Findings Of Fact Findings based on stipulation Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 459, Florida Statutes. Respondent is, and has been at all times material hereto, licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001228. Respondent's last known address is 577 N.E. 107th Street, Miami, Florida 33161. Findings based on evidence at hearing On November 5, 1990, patient N. S. initially presented to the Respondent's office for a physical examination for the purpose of obtaining health insurance with Blue Cross & Blue Shield of Florida. During the course of the initial visit, when the Respondent became aware of where N. S. and her mother lived, it was obvious to him that N. S. lived in an expensive residential area and was probably a person of substantial financial means. Patient N. S. subsequently presented to the Respondent and received treatment from him for a variety of complaints on the following dates: November 14 and 27, 1990; December 10 and 20, 1990, January 7, 23, and 28, 1991, March 5, 1991, and April 15, 1991. Patient N. S. paid for all of the treatments and laboratory tests on the dates the treatments and tests took place. At the request of the Respondent, the checks written by patient N. S. to pay for services provided by the Respondent were made out to "cash." One day in early January of 1991, the Respondent contacted the patient N. S. by telephone at her home and asked her to loan him $8,000.00 or $8,500.00. The Respondent told the patient N. S. he needed the money because he was three months behind in making payments on the mortgage on his office-house, and because the mortgage was going to be foreclosed if he failed to pay the past due amounts in the next couple of days. In the course of this conversation the Respondent also remarked to N. S. that he would not be able to help her get well if the mortgage were to be foreclosed and he were to lose his office. Patient N. S. initially refused to loan any money to the Respondent. During the course of the next two days, the Respondent made numerous repeated pleas to N. S. for a loan. Ultimately, N. S. agreed to loan the Respondent a total of $1,000.00. The loan was to be repaid within sixty days and was without interest. On January 11, 1991, patient N. S. wrote a personal check to the Respondent in the amount of $1,000.00. Thereafter, the Respondent cashed the check. The patient N. S. made the $1,000.00 loan to the Respondent because she wanted the Respondent to be able to continue to treat her and not have his office repossessed. The Respondent did not timely repay the $1,000.00 loan. Shortly after the due date, the patient N. S. asked the Respondent on several occasions to repay the loan. On April 15, 1991, the patient N. S. sent a certified letter to the Respondent requesting repayment of the loan. On July 2, 1991, the patient N. S. sent the Respondent another certified letter requesting repayment of the loan and advising the Respondent that if the loan was not repaid by July 12, 1991, she intended to send complaints to the Department of Professional Regulation and to the Internal Revenue Service. During March and April of 1991, the Respondent was ill. Towards the end of April the Respondent was hospitalized and underwent surgery. The surgery was followed by several weeks of recuperation. During this period the Respondent had very little income and it was not possible for him to repay the loan to the patient N. S. On July 24, 1991, the patient N. S. sent yet another certified letter to the Respondent. In the letter of July 24, 1991, the patient N. S. requested that the Respondent provide her with various specified documents related to his treatment of her, including "my complete medical records." The patient N. S. sent a copy of the July 24, 1991, letter to the Department of Professional Regulation. On that same day, the patient N. S. signed and mailed to the Department of Professional Regulation a Uniform Complaint Form complaining about the Respondent. On August 29, 1991, the Sunshine Messenger Service delivered to the patient N. S. a letter from the Respondent dated August 28, 1991, which read as follows: Enclosed is the sum of $1000 in return for the check you loaned to me. I'm sorry that it took as long as this date to return same. Your request for your records, etc. are being copied and will be mailed very soon. Sorry for the delay. Hope you are in good health. The letter was accompanied by two postal money orders payable to the patient N. S., each in the amount of $500.00. On September 16, 1991, Petitioner's investigator Schaublin spoke by telephone with the Respondent and at that time advised him of the Complaint that had been filed against him by his patient N. S. Investigator Schaublin advised the Respondent that two principal issues were being investigated: (1) his request and receipt of a loan that was not timely repaid, and (2) his failure to provide medical records requested by the patient. During the telephone conversation of September 16, 1991, the Respondent agreed to meet with the investigator at the investigator's office on September 25, 1991, and to bring with him at that time the medical records of the patient N. S. On September 25, 1991, the Respondent went to the investigator's office and delivered to the investigator a set of medical records for the patient N. S. The records appeared to be facially complete. The investigator handed the Respondent a subpoena for the records at the time the records were delivered to the investigator. At some time between the Respondent's receipt of the July 24, 1991, request for records and his delivery of records to the investigator on September 25, 1991, the Respondent discovered that two pages were missing from the records of the patient N. S. The missing pages consisted of the Respondent's progress notes regarding the treatment of the patient N. S. The Respondent conducted an extensive, but unsuccessful, search for the two missing pages. Upon concluding that he was unlikely to find the missing pages, the Respondent contacted an attorney and requested advice as to what he should do under the circumstances. The attorney advised the Respondent that he should do the best he could to reconstruct the missing records from his memory and from whatever other information was still available. The Respondent did his best to follow the advice he had received from the attorney. In an effort to verify dates, the Respondent called the pharmacy to which he had called in prescriptions for the patient N. S. With the information he had at hand, and based on his memory of his treatment of the patient N. S., the Respondent reconstructed the two missing pages of progress notes. In the process of reconstructing the progress notes, the Respondent made some inadvertent mistakes regarding the dates on which certain office