular patient visit; the symptoms presenting for a particular visit; the nature, history, and progression of the medical condition; the diagnosis or determination of the medical condition; the treatment; or the therapy and counseling provided to address the medical condition. In particular, the frequent lack of key details, such as the patient's vital signs, and the frequent and pervasive contradictions in many of the components of the records rendered them inaccurate, unreliable, and essentially useless in determining the nature of the patient's condition, treating the patient's condition, and documenting that treatment for payment purposes. Additionally, the diagnoses documented in the Assessments component were rarely well-supported by accurately documented information in the other components, and appeared to be more a "basketful of therapies" that were not specific to the patient and not supported by other information documented in the rest of the medical record. As Dr. Jernigan put it, "if I was looking at [the medical record for] that specific patient, I would have nothing that would be helpful to me." Dr. Jernigan testified, credibly and persuasively, that the frequent and pervasive inconsistencies in Respondent's records rendered them untrue, inaccurate, and incomprehensible. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 1. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 1. Finding No. 1: No Documentation or Incomplete Documentation Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 2 99212 Deny 48.56 2 21 99213 Deny 77.34 6 1 99214 Deny 39.46 6 2 99214 Deny 39.46 6 3 99214 Deny 39.46 6 4 99214 Deny 39.46 8 6 99213 Deny 79.34 9 4 99214 Deny 48.27 10 10 93000 Deny 9.67 13 3 99213 Deny 83.35 16 2 J2550 Deny 2.05 16 3 96372 Deny 12.42 16 4 93672 Deny 12.42 16 6 99214 Deny 48.27 16 15 99214 Deny 48.27 16 16 99372 Deny 12.42 16 17 99214 Deny 48.27 16 18 99214 Deny 48.27 16 19 96372 Deny 12.42 16 21 99214 Deny 48.27 16 22 96372 Deny 13.43 16 23 99214 Deny 48.27 16 24 96372 Deny 13.43 16 25 99214 Deny 48.27 16 27 99214 Deny 48.27 16 30 99213 Deny 83.35 16 31 99213 Deny 83.35 16 32 99211 Deny 23.06 16 33 96372 Deny 13.43 16 34 99212 Deny 50.56 16 35 96372 Deny 13.43 16 37 96372 Deny 13.43 16 38 99213 Deny 83.35 16 41 99212 Deny 50.56 16 43 99212 Deny 50.56 16 54 99212 Deny 50.56 16 57 96372 Deny 14.14 18 2 J0969 Deny 2.00 18 3 96372 Deny 12.42 18 4 J1100 Deny 0.15 18 5 96372 Deny 14.42 24 1 99213 Deny 79.34 33 9 99213 Deny 77.34 34 4 99214 Deny 39.46 34 7 88150 Deny 10.00 35 5 99214 Deny 39.46 35 6 99214 Deny 39.46 Total Recipients: 12 Total Claims: 47 Determined Total Overpayment Amount: $1,810.95 Finding No. 2 – Services Provided Not Medically Necessary For Finding No. 2, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 2, claim nos. 11, 13, and 19; Recipient 16, claim nos. 15, 17, and 30; and Recipient 34, claim no. 7. However, because claim nos. 15, 17, and 30 are being denied in this Recommended Order on the basis of Finding No. 1, they are not addressed in this discussion of claims denied on the basis of Finding No. 2, and they are not counted toward the amount of reimbursement determined in this Recommended Order to be owed. Additionally, because the following claims previously have been denied in this Recommended Order on the basis of Finding No. 1, they have not been counted toward determining the overpayment amount for claims denied on the basis of Finding No. 217/: Recipient 2, claim no. 21; Recipient 16, claim nos. 15, 17, 30, 31, 32, 34, 41, and 43; Recipient 24, claim no. 1; and Recipient 34, claim nos. 4 and 7. Accordingly, a total of eight claims in dispute on the basis of Finding No. 2 have been addressed in this Recommended Order. The CPT Codes The 2012, 2013, and 2014 versions of the Current Procedural Terminology manuals (collectively, "CPT Manuals") establish the CPT Codes that apply in billing services to Medicaid.18/ The following CPT Codes are pertinent to the claims denied on the basis set forth in Finding No. 2: 99211, 99212, 99213, and 99214. These CPT Codes indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. Dr. Jernigan regularly bills Medicaid for services she provides using these CPT Codes. She is very familiar with their use and with the nature of the medical services that are appropriately billed under each code. CPT Code 99211 The CPT Manuals define CPT Code 99211 as: "Office or other outpatient visit for the evaluation and management of an established patient, that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services." CPT Code 99212 The CPT Manuals define CPT Code 99212 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 components: A problem focused history; A problem focused examination; Straightforward medical decision making. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are self[-]limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. CPT Code 99213 The CPT Manuals define CPT Code 99213 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: An expanded problem focused history; An expanded problem focused examination; Medical decision making of low complexity. Counseling and coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. CPT Code 99214 The CPT Manuals define CPT Code 99214 as: Office or other outpatient visit for the evaluation and management of an established patient, which requires at least 2 of these 3 key components: A detailed history; A detailed examination; Medical decision making of moderate complexity. Counseling and/or coordination of care with other physicians, other qualified health care professionals, or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Typically, 25 minutes are spent face-to-face with the patient and/or family. In determining whether a service provided is medically necessary for purposes of Medicaid billing, the focus is on whether there is sufficient documentation to support the necessity of the service provided to the patient. The documentation submitted to support a claim is reviewed to determine whether there is sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. A. Recipient 2 Claim No. 11 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, while the patient presented with conditions that may indicate a urinary tract infection or pelvic inflammatory disease, those diagnoses were only two in a list of 32 assessments, so the record did not clearly indicate the specific diagnosis for her condition at this specific visit. Further, the treatment consisted of a topical medication used to treat arthritis and a medication used to treat painful menstruation, rather than a medication used to treat a urinary tract infection or pelvic inflammatory disease. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 11 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 13 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Specifically, there were no physical examination findings that appeared to be specifically related either to the patient's condition at that visit, or to the treatment provided. For example, Dr. Jernigan specifically noted that while there was an assessment of vulvodynia and the patient was treated for a yeast infection, the medical record does not note an examination of the patient's genitalia having been performed to support that assessment and treatment. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 13 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Claim No. 19 Dr. Jernigan denied this claim as not medically necessary because the medical record for this visit did not contain sufficient information linking the patient's condition with the diagnosis and treatment. Here, the stated reason for the visit included fatigue, somnolence and weakness with problems sleeping, arthralgias with muscle pain and tenderness, headache and dizziness, and snoring with acid reflux. However, the assessment contained a list of 33 diagnoses, many, if not most, of which did not appear to be related to the stated reason for the visit. Additionally, the treatment did not appear appropriate for the conditions stated as the reason for this specific visit. Thus, Dr. Jernigan determined that there was insufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided. Accordingly, she determined that the service provided was not medically necessary, so the claim should be denied. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to demonstrate that the service was medically necessary were credible, supported by the evidence, and persuasive. Accordingly, claim no. 19 for Recipient 2 should be denied on the basis that it was not documented as being medically necessary. Summary of Grounds for Denial of Claims under Finding No. 2 In sum, Dr. Jernigan determined that the claims denied as not medically necessary did not contain sufficient information to demonstrate a medical relationship between the patient's condition and the treatment provided, and to justify the need for the service provided. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the basis of no documentation or incomplete documentation to be credible, accurate, and supported by the documentary and other evidence in the record. Pursuant to the parties' stipulation noted above, the undersigned has applied Dr. Jernigan's analysis in reviewing each of the other claims disputed on the basis of Finding No. 2. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 2. Finding No. 2 – Not Medically Necessary Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 2 11 99213 Deny 81.35 2 13 99213 Deny 81.35 2 19 99213 Deny 77.34 16 36 99211 Deny 23.06 16 39 99212 Deny 50.56 16 45 99212 Deny 50.56 16 47 99211 Deny 23.06 35 4 99214 Deny 39.46 Total Total No. Determined Recipients: of Claims: Total 3 8 Overpayment Amount: $426.74 Finding No. 3 – Established Patients Billed as New Patients As discussed above, a new patient is one who has not received any professional services from a physician or another practitioner of the same specialty who belongs to the same provider group, within the past three years. The two claims in dispute that were denied on the basis set forth in Finding No. 3, that they were not new patients are Recipient 21, claim no. 1; and Recipient 23, claim no. 1. These claims were downcoded to reflect that the patient was an established patient, rather than a new patient. The CPT Codes pertinent to this Finding are 99203, 99204, 99213, and 99214. CPT Codes 99213 and 99214 previously have been defined in the findings pertaining to Finding No. 2, above. CPT Code 99203 The CPT Manuals define CPT Code 99203 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A detailed history; A detailed examination; Medicaid decision making of low complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 30 minutes face-to-face with the patient and/or family. CPT Code 99204 The CPT Manuals define CPT Code 99204 as: Office or other outpatient visit for the evaluation and management of a new patient, which requires these 3 key components: A comprehensive history; A comprehensive examination; Medicaid decision making of moderate complexity. Counseling and/or coordination of care with other providers or agencies are provided consistent with the nature of the problem(s) and the patient's and/or family's needs. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. Recipient 21 Claim No. 1 Recipient 21, claim no. 1 was adjusted from CPT Code 99204 to CPT Code 99214. Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Dr. Jernigan noted that had she determined this claim was for a new patient, it would have been denied, rather than adjusted downward, because the supporting documentation did not contain the patient's comprehensive history, which is one of the three components required in the documentation to support a claim billed under CPT Code 99204. Instead of denying this claim, Dr. Jernigan determined that under the documentation submitted, it should be billed under CPT Code 99214, as a claim for an established patient having a medical problem of moderate to high severity, and for which two of the three components are documented in the medical record. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient, was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 21 should be billed under CPT Code 99214, rather than CPT Code 99204. Recipient 23 Claim No. 1 Dr. Jernigan determined that this claim should be denied because the notations for the Past Medical History, Social History, and Family History state that they are "unchanged." This notation would not be appropriate for a new patient, but would be appropriate for an established patient. Accordingly, she reviewed the claim as one for an established patient, and, based on the documentation in the medical record, determined that the presented problem was one of low to moderate severity and at least two of the required components were present in the record. For these reasons, Dr. Jernigan determined that this claim should be billed under CPT Code 99213, rather than under CPT Code 99203. Dr. Jernigan's analysis of this claim and her opinion that the supporting documentation was insufficient to support billing the claim as one for a new patient, but would support billing the claim as one for an established patient was credible, supported by the evidence, and persuasive. Accordingly, claim no. 1 for Recipient 23 should be billed under CPT Code 99213, rather than CPT Code 99203. Summary of Grounds for Downcoding Claims Under Finding No. 3 In sum, Dr. Jernigan's determined that the notations in the Past Medical History, Family History, and Social History components of the documentation submitted for these claims, as well as the lack of other components in the record, did not support billing these claims as new patient claims, but would support billing them as established patient claims. The undersigned finds Dr. Jernigan's analysis and opinion regarding the downcoding of these claims to bill them as established, rather than new, patient claims to be credible, accurate, and supported by evidence in the record. