Findings Of Fact Petitioner, Department of Health and Rehabilitative Services (HRS), is designated as the state agency responsible for the administration of federal and state Medicaid funds, and is authorized by statute to provide payments for medical services. Respondent, Marvin H. Ledbetter, is a doctor of osteopathy who is enrolled as a general practitioner provider in the Medicaid Program. His professional office is in Ormond Beach, Florida where he is engaged in family practice. Under the Program, Ledbetter is assigned a provider number (48220-0) which is used to bill Medicaid for services rendered to Medicaid recipients. During calendar year 1981, which is the only time period in question, Ledbetter received $42,809 in Medicaid reimbursements from HRS, of which $28,062 related to fees for Medicaid hospital patients. The latter category of fees is at issue. In order to qualify for federal matching Medicaid funds HRS must meet certain federally-imposed requirements, including the establishment of a program integrity section designed to insure that all Medicaid services are medically necessary. If they are not, HRS is obliged to seek recoupment of funds paid to the provider. This proceeding involves an attempt by HRS to recoup certain funds paid to Ledbetter for hospital services. After providing medical services to various hospital patients, Ledbetter completed and sent in the necessary forms to obtain payment. As noted earlier, these payments totaled $28,062 during 1981. Upon receipt of the forms, HRS input the information from the forms into a computer data base, along with similar information from other Medicaid providers throughout the State. This information included, among other things, the number of admissions, number of discharges, amount paid for hospital services and length of stay. The retention of such data is necessary so that possible overpayments may be detected by HRS through the statistical analysis of claims submitted by a group of providers of a given type. Because Ledbetter's total discharges exceeded the average of other family physicians throughout the State, the computer generated a report which flagged Ledbetter for further review and examination. An HRS analyst conducted such a review of Ledbetter's records, and found his average hospital length of stay for patients to be acceptable when compared to the average physician in the State. This report was forwarded to the HRS peer review coordinator who randomly selected thirty of Ledbetter's patients from the computer, and obtained their patient charts (numbering sixty-eight). Such a statistical calculation is authorized by Rule 10C-7.6(4)(b), Florida Administrative Code. A medical consultant employed by HRS then reviewed twelve of the sixty-eight charts and recommended the records be sent to a Peer Review Committee (PRC) for its review and recommendation. This committee is authorized by Rule 7C-7.61(4)(c), Florida Administrative Code serves under contract with HRS, and is composed of eight members of the Florida Osteopathic Medical Association. It is their responsibility to review the files of physicians whose Medicaid payments are questioned by HRS's program integrity section. When Ledbetter's records were forwarded to the PRC by HRS, the transmittal letter stated that a "study" of his records had been made, and that said study revealed "overutilization of inpatient hospital services" and "excessive lengths of stay." After a PRC review was conducted in early 1984, the records were returned to HRS with a notation that "mild overutilization" had occurred. According to informal guidelines used by the PRC, this meant that Ledbetter's overutilization fell within the range of 0 percent to 20 percent. HRS accepted these findings but for some reason initially determined that a 40 percent overutilization had occurred, and that Ledbetter was overpaid in 1981 by 40 percent for his hospital services. Finding this amount to be inconsistent with the mild overutilization guidelines, HRS arbitrarily added back two days to each patient's hospital stay, which decreased overutilization to 33.8 percent, or $9,505.06 in overpayments. By proposed agency action issued on May 18, 1984, it billed Ledbetter this amount, thereby precipitating the instant controversy. All of the patients in question were from the lower income category, and most were black. Their home conditions were generally less than desirable, and the ability of the parents to supply good nursing care to ill or sick children was in doubt. At the same time, in 1981 Ledbetter was working an average of 56 hours per week in the emergency room of a local hospital and devoted only minimal time to his family practice. Because of this Ledbetter's number of hospital admissions greatly exceeded the norm when compared to general practitioners who engaged in an office practice. Consequently, he received most of these patients through the emergency room rather than his office and was dealing with patients whose socioeconomic conditions were an important consideration. These factors must be taken into account in analyzing Ledbetter's patient records. HRS does not contend that Ledbetter failed to perform the services for which he was paid--rather, it questions only whether some of the admissions were medically necessary and whether some of the lengths of stay were too long. In this regard, conflicting expert testimony was offered by the parties concerning the amount of overutilization, if any. Expert testimony by two local doctors of osteopathy support a finding that only mild overutilization of admissions and lengths of stay occurred. This is corroborated by HRS's expert (Dr. Smith) and by the testimony of its "live" expert, Dr. Conn, who conceded that lengths of stay were only "a little bit too long." The more persuasive testimony also establishes that while mild overutilization falls within the range of 0 percent to 20 percent, 10 percent is an appropriate median in this proceeding. Using this yardstick, Ledbetter should reimburse HRS for 10 percent for his billings, or $2,806.20.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent repay petitioner $2,086.20 in excess Medicaid payments received for calendar year 1981 claims. DONE and ORDERED this 16th day of May, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 16th day of May, 1985.