visits took place. Other than the mistakes as to some of the dates, the reconstructed records accurately and sufficiently describe the Respondent's treatment of the patient N. S. The Respondent's records of his treatment of the patient N. S. do not contain a notation that the progress notes are reconstructed notes. When the Respondent delivered medical records to the Petitioner's investigator on September 25, 1991, he did not tell the investigator that two pages of the records had been reconstructed. Upon review of the medical records delivered by the Respondent, the investigator noted that some of the dates in the progress notes did not match dates with other documents in the investigator's possession and also noted that the progress notes looked like they had all been written at the same time. On September 27, 1991, the investigator contacted the Respondent by telephone and brought these apparent irregularities to the Respondent's attention. During the telephone conversation of September 27, 1991, the Respondent told the investigator that he had reconstructed the progress notes after being unable to find the missing notes. This was the first time the Respondent had mentioned to the Petitioner that the subject medical records contained two reconstructed pages. On October 4, 1995, the Respondent sent copies of his records to the patient N. S., along with a letter addressed to the patient N. S. The letter read as follows: Sorry for the delay in mailing your records. I have diligently looked thru your file and in the office and at home for the medical records missing that are the two written pages that I have reconstructed to the best of my ability as to dates. The billing ledger was also in the chart and has not been found. In order to recreate the bills for tax purposes, I could help you if I had the dates and amounts from photocopies of the cancelled checks. The Respondent did not destroy any medical records regarding the patient N. S. The Respondent did not falsify or attempt to falsify any medical records of the patient N. S. The documents of which official recognition has been taken reveal that the Respondent has been the subject of prior disciplinary action by the Petitioner. The most significant instances of prior disciplinary action were DPR Case No. 0052390, in which the Respondent stipulated to the imposition of disciplinary action on the basis of violations related to the improper prescription of controlled substances, and DPR Case No. 89-008659, in which the Respondent stipulated to the imposition of disciplinary action on the basis of a violation related to exploitation of a patient for financial gain by borrowing money from a patient. At the time of the Respondent's treatment of the patient N. S., the Respondent was still serving the term of probation imposed in DPR Case No. 0052390.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Counts Two, Three, Four, Five, and Six of the Administrative Complaint; Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint; and Imposing a penalty consisting of all of the following: (a) an administrative fine in the amount of one thousand dollars ($1,000.00), (b) suspension of the Respondent's license for a period of ninety (90) days, (c) placing the Respondent on probation for a period of one (1) year following the suspension, and (d) restricting the Respondent's practice by prohibiting him from entering into any financial arrangements with patients other than those arrangements reasonably necessary to assure payment for osteopathic medical services provided by the Respondent. DONE AND ENTERED this 6th day of March 1996 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 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March 1996. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 10: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as irrelevant. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraphs 16 through 20: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 21: First sentence accepted in substance. Second sentence rejected as subordinate and unnecessary details. Paragraph 22: Rejected as irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in part and rejected in part. Accepted that the Respondent and N. S. had a physician-patient relationship during the relevant time period. The notion that the Respondent and N. S. also had a business venture relationship is rejected as contrary to the greater weight of the evidence. N. S. made suggestions to the Respondent as to how he could improve his practice, but there was no joint business venture relationship. Paragraph 4: First sentence accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence; there was no business relationship. Paragraph 5: Accepted in substance. Paragraphs 6 and 7: Rejected as subordinate and unnecessary details. Paragraphs 8 through 12: Accepted in substance. Paragraph 13: Accepted in substance, with the exception of the second sentence and the last sentence. The second sentence is rejected as not supported by persuasive competent substantial evidence. The last sentence is rejected as subordinate and unnecessary details. Paragraph 14: Accepted in substance. COPIES FURNISHED: Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Doddo, Esquire 100 Southeast 12th Street Fort Lauderdale, Florida 33316 William H. Buckhalt, Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 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
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, has been the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was a licensed physician in Florida under license number ME 0039846. On September 23, 1988, Respondent saw Patient #1, a 55 year old female, who presented with a primary complaint of chronic pain in the neck and low back resulting from an automobile accident. The patient history taken by the Respondent revealed a head injury, a back injury and a whiplash injury, all within the previous five years. The patient also had a history of unstable blood pressure, especially in times of stress, and a history of alcohol abuse which had been in remission for the past two years. Respondent examined the patient and found she was suffering from depression but evidenced no suicidal ideations or indications of psychosis. Respondent diagnosed a major depressive reaction and myofacial syndrome of the neck and low back. Dr. Morales treated this patient from September 23, 1988 to February 1, 1990, prescribing various antidepressants and anti-anxiety medications including Limbitrol, Prozac, Valium, Halcion and Tranxene for her. He also prescribed various opiates including Percodan and Percocet. Respondent claims he made a copy of each prescription he wrote for the patient medical records of each patient so that he could keep track of the number of pills he prescribed for that patient. He