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 3. Finding No. 3 – Incorrectly Billed as New Patient Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 21 1 99204 Adjusted to 99214 25.38 23 1 99203 Adjusted to 99213 37.66 Total Recipients: 2 Total Claims: 2 Determined Total Overpayment Amount: $63.04 Finding No. 4 – Level of Service Not Supported Claims denied on the grounds set forth in Finding No. 4 of the FAR did not contain documentation sufficient to support the higher level of service billed, but did contain documentation sufficient to support a lower level of service than that billed. CPT Codes 99212, 99213, 99214, and 99204 are pertinent to this Finding, and have been previously defined in the findings pertaining to Findings No. 2 and 3, above. As previously noted, CPT Codes 99212, 99213, and 99214 indicate a progressive increase in the complexity of the medical visit, so require progressively greater levels of documentation to justify billing Medicaid for the service. For Finding No. 4, Dr. Jernigan testified, and Petitioner presented related evidence on, the following representative claims: Recipient 8, claim no. 4; Recipient 9, claim no. 2; Recipient 10, claim no. 3; Recipient 13, claim no. 1; and Recipient 16, claim nos. 29 and 52. Recipient 8 Claim No. 4 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Despite the extensive description in the Reason for Visit component and the extensive list of conditions noted in the Assessment component, the visit ultimately was to address a urinary tract infection, which is a problem of low to moderate complexity and involved the components which would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 4 for Recipient 8 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 9 Claim No. 2 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This visit was a follow-up without any significant changes in the findings documented in the components of previous visits. There was no documentation in any of the components for this visit which would indicate that it involved problems that were of moderate to high complexity, and that it entailed components that would justify billing the claim under CPT Code 99214. The documentation for this visit indicated a problem of low to moderate complexity and entailed the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 2 for Recipient 9 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 10 Claim No. 3 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. This claim entailed extensive internal inconsistencies and contained numerous contradictory notations, which affect the reviewer's ability to determine the purpose of the visit and the appropriate type and level of treatment. Here, Dr. Jernigan opined that this visit ultimately was a follow-up for hypertension and diabetes, and that the patient's condition had not changed from the previous visit. The documentation did not indicate that this visit entailed problems that were of moderate to high complexity, nor did it document the components would justify billing the claim under CPT Code 99214. Rather, the documentation for this visit indicated a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 3 for Recipient 10 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Recipient 13 Claim No. 1 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99204 to CPT Code 99214. The documentation for this claim did not support billing the visit under CPT Code 99204, for a new patient, because it did not contain sufficient information that a comprehensive examination was performed, which is required by this CPT Code. Additionally, the documentation lacked any substantial discussion of the patient's Social History, Family History, or Past Medical History——information that, according to Dr. Jernigan, would be particularly important for a new patient——especially one who, per the documentation in the record, was sexually abused. Further, the Past Medical/Surgical History, Social History, and Family History components all listed this patient's condition as "unchanged," indicating that the patient must have been an established, rather than a new, patient. These deficiencies in the record for this claim did not justify billing the claim under CPT Code 99204, for a new patient. However, due to the severity of the patient's condition, the treatment documented in the record for this visit entailed the components under CPT Code 99214 for an established patient. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 1 for Recipient 13 is correctly adjusted from CPT Code 99204 to CPT Code 99214. Recipient 16 Claim No. 29 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99214 to CPT Code 99213. Dr. Jernigan found much of the information documented for this claim to be incredible. For example, the patient is a 19-year old male, but the notations in the record state such things as "parental concerns about baby's growth" and "assessment for menopause performed." Dr. Jernigan ultimately determined that this visit was a follow-up to address hypothyroidism and that thyroid medication was prescribed as a treatment for this condition. This visit concerned a problem of low to moderate complexity and involved the components that would justify billing the claim under CPT Code 99213, rather than a more complex problem that would justify the level of service under CPT Code 99214. Dr. Jernigan's analysis and opinion regarding this claim was credible, supported by the evidence, and persuasive. Accordingly, it is determined that claim no. 29 for Recipient 16 is correctly adjusted from CPT Code 99214 to CPT Code 99213. Claim No. 52 Dr. Jernigan determined that this claim should be adjusted from CPT Code 99213 to CPT Code 99212. Here, the Reason for Visit stated that the visit was, among other things, to address a skin rash. Although the documentation for this claim contained numerous inconsistencies, Dr. Jernigan was able to discern that the patient had two dermatological conditions that would support the prescription of Doxycycline. According to Dr. Jernigan, skin issues are relatively easy to see and treat, which would justify billing this claim under CPT Code 99212, for a minor problem that would entail the components for that CPT Code, rather than a more complex problem that would justify the level of service under CPT Code 99213. Dr. Jernigan's analysis and opinion regarding this claim was credible and persuasive. Accordingly, it is determined that claim no. 52 for Recipient 16 is correctly adjusted from CPT Code 99213 to CPT Code 99212. Summary of Grounds for Denial of Claims Under Finding No. 4 Dr. Jernigan's overall assessment of the claims denied on the basis of Finding No. 4 was that while a basis for billing Medicaid could be discerned from the medical records for the claim, the documentation in those records was not consistent with the symptoms or confirmed diagnosis, so did not reflect the level of service that could safely be furnished. The undersigned finds Dr. Jernigan's analysis and opinions regarding the claims denied on the grounds stated in Finding No. 4 to be credible, supported by the evidence, and persuasive. Pursuant to the parties' stipulation noted above, the undersigned has applied this analysis in reviewing each of the other claims disputed on the basis of Finding No. 4. The following table sets forth the undersigned's determination of overpayment, based on a review of each claim, for the claims disputed on the basis of Finding No. 4. Finding No. 4 – Incorrectly Billed at Higher Level of Service Recipient No. Claim No. Procedure Code Action Determined Overpayment Amount $ 8 4 99214 Adjusted to 99213 38.79 9 2 99214 Adjusted to 99213 15.71 10 3 99214 Adjusted to 99213 36.79 13 1 99204 Adjusted to 99214 122.14 16 29 99214 Adjusted to 99213 38.79 16 52 99213 Adjusted to 99212 32.79 17 1 99214 Adjusted to 99213 23.32 21 2 99214 Adjusted to 99213 14.85 22 2 99214 Adjusted to 99213 73.87 30 3 99214 Adjusted to 99213 12.85 32 2 99214 Adjusted to 99213 32.56 35 1 99204 Adjusted to 99202 36.77 Total Recipients: 11 Total Claims: 12 Determined Total Overpayment Amount: $479.23 Findings of Ultimate Fact Pursuant to the foregoing, it is determined that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program for the disputed and undisputed claims in this proceeding. Respondent defends its position that many of the claims in dispute should be adjusted downward in this proceeding, rather than denied, by asserting that the inaccuracies and lack of comprehensibility in the documentation for the claims were due to the flaws and defects in the Intergy EHR system, rather than any deficiency on his part in diagnosing or treating his patients or in properly documenting their visits. In support of this position, Respondent notes that in many cases, the documentation provided to support a claim did contain——among the many listed conditions and assessment——a diagnosis that matched the reason for the visit. There is little question in the undersigned's mind that Respondent actually provided the services in the claims he billed to Medicaid. However, the issue in this proceeding is not whether the provider did, in fact, provide the services or accurately diagnose and treat the patient's condition. Rather, the issue is whether the documentation submitted to Petitioner to support the Medicaid-billed claims is true, accurate, comprehensible, and demonstrates the medical necessity of the billed claim, as required by section 409.913 and the Handbooks. Unfortunately, due to the substantial flaws in the Intergy system and Respondent's difficulty in using that system, his records did not comply with those standards, so do not support the billed claims. As the enrolled Medicaid provider, Respondent is ultimately responsible for the completeness, accuracy, and comprehensibility of the documentation submitted in support of his claims billed to Medicaid. § 409.913(7), Fla. Stat. The Handbooks, section 409.913, and applicable rules do not recognize, as a defense to actions seeking reimbursement for overpayments, that deficiencies in the provider's records may be excused due to poor or dysfunctional EHR systems. Based on the foregoing, the undersigned found Dr. Jernigan's analyses and opinions credible, supported by the competent substantial evidence in the record, and persuasive. Accordingly, it is determined, as a matter of ultimate fact, that Petitioner proved, by a preponderance of the evidence, that Respondent was overpaid by the Medicaid program in the amount of $72,084.43 for the disputed and undisputed claims in this proceeding. However, the undersigned determines that Petitioner did not prove the overpayments by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner, Agency for Health Care Administration, enter a final order directing Respondent to repay to the Agency the sum of $72,084.43 in overpayments. Pursuant to section 409.913(23)(a), Petitioner, as the prevailing party in this proceeding is, entitled to recover, as costs, all investigative, legal, and expert witness costs as the prevailing party is granted. If the amount of these costs cannot be stipulated by the parties, Petitioner may request a hearing solely to establish the amount of costs it is entitled to recover in this proceeding. DONE AND ENTERED this 12th day of March, 2018, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 12th day of March, 2018.
The Issue Whether Respondent engaged in medical malpractice, failed to keep legible medical records, exploited a patient for financial gain, or accepted or performed the professional responsibilities of an oncologist that he knew, or had reason to know, he was not competent to perform; and if so, what is the appropriate sanction.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against medical doctors licensed in the state of Florida who are accused of violating chapters 456 and 458, Florida Statutes. Respondent is licensed as a medical doctor in the state of Florida, having been issued license number ME 80412. At all times material to this proceeding, Respondent was the sole owner and sole physician at Holistic Family Medicine (HFM), a medical practice located at 9325 Glades Road, Suite 104, Boca Raton, Florida 33434. The charges against Respondent arise from Respondent's treatment of patient S.S. (S.S.) from March 17, 2011, until her death on February 10, 2013. M.S., S.S.'s mother, was present during all of S.S.'s medical appointments and was involved in all of S.S.'s medical decisions. Facts Related to S.S.'s Medical History In the spring of 2011, S.S., a 23-year-old female archeology student from Loxahatchee, Florida, suffered from a multitude of medical issues. At that time, S.S. was frustrated with her current primary care physician (PCP), Robert Federman, M.D., and treating sub-specialists because she felt that they were ignoring what she identified as her most pressing symptom, an excruciating pain in her side. Due to her frustration, S.S. sought a second opinion from Respondent at HFM on March 17, 2011. M.S. learned about Respondent from an employee at Whole Foods grocery store.2/ During her first appointment at HFM, S.S. told Respondent she was recently diagnosed with peripheral t-cell lymphoma (PTCL) by the University of Miami (UM), but that she was waiting on a second opinion from the H. Lee Moffitt Cancer Center & Research Institute (Moffitt). S.S. expressed skepticism at the PTCL diagnosis. Approximately nine months before S.S. first presented to Respondent, she suffered from unrelenting diarrhea, nausea, and vomiting. In September 2010, Dr. Federman referred S.S. to a gastroenterologist to diagnose these complaints. The gastroenterologist's attempt to diagnose S.S.'s persistent diarrhea, nausea, and vomiting eventually led to the discovery of several abnormal masses in S.S.'s abdomen. This discovery initiated a flurry of radiographic studies and biopsies that ultimately revealed cancerous cells in S.S.'s lymph nodes, consistent with PTCL. S.S. was provisionally diagnosed with PTCL by Deborah Glick, M.D., a UM hematologist during a consultation appointment on February 3, 2011. During the appointment, Dr. Glick indicated to S.S. that PTCL is a very aggressive cancer and that S.S. would likely die in a matter of months. S.S. did not agree with Dr. Glick's prognosis, so she decided to see another oncologist/hematologist. S.S. presented to Abraham Schwarzberg, M.D., a new oncologist/hematologist on February 8, 2011, to continue her ongoing work-up and management of her PTCL.3/ On February 16, 2011, after discussing S.S.'s biopsy results with UM pathology specialists, Dr. Schwarzberg recommended S.S.'s slides be reviewed at Moffitt because her case "ha[d] been a very complicated and tough case to make a diagnosis on." On February 25, 