The Issue Whether the Respondent violated Section 458.331(1)(m), Florida Statutes, which requires a physician to keep legible medical records on Patient S.W., during the period August 20, 1992, through November 1992. Whether Respondent violated Section 458.331(1)(t), Florida Statutes, which prohibits gross or repeated malpractice or the 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, where Respondent performed surgery that was not necessary and/or failed to diagnose and treat a postoperative infection that resulted in necrosis of the Patient S.W.'s turbinates.
Findings Of Fact Respondent, Robert Peter Filiberto, is and has been, at all times material hereto, a licensed physician in the State of Florida, having been issued license no. ME 0032703. Respondent maintains offices in Palm Bay and Sebastian, Florida. Respondent is board certified in otolaryngology and head/neck surgery. S.W., a 46 year-old adult female, was referred on March 25, 1991, to Respondent with complaints of "chronic bronchitis." Physical examination revealed the following: Mild polypoid changes of both vocal chords, 2+ rhinitis, with 3+ post nasal drainage. Respondent diagnosed the patient as suffering from allergic rhinitis with a post nasal drainage, which precipitated her chronic cough. S.W. returned to Respondent on August 20, 1992, having fallen and suffered a broken nose. Respondent diagnosed a comminuted (multiple) fracture and septal deformity. Respondent recommended surgical correction. On August 26, 1992, S.W. executed a Surgical Contract for a "septorhinoplasty and bilateral turbs" and also executed a Surgical Consent Form as follows: I consent to the performance of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions, which Dr. Filiberto may consider necessary or advisable in the course of the operation. * * * The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, the possible consequences and the possibility of complications have been fully explained to me by Dr. Filiberto or his assistant. These may include infection, loss of function, disability, scar formation, pain, bleeding, and possibility of recurrence. I acknowledge that no guarantee or assurance has been given by anyone as to the results that may be obtained. Dr. Filiberto assured me he would fix my nose and I would be happy. (Final sentence added by S.W.) On or about September 18, 1992, Respondent performed septorhinoplasty (plastic surgery of the nose and septum, the cartilage between the nostrils), with bilateral inferior turbinectomy (removal of the lower moisturizing membranes inside the nose) on S.W. at Humana Hospital - Sebastian. Respondent removed a portion of both inferior turbinates. The right inferior turbinate was manually resected (cut) with superficial electrocauterization used to control bleeding. The left inferior turbinate was fulgurated using an intramural electrocautery technique. The surgery proceeded without complication. Following the operation, the hospital pathology report confirmed Respondent's diagnosis: chronically inflamed hypertrophied nasal turbinates. Respondent's post-operative report indicates he intended to remove only the lower two-thirds of Patient S.W.'s turbinates. Respondent's performance of surgical electocautery is not mentioned in Respondent's medical records until Patient S.W.'s visit on or about November 13, 1992. Between September 21, 1992, through November 20, 1992, Respondent saw Patient S.W. for postoperative follow-up examinations. During her postoperative visits, S.W. complained of pain, a greenish discharge, and a bad smell numerous times. When the symptoms did not cease, Respondent prescribed antibiotics on October 22, 1992, approximately four weeks after surgery. After approximately three weeks on the antibiotics, the pain, discharge, and smell continued. Respondent prescribed more of the same antibiotics. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records described S.W.'s nose as clear. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records indicate no postoperative infection. However, the patient had an infection that was impervious to the antibiotics that Respondent had first prescribed. When that became apparent, Respondent failed to order a culture. Patient S.W. subsequently transferred her case to another physician and underwent extensive treatment by other physicians for tissue necrosis and osteonecrosis (infectious destruction of bone), including removal of necrotic tissue and intravenous antibiotics. Patient S.W.'s subsequent treating physicians discovered that her turbinates were completely missing. S.W. now has severely limited senses of smell and taste. She suffers from chronic pain and sinus headaches. She experiences nightly discharges of thick mucous, and numbness of certain parts of her face. Expert witnesses speculated that the turbinates were missing, either because Respondent had removed them entirely, which is not standard practice and is not reflected in his medical notes, or because he allowed the infection to continue so long that necrosis destroyed whatever portion of the turbinates had not been removed. Respondent's medical records do not justify his course of treatment of Patient S.W. Respondent's medical records inadequately document Patient S.W.'s history and physical condition or amounts and frequencies of antibiotics prescribed. The records also do not justify Respondent's delay in diagnosing Patient S.W.'s developing post-operative infection. The evidence is not clear and convincing that Respondent performed inappropriate nasal surgery on Patient S.W. on September 18, 1992. A reasonably prudent similar physician would not have failed to timely diagnose and treat Patient S.W.'s developing postoperative infection.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine issue a final order that: Finds the Respondent guilty of failure to keep legible medical records that justified the course of treatment for Patient S.W. during the period August 1992 through November 1992, in violation of Section 458.33(1)(m), Florida Statutes. Finds the Respondent not guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the diagnosis and surgery performed on Patient S.W., on September 18, 1992. Finds the Respondent guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the treatment of the Patient S.W. for the postoperative infection that resulted in necrosis of the Patient's turbinates in the period September through November 1992, in violation of Section 458.331(1)(t), Florida Statutes. Finds that Respondent has established mitigation as to Count I, in that his current procedures for the generation of medical records are in compliance with statutory and regulatory requirements. Suspends Respondent's license to practice medicine for a period of three months, followed by a period of probation under such terms and conditions as the Board may require; and imposes an administrative fine of $5,000, plus the costs of prosecuting this complaint. DONE AND ENTERED this 26th day of February, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Charles Ingram, Esquire DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1999. Hannah, Voght, Estes & Ingram, P.A. Post Office Box 4974 Orlando, Florida 32802-4974 John O. Williams, Esquire Maureen L. Holz, Esquire Williams & Holz, P.A. 355 North Monroe Street Tallahassee, Florida 32301 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703