claims that the quantity of a prescribed medication was kept in a separate area of the patient's chart and not with the clinical notes. Though Respondent claims this procedure was a common office practice and done consistently in every patient's chart, the evidence indicates otherwise. His method of recording medication in the clinical record was inconsistent. At some places in the record he would indicate the exact number of a specific pill prescribed. At other places in the record, he would not. Examples of this practice, as seen from the medical records of Patient #1 available, shows the following entries: October 20, 1988, Rx for Valium for patient #1 but no indication of the amount prescribed is found in the records. March 2, 1989, Rx for Percodan QID (4 times a day), but no indication in records of the amount prescribed. July 8, 1989 Rx for Percodan - 60 tabs. August 2, 1989 Respondent notes to continue with Percoset, but no notation in records as to amount. September 7, 1989 Rx for Percocet but records do not reflect amount prescribed. November 15, 1989 Rx for 60 Percocet. December 6, 1989 Rx for 30 Percocet pills. While Patient #1 was under Respondent's care, she was admitted to the hospital twice. On September 18, 1989 she was admitted to Largo Medical Center for narcotics addiction and was discharged on September 28, 1989. On September 18, 1989, while the patient was in the hospital, Dr. Farullah, a staff physician, called Respondent to discuss the patient with him. This conversation, including the Respondent's name, is itemized in the hospital records for this patient. It is appropriate practice protocol upon the admission of a patient to the hospital for the admitting physician to notify the patient's attending physician about the patient's diagnoses and condition. It would appear this was done here by Dr. Farullah. Nonetheless, Respondent claims he did not know the patient was hospitalized, contending he did not recall the conversation, and noting that the information regarding hospitalization might not have been included in it. Respondent claims he never heard of Dr. Farulla until a subsequent visit from the patient in his office on October 24, 1989. After the patient's discharge from the hospital, she came to Respondent's office for a 30 minute visit on October 4, 1989. Though this visit occurred only 6 days after her discharge from the hospital, Respondent claims the subject of her hospitalization was not discussed. Two days later, on October 6, 1989, the patient returned to Respondent's office for another 30 minute visit and again, the subject of her hospitalization did not come up. This patient was readmitted to the hospital on October 10, 1989 with a diagnosis of, among other things, drug dependency. She was discharged on October 20, 1989, but, again, Respondent claims he did not know of her hospitalization. He saw her on October 24, 1989 for another 30 minute visit during which, he claims, the subject of her hospitalization did not come up. This appears to be a conflict with his previous testimony , noted in Paragraph 8, supra, wherein he stated he never heard of Dr. Farullah until he met with the patient in his office on October 24, 1989. On April 10, 1990, in the course of filing a disability claim with the Department of Health and Rehabilitative Services, (DHRS), the patient signed a medical release form. Thereafter, HRS requested the patient's records from the Respondent, but they were not forthcoming. A second request was transmitted to the Respondent who replied that the records requested had been copied but not dispatched because no release form accompanied the request. Respondent indicated that upon receipt of the release form, the records would be forwarded, and on June 4, 1990, they were, in fact, sent by the Respondent. This was approximately 17 months before the burglary of Respondent's office to be discussed, infra. Respondent claims it was his policy, however, in responding to requests for information to the Social Security Administration, (disability claims are paid by Social Security), to provide only clinical notes, initial evaluation, and a medical summary update. Other records, including prescription records, are not sent. Respondent's office was burglarized on November 30, 1991 by one of his former employees. According to Respondent, all the medical records he had were taken during the break-in. Though they were ultimately returned, he claims they were incomplete when returned. However, comparison done by the Department's investigator, of the medical records of Patient #1 which were sent to HRS before the burglary with those taken from Respondent's office after the burglary, indicated they were the same, except for some duplicates. Nonetheless, Respondent claims that some of the records pertaining to Patient #1, including prescription records, were not recovered. This could explain the absence of prescription records in both sets of records, but that is not found to be the case here, however. According to the Board's expert, Dr. Boorstin, a Board Certified Psychiatrist who specializes in addiction psychiatry and opiastic medicine, the benzodiazepins prescribed for Patient #1 by the Respondent, were inappropriate because of her known alcoholism, and he failed to adequately monitor her for possible addiction or dependence. Even though her condition had been in remission for two years, Dr. Boorstin concluded it was below standard practice to prescribe those drugs to this patient. Dr. Boorstin also concluded that Respondent failed to keep adequate written medical records for this patient and did not justify the less than conservative prescription of anti-anxiety and pain medications to a known alcoholic. A physician must keep track of the drugs being used by a patient to be sure no abuse trends exist. The Respondent should have detailed with exactitude in his records the number of each specific medication. From September 30, 1988 to February 1, 1990, a period of 16 months, he prescribed various opiate-based pain killers to Patient #1, including Tylenol #3, Codeine, Percodan and Percocet. His prescription of the latter two, in Dr. Boorstin's opinion, fell below the appropriate standard of care. The patient's hospital records indicate she was suffering from drug addiction, and if, as the Department claims, Respondent knew of her hospitalizations and the reason therefor, his prescription of liberal amounts of opiate based drugs was inappropriate. The evidence shows the patient was admitted to the hospital on two occasions, both times for, among other problems, drug addiction. Less than one month after her second discharge, Respondent prescribed Percocet for this patient for pain relief at a rate of two tables every six hours. According to Dr. Boorstin, the usual adult dosage is one tablet every six