2011, S.S. traveled across the state for an oncology consultation at Moffitt, located in Tampa, Florida. Dr. Lubomir Sokol, M.D., an oncologist/hematologist employed by Moffitt advised S.S. that the long-term prognosis of PTCL patients treated with standard chemotherapy is not satisfactory. However, Dr. Sokol suggested that S.S. did not have PTCL, given the aggressive nature of the disease and her lack of symptoms at that time. Dr. Sokol requested S.S. submit her biopsy slides for review by Moffitt's pathologists, as well as by a world-renowned hemapathology expert specializing in lymphoma at the National Institutes of Health/National Cancer Institute (NCI), Dr. Elaine Jaffe. Dr. Sokol also requested S.S. undergo extensive staging exams. These exams, including a bone marrow biopsy, were negative--indicating that S.S.'s disease had not yet progressed to her bone marrow. Initial Meeting with Respondent – March 17, 2011 Of the foregoing information provided to Respondent by M.S. and S.S. during the March 17, 2011, initial appointment, Respondent only documented that S.S.'s bone marrow biopsy was negative; a seemingly insignificant detail compared to S.S.'s pending diagnosis of cancer and dire prognosis.4/ By the time S.S. spoke to Respondent on March 17, 2011, she had been told by various physicians that her biopsies were inconclusive, negative for cancer, and positive for cancer. S.S. was also told that she had PTCL and that she may not have PTCL. Finally, S.S. was told that she may die as a result of her malignancy in a matter of months. Any skepticism or doubt harbored by S.S. was completely understandable. Respondent encouraged S.S.'s skepticism by indicating to her that cancer was "low on his list" of S.S.'s possible concerns. Respondent shared a story regarding his uncle, a medical doctor who was successfully sued for $8.1 million for erroneously providing chemotherapy to a patient who did not have cancer. Respondent recommended S.S. undergo additional blood work ordered by him, so that he could have a better understanding of what was going on. Before her next appointment with Respondent, S.S.'s abdominal pain intensified, such that she presented to the Emergency Room and was admitted to Palms West Hospital (PWH) on March 28, 2011. S.S. underwent a CT scan that revealed a distended gallbladder, as well as masses in her abdomen near her liver and pancreas.5/ Ultimately, S.S.'s excruciating abdominal pain was attributed to a diseased gallbladder that needed to be immediately surgically removed. When Respondent learned of S.S.'s upcoming surgery, he told M.S. that he would get S.S.'s operative report and see S.S. in follow-up after her surgery. S.S.'s gallbladder was removed on April 1, 2011, and she was discharged with instructions to follow up with her PCP. After the surgery, S.S.'s frustration with Dr. Federman peaked, which prompted her to terminate her doctor-patient relationship with him. Although no formal notice was sent to Dr. Federman from S.S., Dr. Federman was informed by M.S. that she and S.S. were "going a different way" for her treatment. S.S. never made another appointment with Dr. Federman. Conversely, S.S. fortified her trust in Respondent and relied nearly exclusively on him for all of her future medical advice, recommendations, referrals, guidance, and treatment. Post-Surgery Follow Up with Respondent - April 7, 2011 Accordingly, on April 7, 2011, S.S. presented to Respondent for a "post-op" follow-up visit, at which Respondent discussed S.S.'s recent blood work results with her. Notably, Respondent failed to document anything concerning her post-op follow-up, aside from the paltry comment "gallbladder surgery." That same day, after S.S. left HFM, Dr. Sokol, from Moffitt, called M.S. and indicated that S.S.'s diagnosis was changed from PTCL to Hodgkin's lymphoma (HL). HL is a much less aggressive form of cancer and has a very high potential to be cured when treated. M.S. immediately updated Respondent about S.S.'s new diagnosis. Respondent indicated that he was "underwhelmed at the possibility of HL," but Respondent nevertheless assumed his role as S.S.'s PCP and attempted to coordinate care with Dr. Sokol. Request for Referral to Mayo – May 16, 2011 Because S.S. had now been presented with two conflicting diagnoses (PTCL and HL), S.S. researched cancer centers in Florida and decided to obtain a third opinion6/ from the Mayo Clinic (Mayo) in Jacksonville, Florida. On May 16, 2011, M.S. informed Respondent that S.S. made an appointment herself for a consultation at Mayo on June 1, 2011. M.S. requested that Respondent send a letter to Mayo, so he could be listed as a doctor that Mayo could contact regarding S.S.'s progress. Respondent wrote "refer to Mayo" on a prescription pad and mailed it the same day. Request for PET Scan – June 2011 On June 1, 2011, S.S. presented to Vivek Roy, M.D., an oncologist/hematologist at Mayo for consultation. Dr. Roy told S.S. that the Mayo pathologists would review her biopsy slides since there was a debate about the exact diagnosis. Dr. Roy asked S.S. to obtain an updated PET scan.7/ On June 14, 2011, Respondent again assumed his role as S.S.'s PCP by attempting to facilitate an updated PET scan for Dr. Roy. On June 20, 2011, Respondent received the PET scan report indicating that S.S.'s malignancy progressed to her pelvic region. As of this date, Respondent clearly knew S.S. was suffering from some form of lymphoma. On June 22, 2011, Dr. Roy confirmed the HL diagnosis and recommended S.S. receive ABVD chemotherapy.8/ S.S. elected to receive treatment locally and scheduled an appointment with Neal Rothschild, M.D., an oncologist/hematologist located in Palm Beach Gardens, Florida. S.S. presented to Dr. Rothschild on June 27, 2011, to discuss chemotherapy and the ongoing management of her HL. Respondent's Attribution of S.S.'s symptoms to Mold – June 2011 A few days before S.S.'s appointment with Dr. Rothschild, M.S. asked Respondent if it were possible that a "toxic something" was causing all of S.S.'s symptoms, including her swollen lymph nodes. Instead of telling M.S. that S.S.'s symptoms, including her swollen lymph nodes, were more likely caused by her untreated cancer, Respondent suggested that S.S.'s house be tested for mold. On July 5, 2011, S.S. presented to Respondent for a "check-up" and to discuss the little bit of mold that was found in her home. During the appointment, S.S. mentioned to Respondent that she met with Dr. Rothschild to discuss chemotherapy for her HL. Respondent reiterated to S.S. that cancer was "low on his list" of possible medical concerns. Respondent indicated that S.S.'s tests showing she had increased lymphocytes9/ were not indicative of cancer, especially since he did not see any "Reed- Sternberg" cells.10/ Respondent insinuated that oncologists often overreact to the presence of lymphocytes and recommend chemotherapy before making an actual diagnosis. Respondent further insinuated that Dr. Rothschild may not be a competent oncologist. Respondent recommended S.S. pursue her "mold allergy" issues and referred her to Daniel Tucker, M.D., a local allergist. Respondent also provided S.S. with a letter addressed to Dr. Rothschild wherein he emphasized that "mold could be causing all of [S.S.'s] symptoms and exam findings." As instructed, S.S. presented to Dr. Tucker on July 12, 2011, and continued to follow-up with him until November 2011. Dr. Tucker diagnosed S.S. with mold allergies and recommended a series of life-style modifications to reduce her mold allergy symptoms. Discontinuation of Oncologist/Hematologist Care – July 2011 S.S. believed Respondent's assessment that her symptoms were actually caused by allergies. Accordingly, S.S. only pursued treatment for her allergies, with the understanding that Respondent would refer her to a new oncologist/hematologist of his choosing if he thought she needed to pursue cancer treatment. On July 28, 2011, S.S. cancelled her follow-up appointment with Dr. Rothschild. M.S. indicated to Dr. Rothschild that S.S. wanted to resolve her "mold issues" before pursuing chemotherapy treatment. S.S. never returned to Dr. Rothschild or any other oncologist/hematologist for treatment. Instead, S.S. stayed under the care of Respondent, who spent the next year and a-half attempting to find the "cause" of S.S.'s symptomatic complaints. In contrast to Respondent's previous concern over S.S.'s "scary" HL diagnosis and his alleged multiple attempts to interact and coordinate care with S.S.'s oncologists, after July 5, 2011, Respondent never discussed HL, lymphoma, cancer, oncologists, or chemotherapy with S.S. again.11/ While addressing her symptomatic complaints, Respondent never told S.S. that her symptoms could be caused by untreated HL, even when many of her symptoms were reasonably attributed to her progressive HL. Complaints of Back Pain – August 2011 On August 30, 2011, S.S. complained to Respondent about "back pain." Respondent diagnosed S.S. with lumbosacral neuritis12/ and prescribed Flector patches to treat the pain. Respondent assumed S.S.'s back pain was caused by mold without ever conducting an appropriate evaluation, including physical examination, or test to determine its cause. S.S. was charged $200.00 for the August 30, 2011, office visit. Complaints of Lymph Node Swelling – December 2011 On December 15, 2011, S.S. complained to Respondent about her lymph nodes and swelling. Respondent did not address S.S.'s lymph node or swelling concerns. Respondent failed to conduct and document a complete and appropriate physical exam of S.S.'s lymph nodes. S.S. was charged $425.00 for the December 15, 2011, visit. Concern Regarding Lymph Nodes, Pain, and Dysuria – March 2012 On March 5, 2012, S.S. complained to Respondent about pain in her side, pain in her lymph nodes resulting in sleeping trouble, urgency, and dysuria.13/ Respondent treated S.S.'s painful lymph nodes with low-dose naltrexone. Respondent assumed S.S.'s symptoms of urgency and dysuria were caused by a urinary tract infection (UTI) and prescribed antibiotics to treat the "UTI." UTIs are diagnosed with a urine culture or urinalysis. These tests are also useful in determining the strain of bacteria, which would dictate the most appropriate type of antibiotic to use. Respondent did not perform a urine culture or urinalysis before prescribing an antibiotic to treat S.S.'s UTI-like symptoms. Respondent did not perform and document a complete and accurate physical exam of S.S.'s lymph node swelling, noting where the swollen lymph nodes were located or any other appropriate documentation of the exam. S.S. was charged $205.00 for the March 5, 2012, appointment. Complaints of UTI-like Symptoms – May 2012 through January 2013 S.S. repeatedly complained to Respondent about UTI-like symptoms, including on May 3, 2012, May 10, 2012, May 16, 2012, June 27, 2012, and January 3, 2013. Each time, Respondent assumed S.S.'s symptoms were caused by a UTI and prescribed her antibiotics without ever performing a urine culture or urinalysis to confirm the diagnosis or determine which antibiotic would be most appropriate to prescribe. Respondent also considered that S.S.'s UTI-like symptoms may be caused by an uncommon antibiotic-resistant infection called interstitial cystitis. Continued Concerns Regarding Lymph Nodes – May 16, 2012 On May 16, 2012, S.S. presented to Respondent with complaints of enlarged lymph nodes. Respondent did not examine, document an examination of, or otherwise address S.S.'s enlarged lymph nodes. However, S.S. was charged $200.00 for the May 16, 2012, appointment. Swollen Legs – January 3, 2013 On January 3, 2013, S.S. complained to Respondent about swelling in her legs. Respondent assumed S.S.'s swollen legs were caused by an allergic reaction, without performing any diagnostic examination or tests to confirm his assumption. S.S. was charged $200.00 for the January 3, 2013, appointment. Abdominal Pain and Swelling – January 2013 On January 11, 2013, S.S. complained of abdominal pain and swelling. Respondent assumed S.S.'s pain and swelling were caused by an allergic reaction and prescribed an allergy medication to treat her pain and swelling. On January 12, 2013, S.S. again complained of swelling in her legs. Respondent assumed S.S.'s swollen legs were caused by an allergic reaction and prescribed her an allergy medication. On January 14, 2013, S.S. underwent blood work at Respondent's request. The blood work cost S.S. $575.00. When Respondent received S.S.'s blood work results, Respondent called S.S. in for an urgent appointment because he thought her blood work results were "striking" and really "weird."14/ Urgent Appointment – January 24, 2013 The blood work did not test S.S.'s iron levels. Regardless, Respondent felt S.S. was iron deficient and instructed his medical assistant (MA) to administer 100 mg of iron to her on January 24, 2013. S.S.'s blood work revealed that she had high calcium levels. Respondent considered that S.S.'s potential issue with her parathyroid hormone (PTH) was her "dominant concern" at that time. Respondent recommended S.S. receive more testing and suggested that she may need PTH surgery in Tampa. Respondent also determined that S.S. had issues with her DHEA, Vitamin D, and T3 levels and spent considerable time discussing these concerns. During the urgent appointment, S.S. complained of swelling in her legs accompanied by weakness. S.S.'s pain and swelling was so severe that she used a cane to assist her in walking and requested Respondent to assist her in obtaining a temporary parking permit. Respondent now assumed S.S.'s swollen legs were caused by water retention and prescribed a diuretic to treat S.S.'s swollen legs. At no time during this appointment did Respondent inquire about, or suggest, that S.S.'s symptoms were attributable to HL or its treatment. S.S. was charged $680.00 for the January 24, 2013, urgent appointment. On the same day, S.S. underwent more blood work at Respondent's request. The additional blood work cost S.S. another $355.00. Review of Blood work – February 2013 On February 5, 2013, when Respondent reviewed S.S.'s second set of blood work results, Respondent was confused by her results and indicated that he was going to review S.S.'s chart to "come up with a better idea of what is going on." Despite knowing of S.S.’s significant cancer diagnosis since June 