Findings Of Fact At all times relevant hereto Thomas P. Elliott was licensed in Florida as an osteopathic physician having been first licensed in Florida in 1977 and issued Certificate No. 0003751. He graduated from an accredited osteopathic school of medicine in Kirksville, Missouri in 1952 and was duly licensed in Missouri where he practiced for some 23 years before entering the U.S. Air Force medical corps for two years. He was assigned to Tyndall AFB in Panama City, Florida. Upon his release from the USAF and licensure in Florida, he moved to Largo, Florida in 1977 where he set up a general practice as an osteopathic physician. Jack Bianco was first seen by Respondent on 12/19/B3 complaining of constant back pain. Examination and x-rays showed the degeneration of lower spine which could result in some pain. Bianco gave a history of an accident while in the military in 1966 which required extensive surgery and use of a brace for several years. Respondent acknowledged that if a patient said he had pain, he was given the benefit of the doubt. Although Bianco had received treatment at VA facilities those records were never asked for nor obtained by Respondent. Bianco stated he was allergic to Codeine and refused prescriptions for anti-inflammatory drugs. On this initial visit he was treated by manipulation, high frequency pulse and given a prescription for Dilaudid. Bianco remained a patient of Respondent until September 1984. At each visit, which occurred at approximately one week intervals, Bianco was treated with manipulation, high frequency pulse therapy and issued a prescription for Dilaudid. During the nine months Bianco was a patient he was given prescriptions for 374 Dilaudid, 4 mg. Dilaudid is the brand name for Hydromorphone Hydrochlorite. It is the strongest form of morphine available for oral ingestion and is a Class II controlled substance because of its highly addictive attributes. Extended use of Dilaudid (beyond two or three weeks) is generally deemed suitable only for terminally ill patients suffering from a painful malady such as cancer. Respondent recognized that Bianco was coming for treatment principally to get Dilaudid but he nevertheless continued to prescribe Dilaudid and never referred Bianco to a drug treatment facility. In March 1984, Respondent reduced the number of Dilaudid prescribed at one time to 8 but in July 1984 increased the number to 10. Respondent testified he attempted to take Bianco off the Dilaudid and Bianco did not return for treatment after receiving his last prescription from Respondent September 6, 1984. However, as noted below, Bianco's records (and others) were seized by the Sheriff's Office September 11, 1984. Records maintained by Respondent on Bianco fail to record results of the treatment given. On nearly every visit the same treatment was given followed by the prescription for Dilaudid. Although Respondent testified + + + + shown on the patient record showed that response to the treatment was first class, there is no record that Bianco's condition was improving, remaining constant or getting worse, or that any effort was made to change the medication to a less addictive drug. Respondent was never registered to participate in a detoxification program. Without such registration it is illegal for a practitioner to prescribe maintenance drugs to an addict. Between 1979 and 1984, Respondent also treated Stanley Berry, Lawrence Brainard, Cheryl Morelli, Michael Morelli; Donald Murray, Nicholas Spano, Linda Valentine, Paul Broussard, Lee Coryell, Arthur Gray, Sherri Gray, Raine Troupe, Bruce Flood, Debora Bolte, Leon Clifford, Gail Outlaw, William Ellmore, Horace Maybee, William Noble, Irene Morelli and Ernest Pingatore, as alleged in the Administrative Complaint. All of these patients complained of pain, generally back pain, on the first visit. Most reported having been involved in an earlier accident and reinjuring the back recently. The examinations given by Respondent consisted of checking the x-rays if the patient presented one to see if there was any skeletal problem that could cause pain. Otherwise he would palpate the patient to find a potential cause of pain. On these initial visits and throughout the period the patient was treated by Respondent, vital signs (blood pressure, temperature and pulse) were rarely, if ever, taken by Respondent or anyone else at his office. Most of these patients were given manipulation, heat or high pulse frequency treatment and prescriptions for Dilaudid on the first visit. Those who presented records showing they had been given Demerol or Percodan were usually given prescriptions for Demerol or Percodan and a muscle relaxant. Both Demerol and Percodan are Class II controlled substances. These patients' charts, like the chart on Bianco, failed to record what, if any, progress was made as the treatment progressed. Petitioner's expert witnesses, who reviewed the patient records and testified in these proceedings, could not decipher some of the notations made by Respondent on these charts as he used abbreviations, pluses, etc. While it would be very important for a doctor to read the patient record of a patient who had been treated by another physician, there is no specific format or specified abbreviations for maintaining patient records. All of these patients were given prescriptions for Class II drugs with inadequate documentation to justify the use of such drugs in the patient records. They were also given these prescriptions for a much longer time than was indicated for the physical symptoms which could easily lead to addiction, assuming the patient was not already addicted. Many of these patients were referred to Respondent by other patients above named. Those patients with the same surnames were from the same family, generally husband and wife. Respondent testified he gave no significance to the fact that he was prescribing large quantities of Class II drugs to two members of the same family. Frequently drug addicts refer other addicts to a doctor from whom the referrer is able to obtain drugs. Some of these patients were recognized as addicts by Respondent. Nevertheless, he would discuss their dependency with them, continue to prescribe controlled substances for them and never referred any of his patients to a detoxification center. Some of Respondent's patients listed above were given prescriptions for sufficient quantities of Schedule II drugs that they disposed of these drugs on the street. Approximately of those patients above noted were arrested by police for drug related offenses. These practices constitute prescribing controlled substances not in the course of Respondent's professional practice. Donald Murray was a patient of Respondent's from July 1979 through July 1984. During this period he received 198 prescriptions for Dilaudid, 240 prescriptions for Percodan, 16 prescriptions for Tuinol, as well as prescriptions for Tylox and Desoxyn (for narcolepsy). No entry in the patient record justified a diagnosis of narcolepsy for this patient. During the 28-day period between May 18, 1982 and June 28, 1982, Murray was given prescriptions for 72 Dilaudid, 4 mg. and 74, Percodan. In April 1983, Murray was given prescriptions by Respondent for 240 Percodan in less than a 30-day period. Respondent testified Murray needed the drugs to maintain his law practice. Nicholas Spano was a patient of Respondent from July 10, 1980 until September 7, 1984. Between July 19, 1982 and September 7, 1984, Spano received prescriptions for more than 2700 Percodan and prescriptions for 424 Tylox, another Class II drug. At the time these prescriptions were given to Spano, Respondent was aware of a psychiatric report by Dr. Joye dated 3/23/81 that Spano was believed to have a narcotic dependence on Percodan, of Joye's recommendation to discontinue Percodan, and of a report by Dr. Adams dated March 31, 1981 that Spano had been a chronic user of Percodan. In 1982, Detective William Logan in the vice and narcotic squad of the Pinellas County Sheriff's Office contacted Respondent regarding a forged prescription to one of his patients. At that meeting they discussed how not to get involved with drugs. Subsequent thereto Logan received complaints from pharmacies in Largo regarding what appeared to the pharmacist as excess prescriptions for narcotics written by Respondent and an investigation was commenced. On March 6, 1984, Respondent telephoned Logan to say he had read that two of his patients had been arrested, viz. Raine Troupe and Bruce Flood. Respondent acknowledged to Logan that he knew these men were addicts and that he was taking them off slowly. Respondent also admitted having other patients who were questionable. By this time Respondent had become a suspect in the criminal investigation and further telephone calls from Respondent were not returned by Logan. Respondent's office was searched on September 11, 1984, pursuant to a subpoena and patient records of the 23 patients above noted were seized. Respondent was subsequently brought to trial in Circuit Court in and for Pinellas County, entered a plea of nole contendere, and on August 25, 1985, adjudication of guilt of unlawful delivery of controlled substance was withheld, Respondent was placed on probation for three years, ordered to pay certain costs, and prohibited from prescribing Schedule II drugs.