The Issue Whether respondent's license to practice medicine should be disciplined on grounds that: (1) he engaged in gross or repeated malpractice or failed to practice medicine with the required level of care, skill, and treatment, and (2) he is unable to practice medicine with the requisite skill and safety by reason of illness or as a result of a mental or physical condition.
Findings Of Fact Based upon the evidence presented at hearing, the following facts are determined: Respondent is an 80-year-old physician licensed to practice medicine in Florida. He has been a general practitioner in the Miami area for over 40 years; during that time, he has earned the respect and esteem of the medical community. During the 1940s, he helped establish the first cancer clinic in Dade County; he is recognized as one of the community's early medical pioneers. He has never before been the subject of a disciplinary action for professional misconduct. (Testimony of Bishop, Boughton; R-2.) I. The Claresta Halloran Abortion On July 3, 1980, Ms. Claresta Halloran, age 35, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was "sometime in April." (P-3.) Respondent palpated her, examined her by use of a sounding instrument, and dilated her uterus. After determining that she was approximately 12 weeks pregnant, respondent attempted to abort the fetus by suction and curettage. Fearing that he had perforated Ms. Halloran's uterus, respondent had her transported to North Miami General Hospital for an exploratory laparotomy. Results of the exploratory surgery were negative; there was no evidence of perforation of the uterus or injury to the bowel. (Testimony of Boughton; P-3.) William Wickman, M.D., performed the exploratory surgery on Ms. Halloran at the hospital. His bimanual examination revealed an enlarged uterus, "the size of approximately [a] 12 week pregnancy." (Testimony of Boughton; P-3.) Two days after the surgery, Ms. Halloran passed a macerated fetus which, after pathological examination, was estimated to be of 17 weeks' gestation. Her convalescence from surgery was otherwise uneventful and she was discharged from the hospital the next day, July 6, 1980. (Testimony of Boughton; P-3.) Absent specialized training, abortions "from below," that is, by dilating the cervix and removing the contents of the uterus, should not be performed on pregnancies which have progressed beyond 12-weeks. This is because, after 12 weeks, the fetus's bones have developed calcium and sharp, razor-like edges which can perforate the uterus and endanger the health and safety of the patient. (Testimony of Rudolph.) Respondent has not received specialized training which would enable him to safely use the "from below" method on pregnancies beyond 12 weeks. However, his examination of Ms. Halloran led him to believe she had been pregnant for 12 weeks. In reaching that conclusion, he did not rely solely on the date of the patient's last menstrual period. His palpation and examination of the patient's uterus confirmed that the pregnancy was approximately 12 weeks. Dr. Wickman's subsequent examination of the patient at the hospital confirmed that the patient's uterus indicated an approximate 12-week pregnancy. (Testimony of Rudolph, Boughton; P-3.) There are other more advanced methods, such as sonography, which enable one to more accurately determine the gestational age of a fetus. However, the evidence does not support a finding that respondent's failure to use such methods constitutes malpractice or a failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. (Testimony of Rudolph.) Respondent admits that he erred in his diagnosis of the stage of Ms. Halloran's pregnancy. However, his diagnosis was not shown to have been unjustified or unreasonable in light of the facts known to him at the time. Both the date of the patient's last menstrual period and manual examination of the uterus supported a determination that the pregnancy was approximately 12 weeks. The "from below" abortion procedure which respondent utilized is only unacceptable for use on pregnancies in excess of 12 weeks. In short, respondent's treatment of the patient was consistent with his diagnosis. While the diagnosis was in error -- the fetus was of 17 weeks' gestation, not 12 weeks -- other physicians, under similar circumstances, would likely have made the same error. (Testimony of Boughton; P-3.) II. The Wilhemina Evans Abortion On August 5, 1980, Ms. Wilhemina Evans, age 18, visited respondent's office for a therapeutic abortion. She told respondent that her last menstrual period was at the end of April. He palpated her, placed a sounding instrument, and dilated her uterus. After concluding that she was at least 13 weeks pregnant; 2/ he attempted