hours. This is outlined in the Physician's Desk Reference, (PDR), a compendium of drugs and medications with manufacturer's recommendations for dosage. Though authoritative in nature, the PDR is not mandatory in application, and physicians often use it as a guide only, modifying strength and dosage as is felt appropriate for the circumstance. On at least one occasion, Respondent's medical records for this patient show he prescribed Percocet but not the amount prescribed. This is below standard. The same is true for the noted prescription for Percodan. Both Percodan and Percocet are Schedule II drugs. A notation in the records for a prescription for Valium also reveals no indication was given as to the amount prescribed. Again, this is below standard. Dr. Boorstin's opinion is contradicted by that of Dr. Wen-Hsien Wu, the Director of the Pain Management Center at the Schools of Dentistry and Medicine of New Jersey, the New Jersey Medical School, who testified by deposition for the Respondent. Dr. Wu claims he has prescribed medications in amounts and dosages far in excess of those prescribed by Respondent and for a much longer period of time. Wu is Board certified in anesthesiology and has published numerous articles on pain management. Dr. Wu contends there is no contraindication for the use of narcotic therapy in Patient #1's alcoholism. The use of narcotics is appropriate if the patient can return to function with careful monitoring. Here, it would appear that Patient #1 was monitored through her frequent visits to the Respondent's office. It is impossible to tell from the Respondent's patient records just how much medication he prescribed for his patient. Because of the failure to indicate the number of pills of each type Respondent was prescribing, it is impossible to form a conclusion as to whether the amount prescribed was appropriate or excessive. Notwithstanding Respondent's claim in his Proposed Findings of Fact that "...there is no indication of drug abuse in the prescribed drug area", the medical records show that on each admission of Patient #1, a diagnosis of drug addiction was made. To be sure, these records do not reflect the drug to which the addiction relates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein finding Respondent guilty of all allegations except prescribing in inappropriate amounts. It is also recommended that Respondent be ordered to pay an administrative fine of $3,500 within 90 days of the date of the Final Order herein, be reprimanded, and within one year of the date of the Final Order herein, attend continuing medical education courses at the University of South Florida Medical School in appropriate medical record keeping and in the prescribing of abusable drugs. RECOMMENDED this 12th day of June, 1995, 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 12th day of June, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. - 15. Accepted and incorporated herein. 16. - 19. Accepted and incorporated herein. & 21. Accepted as a representation by Respondent. Accepted as Respondent's position but not accepted as fact. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. Rejected as unproven. & 30. Accepted but repetitive of other evidence previously admitted. 31. & 32. Accepted and incorporated herein. - 38. Not appropriate Findings of Fact but merely recitations of the contents of records. Accepted and incorporated herein. - 42. Restatement of witness testimony. FOR THE RESPONDENT: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. & 7. Accepted as testimony of Respondent, but not as probative of any issue. 8. - 11. Accepted and incorporated herein 12. & 13. Accepted. 14. - 16. Accepted and incorporated herein. 17. Accepted. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. - 24. Accepted. 25. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted. & 34. Accepted as opinions of the witness, but not as the ultimate fact. Accepted as to admissions but rejected as to Respondent not being advised. Accepted and incorporated herein. COPIES FURNISHED: Steven A, Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33617 Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 E. Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
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
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings: During times material hereto, and particularly from January 1, 1983 through December 31, 1985, Respondent, Eusebio Subias, M.D., was a licensed medical doctor in Florida, board certified in Psychiatry and an eligible Medicaid provider of psychiatric services pursuant to the Medicaid contract he is party to with DHRS dated October, 1982. (Petitioner's Exhibit 1). Medicaid regulations and guidelines require physicians to meet board certification in psychiatry before they may provide reimbursable psychiatric services to Medicaid eligible recipients. As part of his agreement to participate in the Medicaid Program, Respondent agreed to keep such records as are necessary to fully disclose the extent of services provided to individuals receiving assistance in the state plan. Respondent also agreed to abide by the provisions of pertinent Florida administrative rules, statutes, policies, procedures and directives in the manual of the Florida Medicaid Program. (Petitioner's Exhibit 2). During 1986, the Surveillance & Utilization Review System unit of the Medicaid Office indicated that the amount of Respondent's medicaid billing greatly exceeded that of his peers. Based on that indication, the Office of Program Integrity asked Respondent to provide them with copies of certain medical records for the year 1982. Respondent provided the Department with those records as requested. (Petitioner's Composite Exhibit 3). Those records were forwarded to the peer review committee for evaluation. The records were reviewed by both the local and state peer review committees. The 1982 records contained inadequate information for the peer review committee to document or otherwise justify the number of office visits per patient. The records did not contain reasons for treatment, reasons for frequency of visits or what specific services were rendered to patients. (Petitioner's Exhibits 16 and 17, Pages 3 and 4 and Composite Exhibit 3). On April 21, 1986, Petitioner notified Respondent that it determined that he overbilled Medicaid in the amount of $17,820.09 for the calendar year 1982. Respondent was then notified that a similar review would be conducted for the period January 1, 1983 through December 31, 1985. That review and the results thereof are the subject of this proceeding. The Department subsequently requested, and Respondent provided medical records for 85 specific recipients which were selected by means of the "Disproportionate Stratified Random Sampling" (DSRS). (Petitioner's Exhibit 