The Issue The central issue in this case is whether the Respondent committed the violations alleged in the administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency charged with the responsibility of regulating the practice of medicine in the State of Florida. Respondent holds an active license to practice medicine, license number ME 0030238 (Physician). Respondent's practice is limited to what he has described as "cosmetic" surgery, but which is considered plastic or reconstructive surgery. Typically, Respondent performs elective surgery for cosmetic purposes to breasts, abdomen, buttocks, face (eyes, lips, cheeks), or hips. In August, 1990, the patient, V.A., presented to the Respondent for a pre-operative consultation and examination. At the time, V.A. was interested in having liposuction, breast enlargement, and an abdominoplasty. Due to her medical history, V.A. was an extremely poor candidate for an abdominoplasty. The pre-operative history and physical examination performed by Respondent as reflected in the records maintained by Respondent for the patient, V.A., were inadequate. No records supporting a complete physical examination and history have been provided. The pre-operative medical records maintained for the patient, V.A., do not support the course of treatment proposed for the procedures to be performed. Respondent did not order a pre-operative lab work-up for the patient, V.A. Such lab order would normally consist of a complete blood count, a urinalysis, electrolytes, blood sugar, blood nitrogen test, and a mammogram or breast examination since the breasts were to be augmented. Respondent relied on lab test results for V.A. which were approximately three months old. Respondent believes that the reliance on tests up to six months old would be acceptable since he only performs surgery on healthy patients. Respondent performed no independent examination of V.A. to verify she was "healthy," prior to surgery. Failing to obtain current lab tests of the types described above before performing elective surgery of the nature sought by V.A. constitutes the practice of medicine below the standard of care, skill, and treatment which a reasonably prudent physician would find acceptable under similar circumstances and conditions. On or about August 30, 1990, Respondent performed the following procedures on V.A.: liposuction; breast enlargement; and an abdominoplasty. In order to perform the procedures noted, Respondent used general anesthesia so that V.A. was under anesthesia for six hours. During that time, Respondent opened V.A.'s abdomen, removed tissue, removed adipose tissue from various parts of the patient's body, injected fat tissue into the patient's breasts, cheeks and hands, and closed the abdominal wound with stitches. The surgical or operative notes maintained by Respondent for the patient, V.A., are inadequate to fully describe the procedures performed. The Respondent was released to go home approximately two hours after the surgery. The postoperative notes maintained by Respondent for the patient, V.A., are inadequate to fully describe how the patient was able to be discharged in so short a time after surgery. V.A. returned to Respondent's office numerous times following the surgery. V.A. sustained an infection and complications from the wound to her abdomen that took months to heal. Respondent treated the infection by scraping the wound and attempting to re-stitch it on at least two occasions. V.A. sustained necrosis which is the death of tissue and which complicated the healing of the abdomen wound. The loss of skin from necrosis is much more likely to occur when the patient has scarring. Given V.A.'s medical history (scarring throughout the areas), the necrosis was almost inevitable. Two procedures are available under the circumstances applicable to V.A.: allowing the wound to heal without stitches or to use a skin graft. The procedure used by Respondent (stitching the infected area) fell below the standard of care, skill, and treatment which a reasonably prudent physician would find acceptable under similar circumstances and conditions. Injecting fat tissue for breast augmentation is inappropriate. Since it is common for the fat tissue to die after injection, the injected tissue then appears on a mammograph as a mass of suspicious origin. That is, it is difficult to differentiate from a breast mass that is a medical problem from that of the dead fat tissue. As a result, biopsies may be required to verify the mass content. In fact, V.A. has already had to have such a procedure following the augmentation performed by Respondent. Respondent also conducted a pre-operative interview with a patient, P.T. P.T. was a radio talk show host at the time and suggested that the station, she and Respondent could all benefit from a campaign wherein she would have liposuction, the Respondent would receive her endorsement through advertising, and the station would have advertising paid for by the Respondent's clinic. In an attempt to negotiate the terms of the advertising campaign, P.T., an advertising executive with the radio station, Respondent's office manager, and Respondent met together to discuss the project. Respondent wanted a multifaceted campaign requiring P.T. to undergo more than just the liposuction she sought. Respondent's scope for the campaign included many of the surgeries his clinic offered. While discussions continued for the advertising campaign terms, P.T. underwent pre-operative testing which included a blood test, medical history forms, and photographs. During an office consultation in anticipation of surgery, Respondent requested that P.T. allow him to examine her. Unlike a previous examination which had occurred without incident with someone in the room, Respondent closed and locked his office door and requested that P.T., who was alone with Respondent, stand near his desk. When she complied, he leaned forward and raised her dress over her breasts. Next he unhooked her bra and pulled it over her breasts. Respondent proceeded to poke and prod P.T. across her breasts and abdomen during which time P.T. presumed it was for medical purposes. P.T. became uncomfortable when the prodding which continued became more like a caress. She attempted to presume Respondent was merely checking the texture of her skin but became increasingly uncomfortable with his touch. P.T.'s discomfort accelerated when she realized Respondent had placed his face in her vaginal area and was licking her. She immediately attempted to pull away. Respondent grabbed her on the breast and, as P.T. put it, "in the crotch." P.T. struggled with Respondent who made several sexually inappropriate comments to her. As P.T. attempted to regain her composure and close her clothes, the Respondent's office manager knocked on the door. On hearing the office manager, Respondent released P.T. and went to unlock the door. At the time of the foregoing incident, P.T. was the Respondent's patient. Respondent did not maintain appropriate medical records for the course of treatment proposed for the patient, P.T. Respondent's course of conduct with the patient, P.T., fell below the standard of care a reasonably prudent physician would pursue for treatment of this patient. Respondent attempted to engage a patient in a sexual activity. P.T. did not consent to the activity described above.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Agency for Health Care Administration, Board of Medicine enter a final order finding the Respondent guilty of violating Sections 458.331(1)(j), (m), and (t), Florida Statutes, and imposing the following penalties in accordance with the guidelines set forth by rule: revocation of the license together with an administrative fine in the amount of $15,000.00. DONE AND ORDERED this 16th day of August, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 16th day of August, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3609 Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 56 are accepted as accurate as to the facts but not necessarily the form for findings of fact. Typically, findings of fact should not recite testimony. Rulings on the proposed findings of fact submitted by the Respondent: 1. None submitted. COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Kenneth J. Metzger Senior Attorney Agency for Health Care Administration/Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Leon Doyan, M.D. 2817 E. Oakland Park Boulevard Fort Lauderdale, Florida 33306
Findings Of Fact 1. The Administrative Law Judge’s findings of fact are hereby approved, adopted, and incorporated herein as amended by the exceptions granted. 2. There is competent, substantial evidence to support the Administrative Law Judge’s findings of fact as amended and adopted by the Board. EXCEPTIONS TO CONCLUSIONS OF LAW 1. Petitioner filed an exception to 453 of the RO wherein the ALJ concluded that Petitioner did not satisfy its burden of proof. The exception to 453 is granted., The record overwhelmingly supports by clear and convincing evidence that ‘ Respondent breached the standard of care. Respondent was responsible for the care and treatment of this patient. Respondent's responsibility to his patient as attending physician and surgeon of record required him to review the patient's records so that this error would not occur under his supervision. 2. Petitioner filed an exception to 455 of the RO wherein the ALJ concluded that the record failed to establish that Respondent breached any applicable standard of care, and that there was no evidence that Lankau committed any errors-or omissions which were connected in any way to the wrong site surgery. The exception to 455 is granted as not being supported by competent substantial evidence. Paragraph 55 is stricken, and is replaced with the following conclusion of law: The record in this case establishes that Lankau breached the standard of care. 10 3. Respondent filed an exception to {55 of the RO and requested that the findings in {55 be considered a finding of fact rather than conclusion of law. The exception is denied.
Other Judicial Opinions Pursuant to Section 120.569, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the clerk of the Department of Health and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within 30 days of the date this Final Order is filed. 12 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to CHARLES A. LANKAU, MD, c/o W. Sam Holland, Esquire, 200 S. Biscayne Bivd., Suite 800, Miami FL 33131, and Florence Synder Rivas, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee FL 32399-1550 and and by inter-office mail to Nancy Snurkowski, Chief-Practitioner Regulation, Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee FL 32308-5403 and Lisa Pease, Senior Attorney-Appeals, Agency for Health Care Administration, 2727 Mahan Drive, Ft. Knox #3, Tallahassee FL 32308, this tiff, day of _(\41- A__) 2002. F:\USERS\ADMIN\LEE\MEDICINE\ORDERS\LANKAU2.02.wpd 13
The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue This is a license discipline case in which the Petitioner seeks to have disciplinary action taken against the Respondent on the basis of allegations that the Respondent has violated subparagraphs (m) and (t) of Section 458.331(1), Florida Statutes, by failing to keep written medical records justifying the course of treatment, and by failing to practice medicine with the appropriate level of care, skill, and treatment.