2011, Respondent did not consider, or discuss with S.S., the possibility that S.S. had unusual results because she had cancer, or in the alternative, was undergoing chemotherapy treatment. S.S.'s blood work revealed that she had normal iron levels. Nevertheless, Respondent felt S.S. was iron deficient and instructed his MA to administer 100 mg of iron to her on February 7, 2013. S.S. was charged $150.00 for the iron shot. Patient's Death – February 10, 2013 When S.S. went to HFM for her shot, she was in significant distress related to pain and severe swelling in her legs. S.S. rapidly decompensated and died in the hospital three days later, on February 10, 2013. Respondent initially thought S.S. may have died either from an adverse reaction to the iron shot or a combination of pneumonia and sepsis causing respiratory failure. When the medical examiner who performed S.S.'s autopsy notified Respondent that S.S. died from complications of untreated HL, Respondent responded by saying that S.S. had never been definitively diagnosed with HL. Despite having reviewed S.S.'s radiographic, pathology, and oncology consultation reports indicating that S.S. had HL,15/ and having treated her symptoms indicative of progressed HL for nearly two years, Respondent refused to believe that S.S. had HL, choosing instead to believe that she presented "more like a [chronic fatigue] patient allergic to mold than a lymphoma patient." It was not until Respondent received the final autopsy report, several months after S.S. died, that Respondent was finally "satisfied" that S.S. had HL all along. Facts Related to the Standard of Care Violation Charles Powers, M.D., an expert in family medicine, offered testimony on the standard of care that a doctor providing primary care services to a patient in a family medicine practice setting is required to follow when a young patient is diagnosed with HL, a highly curable malignancy. Dr. Powers opined that the role of the PCP is to use his or her established relationship with the patient to facilitate and ensure that the patient receives appropriate treatment. In this case, Respondent's role as S.S.'s PCP was to ensure that S.S. received chemotherapy, or in the alternative, be fully informed of the consequences of foregoing chemotherapy. Stephen Silver, M.D., testified on behalf of Respondent and opined that Respondent's role in S.S.'s care was as an out-of-network, adjunct holistic doctor, more comparable to an acupuncturist or Reiki specialist than a medical doctor. Dr. Silver suggested that Respondent should not be held to the same standard as other family medicine doctors providing primary care services. Dr. Silver opined that because of Respondent's limited "adjunctive holistic" role, the standard of care in Florida did not require Respondent to be engaged in S.S.'s care and treatment with relation to her cancer. Dr. Silver based his opinion on the incorrect assumption that from March 2011 to February 2013, S.S. was under the care of her former PCP, Dr. Federman, and that Respondent provided strictly adjunctive holistic treatment to S.S.16/ Dr. Silver defined "holistic therapies" to include acupuncture, massage, nutritional therapies, vitamin therapies, and energetic medicine, such as Reiki. Dr. Silver specified that surgery and pharmaceuticals are not "holistic therapies," but instead fall in the realm of "traditional medical services." Respondent did not provide "strictly holistic" treatment to S.S. From March 2011 to February 2013, Respondent prescribed and recommended 27 substances to S.S. Of those substances, 15 of them were drugs (including legend drugs, compounded medications, and over-the-counter medications) and 12 were nutritional supplements/vitamins. Respondent also recommended that S.S. undergo surgery, was actively involved in S.S.'s post-operative care, and ordered two PET CT scans for S.S. Respondent never recommended S.S. receive massage therapy, acupuncture, or Reiki. Furthermore, it is clear that by May 2011, S.S. severed all ties from her former PCP and relied on Respondent to fulfill the role of her PCP. Therefore, Respondent was not providing strictly "adjunctive" care to S.S. Dr. Silver contends that Respondent could not have been S.S.'s PCP because he was "out-of-network" with S.S.'s insurance, did not advertise as a PCP, and had a very "holistically- oriented" medical intake form. However, a PCP is not simply defined as the doctor whose name appears on a patient's insurance card. Instead, the definition of a PCP is a fluid concept that includes the doctor whom the patient trusts to provide appropriate medical advice, guidance, recommendations, referrals, and treatment.17/ Under this definition, it is possible for even a sub-specialist to operate as a patient's PCP. Those involved in S.S.'s medical treatment, including M.S., Dr. Tucker, and Dr. Juste, believed that Respondent was S.S.'s PCP. Additionally, Respondent advertised that he offered concierge-level primary care services to his patients on his website. Respondent operated as S.S.'s PCP, regardless of whether he was out-of-network with her insurance provider, advertised as a PCP, or had a "holistic" intake form. Based on the foregoing, Dr. Silver's opinion, that Respondent is not required to adhere to the same standard of care as family medicine doctors in Florida, is rejected. Timely Referral When a PCP learns that a young patient is diagnosed with a highly curable malignancy, the standard of care in Florida requires the PCP to timely refer the patient to an oncologist/hematologist for chemotherapy treatment. This standard is applicable as long as the patient is not under the current care of an oncologist/hematologist. From July 2011 to February 2013, Respondent knew, or should have known, that S.S. was not under the care of a treating oncologist/hematologist and should have timely referred her to one, or ensured that she present to an oncologist/hematologist. Although Respondent suggested that he did refer S.S. to an oncologist, he eventually attempted to justify his failure to do so by alternatively asserting: 1) it was not his duty to refer S.S. to an oncologist; 2) it was unnecessary to refer S.S. to an oncologist because she was already under the care of an oncology "team"; and 3) it was unnecessary to refer S.S. to an oncologist because she adamantly refused to be treated for HL. At the final hearing, Respondent testified that he did not refer S.S. to an oncologist because he assumed she was under the care of Dr. Rothschild, receiving treatment as appropriate, from June 2011 until her death in February 2013. If it were true, why then would Respondent prescribe countless medications to S.S. without ever consulting her treating oncologist? Respondent himself testified that the treating oncologist needed every piece of information about the patient's concurrent treatment. Respondent's testimony in this regard simply is not credible. Respondent's testimony was also directly contradicted by his previous statements where he indicated that S.S. adamantly refused to undergo chemotherapy and that she rebuffed and resisted his attempts to encourage her to follow up with an oncologist. Respondent further contends that he went above-and- beyond his duty as a "holistic doctor" by "ensuring" S.S. went to Mayo for her consultation by writing "refer to Mayo Clinic" on a prescription pad (after S.S. already scheduled her appointment). However, Respondent never provided a definitive explanation for the purpose of this "refer to Mayo Clinic" document, and even at one point described it as a "back to school note" for S.S. to take to class. Based on these inconsistencies, Respondent's testimony regarding an oncology referral was not credible. M.S. testified that Respondent did not refer S.S. to an oncologist/hematologist, even though Respondent knew that S.S. was not under the care of one. M.S. also testified that S.S. was waiting on Respondent to refer her to an oncologist/hematologist if and when he decided that S.S. had lymphoma. M.S. testified that had Respondent referred S.S. to an oncologist/hematologist that he trusted, S.S. would have gone to that doctor for treatment. M.S.'s testimony was clear, concise, consistent, and credited. Respondent failed to timely refer S.S. to an oncologist/hematologist for appropriate treatment as soon as he knew or had reason to know that S.S. was not under the care of an oncologist/hematologist. Duty to Educate or Counsel After timely referring the patient to an oncologist/hematologist for treatment, if the doctor learns that the patient does not want to receive treatment, either because the patient is in denial of the diagnosis or simply does not want the treatment, the standard of care in Florida requires the PCP to educate or counsel the patient on the risks, including death, of foregoing potentially life-saving treatment, so that the patient can make a fully-informed decision. As the doctor counsels the patient, he or she must refrain from facilitating or encouraging the patient's denial of their diagnosis. Respondent stated that S.S. was in denial of her diagnosis of lymphoma long before she first came to see him and remained in denial of the diagnosis despite his multiple attempts to educate and counsel her. Specifically, Respondent claims he educated or counseled S.S. on May 12, 2011, May 16, 2011, March 5, 2012, May 16, 2012, and January 3, 2013. Any reference to these alleged discussions are absent from Respondent's notes. Respondent claims his advice was rebuffed, met with "stiff resistance," and that S.S. and her mother ultimately refused to believe that she had lymphoma. Respondent's statements were not credible because again, in direct contradiction to himself, Respondent testified at the final hearing that after July 5, 2011, he never spoke to S.S. about her lymphoma because he assumed S.S. was under the care of Dr. Rothschild and was receiving treatment as appropriate. In contrast, M.S. credibly testified that not only did Respondent never educate or counsel S.S. on the risks of not treating her lymphoma, he continuously undermined the recommendations and advice of the oncologists and facilitated S.S.'s skepticism toward her diagnosis. Indeed, instead of using his relationship with S.S. to assuage her fears related to her possibly life-threatening disease, Respondent expressed that he was "underwhelmed" with the possibility that she had lymphoma and repeatedly told S.S. that cancer was low on his list of possible medical concerns. Respondent further undermined the oncologists by indicating to S.S. that it would be potentially deadly to undergo chemotherapy if she did not actually have HL, despite knowing that S.S.'s confidence in her diagnosis was already very tenuous. Respondent failed to educate and counsel S.S. on the risks, including death, of failing to receive treatment for her HL. Symptoms When a patient makes a fully-informed decision to forego treatment of an otherwise terminal illness, such as HL, the standard of care in Florida requires the PCP to attribute the patient's symptoms that are reasonably caused by the malignancy to the malignancy. Additionally, the standard of care in Florida prohibits the PCP from attempting to find an alternate diagnosis for these symptoms, when the PCP knows that treatment for the alternate/secondary diagnosis would not change the patient's life expectancy. A June 20, 2011, Skull to Thigh PET CT scan of S.S. showed hypermetabolic masses and enlarged lymph nodes throughout S.S.'s body. These PET CT scan findings can only be attributed to a malignancy and are most consistent with HL. By June 2011, Respondent knew that S.S.'s HL had significantly progressed and included the involvement of her chest, abdomen, and pelvis. Respondent attributed these exam findings to S.S.'s allergies to mold, food, and drugs. As HL progresses throughout the body, it can cause the lymph nodes to enlarge. S.S. suffered from enlarged lymph nodes, a symptom reasonably attributed to HL. Respondent attributed S.S.'s enlarged lymph nodes to S.S.'s mold allergy. The enlarged lymph nodes can apply pressure on adjacent organs and structures, causing irritation and pain. S.S. suffered from back pain, a symptom that is reasonably attributed to HL. Respondent attributed S.S.'s back pain to S.S.'s mold allergy. S.S. suffered from abdominal pain, a symptom that is reasonably attributed to HL. Respondent attributed S.S.'s abdominal pain and swelling to an allergic reaction to an antibiotic, even though he had never seen this type of an allergic reaction to an antibiotic before. HL can suppress the immune system, making patients more susceptible to infections, like UTIs. HL can also mimic UTI symptoms if the lymph nodes in the patient's pelvic region are enlarged and pushing on the organs in the urinary tract. S.S. regularly experienced UTI-like symptoms like urgency and dysuria. These symptoms, whether they were caused by a UTI or from the pelvic lymph node involvement, are reasonably attributed to HL. Respondent attributed S.S.'s UTI-like symptoms to an infection without ever obtaining a urine culture or urinalysis to confirm his assumption. HL often causes swelling in patient's extremities by affecting the lymphatic system, which is used to transport fluids throughout the body. S.S. experienced extreme painful swelling in her legs, a symptom that was caused by her HL. Respondent attributed S.S.'s swollen legs to an allergic reaction. Respondent claims that he was "keenly" aware that S.S.'s symptoms could have been caused by HL and that he repeatedly informed S.S. of the same. However, Respondent claims that S.S. may have had concurrent illnesses that were causing similar symptoms and that it was not inappropriate for him to treat those symptoms. Interestingly, Respondent's notes do not reflect that he discussed with S.S. that her symptoms could be attributed to her untreated lymphoma. Despite being "keenly" aware that S.S. was suffering from untreated Stage III HL, Respondent often expressed bewilderment as to the cause of S.S.'s symptoms and repeatedly remarked that he wanted to "find out what was going on" and ordered blood work purportedly for that purpose. Due to the inconsistencies, Respondent's testimony is not credible. M.S. credibly testified that Respondent never indicated that any of these symptoms were likely caused by HL and that he