7). Respondent's 1983-85 records contain substantially more details than the records he provided Petitioner during the 1982 review period. Petitioner had its medical consultant, Dr. Forsthoefel, review the 1983-85 records. He was a member of the peer committee which made the peer review determination in 1982 which was used as a guide for the degree of overutilization. Forsthoefel denied those office visits that he determined were not supported by documentation in the medical records and concluded that the visits were not medically necessary. As a result, Petitioner sent Respondent a letter advising that he had overbilled medicaid in the amount of $79,093.05 for the years 1983-1985. (Petitioner's Exhibits 9 and 13). By letter dated September 5, 1986, Respondent requested a meeting to discuss the Department's proposed action and such a meeting was granted on October 31, 1986 at 1:30 p.m. Dr. Forsthoefel, Dr. Conn, Petitioner's Chief Medical Consultant in 1982, Millie Martin, and Respondent attended the October 31 meeting. During the meeting, Respondent attempted to individually review each of the approximately 3200 medical records for patients he treated during the years 1983-85 such that he could explain and document the medical necessity of each of the patient's office visits. He also requested that Petitioner have the records reviewed by a psychiatrist. Neither Dr. Conn nor Dr. Forsthoefel are psychiatrists. Dr. Conn left soon after the meeting began. Dr. Forsthoefel, unable and unwilling to comply with Respondent's request that each medical record be individually reviewed, concluded that continuing the meeting would not be productive and left after approximately 2 hours. The Department again denied those visits which it had early concluded were not medically necessary based on the review by its medical consultants. By letter dated November 10, 1986, Petitioner again advised Respondent that the Department would seek a $79,093.05 overpayment for the years 1983-85 and advised him of his rights to a formal hearing. Drs. Mutter and Tumarkin were commissioned by Petitioner to review the medical records under scrutiny with each doctor reviewing one half of the records. Based on their review, Respondent was denied reimbursement for even more office visits based on their opinion that the records did not contain sufficient documentation or notations that would indicate continued office visits were medically necessary. (Petitioner's Exhibits 17a and 18). Dr. Tumarkin made his comments on Respondent's medical records in green ink. Those records which did not contain green marking were records numbered 3 and 27 resulting in the Department's overstating the overpayment claim by $125.01. Respondent introduced information regarding Medicaid's denial of claims which should have been billed to Medicare. During the period from May 1985 through December 31, 1985, certain denials fall within the 1983-85 review period and since the Department never paid such claims, the Department agreed at hearing to reduce its overpayment amount by $6,421.44. Also at hearing, Petitioner determined that it made an error in its computation of the figures stated in the November 10, 1986 letter and was now seeking $78,661.93 minus $6,421.44 for the amount claimed to be overbilled by Respondent as $72,240.49. Respondent, who is of hispanic origin, treats a substantial number of Spanish speaking patients. Respondent graduated from medical school in Cuba at the age of 22 and participated in a rotating internship at Mercy Hospital in Hampton, Ohio. He came to Florida in 1963 and was licensed in 1964. In April, 1963, Respondent was employed at Hollywood Memorial Hospital. Respondent was the third Spanish speaking doctor to practice in South Florida and was the first to be promoted to a chairmanship at Hollywood Memorial Hospital. Respondent was the first clinical director at Coral Reef's Hospital. He is a member of several medical societies and was involved in the development of several psychotic drugs, including Elavil. Respondent is board certified in psychiatry. Respondent has staff privileges at Hollywood Memorial Hospital and three other area hospital. He has practiced psychiatry for more than 25 years in the United State and is accomplished in the treatment of severe psychotic patients. Respondent was tendered and received as an expert in psychiatry. Southeastern Florida was inundated during the early 1980's with mentally ill refugees during the Mariel Boat Lift. That area has a uniquely high need for psychiatric services due to its characteristic as a metropolitan area with a large homeless population. The Marlowe Study which was commissioned by Petitioner to review the need for psychiatric services in Dade County during the period which coincided with the Respondent's 1983-1985 office practice here under review, concluded that insufficient resources were earmarked for the treatment of mentally ill residents of Dade County, Florida. Respondent prefers to treat severely psychotic patients on an outpatient basis. He has been very successful in utilizing this method of treatment and it has resulted in substantial public benefit in the form of substantial financial savings that would have otherwise been required to hospitalize such patients for treatment. Respondent is paid $35.01 for a 45 minute session for each Medicaid patient whereas the average cost for inpatient treatment at an area hospital is approximately $400.00 per day. Respondent modified his record keeping practice in 1982 so that his medical records for 1983-85 contained the minimum requirements for medical records necessary to support Medicaid billings as specified in Rule 10C- 7.030(1)(m) and 10C-7.062(1(n) Florida Administrative Code. All of the medical experts testified that Respondent's records for the period at issue here met the minimum requirements specified in the required regulations and DHRS's procedure manuals. Those requirements are: dates of services; patients name and date of birth; name and title of person performing the service, when it is someone other than the billing practitioner; chief complaint on each visit; pertinent medical history; pertinent findings on examinations; medications administered or prescribed; description of treatment when applicable; recommendations for additional treatments or consultations; and tests and results. Petitioner presented testimony through Ms. Martin to the effect that Respondent had admitted during his October 1986 meeting with the medicaid consultants that he had, from memory, gone back and recreated his medical records for 1983-85. Respondent denied this at hearing and credibly testified that based on the deficiencies found in the latter part of 1982 concerning his medical records, he commenced to prepare a complete medical record for each patient visit. Respondent's