Findings Of Fact The Respondent, David Zufi, M.D., is and has been at all times material to this proceeding a licensed physician in the State of Florida, having been issued license number ME 0014856. The Respondent's last known address is 641 Reinaute Avenue, Coral Gables, Florida 33156-2345. The Respondent was and is a Board Certified plastic surgeon certified by the American Board of Plastic and Reconstructive Surgery since 1976. At all times material to this case, Dr. Ricardo Samitier-Cardet 1/ was the primary care physician or the attending physician for the Patient C.R. The Patient C.R. had sought out Dr. Samitier for the purpose of having several cosmetic surgical procedures performed; procedures which for a patient with a normal health history would have been minor cosmetic procedures. At all times material to this case, Dr. Samitier was a licensed practicing physician in the State of Florida. Dr. Samitier has never been Board Certified in any area of medicine. Dr. Samitier self-designated himself as a "cosmetic surgeon." At all times material to this case, the Respondent was unaware of any pending charges against Dr. Samitier. 2/ Prior to Friday, May 1, 1992, the Respondent was acquainted only marginally with Dr. Samitier. For a period of six months the Respondent had in the past rented office space one day a week to Dr. Samitier for consultation purposes. The Respondent had also spoken to Dr. Samitier a few times at meetings of the Coral Gables Hospital staff. The Respondent and Dr. Samitier had never shared any type of professional relationship with regard to the medical care of any patient. There were no referrals of patients between the two doctors, nor had the Respondent ever acted as a consultant in any capacity for Dr. Samitier prior to Friday, May 1, 1992. The Respondent had never visited Dr. Samitier's office prior to Friday, May 1, 1992. Dr. Samitier's medical records for the Patient C.R. include the following historical details. The patient had had an aortic valve replacement approximately twenty years earlier and had no history of angina. The patient was taking Coumadin, 5 mg. daily. The patient had no history of bleeding or hematomas and had normal erections. On Friday, May 1, 1992, at approximately 9:00 p.m., Patient C.R. underwent a Suction Assisted Lipectomy to the face, neck, and trunk, plus Circumferential Autologous Penile Engorgement (CAPE), which was performed by Dr. Samitier at Dr. Samitier's office. At the time of the foregoing surgical procedure Patient C.R. was a 47-year-old male who had previously undergone two open heart procedures, had a permanent pacemaker inserted, had a prosthetic aortic valve, and had been on Coumadin therapy for approximately twenty years. 3/ Coumadin is an anticoagulant drug which is taken to prolong a patient's blood clotting time. A patient maintained on long-term Coumadin therapy is at increased risk for clotting when the Coumadin is discontinued. The Patient C.R.'s long-term Coumadin anticoagulation therapy was made necessary by the fact that he had a prosthetic aortic valve. Before performing surgery on a patient with a history of cardiac problems such as those presented by the Patient C.R., a surgeon should obtain a cardiac clearance by means of consultation with a cardiologist. Dr. Samitier did not obtain a cardiology consultation prior to the surgery on the Patient C.R. 4/ A Prothrombin Time Test is a test which is utilized to evaluate a patient's blood clotting time. A Prothrombin Time Test should have been performed on the Patient C.R. immediately before the surgery on May 1, 1992. The test was not performed at that time. 5/ A Prothrombin Time Test was performed on the Patient C.R. about two weeks prior to the surgery. The Patient C.R. was a high risk patient who should never have been considered a candidate for elective surgery due to his history of cardiac problems, his prosthetic aortic valve, and his long-term Coumadin therapy. 6/ The two primary risks for a patient like Patient C.R. are that if his coagulation rate is substantially slower than normal the patient is at risk of uncontrollable bleeding at the surgery sites and if his coagulation rate becomes normal or slower than normal he is at risk of clot formation on his prosthetic aortic valve. Either condition can produce serious consequences, even fatality. On Friday, May 1, 1992, at approximately 11:30 p.m., which was approximately two hours after completion of the surgical procedure, the Patient C.R. began bleeding from his right cheek. It was a slow venous oozing bleed. The patient was taken back to the operating room where Dr. Samitier attempted without success to stop the bleeding with digital pressure. At approximately 2:30 a.m. on Saturday, May 2, 1992, by which time the bleeding from the patient's right cheek had persisted for approximately three hours, Dr. Samitier placed an emergency telephone call to the Respondent to request assistance in controlling the bleeding from a right buccal stab incision. The Respondent discussed the matter briefly with Dr. Samitier and told Dr. Samitier to try to control it with pressure. A few minutes later the Respondent became concerned that Dr. Samitier might need more assistance and called him back. During the second telephone call Dr. Samitier made it clear that he would feel more comfortable if the Respondent came to his office. The Respondent went to Dr. Samitier's office, arriving at approximately 3:00 a.m. on Saturday, May 2, 1992. Upon arrival, the Respondent discussed the situation with Dr. Samitier, obtained patient history information from Dr. Samitier, examined the patient, and promptly applied digital pressure with an adrenaline pad. The Respondent and Dr. Samitier alternated in the application of digital pressure and the bleeding stopped in approximately twenty minutes. There is no evidence that the patient was bleeding from any of the other surgical sites. While the Respondent was at Dr. Samitier's office, the Respondent did not review Dr. Samitier's medical chart on the Patient C.R. because he did not feel it was necessary to do so. During the entire time that the Respondent was examining, evaluating, and treating the Patient C.R., Dr. Samitier was right beside the Respondent providing the Respondent with information and answering the Respondent's questions about the patient. Under these circumstances, especially in view of the Respondent's limited role in the care of the patient, it was reasonable for the Respondent to rely on the oral information provided by Dr. Samitier and it was not necessary for the Respondent to review the written chart. 7/ Dr. Samitier advised the Respondent that the Patient C.R. had been on maintenance Coumadin and that the Coumadin had been discontinued three days prior to the surgery. Dr. Samitier also advised the Respondent that no pre- operative Prothrombin Time Test had been performed immediately prior to the surgery, and that the Patient C.R. had a pacemaker. At the time the Respondent was applying pressure to stop the oozing bleed, the Respondent was unable to communicate with the Patient C.R. because the patient was sedated with Nubain, a synthetic pain killer. Dr. Samitier explained to the Respondent that he had used Nubain during the surgical procedure and had also administered Nubain post-operatively when the patient had complained of pain during the course of Dr. Samitier's efforts to control the cheek bleeding prior to calling the Respondent. The Respondent's examination of the Patient C.R. included an examination of all of the surgical wounds inflicted during the procedures performed by Dr. Samitier, which included the cheeks, the portion of the neck immediately under the chin, and the lower abdominal area. No significant bruising or swelling was noted and no bleeding was detected at any of the incision sites other than the right buccal site which had occasioned Dr. Samitier's call to the Respondent. The Respondent looked for hematomas and ecchymosis and discoloration. There was no evidence that the patient had any generalized bleeding or hematoma at the time the Respondent was examining or treating him. During the entire time the Respondent was at Dr. Samitier's office in the early morning hours of Saturday, May 2, 1992, the Patient C.R. was connected to various monitors, all of which gave readings within normal ranges. The patient's blood pressure and pulse rate were both checked and found to be within normal ranges. While the Respondent was at Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent discussed with Dr. Samitier the fact that the most prudent course of treatment for the Patient C.R. would be to hospitalize the patient. Dr. Samitier agreed that hospitalization would be the most prudent course, but then told the Respondent that he could not hospitalize the patient because the patient had told Dr. Samitier that he would not, under any circumstances, agree to be admitted to a hospital. Dr. Samitier also told the Respondent that the patient had said he did not want the nature of his operation to be disclosed to his wife or family members. During this discussion Dr. Samitier also disclosed to the Respondent that Dr. Samitier did not have admitting privileges at