spent time with S.S. trying to find the real cause of her symptoms. Respondent completely ignored S.S.'s existing HL diagnosis and instead believed that S.S. presented "more like a CFIDS[18/] patient allergic to mold than a lymphoma patient." Respondent failed to appropriately attribute S.S.’s symptoms to HL. Facts Related to Medical Records Violation During each office visit, Respondent should have created a progress note that included the subjective complaints of the patient, the objective observations of the patient (including a physical exam), an assessment of the patient's medical concerns, and a treatment plan (commonly referred to as "SOAP notes"). Included in these notes should be adequate justification for each diagnosis given and prescription given to the patient. Respondent failed to create or keep documentation of an adequate medical justification for the diagnoses he made and the treatment he provided to S.S. 134. On April 7, 2011, July 5, 2011, August 30, 2011, December 15, 2011, March 5, 2012, January 3, 2013, and January 24, 2013, Respondent failed completely to document the objective portion of the exam. Respondent also routinely failed to document adequate medical justification for the diagnoses or treatments rendered to S.S. Respondent failed to create or keep documentation in which he purportedly referred S.S. to an oncologist. Similarly, Respondent failed to create or keep documentation of his alleged educating or counseling of S.S. on the risks of foregoing chemotherapy treatment. Facts Related to Scope of Practice Respondent testified that he did not practice outside of the scope of his profession or perform or offer to perform professional responsibilities that he knows he is not competent to practice because he did not treat S.S. for cancer and did not offer to treat her for cancer. Petitioner offered the testimony of Roy Ambinder, M.D., an expert in oncology and hematology. Dr. Ambinder testified regarding the scope of practice for an oncologist and the standard of care for oncologists treating HL. Dr. Ambinder's testimony was clear, concise, consistent, and credited. It is not within the scope of practice for a family medicine physician to modify or reject an existing diagnosis of HL. Oncology is the study of cancer. A physician needs oncology training, experience, and a background in oncology to modify or reject an existing diagnosis of HL. Before modifying or rejecting an existing diagnosis of HL, a physician with the appropriate training, experience, and background would have to perform a physical exam, obtain blood work and additional radiographic studies, review past reports from the pathologists/oncologists, and review and interpret tissue biopsies. Respondent knew that five oncologists/hematologists, including specialists from Moffitt, NIH, and Mayo diagnosed S.S. with lymphoma. Respondent knew that he did not have the necessary qualifications, skill, training, education, or experience to modify or reject a diagnosis of HL. Yet, after harboring significant skepticism towards the diagnosis, Respondent reviewed S.S.'s pathology reports and radiographic studies and rejected S.S.'s HL diagnosis. Therefore, Respondent acted in the role of an oncologist, regardless of whether he actually treated, offered to treat, or advertised that he could treat S.S. for cancer. Respondent acted beyond the scope of his practice by law and performed professional responsibilities that he knew he was not competent to perform by rejecting S.S.'s existing diagnosis of HL. Facts Related to Financial Exploitation Violation Respondent knew, or should have known, that S.S. had lymphoma. Respondent knew that the only approved effective treatment for HL is chemotherapy and that if left untreated, HL will cause a patient's untimely death. Despite knowing that S.S. had HL, Respondent tried to find an alternate diagnosis to explain S.S.'s symptoms. M.S. and S.S. trusted Respondent to make medical decisions in S.S.'s best interest, such that Respondent was able to convince M.S. and S.S. that S.S.'s symptoms were caused by something other than HL, thus necessitating additional appointments and blood work. Between August 30, 2011, and February 7, 2013, Respondent addressed S.S.'s symptoms, which were reasonably caused by HL, with a variety of symptomatic treatments that Respondent knew, or should have known, would not have affected S.S.'s HL or extended her life expectancy. Respondent's MA administered S.S. $300.00 worth of InFed injections when he knew, or should have known, that S.S. was not iron-deficient and that iron would not have addressed S.S.'s fatal illness. Even if S.S. was iron-deficient, iron supplements would not have extended S.S.'s life expectancy. Respondent ordered $930.00 worth of blood work testing for S.S. when he knew or should have known that additional blood work would not have affected the established diagnosis of HL and that any diagnosis derived from the lab results would not have extended S.S.'s life expectancy. Respondent charged S.S. $1,760.00 in appointment fees over a one and a-half year period. During these appointments, Respondent treated S.S.'s symptomatic complaints with treatments that Respondent knew, or should have known, would not have addressed S.S.'s HL. Moreover, even if the treatments appropriately addressed a secondary diagnosis, Respondent knew, or should have known, that these consultations and recommended treatments would not have extended S.S.'s life expectancy. Accordingly, S.S. and her family paid Respondent and HFM approximately $2,990.00, in pursuit of treatment that Respondent influenced them to believe was necessary, appropriate, and would lead to or improve S.S.'s health. Respondent benefitted financially from the payments remitted to him and HFM by S.S. Facts Related to Aggravating Factors Respondent's conduct resulted in significant harm, including the extended suffering and ultimate death, of patient S.S. Petitioner entered a Final Order against Respondent's license in DOH Case No. 2008-00890 for violations of Sections 458.331(1)(t), and 458.331(1)(m), Florida Statutes (2003-2004). The Final Order constitutes discipline against Respondent's license.19/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent violated sections 458.331(1)(t), 458.331(1)(m), 458.331(1)(n), and 456.072(1)(o), Florida Statutes, as charged in Petitioner's Second Amended Administrative Complaint; imposing a fine of $16,000.00; requiring repayment of $2,990.00 to the estate of S.S.; revoking Respondent's license to practice medicine; and imposing costs of the investigation and prosecution of this case. The undersigned reserves jurisdiction to rule on Daniel Tucker’s Application and Motion for Award of Expert Witness Fees. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 29th day of April, 2016.
The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons cited in the administrative complaints.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, David M. Scheininger, is a licensed medical doctor having been issued license number ME 025317 by petitioner, Department of Business and Professional Regulation (DBPR), Board of Medicine (Board). He now resides at 7076 Lenczyk Drive, Jacksonville, Florida. When the events herein occurred, respondent was in the practice of family medicine with offices at various locations in Jacksonville, Florida. Respondent has been licensed by the state since 1975. The record reflects that besides these proceedings, respondent has been disciplined by the Board on two prior occasions. On June 23, 1983, his license was suspended until such time as he could demonstrate that he could practice medicine with reasonable skill and safety. The license was later reinstated in 1984. On December 16, 1986, he received a reprimand and agreed not to dispense samples of legend drugs from his office. Respondent is the subject of four administrative complaints filed against him between October 1991 and September 1993. The complaints allege generally that while treating a female patient between 1985 and 1990, respondent improperly prescribed legend drugs, failed to adhere to the appropriate standard of care, and failed to keep adequate medical records (Case No. 94-0900), he failed to adhere to the appropriate standard of care while treating a female patient in 1989 (Case No. 94-0901), he failed to post a notice in his office, or otherwise advise patients of the fact that he did not carry medical malpractice insurance (Case No. 94 because of a mental incapacity (Case No. 94-0904). Although respondent did not appear at final hearing, he has disputed all allegations. Each case will be discussed separately below. Case No. 94-0900 Beginning on May 22, 1985, respondent began to treat B. M., a forty- three year old female, on a regular basis for routine illnesses, lower lumbar back pain, chronic headache pain and nervous anxiety. During the next four years, the patient had approximately 150 contacts with respondent. A drug profile taken from a local pharmacy indicated that from November 30, 1988, through February 6, 1990, respondent prescribed the following legend drugs to B. M.: Darvocet-N-100 862 units Tranxene 795 units Paragoric 300 MD's Talwin NX 290 units Ionamine 255 units Placidyl 195 units Tavinix 209 units In response to an investigator's inquiry as to why so many drugs were prescribed, respondent gave no explanation but simply asked that his records be returned. Although respondent was given the opportunity to file an "amendment" to his records, he declined to do so. A medical expert established that ninety percent of the prescriptions were written without related entries in the medical records explaining why such drugs were prescribed. In addition, the office calls did not match the prescriptions. During one five month period alone, more than 500 units of Tranxene were prescribed. Moreover, in almost every case, the patient had refilled the prescription far sooner than should have been done with ordinary prescribing, and most of the drugs were prescribed in combination with other drugs. Based upon these considerations, it is found that respondent failed to prescribe drugs in the course of his professional practice. In B. M.'s medical records, respondent simply recorded the chief complaint of the patient and nothing more. No reason was given for approximately 140 office visits. There was no indication that a complete initial work given. No diagnostic studies were made nor were there any objective findings in the records supporting the care given to the patient. Therefore, it is found that respondent failed to keep medical records justifying the course of treatment of the patient. Expert testimony further established that while treating the patient, 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. This finding is based on the fact that the records were incomplete, there was very poor prescribing practice, no clinical evidence was shown to justify the large numbers of drugs prescribed, and there was no documentation to show that adequate care was given the patient. Case No. 94-0901 In Case No. 94-0901, respondent's care of a female patient is brought into issue. The patient had been treated by respondent since October 1975, mainly for recurring respiratory infections. During an office visit on September 18, 1989, she presented breathing difficulties and was coughing and spitting up blood and phlegm. Respondent failed to order a chest x arrange for a pulmonary consultation. Instead, he ordered immune serum globulin, which is not efficacious in treating respiratory infections. On October 15, 1989, the patient entered a local hospital after experiencing chest pains. She was initially diagnosed as having a collapsed lung but a bronchoscopy and biopsy revealed cancer in her left lung. The lung was removed on October 24, 1989. By failing to order an x smoking, or to refer her to a pulmonary specialist, and by simply treating her with immune serum globulin, respondent's care and treatment of the patient fell below the recognized standard of care. Case No. 94-0903 This complaint alleges that during the years 1990 and 1991, respondent failed to post a notice in his office that he did not carry medical malpractice insurance or otherwise advise his patients of this fact. During office visits by a DBPR investigator in July and August 1992, no signs were present and respondent acknowledged that no notice was being given to his patients. Even so, there is no direct evidence through observation or admission that during the years 1990 and 1991 such notices were not posted, or that the patients had not been advised of this lack of insurance. Therefore, it is found that there is less than clear and convincing evidence to sustain this charge. Case No. 94-0904 The final complaint alleges that respondent is no longer capable of practicing medicine with reasonable skill and safety by reason of dementia and memory loss resulting from his primary disease of hydrocephalus (fluid on the brain). The DBPR learned of this condition through a report received from one of respondent's relatives. The evidence shows that on May 12, 1993, respondent visited a local internist and complained of weakness, poor memory, inability to control urine and immobility. At that time, respondent was confined to a wheelchair. Respondent was referred to a neurologist who diagnosed respondent as having normal pressure hydrocephalus. On May 24, 1993, respondent underwent an atrial- peritoneal shunt operation to drain the excess spinal fluid. He now suffers from dementia and memory loss caused by the disease. Expert testimony established that respondent is now confused and has cognitive mental deficits showing the persistence of dementia. As a consequence, his ability to use good judgment has been compromised, and he no longer has the ability to safely practice medicine.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding respondent guilty of all charges in Case Nos. 94-0900, 94-0901, and 94-0904, imposing a $10,000 administrative fine, and suspending his license until such time as he appears before the Board and demonstrates that such fine has been paid and that two Board approved psychiatrists have examined him and state that he is able to practice medicine with skill and safety. Case No. 94-0903 should be dismissed. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1994. Petitioner: APPENDIX TO RECOMMENDED ORDER CASE NOS. 94-900, 94-901, 94-903, 94-904 The proposed findings submitted by petitioner have been adopted in substance except for those findings pertaining to Case No. 94-0903. Those findings have been rejected on the ground they are not supported by the evidence. COPIES FURNISHED: Alex D. Barker, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, FL 32211-7466 Dr. David M. Scheininger 7076 Lenczyk Drive Jacksonville, FL 32211 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0770 Francesca Plendl, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue Whether Disciplinary action should be taken against Respondent's license to practice medicine, number ME 0028355, issued by the State of Florida, based on the alleged violations of Section 458.331(1), Florida Statutes, as contained in the Administrative Complaint filed by the Petitioner.