testimony in this regard is credited and none of the medical professionals, save Ms. Martin, presented any evidence which would call into question the accuracy of Respondent's records during the period 1983- Ms. Martin's testimony to the contrary is rejected. Dr. Forsthoefel candidly admitted that he is not qualified to render an opinion with respect to medical necessity and appropriateness of specialized psychiatric services. Respondent is the first psychiatrist reviewed by the Medicaid officials of Petitioner for over-utilization as Petitioner's officials were unaware of any other psychiatrist who had been reviewed prior to Respondent. The peer review process for determination of over-utilization and mis- utilization of Medicaid services is designed so that the physician being reviewed may discuss individual patient records and cases with the Committee, as well as the Medicaid consultants who later apply peer review findings, and such discussion will be considered in arriving at a final determination. (Peer Review SOP, April, 1987, Respondent's Exhibit 12). An integral part of peer review for the physician being reviewed is to be able to discuss individual cases with the reviewer prior to a final determination being made concerning medical necessity and appropriateness. Such interplay and explanations regarding certain aspects of a case can lead to a more detailed determination concerning an overpayment issue. Respondent's October 1986 review should have been a complete new review of individual records affording him an opportunity to discuss specific cases with the physician consultants, provide him an opportunity to substantiate certain treatments based upon his recollection and justify the treatment modality he utilized for the 85 patients which comprised the random sampling. 2/ Respondent was not permitted to meaningfully discuss those individual cases even though he requested an opportunity to do so. This is so despite Petitioner's consultant's admission that such a consultation would have aided them and perhaps changed their opinion with respect to medical necessity and appropriateness of specific treatments rendered by Respondent. (Testimony of Conn, Forsthoefel, Tumarkin and Whiddon). While some experts would treat severely psychotic patients on a less frequent basis than Respondent and hospitalize them sooner, Respondent's method of treatment is well accepted among qualified board certified psychiatrists. Dr. Tumarkin's different treatment philosophy wherein he favored inpatient treatment for severely psychotic patients while Respondent showed a preference for outpatient treatment, is in no way indicative of inappropriateness by Respondent's method of treatment since his method was proven to be successful. Additionally, one expert, Dr. Tumarkin would have allowed more visits as being medically necessary and appropriate had he been advised by Petitioner's representatives that he should apply the community standard for medical necessity and appropriateness of psychiatric services. A Medicaid provider of psychiatric services is required to provide services equivalent to that of their peers. Had Dr. Tumarkin consulted with Respondent, his opinion concerning medical necessity and appropriateness would have been affected and he would have requested such had he known that he was allowed to. This is especially so based on the fact that his treatment preference is more hospital oriented. It is thus concluded that Respondent was not given a fair opportunity to present circumstances relevant to the overpayment amount in question here, despite his request to do so. (Petitioner's Exhibit 14). A review of a Peer Comparison Analysis with Respondent's practice respecting the number of office procedures per patient performed by him in contrast to other medicaid psychiatrists, indicates that Respondent saw his patients, on average, less than the average for other psychiatrists in Dade, Monroe and Broward Counties between the years 1983-85. (Petitioner's Exhibit 22). Dr. Stillman is board certified in psychiatry and has been practicing for more than 30 years. He reviewed, as Respondent's expert witness, all of the 85 patient charts in question. Dr. Mutter rendered a specific report about the even numbered charts that he reviewed. His reports indicates, with respect to many charts, that he was unable to find specific documentation supporting the reasons and medical necessity for treatment. This testimony was sharply contradicted by that of both Dr. Stillman and Respondent who easily located specific record documentation which indicated the medical necessity and reasons for services provided to patients by Respondent. Examples of over-utilization from Dr. Mutter's report were inquired about and on each occasion, Respondent and Dr. Stillman were able to identify documents not referred to by Dr. Mutter that substantiated the medical need and reasons for treatment. Drs. Subias and Stillman's testimony was not contradicted by Petitioner. Without going through each patient's records, a review of the findings concerning several patients is illustrative and will be herein discussed. Patient number 85, S. T., Jr. 3/ was a schizophrenic, suffering from epilepsy with borderline intellectual functioning. He was a very psychotic patient who was, during his early years, treated in an institution. (Petitioner's Composite Exhibit 5). He was obese, apprehensive, disoriented, suffered from impaired insight and judgment, a depressed mood, flat affect and a constant feeling of rejection. Respondent commenced treating patient number 85 twice weekly as an outpatient and as his condition improved, he was seen once a week and office visits were reduced further as his condition continued to improve. Without this intense continuity of treatment, patient number 85 would have decompensated and would have required an extensive institutionalization. Respondent provided substantial documentation as to the need for each of S. T.'s visits. Patient number 83, C. C., was a schizophrenic who suffered from depression, was delusional with a flat affect, poor reality contact and went through extended periods of depression on a monthly basis. Respondent prescribed benadryl to counteract patient C. C.'s delusional symptoms and otherwise justified his method of treatments, frequency and reason for each visit. Respondent substantiated that it was medically necessary to treat patient C. C. on each occasion where treatment was provided. Respondent's medical records provided the documentation for treatment in each instance. Patient number 81, F. D., was a schizophrenic who suffered severe mental depression. His condition had deteriorated to the point whereby family therapy sessions had to be scheduled by Respondent. Respondent was able to keep F. D. out of the hospital, he remained with