any hospital. In view of Dr. Samitier's reluctance to hospitalize the patient at that time, the Respondent told Dr. Samitier that Dr. Samitier should continue to monitor the patient and observe him clinically and if the vital signs or clinical observations demonstrated any deterioration of the patient's condition, or if the patient changed his mind about hospitalization, Dr. Samitier should call the Respondent and the Respondent would arrange to have the patient admitted into Coral Gables Hospital where the Respondent had admitting privileges. The Respondent also discussed with Dr. Samitier the need for a consultation with a cardiologist or hematologist in the event the patient were to be hospitalized. The Respondent emphasized the need for such a consultation before any action was taken to modify the patient's coagulation status. The Respondent's suggestions to Dr. Samitier regarding the future care and management of the Patient C.R. were appropriate under the circumstances. During the visit to Dr. Samitier's office during the early morning hours of Saturday, May 2, 1992, the Respondent did not recommend to Dr. Samitier that he have a Prothrombin Time Test performed on the Patient C.R. Although such a test might have been useful in the management of the patient's condition if the patient had been hospitalized, it is doubtful that the test would have served any useful purpose while the patient remained at Dr. Samitier's office. Under the circumstances, the failure to recommend a Prothrombin Time Test was not a departure from acceptable standards of medical practice. After the bleeding stopped, the Respondent remained at Dr. Samitier's office for at least two hours waiting to see if there was any recurrence of the bleeding. During that time period the Respondent examined the Patient C.R. several times to monitor his status and check for any bleeding. There was no recurrence of the bleeding from the patient's right cheek, nor was there any visible bleeding from any of the other surgical wounds. Sometime between 5:00 a.m. and 6:00 a.m. on Saturday, May 2, 1992, the Respondent left Dr. Samitier's office and returned to the Respondent's home. Dr. Samitier remained at his office to monitor and otherwise care for the Patient C.R. Dr. Samitier never contacted the Respondent to request that the Respondent arrange for the hospitalization of the Patient C.R. At approximately noon on Saturday, May 2, 1992, the Respondent was driving in his car a few blocks from Dr. Samitier's office. Because he was near Dr. Samitier's office, the Respondent decided to stop by Dr. Samitier's office to see how the patient was doing instead of making a telephone call later. The Respondent arrived at Dr. Samitier's office unannounced and inquired as to the status of Patient C.R. Dr. Samitier told the Respondent that the patient was doing fine, that his vital signs remained stable, that he was up and about, that he had taken oral sustenance, and that he had passed urine. Dr. Samitier also told the Respondent that the Respondent did not need to see the patient. After the foregoing discussion, Dr. Samitier invited the Respondent to observe a penile engorgement procedure Dr. Samitier was getting ready to perform on another patient. While walking with Dr. Samitier to the operating room, the Respondent had a brief glimpse of the Patient C.R. sitting up in bed in a small room. The Respondent continued on with Dr. Samitier and watched Dr. Samitier perform a penile engorgement procedure on another patient. After watching that procedure, the Respondent left Dr. Samitier's office. During the noon visit to Dr. Samitier's office on Saturday, May 2, 1992, the Respondent did not examine or treat the Patient C.R. On Sunday morning, May 3, 1992, at approximately 1:10 a.m., the Respondent received a telephone call from Dr. Samitier's office advising him that the Patient C.R. had gone into cardiac arrest. The Respondent went to Dr. Samitier's office. When the Respondent arrived at Dr. Samitier's office, the Patient C.R. was already being treated by emergency medical technicians. The emergency medical technicians told the Respondent that his services or assistance in the care of the patient were not needed and that they were going to transport the patient to Mercy Hospital. The emergency medical technicians took the Patient C.R. to Mercy Hospital where he was pronounced dead in the Emergency Room. The Respondent did not examine or treat the Patient C.R. during the early morning hours of Sunday, May 3, 1992. Later that same day an autopsy was performed on the body of the Patient C.R. The Respondent and Dr. Samitier attended the autopsy. The medical examiner did not come to any conclusion as to the cause of the patient's death. The Respondent did not document any of his contact with the patient C.R. in Dr. Samitier's office chart because the Respondent did not think it was necessary for him to do so. The Respondent thought it was sufficient for him to make his own record of what he did in the form of a consultation report. In the normal course of events he would have written such a report the following Monday when he got to his office, which seems to be a common practice of physicians who perform consultation services away from their own offices on weekends. There is no clear and convincing evidence that under the circumstances of this case the Respondent was required to write anything in Dr. Samitier's medical records concerning the Patient C.R. There is no established practice in this regard because it is very rare for a physician to perform consultation services in the office of another physician. Further, although consultation reports are virtually always prepared following formal consultations, when a consulting physician is called in for a very limited purpose, performs his services in the presence of the primary care physician or the attending physician, and orally advises the primary care physician or the attending physician what he has discovered or done, the consulting physician often does not prepare any written report at all, but leaves it to the primary care physician or the attending physician to memorialize what was discovered or done in the patient's chart. During the late afternoon or early evening of May 3, 1994, after the autopsy of the Patient C.R., the Respondent wrote a historical recapitulation of his involvement with the care and treatment of the Patient C.R. The record prepared by the Respondent on May 3, 1992, documents the Respondent's involvement in the care and treatment of the Patient C.R. The record demonstrates the Respondent's observations, recommendations, treatment, and the reasons why the Respondent did not get involved in all aspects of the patient's care. The record prepared by the Respondent on Sunday, May 3, 1992, was sufficiently timely to comply with applicable standards of medical care and record-keeping. The information contained in that record was sufficient to comply with applicable standards of medical care and record-keeping. The Respondent was called by Dr. Samitier for the limited function of stopping an oozing venous bleeding from an incision wound in the right cheek of the Patient C.R. The Respondent's consultation in this regard was of an informal nature and was limited in scope. His treatment of stopping the bleeding with direct pressure with an adrenalin pad was an appropriate course of treatment for the condition he was called to resolve. The Respondent was not at any time the primary care physician or attending physician for the Patient C.R.; that responsibility was at all material times the responsibility of Dr. Samitier. By assisting Dr. Samitier to stop the bleeding from one incision wound, the Respondent did not undertake, nor did he become responsible for, the overall care and management of the patient. Inasmuch as the nature of the consultation the Respondent was asked to perform was limited in scope, the Respondent's examination of the Patient C.R. was sufficient. Under the circumstances of this case it was not necessary for the Respondent to perform a comprehensive physical examination. The Respondent's authorized role in the care of the Patient C.R. was complete when he departed between 5:00 and 6:00 a.m. on the morning of Saturday, May 2, 1992. He had performed all he had been authorized to perform and, although he had offered to do more (such as arrange for the patient to be hospitalized), his offer of further assistance was rejected by Dr. Samitier. When the Respondent paid his courtesy visit to Dr. Samitier's office at about noon on Saturday, May 2, 1992, the Respondent did not have permission or authority from anyone to examine or treat the Patient C.R. At that time Dr. Samitier expressly told the Respondent that the Respondent did not need to see the patient. Under those circumstances, the Respondent had neither authority nor obligation to examine the Patient C.R. at the time of his noon visit on Saturday, May 2, 1992.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine enter a Final Order in this case dismissing all charges against the Respondent. DONE AND ENTERED this 9th day of January, 1995, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 9th day of January, 1995.