Findings Of Fact At all times material to this complaint, Respondent was a licensed physician having been issued license number ME 0028355 by the State of Florida. This case represents Respondent's second disciplinary action. By a Final Order dated February 24, 1987, the Board of Medicine, in the case of Department of Professional Regulation vs. Robert Gonzalez, Jr., M.D., DOAH Case No. 85-1692, DPR Case No. 0033796, reprimanded Respondent, suspended Respondent's license for a minimum period of one year, and ordered a five year probationary period, and a $14,000 fine. The Final Order took effect upon filing and pertains to similar offenses at issue in the present case. (Adopts Petitioner's Proposed Finding of Fact (PFOF) 1) The present case arose from a review of hospital records and Respondent's patient records for seventeen patients who were hospitalized by Respondent at Pembroke Pines General Hospitals in Pembroke Pines, Florida in 1982 and 1983. However, none of the incidents giving rise to the complaint in the instant case occurred subsequent to the Final Order referenced in Finding of Fact 1 and all occurred during or shortly after the same timeframe as covered in the earlier offenses. (Adopts and expands Petitioner's PFOF 2). On August 4, 1982, Respondent admitted patient C.M. to Pembroke Pines General Hospital, who was assigned medical records number 6893 by Pembroke Pines General Hospital. The admitting diagnosis was acute respiratory tract infection, acute flu syndrome, acute laryngo/pharyngitis and possible pneumonitis. The patient was hospitalized for a period of two days. During the hospitalization of patient C.M., Respondent ordered the following tests which were performed on patient C.M.: two chest x-rays, "mono" screen, throat culture, blood serum levels (special 12), electrolytes, urinalysis, complete blood count (C.R.C.) and Platelet counts. Respondent discharged C.M. from Pembroke Pines General Hospital with the following diagnoses on August 7; 1982: acute flu syndrome, acute respiratory tract infection, and acute pharyngitis due to staphylococcus aureus. (Adopts Petitioner's PFOF 3) Pharyngitis is an inflammatory reaction of the throat. Although Respondent diagnosed patient C.M. as suffering from acute pharyngitis due to staphylococcus aureus, there was inadequate laboratory data to justify this diagnosis. The diagnosis should have been predicated upon the results of a sputum (secretions coughed out of the lungs) culture and sensitivity test. However, the results of the culture and sensitivity test were negative for the throat. Therefore, this diagnosis was incorrect. (Adopts Petitioner's PFOF 4). Pneumonitis is an infection of the lungs. The standards of the medical profession require that it be based on positive x-ray findings. In the case of patient C.M., there was no justification for Respondent's diagnosis of pneumonitis because both of the chest x-rays taken pursuant to Respondent's order were normal. (Adopts Petitioner's PFOF 5) Although Respondent diagnosed patient C.M. as suffering from acute flu syndrome, there was no justification for this diagnosis either. In fact, there was no justification for the admission of the patient to Pembroke Pines General Hospital. It is contra-indicated to hospitalize a sixteen-year-old male suffering from an upper respiratory infection because of the danger of developing a nasocomal infection, which is an infection that is produced as a result of exposure to bacteria in the hospital. By hospitalizing C.M. unnecessarily, Respondent placed patient C.M. at undue risk. (Adopts Petitioner's PFOF 6) In the year 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital on three occasions. The patient was assigned medical records number 4141 by Pembroke Pines General Hospital. The admission date for the hospitalizations were February 20, 1983, July 8; 1983, and August 31, 1983. There were no problems with the July 8, 1983, hospitalization of patient F.L. (With the elimination of subordinate and unnecessary material, this FOF adopts Petitioner's PFOF 7). On February 20, 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital with an admission diagnosis of cephalgia and uncontrolled hypertension. The patient was hospitalized for a period of three days. During this three-day period, the following tests were performed on patient F.L., pursuant to Respondent's orders: an intraveneous pyelogram (IVP) and voiding cystogram, chest x-ray, three "E.K.G.s", an SMA-18 (blood serum levels for eighteen different substances), a CRC, an echocardiogram, a 24-hour urinalysis for total protein, serum electrophoresis, a twenty-four hour urinalysis for catecholamine and methanephrine, a CT scan of the brain, a sinus series x-ray and cervical spine x-ray, an upper GI series, small bowel study, a cardiac isoenzyme profile and a plasma renin study. (Adopts Petitioner's PFOF 8) A voiding cystogram is a test used to check on the condition of the prostate. There was no indication in the records of patient F.L. of any prostate problem or complaint. Hence, there was no justification for the voiding cystogram which Respondent ordered for patient F.L. The upper G.I. series with small bowel follow-through, would be indicated if there is suspected small bowel obstruction or small bowel involvement. In Respondent's records for patient F.L., and the records pertaining to the hospitalization of F.L. at Pembroke Pines General Hospitals there is no indication that patient F.L. complained of or suffered from gastro-intestinal complaints. Therefore, the upper G.I. series with small bowel follow-through Respondent ordered was not justified. Additionally, the patient was admitted with cephalgia (headaches), and sinus x-rays and cervical spine x-rays were ordered. Sinus x-rays and/or cervical spine x-rays would be indicated where there was a history or indication of involvement of the sinus or cervical spine. Respondent's records for patient F.L. do not document any indication of involvement of the cervical spine and provide no history of sinus trouble. Accordingly, the cervical spine and sinus x-rays ordered by Respondent were neither indicated nor justified for patient F.L. C.P.K. enzymes are enzymes released into the bloodstream with damage of certain tissues in the body. Respondent ordered a cardiac isoenzyme profile to determine whether there was evidence of elevated C.P.K. enzymes and, therefore evidence of acute myocardial damage in patient F.L. However, patient F.L. displayed no symptoms which would justify performing this test. (With minor modifications to clarify the - finding and to conform to the record, FOF 9-11 adopt Petitioner's PFOF 9) On February 23, 1983, Respondent discharged patient F.L. with the following diagnoses: Cephalgia due to the presence of uncontrolled hypertension-diastolic, hyperuricemia, essential hypertension, neck pain secondary to cervical degenerative arthritis and chronic sinusitus condition, left maxilla. There was no justification in the records for patient F.L. which would establish uncontrolled hypertension, as a diagnosis, although Respondent's office records for patient F.L. do document the presence of hypertension in this patient and that numerous therapies were utilized unsuccessfully to control that hypertension. (With minor modifications to clarify the finding and to conform to the record, FOF 12 adopts Petitioner's PFOF 10) On August 31, 193, Respondent admitted patient F.L. for what Respondent described as a "mass of the left hemi- thorax" and labile hypertension. The mass was, in fact, a keloid or excess scar tissue which measured 2 centimeters at its greatest dimension. The records for patient F.L. provided a history of two previous resections of the same keloid. It constituted excessive, expensive and unnecessary hospitalization for Respondent to admit patient F.L. for removal of such a keloid, when that keloid could have been removed in the Respondent's office under local anesthesia. Also as a result of Respondent's decision to unnecessarily hospitalize patient F.L. for removal of a keloid, unnecessary pre-operative testing also was performed. This testing included a chest x-ray, an SKG, a complete blood count, an SMA 18, a urinalysis, and prothrombin dime or clotting tests. Respondent knew when he hospitalized patient F.L. for the surgical procedure of removal of a keloid that these pre-operative tests would be routinely performed. This constitutes inappropriate treatment. Since the history clearly indicated that the keloid, if removed, almost certainly would have reoccurred unless a plastic surgeon provided follow-up treatment to prevent the reformation of the keloid, its excision was unjustified. Accordingly, there was no justification for the admission of patient F.L. to Pembroke Pines General Hospital in August 1983. (Accepts, with modifications to reflect the record as a whole, Petitioner's PFOF 11-12). On September 2, 1983, Respondent discharged patient F.L. with the following diagnoses: keloid anterior chest wall, labile hypertension and anxiety reaction. Labile hypertension is hypertension that fluctuates erratically. This diagnosis was not supported by the hospital record for F.L. All blood pressure readings for the record for F.L., were constantly normal. (Adopts Petitioner's PFOF 13) On April 5, 1983, Respondent admitted patient J.G. to Pembroke Pines General Hospital for acute low back syndrome and weakness of the right extremities. Patient J.G. was assigned medical records number 2693 by Pembroke Pines General Hospital. Respondent hospitalized patient J.G. for a period of three days. During this hospitalization of patient J.G., Respondent provided no significant therapy which would justify hospitalization. Respondent's treatment of Patient J.G. during hospitalization included orders for Robaxin, a muscle relaxant, Riopan Plus, an antacid, Paraon forte, a muscle relaxant, and Ducolax suppositories and Peri-colase capsules for constipation. Additionally, the patient was treated with traction for the three-day period. The patient was given pelvic traction of twenty pounds- with alternating periods of two hours with traction and two hours without traction. In order to be effective or beneficial, the traction should have been given over a much longer period of time. Finally, Respondent treated patient J.G. with K-pads or heat pads around the clock. (Adopts Petitioner's PFOF 14). On April 6; 1983, patient J.G. was seen by an orthopedic consultant, pursuant to Respondent's request. The consultant's impression of the patient's condition was of cervical spondylosis. The consultant's recommended plan of treatment included bed rest and oral anti-inflammatories. (Adopts Petitioner's PFOF 15). Respondent's entire work-up and evaluation of patient J.G.; including the orthopedic consultation, could have been performed as an outpatient. There was no justification for the admission of patient J.G. to Pembroke Pines General Hospital. (Adopts Petitioner's PFOF 16). On October 10, 1982, Respondent admitted patient E.R. to Pembroke Pines General Hospital for acute cephalgia and photophobia. Patient E.R. was assigned medical records number 4910 by Pembroke Pines General Hospital. On admission, Respondent recorded a long-standing history of the patient suffering from headaches and chronic migraine syndrome. There was no justification for Respondent to admit patient E.B. for headaches, or for evaluation of these headaches. Respondent's migraine headaches might reasonably have been addressed by an initial referral to a neurologist on an outpatient basis. This was not done. (With elimination of subordinate and unnecessary material and as modified to more closely conform to the record as a whole, this FOF covers Petitioner's PFOF 17.) During the hospitalization of E.R., Respondent ordered a number of tests including two electrocardiograms, a CT scan of the brain, chest x-ray; sinus x-ray; mastoids x-rays; x-rays of the sella turcica and cervical spines, a bilateral mammogram, a CT scan of pituitary gland, a tomogram of the sella turcica, a platelet count, serum protein electrophoresis, CEA-EIA Enzyme Immunoassay, an SMA 12, Vitamin B12 and Folate serum levels, and progesterone levels. (Adopts Petitioner's PFOF 18). The testing ordered by Respondent for E.R. was excessive. For example, Respondent ordered a CT scan of the brain which adequately views the sinuses and the sella turcica. Therefore the further x-rays of the sinuses, mastoids and sella turcica and a tomagram of the sella turcica, were unnecessary and excessive. No other indicators, i.e. vision disturbances, independently justified Respondent's ordering the tomagrams. A C.E.A.-E.I.A. Enzyme Immunoassay was ordered, despite the fact that it was not indicated by either the patient history or the recorded physical examination results. A C.E.A.