his family and his condition improved to the point where the frequency of visits were reduced. Respondent's records justified the medical necessity and reasons for the treatment he provided patient F. D. Respondent testified as to his method of treatment as to patients 88, 78, 77, 52, 56, 48, 46, 38, 40, 60, 68 and as to each of those patients, Respondent's records document that the patients treatment and visits were medically necessary and appropriate. Dr. Stillman demonstrated that on each occasion, there was substantial record documentation which supported the necessity for the treatment as provided by Respondent. Based upon the inconsistent evidence presented by Petitioner respecting its claim that Respondent failed to document the medical necessity for the treatment he provided to the patients during the years 1983-85 and the direct evidence presented by Respondent which established that all of the services rendered by him to Medicaid recipients were medically necessary and appropriate under the circumstances, it is concluded that Petitioner failed to establish by a preponderance of the evidence that any of the treatments here in dispute were unnecessary, inappropriate or were not otherwise documented by the medical records under review. Moreover, all of the experts agree that the treating psychiatrist is best able to determine the medical necessity and appropriateness of specific treatments to render to a patient as that psychiatrist has direct contact with, and is best able to fully apply his or her training and experience. Respondent amply demonstrated that the services here at issue were medically necessary, appropriate and was of clear benefit to the patient. Petitioner has failed to meet its burden of establishing any basis for an overpayment as claimed. 4/
Recommendation Based on the foregoing Findings of- Fact and Conclusions of Law, it is RECOMMENDED that: The Department of Health and Rehabilitative Services enter a Final Order finding that there was no overpayment to Respondent during the years 1983- 85. Respondent is entitled to a refund of all monies held pursuant to the overpayment calculation by the Department in this cause together with 10% for annual interest pursuant to Rule 10C-7.060(12), Florida Administrative Code. DONE and ORDERED this 18th day of November, 1988, in Tallahassee, Florida. JAMES E. BRADWELL 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 21st day of November, 1988.
The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact The Department of Health, Division of Medical Quality Assurance, Board of Medicine (Department), is a state agency charged with the duty and responsibility for regulating the practice of medicine pursuant to Section 20.43 and Chapters 455 and 458, Florida Statutes. Respondent, Lazaro Guerra, is, and was at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0029249. Respondent is board-certified in orthopedic medicine. From on or about November 22, 1993 through at least October, 1994, Respondent was the supervising physician for Mariano Martinez, a certified physician's assistant, who was accorded clinical privileges at Coral Gables Hospital, a health care facility located at 3100 Douglas Road, Coral Gables, Florida. On one occasion in or about August 1994, while making a routine floor inspection at the hospital, Jan Bennett, Director of Risk Management at Coral Gables Hospital, observed Mr. Martinez wearing a laboratory coat embroidered "Dr. Mariano Martinez, Orthopedic Surgery." Ms. Bennett also overheard a member of the staff address Mr. Martinez as "doctor," without Mr. Martinez's correcting the staff member. Apart from this isolated occurrence, Mr. Martinez was not otherwise observed to have worn such a coat, or to have been addressed as doctor, and there is no proof that Respondent knew, observed, fostered, or condoned Mr. Martinez's behavior. Following the incident in question, Ms. Bennett looked at medical records on the floor, as well as records for patients that had been discharged, to see if Mr. Martinez's written orders had been countersigned by Respondent (evidencing his review) within seven days. According to Ms. Bennett, she did find medical records that had not been countersigned by Respondent within seven days; however, she did not address the number of occasions she found that Respondent had failed to countersign Mr. Martinez's written orders, and she did not produce or identify any such records at hearing. Indeed, the only proof presumatively offered to address such particulars were Physician's Orders for two patients (identified as Patient 1 and Patient 2), received into evidence (without objection) as Petitioner's Exhibit 4, pages 8-10; however, these records were not further discussed or identified at hearing, and the records for Patient 2 relate to an admission in August 1993, a time Respondent was not shown to have been a supervising physician for Mr. Martinez. Under the circumstances, the proof, at best, supports the conclusion that Respondent failed to countersign Mr. Martinez's written orders regarding one patient (Patient 1), within seven days. With regard to such failure, Respondent observed that he certainly never "knowingly fail[ed] to sign or countersign any written patient medical records that were prepared by Mr. Martinez." Rather, Respondent averred that he had an established procedure whereby he would countersign Mr. Martinez's written orders as they made rounds together, or, if Mr. Martinez made rounds on his own, Respondent would make rounds the next day and countersign Mr. Martinez's orders. If the patient had been discharged in the interim, the patient's records were transferred to the Medical Records Section (from the floor) for storage, and the Medical Records Section had an established protocol whereby the staff would flag (mark) the records that required Respondent's countersignature. With regard to Respondent's failure to countersign Mr. Martinez's orders for Patient 1, there is no (known) explanation; however, as likely an explanation as any other is that the Medical Records Section failed to mark the orders and Respondent, therefore (inadvertently) failed to countersign them.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be rendered which finds Respondent guilty of violating Subsection 458.331(1)(x), Florida Statutes, as alleged in Count One of the Administrative Complaint, but which withholds the imposition of any penalty for such violation. It is further RECOMMENDED that the final order find Respondent not guilty of the violation alleged in Count Two of the Administrative Complaint. DONE AND ENTERED this 24th day of September, 1999, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK 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 24th day of September, 1999.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.