The Issue The issues in this case are whether Respondent violated section 458.331(1)(m), Florida Statutes, by failing to keep legible medical records that justify the course of treatment of a patient, as set forth in the Second Amended Administrative Complaint, and, if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating the practice of medicine pursuant to section 20.43, chapter 456, and chapter 458, Florida Statutes (2015). The Board of Medicine is charged with final agency action with respect to physicians licensed pursuant to chapter 458. Dr. Velilla is a licensed physician in the state of Florida, having been issued license number ME 98818. Dr. Velilla's address of record is 12709 Miramar Parkway Miramar, Florida 33027. Dr. Velilla has been a medical director at Evolution MD since the summer of 2010. Dr. Velilla was licensed to practice medicine in the state of Florida during all times relevant to Petitioner's Second Amended Administrative Complaint. Dr. Velilla is Board-certified in internal medicine by the American Board of Internal Medicine. On or about December 29, 2010, Patient C.A. consulted with Dr. Velilla regarding possible abdominal liposuction and fat transfer to the gluteal area. These are cosmetic surgery procedures, undertaken with the object of enhancing the patient's appearance, and are purely elective. On or about February 10, 2011, Dr. Velilla performed an evaluation of Patient C.A. and ordered routine pre-operative laboratory studies. The laboratory report prepared by First Quality Laboratory indicated readings within normal limits for blood urea nitrogen (BUN) at 19.8 and creatinine serum at .7, but an abnormally high BUN/creatinine ratio reading of 30.43. It showed an abnormally high globulin reading at 3.40, an abnormally low INR reading of .79, an abnormally low MCH reading of 25.2, and an abnormally low MCHC reading of 30.7. On or about February 15, 2011, Dr. Velilla reviewed Patient C.A.'s pre-operative laboratory report results. He placed a checkmark next to the high BUN/creatinine reading and the low INR reading. He wrote "Rev." with the date and signed his name on each page. Dr. Velilla testified that he performed a glomerular filtration rate test, a calculation used to check on the functioning of the kidneys, and the result indicated normal renal function. He testified that a BUN/creatinine ratio outside of the normal range could be caused by several factors, and that after his assessment, the reading was not of concern to him in proceeding to surgery. Dr. Velilla did not make any notation on Patient C.A.'s medical records to indicate how or why he concluded that the abnormal BUN/creatinine ratio reading was not of concern. On February 24, 2011, Patient C.A. filled out a "General Consent" form. Patient C.A. agreed to disclose her medical history, authorized the release of medical records for certain purposes, agreed to use skin care products as directed, and acknowledged possible side effects from the use of skin care products. The form also stated, "I understand that Cesar Velilla, M.D. P.A. services generally consist of a series of treatment [sic] to achieve maximum benefit, and this consent shall apply to all services rendered to me by Cesar Velilla, M.D., P.A., including ongoing or intermittent treatments." On February 24, 2011, Patient C.A. filled out a "Medical History" form. Patient C.A. indicated she was not under the care of a dermatologist, did not have a history of erythema ab igne, was not on any mood-altering or anti-depression medication, had never used Accutane, had never had laser hair removal, had no recent tanning or sun exposure, had no thick or raised scars from cuts or burns, and had never had local anesthesia with lidocaine. The form did not ask for information about any prior abdominal procedures, previous liposuction treatments, multiple pregnancies, or abdominal hernias. On February 24, 2011, Patient C.A. signed a "Consent for Laser-Assisted Lipolysis Procedure SLIM LIPOSCULPT." The form did not include consent for fat transfer to the gluteal area or describe risks or possible complications of that procedure. Patient C.A. also signed a "Consent for Local Aneshesia [sic]" form. As Dr. Obi testified, the risks from a fat transfer procedure are generally the same as those of the liposuction procedure; although with a fat transfer, you have additional potential for fat embolism. On or about February 24, 2011, Dr. Velilla performed liposuction of the abdomen and thighs with fat transfer to the gluteal area on Patient C.A. at Evolution MD. Patient C.A.'s liposuction was not the "Slim Liposculpt" laser-assisted procedure. The testimony was clear that the "Slim Liposculpt" procedure would use a laser to melt the fat before liposuction, which could not be done on Patient C.A. because the fat was to be transferred. There was testimony that a laser could be used to improve skin retraction, however. As Dr. Velilla testified, Patient C.A. had requested the fat transfer in addition to the liposuction prior to the procedure. Dr. Velilla discussed the risks of both the liposuction and the fat transfer with Patient C.A., and she consented to have the procedure done. As Dr. Velilla testified, this consent was later documented on the operative report prepared sometime after the surgery and dated February 24, 2011, the date of the surgery. Dr. Velilla's testimony was supplemented by the operative report, which stated in pertinent part: The patient requested liposuction with fat transfer and understood and accepted risks including but not exclusive to bleeding, infection, anesthesia, scarring, pain, waves, bumps, ripples, contour deformities, numbness, skin staining, fluid collections, non- retraction of the skin, deep venous thrombosis, fat embolism, pulmonary embolism, death, necrotizing fasciitis, damage to surrounding structures, need for revision surgery, poor aesthetic result and other unexpected occurrences. No guarantees were given or implied and the patient had no further questions prior to the procedure. Other options including not having surgery were discussed and dismissed by the patient. The operative report adequately documented Patient C.A.'s earlier oral informed consent for liposuction with fat transfer. Patient C.A. did not execute a written informed consent for the fat transfer prior to the procedure. Dr. Velilla also noted in the operative report that the "patient physical examination and pre-operative blood work were within normal limits." Neither the operative report nor any other documentation indicated whether a complete physical examination or a focused physical examination was given, or what that examination consisted of. Patient C.A. was scheduled for a second liposuction procedure on her arms on February 26, 2011. It was decided to defer the procedure on her arms to this later date in order to keep the amount of lidocaine at a safe level during the initial procedure. On or about February 26, 2011, Patient C.A. presented to Evolution MD with complaints of nausea and mild pain. Dr. Velilla was not at the Evolution MD office. Mild pain is to be expected on the second day after a fat transfer procedure, and nausea can be anticipated in some patients who are taking opiods, as had been prescribed for Patient C.A. There was insufficient competent evidence in the record to support a finding that Patient C.A.'s symptoms were unusual or that Dr. Velilla was ever informed of more serious symptoms in Patient C.A. that day. Dr. Velilla spoke by telephone with an Evolution MD staff member about Patient C.A.'s symptoms and instructed the staff member to ask Patient C.A. to wait for his arrival at the office. A "Progress Note" signed on February 26, 2011, by Ms. Amanda Santiago, of Dr. Velilla's office, indicated that Patient C.A. said the pain and nausea were "due to the Vicodin." The note indicates that Dr. Velilla was called, that he stated he might stop the Vicodin and start Patient C.A. on Advil or Tylenol for pain, and that he asked that Patient C.A. be prepared for surgery. The note does not indicate that Dr. Velilla directed that Patient C.A.'s vital signs be taken, or that they were taken. The note states that Patient C.A. decided not to have the procedure on her arms done and that Dr. Velilla was again called. The note indicates that he asked the staff to take pictures of Patient C.A. and ask her to wait for him to arrive. Dr. Velilla did not order Evolution MD staff to take Patient C.A.'s vital signs. Her vital signs were not recorded by Evolution MD staff on February 26, 2011. Contrary to Dr. Velilla's request, Patient C.A. left Evolution MD on February 26, 2011, prior to Dr. Velilla's arrival at the office, and Evolution MD staff were unable to contact her. On or about February 27, 2011, Patient C.A. presented to Coral Springs Medical Center where she was admitted with a diagnosis of severe dehydration, intravascular volume depletion, diarrhea, nausea, and vomiting. Subsequently, Patient C.A. was admitted to the intensive care unit. Patient C.A. remained hospitalized until March 31, 2011. Standards and Ultimate Facts Dr. Obi is a surgeon specializing in plastic surgery. He does not conduct laser-assisted liposuction, but performs what is known as "wet" or "super wet" liposuction, as was performed by Dr. Velilla in this case. He has been a Diplomate of the American Board of Plastic Surgery since 1982. Dr. Obi reviewed Patient C.A.'s medical records from Evolution MD, other related records, and the Second Amended Administrative Complaint. Taken as a whole, Dr. Obi's testimony with respect to the medical history documented for Patient C.A. was not clear and convincing. He testified that Patient C.A. was undergoing a significant operative procedure and that it involved multiple anatomic areas. He also noted that the history did not include information as to whether Patient C.A. had prior abdominal surgical procedures, earlier liposuction, multiple pregnancies, or abdominal hernias. He testified that this information could indicate increased risks of injury and that this relevant history must be documented. Dr. Obi stated that in his opinion the patient history did not meet the minimum standards of the medical records rule. On the other hand, Dr. Obi seemed to have only a partial understanding of what the medical records rule required, and he had no opinion on whether the patient history justified the course of treatment of Patient C.A.