- E.I.A. Enzyme Immunoassay is a test for cancer of the stomach. (With elimination of cumulative and subordinate material, adopts Petitioner's PFOF 19). On May 8, 1983, Respondent admitted patient E.P. to Pembroke Pines General Hospital for evaluation and treatment of a gastrointestinal disorder, weakness and shortness of breath. E.P. was assigned medical records number 4924. Respondent ordered the following testing which was performed on patient E.P.: two CBCs, SMA-18, two urinalyses, CT scan of kidneys, barium enema, a GI series and small bowel follow-through, an intraveneous pyelogram a voiding cytourethrogram a platelet count, serum protein electrophoresis, a urine culture and a stool culture. There was no indication for Respondent to order the upper G.I. series and small bowel follow-through for patient E.P. The records demonstrate insufficient justification for the admission of patient E.P. to Pembroke Pines General Hospital on May 8, 1983; the final discharge diagnoses show hospitalization was unnecessary. On May 12, 1983, Respondent discharged patient E.P. from Pembroke Pines General Hospital with the following diagnosis: gastrointestinal disorder due to diverticulosis of the colon gastritis, and anxiety state reaction. Of these diagnoses, only the final diagnosis is possibly correct. Although an air contrast barium enema showed a few tiny scattered diverticuli within the distribution of the left colon, there was no support for Respondent's assertion that the diverticuli were the cause of a gastrointestinal disorder. The diagnosis of gastritis refers to an irritation of the stomach. This diagnosis is not supported either by the results of the upper G.I. series which were normal nor by x-rays of the stomach, which were also normal. (With modifications to more accurately reflect the record as a whole, this FOF accepts Petitioner's PFOF 21-23). On April 20, 1983, Respondent admitted O.A. to Pembroke Pines General Hospital. O.A. was assigned medical records number 5800. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 24). On September 20; 1982, Respondent admitted patient R.R. to Pembroke Pines General Hospital. Patient R.R. was assigned medical records number 5940. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 25). On April 12, 1983, Respondent admitted to Pembroke Pines General Hospital a patient who was assigned medical records number 9235. The patient was admitted for acute abdominal pain on the right lower side. The patient was suffering from a hematoma, a collection of blood in the tissue. Most probably the patient had developed a hematoma of the rectus muscle as a result of coughing, because the patient's history revealed a severe upper respiratory infection accompanied by a cough. A surgical consultation prior to hospital admission would have revealed this condition and rendered hospital admission unnecessary; because the standards of the medical profession indicate that the hematoma should have been treated conservatively (i.e. no treatment was indicated). No testing should have been necessary, if a consultation had been sought. However, Respondent hospitalized the patient, ordered a chest x- ray, a pelvic sonogram and a barium enema. Neither the barium enema nor the pelvic sonogram would have been indicated if the patient had been seen by a consultant prior to ordering the tests. The patient was ultimately discharged on April 14, 1983 therefore, the hospitalization was unnecessary. (Adopts, with clarifying modification, Petitioner's PFOF 26-27). On March 29, 1983, Respondent admitted patient R.S. to Pembroke Pines General Hospital. Patient R.S. was assigned medical records number 9479 at Pembroke Pines General Hospital. No evidence was presented by Petitioner as to the propriety or necessity for the admission or the testing performed during the hospitalization of the discharge diagnoses. (With elimination of unnecessary material, this FOF adopts Petitioner's PFOF 28). On October 10, 1982, Respondent admitted patient K.G. to Pembroke Pines General Hospital. The patient was assigned medical records number 9540 by Pembroke Pines General Hospital. This twenty-three year old female was admitted with diagnoses of gastro-intestinal disorder and menstrual period disorder. The patient remained in the hospital for a period of three days. During the hospitalization, Respondent ordered the following tests: chest x-rays of sella turcica, a barium enema, pelvic sonogram; an EKG, an upper G.I. series with small bowel follow-through- a urinalysis, a platelet count, serum glucose levels (four); SMA 12, urine culture and colony count, progesterone levels, S Follicle- stimulating hormone levels and total estrogen levels. The x-rays of the sella turcica would be indicated where a pituitary tumor is suspected, but there was no indication that a pituitary disorder was suspected other than a vague reference to a menstrual disorder (which was never described in the records for patient K.G.). Therefore, this test was unnecessary. Although a barium enema was ordered, there was no description of pain or any disorder of the bowel and no indication of bowel changes which would indicate any disease of the colon. Therefore, the barium enema was not justified. Although the records reflect at least vague indications for ordering the upper GI series, the small bowel follow-through was not justified. Additionally, one isolated estrogen level was ordered. This was inappropriate because the test results would only be meaningful if a series of estrogen levels were obtained to determine the response curve of the ovaries. Therefore, "inappropriate" in this case means "unnecessary." The hospital admission of patient K.G. also was not appropriate. The entire evaluation could have been carried out by a gynecologist on an outpatient basis. No initial, pre-hospitalization referral to a gynecologist was reflected in Respondent's records. The patient was discharged on October 13, 1982, with the following diagnoses: abnormal menstrual periods due to left ovary cyst and abnormal pain due to mild gastritis associated with mild anxiety stage reaction. On his discharge summary for patient K.G., Respondent noted "all this information was given to the patient and was advised the patient to be seen by gynecologist for further result." Respondent's records further corroborated that the hospitalization was unjustified and unnecessary. (Covers Petitioner's PFOF 29-31) On August 4, 1982, Respondent admitted patient L.M. to Pembroke Pines General Hospital for treatment of "acute phlebitis". The patient was assigned medical records number 6965 by Pembroke Pines General Hospital. The patient was hospitalized for a period of thirteen days. Phlebitis is an inflammatory reaction of the vein(s). It is very important that the diagnosis be correct; because, with phlebitis, emboli or clots can break off and travel through the blood to the lungs. It is diagnosed clinically by history and by physical examination. On physical examination, the symptoms of phlebitis include the presence of swelling in the involved leg and the positive "Homan's sign." "Homan's sign" is the term used to describe the pain present from an inflamed deep vein, which pain is experienced when the leg is extended straight out and the foot is dorsiflexed or pushed back towards the leg placing stress on the calf muscle. Radiographically a venogram may be used to confirm or rule out the existence of phlebitis. A venogram is a test involving the injection of dye into the veins of the foot followed by an x-ray examination of those vessels. The records for patient L.M. do not contain adequate documentation of a physical examination of patient L.M. to establish the diagnosis of phlebitis. Thus, the patient may have had phlebitis, there were no adequate descriptions of the status of the right leg recorded in the patient records for L.M. Specifically, there is no mention of Homan's sign and there was no mention of any measurement of the patient's calves to determine whether there was swelling in the involved leg. Without a more thorough physical examination, Respondent should have performed a venogram to confirm the diagnosis. This was not done with patient L.M. (Adopts Petitioner's PFOF 32-34). While patient L.M. was hospitalized, Respondent treated the patient's unconfirmed phlebitis with Heparin (an anti-coagulent) intravenously. The patient remained on Heparin until August 15; 1982. On August 15, 1982, Respondent additionally ordered Coumadin, which is also an anti-coagulent, to be given to patient L.M. Respondent ordered Coumadin 5 mg. to be given by mouth at 6:00 p.m. (to be started on August 15, 1982)), and at 10:00 a.m. (to be started on August 16, 1982). Respondent's order provided that if the P.T. (prothrombin time) was twenty-five seconds, to hold the Coumadin. The normal prothrombin time is in the range of eleven to thirteen seconds. The dose of Coumadin given was inadequate to anti-coagulate the patient. (Adopts Petitioner's PFOF 35). On the day prior to discharge of L.M., Respondent wrote the following order: "If (patient) is below 20-tomorrow- and over 11.0. (patient) may be discharge(d)..." For the Coumadin to be effective (i.e. in order to have an adequate anti-coagulant effect from the Coumadin), the prothrombin time should have been above twenty prior to discharge. The prothrombin time on discharge was 12.9 seconds. (Adopts Petitioner's PFOF 36). From the hospital records for patient L.M. and the Doctor's orders for that patient there is adequate basis for the expert testimony that Respondent does not understand the therapeutic effect of Coumadin or its dosages. (Covers Petitioner's PFOF 37). On August 17, 1982; Respondent discharged patient L.M. from Pembroke Pines General Hospital with the following diagnoses: acute phlebitis of the right leg, anxiety stage reaction and migraine syndrome headaches. As discussed previously, the diagnosis of phlebitis cannot be substantiated from the records. Additionally, the records contain no documentation for the diagnosis of migraine syndrome headaches. (With the elimination of unnecessary material, this FOF adopts Petitioner's PFOF 38). On August 9, 1982, Respondent admitted patient M.A. to Pembroke Pines General Hospital for abdominal pain and a gastrointestinal disorder. This patient was assigned number 7448. The documentation of the history and physical examination for patient M.A. was significantly lacking. Patient M.A. was hospitalized for a period of three days. During that three-day period of hospitalization, the following tests were performed on M.A. pursuant to Respondent's orders: an E.K.G., a chest x-ray, an abdominal sonogram, a barium enema, a CRC, a urinalysis, a coagulation test and platelet count, fasting and non-fasting glucose levels (a total of six) SMA 12, a routine stool culture and a colonoscopy. All of the testing performed on patient M.A. could have been performed on an out-patient basis. There was no justification for admission of M.A. to Pembroke Pines General Hospital on August 9; 1982, or for the length of stay. Additionally, Respondent ordered the abdominal sonogram on patient M.A. without any indication for the test, which was unnecessary. This abdominal sonogram was used to view the liver, gallbladder and pancreas. However, there was no indication that M.A. experienced any problems with these organs. (Adopts Petitioner's PFOF 39-40). On admission, Respondent ordered that Diabenese 500 mg. (a glycogenic drug which will reduce the blood glucose levels and is normally used in the treatment of diabetes) be given by mouth daily. Additionally, Respondent ordered that the patient be given insulin on a sliding scale. Insulin is also normally used in the treatment of diabetes. However, diabetes was not listed as a diagnosis on discharge. The hospital chart provides no documentation for the use of Diabenese or the insulin. All glucose levels taken on this patient were within normal limits during the August 1982 hospitalization, and these eliminate any justification for the use of Diabenese or insulin for diabetes unrecorded. (As modified for clarity and to add the inference drawn by the undersigned from the evidence, this FOF adopts Petitioner's PFOF 41). On August 12; 1982, Respondent discharged patient M.A. from Pembroke Pines General Hospital with the following diagnoses: gastrointestinal disorder, abdominal pain secondary to several small diverticula of the left side of the colon, villous adenoma of the sigmoid colon, sinus bradycardia condition and essential hypertension. Several of Respondent's discharge diagnoses were either incorrect or not documented in the records for patient M.A. Sinus bradycardia is a very slow pulse rate. The pulses recorded for patient M.A. during hospitalization were 80, 68, 64, 68, 74 and 70 beats per minute, and were all within normal ranges. On one E.K.G. a notation was made that the pulse rate was slow. However, given the persistently normal pulse rates throughout the patient chart, the diagnosis of sinus bradycardia was incorrect. Additionally, Respondent's diagnosis of essential hypertension was incorrect. Essential hypertension means that type of hypertension for which there is no known cause. All of the blood pressure readings present in the hospital chart for M.A. were normal. Furthermore, the patient was taking no anti-hypertensive agents. Therefore, Respondent's diagnosis of essential hypertension in patient M.A. was also incorrect. Only one of Respondent's discharge diagnoses for patient M.A. was justified by use records for that patient, that of villous adenoma of sigmoid colon. This diagnosis was initially made by a consultant. (Adopts Petitioner's PFOF 42- 44). On March 22, 1983, Respondent admitted patient E.S. to Pembroke Pines General Hospital for abdominal pain with possible biliary disorders. The patient was assigned number 7917 and was hospitalized for a period of fourteen days. During that hospitalization, the following tests were performed on patient E.S., pursuant to Respondent's orders: an EKG, cervical spine x-rays; a voiding cystourethrogram and intravenous pyelogram, gallbladder sonogram; chest x-ray, an echocardiogram, a barium enema, an upper G.I. series, an oral cholestogram, small bowel series, sonogram of the thyroid glands an air contrast barium enema, a CRC, urinalysis, platelet count, glucose levels (a total of nine), SMA 12, a glucose tolerance test, an SMA 8, which included a serum glucose level, two routine stool cultures, a Thyroid profile, a two-hour post prandial blood sugar, 24 hour urine creatinine levels, insulin levels, by radioimmunoassay, and a Parathyroid hormone study. Much of the testing performed on E.S. during the hospitalization was excessive or unnecessary. Those tests that were indicated could have been performed on an out-patient basis. The insulin level by radioimmunoassay is indicated where secreting tumors of the pancreas are suspected. There was no indication in the records of patient E.S. that such a tumor was present. The intraveneous pyelogram is indicated where kidney disease is