to abort the fetus "from below" by use of placental forceps and a curette. He thought the abortion had been successful and permitted the patient to, return home. (Testimony of Rudolph, Boughton; P-4.) The next day, the patient went to Jackson Memorial Hospital complaining of abdominal pain. Several minutes after arriving at the emergency room, she passed a 750-gram male still-born fetus. Subsequent pathological examination indicated that the fetus was of 24 weeks' gestation. (P-4.) Respondent failed, in several respects, to provide Ms. Evans with treatment which is recognized by a reasonably prudent similar physician as acceptable under similar circumstances. Without special training, the "from below" method of aborting the fetus should not have been used on a woman beyond 12 weeks pregnant. 3/ Moreover, if respondent was uncertain of the gestational age of the fetus, he should not have attempted to abort the fetus "from below" in an office setting. Despite the patient's obesity, respondent should have been able to determine the advanced gestational stage of the fetus. Finally, a reasonably prudent similar physician would have realized that the attempted abortion had been unsuccessful and would not have permitted the patient to immediately return home. Thus, it is concluded that respondent's treatment of Ms. Evans was inconsistent with acceptable medical practice. 4/ (Testimony of Rudolph.) III. Treatment of Skin Lesions of Bernice Riordan Since 1951, Bernice Riordan, age 68, has been a patient of respondent's. Over the years, he treated her for various ailments, including basal cell carcinomas and squamous cell carcinomas on her face and neck. He used different techniques to treat the carcinomas; electrocoagulation in 1955; electrodesiccation and silver nitrate in 1961, 1962, 1972, and 1976; bichloracetic acid in 1976; and 5-Fluorouracil in 1978. In April, 1961, respondent referred Ms. Riordan to a dermatologist for specialized treatment. In 1969, he referred her to Jackson Memorial Hospital for radiation therapy because of multiple lesions on her face. She was a difficult and eccentric patient; she continually resisted his efforts to refer her to specialists for treatment of her increasingly serious carcinomas. Finally, in 1980, he referred her to two specialists -- a plastic surgeon and another dermatologist. By 1980, the cancer of the skin on her face had destroyed the entire nose and perioral skin. (Testimony of Boughton; P-2.) The Department presented, by deposition, the testimony of Dr. Richard C. Childers, a dermatologist who had reviewed the patient records of Ms. Riordan. He graduated from medical school in 1969 and was licensed to practice medicine in Florida in 1971. Since 1974, he has engaged in the private practice of dermatology in Gainesville, Florida, with a clinical appointment at Shands Teaching Hospital. It was Dr. Childers' opinion that respondent should have referred Ms. Riordan, no later than 1959, to a specialist for treatment of recurring skin lesions. Dr. Childers also opined that respondent, on numerous occasions over the years, had used ineffective or inappropriate treatment techniques on Ms. Riordan's lesions. (P-2.) Dr. Childers' testimony is rejected as inadequate to establish that respondent failed to provide treatment to Ms. Riordan which is recognized by a reasonably prudent similar physician as being acceptable under similar circumstances. Dr. Childers is a specialist in dermatology, not a general practitioner. He practices in Gainesville, not Miami. When respondent applied many of the complained of treatment techniques to Ms. Riordan, Dr. Childers had not yet begun medical school. It would be patently unfair to measure treatment for carcinomas furnished by a general practitioner in 1961 by a specialist's with the standard of care applicable to general practitioners in the Miami area during the period in question. to establish an appropriate standard of care applicable to respondent's treatment of Ms. Riordan. (Testimony of Boughton; P-2.) IV. Respondent's Ability to Practice Medicine with Reasonable Safety to His Patients On April 27 and 30, 1981, a mental status examination was given psychiatrist's opinion, respondent's appearance, behavior, and overall thinking was intact; there was no evidence of psychosis. However, respondent's response was somewhat impaired. Dr. Bishop concluded that respondent suffers from of Bishop.) Respondent recognizes that his advanced age affects his ability to However, he believes that he is able to operate an office practice with reasonable skill and safety and without endangering his patients. He is willing his work. The practice of medicine is his avocation as well as his profession; it is the habit and pleasure of his life. (Testimony of Boughton.) interfere with his ability to practice medicine with reasonable skill and safety to his patients. The ability to remember facts is essential to a physician's patient's illness. (Testimony of Bishop.) However, the evidence is insufficient to demonstrate that respondent's his livelihood. The evidence on the extent which his impairment will affect his ability to practice is problematic. He is willing to submit to the supervision supervision of another physician, it is likely that he will be able to practice medicine with reasonable skill and safety to his patients. (Testimony of