--the actual statutory standard that Dr. Velilla was charged with violating in the Second Amended Administrative Complaint: Q. What does the rule say? A: What does the rule say? The medical record rule I believe requires – I can't tell you verbatim what it says. It requires adequate documentation so that in the event that the care of a patient has to be transferred to another healthcare professional the documentation is adequate that the patient, that the professional could immediately step in and take over. Q: Okay. You believe that's part of either the statute or the rule enacted by the Board of Medicine? A: If the Board of Medicine is the group responsible for the medical record rule, then I would say yes. Q: Okay. Have you reviewed what has been alleged in the amended administrative complaint, or second amended administrative complaint, as to the statutory provision for medical record adequacy? A: The statutory, I'm not sure that I have. * * * Q: And do you believe that the records fail to justify the course of treatment of the patient with those history findings? A: That's not what I said. I didn't say it failed to justify. What I said is it wasn't complete. Q: Okay, do you have an opinion as to whether the records fail to justify the course of treatment of the patient? A: No. Q: You don't have an opinion. Okay, thank you. In contrast, Dr. Soler testified that in his opinion the patient history that was documented as part of Patient C.A.'s medical records did justify her course of treatment. With respect to the physical examination, Dr. Obi noted that there was only a single line in the operative record stating that the physical examination was within normal limits. He noted that the documentation did not indicate what had been examined and did not record any specific findings or results of any examination that was conducted. However, he never offered an opinion that the record of the physical examination failed to justify the course of treatment of Patient C.A. Dr. Soler testified that in his opinion, the record of the physical examination did justify the course of treatment of the patient. Petitioner did not show by clear and convincing evidence that the documentation of Patient C.A.'s medical history and physical examination failed to justify her course of treatment. Dr. Obi testified that the medical records should have contained more evaluation or explanation of the abnormal laboratory report results: Q: And so was the check mark, when coupled with that note in the pre op, or in the operative report, sufficient documentation of Dr. Velilla's evaluation of the of the patient's pre-operative lab results? A: In my opinion, no. Q: And what do you base that on? A: If you have an abnormal result, I think it is incumbent on you – it – depending on what the abnormality is, and depending on what your interpretation of that abnormality is, it's incumbent to explain it. Sometimes you need to repeat the tests. Sometimes it may be perfectly within normal limits, but on the laboratory sheet, if it says that it's high, or out of the range of normal, I think other than just check mark, I think you just acknowledge what your thoughts are. Q: And do you remember if there was anything abnormal in Patient C.A.'s pre-operative laboratory results? A: There was one area that I commented on. That was the BUN-creatinine ratio. Q: And what is the BUN-creatinine ratio? A: It's just a ratio of some parameters dealing with kidney function. Q: Okay, and what does that lab result tell you about a patient, if anything? A: Well, you know, it can call your attention to the area, I mean, it can tell you, you know, that the patient has some renal issues. It can tell you that the patient is, you know, potentially dehydrated, it can tell you that the patient, you know, is within normal. But if the values are – if one value is high and the other one is low, it may give you a, a high reading. And that's understandable, but all you need to do is document that. It was Dr. Obi's opinion that the medical records failed to contain a sufficient evaluation or explanation of the abnormal BUN/creatinine ratio laboratory result. He acknowledged that the abnormal result was not necessarily indicative of a renal problem. However, Dr. Obi also testified: Q: Okay. Do you have an opinion as to whether those records are adequate to justify the course of treatment of the patient? A: The failure to document the thought process on this ratio would, in and of itself, not prevent or preclude the operative procedure from being done, if that's your question. At best, Dr. Obi's testimony was thus ambiguous as to whether or not failure to include an explanation of the abnormal laboratory result failed to justify the course of treatment of Patient C.A. Dr. Soler testified that no other documentation or chart entry was required to address the lab report value in order to justify proceeding with the surgery. Dr. Sandler testified that the BUN/creatinine ratio was a renal-related test, but does not itself indicate kidney malfunction. Dr. Sandler also testified that in his opinion, no other documentation was needed prior to proceeding with the surgical procedure. The Department did not clearly and convincingly show that the documentation in the medical records relating to abnormal laboratory results failed to justify the course of treatment of Patient C.A. Dr. Obi testified that Dr. Velilla had a duty to order the taking of Patient C.A.'s vital signs since he was not yet in the office when she returned on February 26, 2011, the date the second liposuction had been scheduled. He testified that if the medical records rule "requires doing what's appropriate at each visit," then Patient C.A.'s records did not meet the requirements of that rule. He testified that if Patient C.A. was an "outlier" in that her symptoms were uncommon, the standard of care required that Patient C.A.'s vital signs be taken. Dr. Obi admitted that there was no documentation in the medical records to suggest that Dr. Velilla had ordered the staff at Evolution MD to take Patient C.A.'s vital signs, but he testified that the order should have been given and that it should have been documented. Dr. Obi testified that there was no written documentation of an informed consent for the fat transfer and that the consent for the "Slim Liposculpt" procedure was consent for a procedure that was not done. Again, Dr. Obi seemed unfamiliar with the specific requirements of the medical records rule: Q: And is, is the –is a written documentation of the fat transfer required by the medical record rule in this case? A: In terms of the actual requirement, it would be my opinion that it should be required. Now, I can't say if it says that for every procedure, every surgical procedure, every invasive procedure, that a written consent must be documented; because obviously, you now, the patient consented. It's implied that the patient consented because she showed up for the procedure. Dr. Obi testified that he was aware that the operative report contained statements that Patient C.A. had been informed of the risks of the fat transfer procedure and that she had specifically consented. He admitted he was unsure as to "which board, or organization, or outfit" requires a written informed consent. Aggravating and Mitigating Factors No evidence was introduced to show that Dr. Velilla has had any prior discipline imposed. There was no evidence that Dr. Velilla was under any legal restraints in February 2011. It was not shown that Dr. Velilla received any special pecuniary benefit or self-gain from his actions in February 2011. It was not shown that the actions of Dr. Velilla in this case involved any trade or sale of controlled substances. On May 17, 2014, Dr. Velilla received a certificate showing completion of an FMA educational activity conducted in Jacksonville, Florida, entitled "Quality Medical Record Keeping for Health Care Professionals."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the Second Amended Administrative Complaint against the professional license of Dr. Cesar Augusto Velilla. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 8th day of June, 2016.