The Issue The issue presented for decision herein is whether or not the Respondent engaged in proscribed conduct, set forth hereinafter in detail, as is more particularly set forth in a two count administrative complaint filed herein dated May 12, 1986.
Findings Of Fact Respondent, Cecil Rolle, during times material was a licensed dentist in Florida having been issued License Number DN0005067. On January 24, 1984, Respondent treated Karen Fuller, a patient. For such treatment, Respondent charged $250 for dental services rendered and Ms. Fuller paid $50 on account. (Petitioner's Exhibit 8). Ms. Fuller never returned for follow- up treatment nor did she pay the outstanding balance of $200 for services rendered. On approximately July 26, 1985, Respondent received a letter and an accompanying executed medical release authorization from Fuller's attorney, Scott Saperstein, requesting copies of "any and all records, charts and x-rays regarding the care and treatment of Karen Fuller." (Petitioner's Exhibit 1). Respondent failed to provide the records requested in the July 26, 1985 letter until more than one (1) year later on August 11, 1986. On about September 6, 1985, Respondent received a second written request from attorney Saperstein requesting Ms. Fuller's records. (Petitioner's Exhibit 2). Respondent again failed to provide the requested records. Shortly after making the September 6, 1955 request, Scott Saperstein spoke to Respondent who advised that he had treated patient Fuller on one occasion, that she had not made payment or still owed money for that visit and that he would not release patient records while the outstanding fee remained unsatisfied. On October 25, 1985, attorney Saperstein wrote to the Department of Professional Regulation (DPR) advising of Respondent's failure to provide the requested documents and a copy of that letter was sent to Respondent. (Petitioner's Exhibit 3). On December 10, 1985, Respondent received a letter from DPR requesting that he explain his failure to provide the patient's records to attorney Saperstein. (Petitioner's Exhibit 4). On January 28, 1986, Respondent sent a written reply to DPR apologizing for having delayed responding to DPR's original request and furnished a summary of treatment he provided to Ms. Fuller on November 24, 1984. (Petitioner's Exhibit 5). However, Respondent offered no explanation as to the reason he did not provide Ms. Fuller's records as requested by her counsel. On February 3, 1986, Respondent received another letter from DPR requesting that he respond to the allegations, i.e., his failure to make patient's records available immediately. (Petitioner's Exhibit 6). Respondent never replied to this second request by DPR. On July 28, 1986, Respondent received written notification from Karen Fuller's counsel advising of his intent to initiate litigation alleging dental malpractice against Respondent relative to the treatment Petitioner provided Ms. Fuller. (Petitioner's Exhibit 7). On approximately, August 11, 1986, Respondent provided Ms. Fuller's counsel with her original medical records. (Petitioner's Exhibit 8). Respondent acknowledged that he is required to know the pertinent statutes and rules relating to the practice of dentistry. Respondent also acknowledged that he did not turn over Ms. Fuller's medical records initially based on an informed decision reached after consultation with his attorney and directives from his medical malpractice insurance carrier to the effect that he should not release medical records until his insurance carrier authorized him to do so. Respondent initially advised attorney Saperstein that since Ms. Fuller had failed to pay the entire fee for services rendered, he would not be releasing copies of her medical records. Respondent made the decision to withhold Ms. Fuller's medical records until the air was cleared surrounding the competing claims between attorney Saperstein and his malpractice insurance carrier.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent pay Petitioner an administrative fine of $1,000 within thirty (30) days after entry of Petitioner's Final Order. Respondent be issued a written public reprimand by the Petitioner, Board of Dentistry. RECOMMENDED this 15th day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3676 Rulings on Petitioner's Proposed Recommended Order Paragraph 8. Accepted as modified in paragraphs 6 and 13, Recommended Order. Paragraph 14. Accepted as modified in paragraph 11, Recommended Order. Paragraph 15. Accepted as modified in paragraph 14, Recommended order. COPIES FURNISHED: Henry N. Adorno, Esquire Adorno Allen Schiff & Goodkind, P.A. 1501 Venera Avenue Park Place II, Suite 240 Coral Gables, Florida 33146 Harold C. Culmer, Esquire, P.A. 5020 Northwest Seventh Avenue Miami, Florida 33127 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 Pat Guilford, Executive Director Department of Professional Regulation, Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
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