Recommendation Based on the foregoing, it is That respondent's license to practice medicine be suspended until respondent submits to the Board an acceptable proposal which ensures that his the Board approves the proposal, respondent should be placed on a probationary status and his practice restricted to exclude the performance of surgery and DONE AND RECOMMENDED this 20th day of November, 1981, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 1981.
Findings Of Fact Based upon the record evidence, as well as the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent is now, and has been at all times material hereto, a licensed practical nurse in the State of Florida holding license number PN 0626161. At all times material hereto, Dr. Vladimir Rosenthal owned three clinics in Dade and Broward Counties at which he performed abortions. The clinics were located in Coral Gables (hereinafter referred to as the "Coral Gables clinic"), North Miami (hereinafter referred to as the "North Miami clinic") and Plantation (hereinafter referred to as the "Broward clinic"). All three clinics were licensed under Chapter 390, Florida Statutes. In September and October, 1989, Respondent was employed by Rosenthal and worked full-time as a licensed practical nurse in the North Miami clinic. During this period of time, she had no responsibilities with regard to the other two clinics owned by Rosenthal. Among Respondent's duties at the North Miami clinic during this time period was to prepare, under Rosenthal's direct supervision, packages of medications that Rosenthal gave to his patients, free of charge, to take home with them upon their discharge, a practice that Rosenthal has since discontinued. 6/ On September 30, 1989, the Department of Health and Rehabilitative Services (HRS) conducted an on-site inspection at the Coral Gables clinic. Respondent was not present at the clinic during the inspection. Nor were there any patients at the clinic at the time. Approximately 50 small manilla envelopes containing multiple doses of medications were found in a drawer of a desk in the clinic. The envelopes were labeled to the extent that they indicated the name of the drugs they contained, but they did not provide any information regarding the lot number, expiration date or the name of the manufacturer of the drugs. Carmen Penaloza, one of the clinic workers who was present during the inspection, was asked to demonstrate how these packages were prepared. Penaloza proceeded to take an empty manilla envelope like the ones that had been found in the desk drawer and fill it with medication that came from a large container. In performing this demonstration, she did not use gloves and her bare hands came in contact with the medication. Carlos Arias, a licensed pharmacist and one of the HRS employees who participated in the inspection, advised Penaloza that the technique she had employed was unsanitary and recommended that in the future she use a tray and spatula like pharmacists do to perform such a task. The HRS inspection also revealed that medical devices were being stored in a refrigerator that also contained food items. On October 26, 1989, HRS conducted an on-site inspection of the North Miami clinic. Arias was among the various HRS employees who were on the inspection team. Diane Robie, a medical quality assurance investigator with the Department, accompanied the team members on their inspection. Approximately 30 envelopes containing medications were found during the inspection. They were similar to the packages that had been discovered the month before at the Coral Gables clinic. Respondent was at the clinic when the inspection was conducted. Penaloza was also there. No patients were present, however. Respondent was asked to demonstrate how the packages were prepared. Penaloza was nearby at the time the request was made. She saw Respondent nervously looking around and concluded that Respondent was unable to locate any sterile gloves to use. She therefore told Respondent where such gloves could be found. Respondent then donned the gloves, laid a clean piece of paper on top of the desk where she was situated, placed tablets from a large container onto the paper and pushed each tablet with a tongue blade into a small manilla envelope. 