The Issue The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application. Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
Findings Of Fact Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application]. Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986]. Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5]. At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5]. The order from the Council, dated January 5, 1987, states the following as grounds for denial: The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and (f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code. At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14]. In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52]. In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22]. In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25]. On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32]. His responses continued to be evasive and vague, as characterized by the following exchange: Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services? A Yes. Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records? MR. SIWICA: I'd like a continuing objection to the relevancy. THE HEARING OFFICER: Noted for the record but you may answer the question. THE WITNESS: I have a choice to answer yes or no? THE HEARING OFFICER: You'll be allowed to explain the answer but go ahead and answer the question. THE WITNESS: could you repeat it again, please? BY MS. LANNON: Q Isn't it true that in August of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records? A I don't recall. Q Weren't you in fact suspended for two days in August of that year? A What year was that, please? Q 1983. A I can't recall. Q Were you ever suspended from your job at Florida Hospital? A I took sick days. Q Were you ever suspended from your job at Florida Hospital? MR. SIWICA: I think he's answered that. THE HEARING OFFICER: Wait. No, he hasn't. MR. SIWICA: I'm sorry. THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was. BY MS. LANNON: Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question. A I don't know if it was suspended. I was asked to stay home from my shift and I don't known how many -- it was maybe one day, I think. Q Maybe one day. You don't recall? A No. Q Were you paid for that day? A I don't remember that either. [Tr. 35-37]. His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.] Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified. Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81]. Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62]. Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101] Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108]. Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983. He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement. Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida. MARY CLARK 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 17th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner 1. Adopted in paragraph #12. 2-3. Rejected as immaterial. 4. Incorporated in the finding in paragraph #10. 5-6. Incorporated in the findings in paragraphs #9 and #10. Adopted in paragraph #5. Adopted in paragraph #9. Rejected as immaterial. Adopted in substance in paragraph #6. Adopted in paragraph #1. Adopted in paragraph #7. Respondent 1-2. Adopted in substance in paragraph #1. Adopted in paragraphs #3 and #4. Adopted in paragraphs #2 and #4. Adopted in substance in paragraph #10. Rejected as unsupported by competent evidence. 7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial. Adopted in paragraph #7. Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4. Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred. COPIES FURNISHED: Richard P. Siwica, Esquire EGAN, LEV & SIWICA 918 Lucerne Terrace Orlando, Florida 32806 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Dong Hack Koo, M.D., is a licensed physician in the State of Florida, having been issued license number ME 0027494. Koo was so licensed at all times material to the Amended Administrative Complaint. At all times material to this cause, Koo maintained an office at 121 East 8th Street, Jacksonville, Florida, 32206. On July 10, 1985, Diane Rabideau, an Investigator for the Department of Professional Regulation, inspected Koo's offices and found them to be unclean, with evidence of roach eggs present under a sink. Rabideau also found a rectal speculum and two vaginal speculums lying on a sink. Koo told Rabideau that the rectal speculum and the two vaginal speculums had been used. No evidence was presented to indicate how long the speculums had been on the sink. If such instruments are not cleaned quickly and properly following use, there is a high chance of spreading infection to the next patient to use the instrument. Such instruments should be placed in a cleansing solution and scrubbed, then wrapped and sterilized. It is the community practice to clean such instruments as soon as possible after use. According to Dr. Rosin, any physician who performs abortions in an unclean office with instruments lying around that have not been properly cleaned, has practiced below the community standard of care. However, no evidence was presented to show that Koo performed abortions under such circumstances. Koo does perform first trimester abortions in his office. It was not disputed that abortions are a medical and surgical procedure which can be dangerous. Emergency situations can arise during abortions and these emergencies require the presence of emergency equipment such as suction and the ability to start an intravenous medication. Koo does maintain suction equipment and intravenous solutions in his office. However, when possible he immediately transfers emergency patients to another facility. Koo does perform abortions in his office without the presence of an assistant to aid in emergency situations. According to Dr. Rosin, the standard of care in the community requires that an assistant be present during an abortion to assist the physician should an emergency situation arise. Additionally, according to Dr. Rosin, a physician who performs abortions without emergency equipment or without an assistant has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. When Rabideau visited Koo's office on July 10, 1985, she obtained a sampling of drugs kept by Koo for dispensing to patients. The sampling revealed that a majority of the drugs had expired. However, no evidence was presented that this is a violation of Florida Statutes. Rabideau also found that Koo maintained a number of Schedule III, IV, and V, controlled substances in his office which he dispensed to patients. In dispensing these controlled substances, Koo used the instructions for use which are printed on the packaging. He also, at times, taped a small piece of paper to the packaging with his telephone number and the name of the patient. Koo did not completely label these controlled substances, which he dispensed, with his name and address, the date of delivery, directions for use, the name of the patient, and a warning concerning the transfer of the substance. Koo maintains no inventory of the scheduled controlled substances which are kept in his offices and dispensed to his patients. On August 6, 1985, Diane Rabideau again visited Koo's office. While Rabideau waited, a female patient by the name of Mary Green was seen by Koo and left with a prescription. Rabideau then asked Respondent to present the medical records on the patient, Mary Green. Koo was unable to present any medical records for the patient which he had just seen and to whom he had just dispensed medication. Koo's office procedure regarding patient medical records is to record histories and examination results on the patient medical records during the patient's visit. These medical records are kept in individual folders under the name of each patient. When a patient presents for treatment, the medical records for that patient are pulled and given to the doctor. After each visit, the patient's medical records are refiled. On or about March 16, 1986, pursuant to a subpoena from the Department of Professional Regulation, Koo provided the original medical records on ten (10) abortion patients. These original medical records were examined by John F. McCarthy, a questioned documents expert for the Florida Department of Law Enforcement. McCarthy's examination by electrostatic detection apparatus revealed that numerous indentations on the records superimposed with information from other records. For example, Exhibit 6 contained indentations from the writing on the face of Exhibit 10. Further, McCarthy found indentations on Exhibit 6 resulting from the writing on Exhibit 8. Thus, Exhibit 8 was on top of Exhibit 6 when it was prepared. Exhibit 8, however, is dated July 24, 1985, and Exhibit 6 is dated May 29, 1985. McCarthy's expert opinion is that at the time the various documents were prepared, they were on top of each other. It is therefore found that Exhibits 1-10, the original medical records on the ten named abortion patients, were not prepared at the time Koo saw the patients, but were instead all prepared at the same time, in response to the subpoena. It therefore must be found that the records were fabricated by Koo in response to the Department's subpoena. Prior to performing an abortion, a physician needs to verify whether the patient has Rh positive or negative blood type. The physician cannot rely on patients' representations that the Rh factor is positive or negative, but most obtain independent verification. This is because patients know that if they have Rh negative blood, they must receive a shot which is expensive. Koo relied on the patients' statements in ascertaining the Rh factor and did not obtain independent verification. In Dr. Rosin's expert opinion, the failure of a physician to obtain independent verification of the Rh factor poses a potential for harm to the patient and such failure is a failure to practice medicine with that level of care, skill, and treatment that is recognized in the medical community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Medicine enter a Final Order finding Dong Hack Koo, M.D., GUILTY of violating Counts Two, Three, Four, Five, and Six of the Amended Administrative Complaint, and therein SUSPEND his license to practice medicine for a period of six (6) months during which he be required to successfully complete continuing education courses in maintaining, controlling, dispensing, labeling, and inventorying controlled substance, and in maintaining adequate patient records to justify the course of treatment. DONE AND ENTERED this 26th day of August, 1987, in Tallahassee, Florida. DIANE K. KIESLING 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 26th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1066 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding of Fact which so adopts the proposed finding of fact: 1 (1) ; 2 (2); 3 (3); 4 (4); 5 (4); 6 (4); 7 (4); 8 (5); 9 (6); 10 (6); 11 (9); 12 (7); 13 (8); 14 (9); 15 (10); 16 (11); 17 (11); 18 (12); 19 (13); 20 (13); 21 (15); 22 (14); 23 (14); 24 (16); 25 (16); 26 (16); 27 (16); 28 (17); 29 (18); and 30 (19) That portion of proposed finding of fact 12 which concludes that Respondent does not maintain emergency equipment in his office is rejected as unsupported by the competent substantial evidence. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dong Hack Koo, M.D. 121 East 8th Street, Suite 7 Jacksonville, Florida 32206 Dorothy Faircloth, Executive DIRECTOR Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