suspected. There was no indication in E.S.'s records that kidney disease was suspected or present. A sonogram of the thyroid is indicated where there is a palpable mass of the thyroid. In the records for patient E.S. there is no record of a palpable mass. In the records for patient E.S., the thyroid was described as mildly to moderately enlarged. However, there was no description of a mass or venous distention, and the carotid pulses are present. Therefore, it would appear unlikely that a mass was present. Accordingly, there was no indication for a sonogram of the thyroid gland. After performing a sonogram of the gall bladder (for which there was no indication) which yielded normal findings, Respondent ordered a cholecystogram. This latter test involves the oral consumption of a dye which is then excreted into the gallbladder so that the gallbladder can be viewed by x-ray. The test is used to determine if there are any filling defects in the gallbladder. In view of the normal gallbladder sonogram which had already been performed on patient E.S., it was excessive to additionally order the cholecystogram. There was no indication for performing a small bowel series on this patient. It was excessive to order and perform nine glucose levels where all of the levels obtained were within normal ranges. Respondent performed no real therapy on patient E.S. during the above-described hospitalization. The hospitalization was for diagnostic purposes. On April 5, 1983, Respondent discharged patient E.S. from Pembroke Pines General Hospital with the following diagnoses: diverticulosis of the sigmoid and descending colon, borderline diabetes mellitus, hyperuricemia, enlarged thyroid gland with hypofunctioning, diverticulum of the bladder and essential hypertension. The diagnosis "borderline diabetes mellitus," wads not justified by the patient's chart since all glucose levels found in the patient's chart were within normal ranges. (Adopts Petitioner's PFOF 45-47). On September 17, 1982, and on May 10, 1983, Respondent admitted patient A.W. to Pembroke Pines General Hospital. The patient was assigned medical records number 2966 by Pembroke Pines General Hospital. Petitioner established no violations with regard to this patient. (Covers Petitioner's PFOF 48). On October 6, 1982, Respondent admitted A.P. to Pembroke Pines General Hospital for a possible angina attack and a possible myocardial injury attack. Patient A.P. was assigned medical records number 8000 by Pembroke Pines General Hospital. Despite the fact that angina was suspected, Respondent failed to obtain a cardiac consultation during the October 1982 hospitalization of A.P. During the hospitalization of patient A.P., four chest x-rays and one CT Scan of the chest were performed pursuant to Respondent's orders. These tests revealed two areas of increased density in the left chest which were characterized as "masses." The recommendation made by the radiologists who reviewed the x-rays and the CT Scan was that further evaluation was necessary. Despite this recommendation, no further evaluation was performed in the hospital and no plan of follow-up or referral was included in the discharge summary prepared by Respondent. The importance of such documentation on "follow-up" is that it shows that the physician is aware of the problem and assures that the patient will be properly managed. From the records for A.P., it is impossible to determine whether or not Respondent planned proper management of the "masses" after discharge of the patient. (As modified to conform to the record as a whole- this FOF accepts Petitioner's PFOF 49-50). On October 23, 1982, Respondent discharged patient A.P. from Pembroke Pines General Hospital with several discharge diagnoses including the diagnosis of sliding hiatus[sic] hernia with gastroesophageal reflux. This diagnosis was not supported by the records for the patient. The hiatus is the opening in the diaphragm through which the esophagus passes into the stomach and should fit very snugly. In the case of a hiatal hernia, due to the increase of intra- abdominal pressure, a portion of the stomach slips through that opening and slides back and forth. Most commonly, if the patient is lying down, and particularly if the patient has had a sizable food intake immediately prior to lying down, the weight of the food will carry the stomach up into the abdomen. This is the disorder which Respondent diagnosed in patient A.P. The disorder is properly diagnosed by x-ray, specifically an upper G.I. series, Respondent did not order one. Respondent did order an upper abdominal sonogram and chest x- rays, neither of which would or did verify the existence of a sliding hiatal hernia with gastroesophageal reflux. Accordingly, Respondent's diagnosis was not substantiated. (As modified for clarity and to include the inferences of the undersigned, this FOF adopts Petitioner's PFOF -51). On July 1, 1983, Respondent admitted patient T.S. to Pembroke Pines General Hospital. Patient T.S. was assigned medical records number 9478 by Pembroke Pines General Hospital. The patient was admitted for acute right renal attack and remained in the hospital for a period of six days. On the patient's history, Respondent noted that his impression diagnosis was sinus bradycardia as a secondary problem. Respondent's evaluation of the cardiac status of the patient included ordering the following tests: three E.K.G.'s all of which were abnormal, indicating a previous myocardial infraction of indeterminate age, and a cardiac profile. In Respondent's Discharge for patient T.S., Respondent wrote: On admission, the patient was seen and examined by the ER physician, and after examination was accomplished the patient was admitted to the Telemetry Unit due to the previous history of organic heart disorder and having cardiac arrythmias. The patient was also complaining of chest pain at this time... Despite the above information, Respondent failed to obtain a cardiac "consult" for patient T.S. Furthermore, the cardiac status for the patient was never adequately evaluated. This does not meet the prevailing standards of the medical profession. (Adopts and expands Petitioner's PFOF 52-53). On July 2; 1983, an intraveneous pyelogram (IVP) was performed on patient T.S. pursuant to Respondent's order. The IVP revealed distal right ureteral calculus (or a kidney stone), which was the cause of the patient's renal (kidney) attack. Once the diagnosis of renal calculus was established, patient T.S. should have been discharged. Any remaining pain could be controlled with oral medication. However, instead of discharging the patient, Respondent kept the patient in the hospital for five extra days without adequate justification in the records. (Adopts and expands Petitioner's PFOF 54-55). While patient T.S. was hospitalized, Respondent ordered the following unnecessary or excessive testing: Lanoxin serum levels, quinidine serum levels, and a second IVP. The Lanoxin and quinidine levels would be indicated where it was necessary to monitor the levels of those drugs in the blood. However, the chart for patient T.S. contained no documentation that either quinidine or lanoxin were being administered to the patient, and, therefore, these tests were inappropriate. The second IVP was excessive testing because the first IVP provided all of the information sought by the second IVP, and the diagnosis was established on the original IVP. The hospitalization of patient T.S. was excessive in length and probably should have been no more that two days. (Adopts Petitioner's PFOF 56-57). On October 29, 1982, Respondent admitted patient D.S. to Pembroke Pines General Hospital for a hypertensive crisis and cardiomegaly. Petitioner established no violations with regardo this patient; who was assigned records number 0905. (Adopts Petitioner's PFOF 5). In general, the unrefuted expert testimony supports a finding that with respect to all of the records previously described, excluding patients O.A., R.R., R.S., A.W., and D.S., the admission notes and discharge summaries were not coherent. The undersigned accepts the expert testimony of Dr. Ehrlich that a large part of this lack of coherency is probably due to Respondent's inability to communicate in English with proficiency and fluency. However, the undersigned finds upon the expert opinion testimony of both Dr. Handworker and Dr. Ehrlich that these records of Respondent were additionally medically deficient as reflected in the foregoing findings of fact, in that Respondent's records failed to include pertinent necessary historical data that would be indicated, and Respondent failed, in his discharge summaries, specifically, to address the need for follow-up care. (Adopts, with modifications for clarity, Petitioner's PFOF 59). The refuted expert testimony is that with reference to two patients, M.A. and L.M., Respondent's records were not sufficient to justify the treatment of the patient. With respect to patient M.A., there was a significant lack of documented history and physical examination. With respect to patient L.M.; there was inadequate documentation of the clinical history and physical examination results, or of pertinent laboratory testing (venogram) to show that the patient, in fact, had phlebitis. Therefore, there was inadequate documentation for administering anti-coagulants to this patient. (Adopts Petitioner's PFOF 60). The unrefuted expert testimony is based only upon review of records. Neither testifying physician treated any patient referenced. In the case of at least one patient, the name is difficult even to determine. However, it is clear that in many instances; Respondent's records contained inadequate information to justify admission of the patients to the hospital, particularly with respect to patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4924), 9235, K.G. (9540), M.A. (7448), and E.S. (7917). In many instances; Respondent's records were inadequate to justify many of the diagnoses which were made by Respondent. Specifically, the records for patient C.M. (6893), F.L. (4144), E.P. (4924), L.M. (6965); M.A. (7448), and E.S. (7917), did not contain justification for many of the diagnoses made by Respondent. In many instances, the records were not adequate to justify all of the testing performed, particularly those records for F.L. (4144), E.R. (4910), Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478). In two instances; with respect to patients M.A. (7448) and T.S. (9478); Respondent's records were inadequate to justify the length of the hospital stay. (Adopts Petitioner's PFOF 61). In many instances, Respondent unnecessarily admitted patients. By admitting patients unnecessarily and for excessive periods of time, Respondent benefited from the daily charge which he could assess for seeing the patient while hospitalized and it is possible to infer therefrom that this amounts to exploitation of patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4024), Patient No. 9235, K.G. (9540), M.A. (7448), and E.S. (7917) for the financial gain of the Respondent. However, without some further evidence of malicious intent above and beyond mere incompetency, the undersigned views the evidence insufficient to draw such an inference. (For the reasons stated herein, Petitioner's PFOF 62 is rejected). Then Respondent unnecessarily or excessively tested patients [Specifically, patients F.L. (4144), E.R. (4910), E.P. (4924); Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478)], the patients or their insurance companies were required to pay the hospital for these tests which should not have been performed. However, without some evidence of conspiracy or something more than mere incompetency, the undersigned does not view the evidence as sufficient to draw such an inference. Without more than appears in this record, it is not logical to assume that Dr. Gonzalez benignly set out to profit Pembroke Pines General Hospital out of the "goodness" or "badness" of his heart. Further, the very fact that he fairly consistently avoided consultations with specialists suggests that this Respondent was not intending to enrich any third parties. (For the reasons stated herein, Petitioner's PFOF 63 is rejected). Respondent failed with respect to all of the above-named patients (excluding R.R., D.S., A.W., R.S., and O.A.) to practice medicine with that level of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar physician under similar conditions and circumstances when he: admitted patients without justification; unnecessarily and inappropriately ordered tests for the patients which were not indicated by the patient's symptomatology; incorrectly diagnosed and conditions of patients he treated; inadequately documented the need for admission to the hospital and testing, inadequately documented the justification for his diagnoses and inadequately documented follow-up care; inappropriately prescribed Coumadin for patient L.M.; and excessively hospitalized two patients. (Adopts Petitioner's first PFOF 64). Respondents for the reasons previously enumerated failed to practice medicine within the prevailing standards of practice in the community. (Adopts Petitioner's second PFOF 64). Diagnoses are of great significance in a patient's care. They impact on the future well-being of the patient. Respondent, with respect to the records reflected above, failed to demonstrate adequate diagnostic ability. (Adopts Petitioner's PFOF 65).
Recommendation Based on the foregoing, it is therefore RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(n) and (t), Florida Statutes (Counts One and Two),and not guilty of violating Sections 458.331(1)(1) and (o)(Counts Three and Four), and suspending Respondent's license to practice medicine for a minimum of three years, with reinstatement conditioned upon proof of attendance and successful completion of courses selected by the Board of Medicine related to diagnosis and necessary record keeping. DONE and RECOMMENDED this 31st day of July, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 31st day of July, 1987. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stephanie A. Daniel Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert A. Gonzalez, Jr. 1900 North Univeristy Drive Suite 110 Pembroke Pines, Florida 33024 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Soled Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