7/ The technique that Respondent used during her demonstration, while it may have been unconventional from the perspective of a pharmacist like Arias, nonetheless was antiseptic and therefore acceptable. Sometime during the inspection Respondent made a statement that led Robie to erroneously believe that Respondent was responsible for packaging medications, not just at the North Miami clinic, but at the Coral Gables clinic as well. A finding of probable cause was initially made in this case on May 14, 1990. An Administrative Complaint was thereafter issued and the matter was referred to the Division of Administrative Hearings. The Department received the following letter, dated September 4, 1990, from counsel for Respondent concerning settlement of the case: This will confirm our understanding that you will file a notice of dismissal with DOAH of the case now pending against my client and, providing the dismissal is confirmed as a final dismissal and closing order entered by the probable cause panel, that Ms. Echlov will agree not to seek fees against your agency under the Florida Equal Access to Justice Act. In the event the panel does not approve a final dismissal and instructs you to refile the case, neither party will be prejudiced by the present agreement and each party will retain all rights otherwise available to them, including my client's rights to seek fees should the case be refiled. If this does not reflect our understanding, please notify me at once. Otherwise, please fax me a copy of your notice of dismissal so that I can take the final hearing off my calendar. Thank you for your efforts to resolve this matter amicably. Counsel for Respondent sent to the Department, and the Department received, the following follow-up letter, dated November 6, 1990: You may recall that we reached an agreement in the above-referenced case providing for a voluntary dismissal on your part and promise on mine that my client would not seek attorney's fees under the Equal Access to Justice Act. You had to take the case back before the Probable Cause Panel and ask them to close it. In order that I can close my file and know that this matter is, in fact, concluded, please let me know whether you have taken the case back before the Probable Cause Panel and, if so, the outcome. If there are documents reflecting same, please, please send me a copy. If the case has not been taken back before the Panel, please let me know when this will be done. Thanks. I'll be looking forward to hearing from you. Counsel for Respondent sent to the Department, and the Department received, a third letter, dated January 14, 1991, the body of which read, as follows: It has now been over four months since we reached our "understanding" that DPR would dismiss the case pending before DOAH (which you did) and that my client would forego her right to seek fees under the EAJA, providing (to quote from my September 4, 1990 letter to you) "that the dismissal is confirmed as a final dismissal and a closing order [is] entered by the probable cause panel." The final part of the bargain has never been performed so far as I know (and, if it was performed, the action was illegal since I requested notification of the date when the matter would be presented to the panel so that I might attend or send a court reporter but never received any). I have not, of course, received any final order of dismissal from the probable cause panel. If, within ten days of the date of this letter, I have not received either: an order of closure from the probable cause panel, or the time, date and place when our agreement will be presented to the panel, I will consider that DPR is in breach of the agreement and pursue all remedies available to my client, including attorneys' fees. I look forward to hearing from you at your earliest convenience. The probable cause panel met a second time, at which it determined not to reconsider its initial finding of probable cause. 8/ Neither Respondent nor her attorney were notified of this second meeting of the probable cause panel. Following this meeting, an Amended Administrative Complaint was filed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Nursing enter a final order (1) finding the evidence insufficient to establish that Respondent engaged in "unprofessional conduct," within the meaning of Section 464.018(1)(h), Florida Statutes, as charged in the Second Amended Administrative Complaint, and (2) dismissing said complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of January, 1992. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992.
