The Issue The issues in this case are whether Respondent: failed to keep proper medical records; (2) committed medical malpractice; or (3) knowingly performed professional responsibilities which he knew he was not competent to perform, as set forth in the 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 (2014). At all times material to the complaint, Dr. Rivera-Kolb was a licensed medical doctor within the state of Florida, having been issued license number ME 40201. Events of June 25, 2008 On June 25, 2008, Patient J.D., a 43-year-old female, was scheduled for multiple procedures at Florida Atlantic Orthopedics ("the facility"). The procedures included a two- level discogram by Dr. Thomas Rodenberg, followed by a two-level lumbar discectomy by Dr. Roberto Moya, followed by a bilateral L3 to S1 facet radiofrequency lesioning by Dr. Rodenberg. On June 25, 2008, Dr. Rivera-Kolb was working at the facility. As he testified, he had been hired to "harvest information" in personal injury cases such as slip and falls or automobile accidents. He would routinely perform physical examinations, develop full medical histories, and "proceed to follow a certain pattern of doing x-rays, doing certain tests at different agreed times, to comply with regulations imposed on the PI industry." Dr. Rivera-Kolb would also render primary health care and provide patients with anti-inflammatories and muscle relaxants as necessary. As indicated by a "Pre-Op" form dated June 25, 2008, and signed with the name "L. Lerfald, R.N." in the "Signature of Nurse" block, on that morning Nurse Lerfald took various vital signs of J.D. and recorded them at 10:50 a.m. At that time, J.D. was given 8 mg of hydromorphone and 20 mg of Valium. Dr. Rodenberg, an anesthesiologist at the facility, placed a central intravenous line ("IV") in J.D.'s left jugular. Dr. Rivera-Kolb assumed the responsibility of monitoring J.D. and preparing an "Anesthesia Record" during the two-level discogram procedure that was to be performed first. J.D. had been a patient of Dr. Rivera-Kolb's in the weeks before the procedures, and he was aware that she had accelerated hypertension (very high blood pressure). Dr. Rivera-Kolb sat at the head of the operating table, monitored J.D.'s vital signs, and filled out the Anesthesia Record, while Dr. Rodenberg performed the discogram. Dr. Rivera-Kolb then left the operating room. The second procedure, the two-level lumbar discectomy, was performed by Dr. Moya, with Dr. Rodenberg as anesthesiologist. Dr. Rivera-Kolb returned to the operating room after the discectomy and resumed the responsibility of monitoring J.D. for the third procedure, the facet radiofrequency lesioning, which was performed by Dr. Rodenberg. When Patient J.D. was ready to be moved from the operating room to the Post Anesthesia Care Unit ("PACU"), she became unresponsive, with an oxygen saturation of 60 percent and a heart rate of 30. Dr. Rivera-Kolb was the only physician present with the operating room staff when these changes occurred. In a written statement he later submitted to Mr. Robert Yastremzki, medical investigator at the Department of Health, Dr. Rivera-Kolb wrote: She was lying prone on the OR table. The moment she was overturned to a supine position on the gurney, the oxygen saturation alarm went off. There was an abrupt drop in blood pressure and pulse. The OR staff and I made sure all connections were in place. When it was corroborated that all connections were intact, I summoned Dr. Rodenberg to the OR as I reached for ventilation mask to improve oxygen delivery. The symptoms she displayed were consistent with a vasovagal syndrome secondary to local anesthetics injected in the cervical area during the procedure, which is not an uncommon complication. The parties stipulated that Patient J.D. went into full cardiac arrest, and Dr. Rodenberg was emergently called back to the operating room. Dr. Rodenberg arrived almost immediately. J.D. received cardiopulmonary resuscitation ("CPR"), atropine by IV, and a laryngeal mask airway ("LMA"). The left jugular IV appeared to be infiltrated, so Dr. Rodenberg placed a new external jugular line on the right side. After J.D.'s vital signs were stabilized, Dr. Rodenberg replaced the LMA with an orotracheal tube. J.D. was now breathing spontaneously and saturating in the high 90's, and Dr. Rodenberg directed that she be moved to the PACU. Dr. Rivera-Kolb and Nurse Lerfald moved J.D. to the PACU. Once there, her head was elevated. Shortly thereafter, Nurse Lerfald noticed that the left side of J.D.'s face was beginning to swell. Dr. Rodenberg was called back again. When Dr. Rodenberg arrived in the PACU a minute later, J.D.'s face was completely swollen. Dr. Rodenberg assumed control of J.D.'s care. He concluded that the swelling was angioedema and felt that anaphylactic shock was imminent. He detected a faint pulse and directed that the patient be returned to the operating room, where she was placed on a ventilator. A few moments later, no pulse was present, and CPR was begun a second time. J.D. was given epinephrine and atropine, and "911" was called. Dr. Moya was called in to assist. When Dr. Moya arrived, he concluded that the subcutaneous emphysema was secondary to the IV lines in J.D.'s jugulars and that J.D. had bilateral apical pneumothorax. He immediately placed chest tubes, first into the right side, and then the left. When the right chest tube was placed in water to create a negative pressure, clear fluid and gas came out. When the left chest tube was done, white milky fluid and gas were discharged. The Boca Fire and Rescue arrived and resuscitation efforts continued for approximately 25 minutes, after which blood pressure and heart rate were restored. J.D. was then transported to Boca Community Hospital. Pharmacy bills reflect that both midazolam (Versed) and propofol were signed out for use in Patient J.D.'s procedures on June 25, 2008. Dr. Rivera-Kolb signed the Anesthesia Record for the discogram procedure.1/ It indicated that the anesthesia and surgery started at 11:25 a.m. and ended at 11:55 a.m. Under a section entitled "Technique," the form provided check blocks to choose the anesthesia that was used: "General"; "Epidural"; "Spinal"; "Axillary Blk"; or "Other." The block on the form next to "Other" was checked, followed by the hand-written notation "MAC local." The form reflects oxygen saturation levels of 95 and 96 for two consecutive 15-minute periods. It records other readings every five minutes. It indicates systolic blood pressure at levels of 160 and 170 and diastolic blood pressure ranging from 90 to 110. It records a respiration rate of between 10 and 20 and a heart rate between 80 and 90. It does not indicate what, if any, drugs were administered during the procedure. It does not indicate any temperature readings, breath sounds, or EKG readings. Dr. Rivera-Kolb signed his name on the Anesthesia Charge Sheet on the line labeled "Anesthesiologist 1."2/ This sheet indicates that Dr. Rodenberg was the "Surgeon/Referring MD." It shows Current Procedural Terminology (CPT) codes of "66290 x2," indicating two "lumbar discograms," and "77003," indicating "flouroscopic guided--spine." In the row marked "ASA Physical Modifiers," the notation "P3" is circled. The sheet indicates the procedure was to be conducted with "MAC" anesthesia. It indicates that the pre-op interview was begun at 11:05 a.m. and ended at 11:12 a.m., that the surgery started at 11:20 a.m. and ended at 12:00 p.m., and that anesthesia also started at 11:20 a.m. and ended at 12:00 p.m. Dr. Rodenberg prepared and signed two different Anesthesia Records. Each recorded information for both the discectomy and facet radiofrequency lesioning procedures, even though Dr. Rodenberg performed the facet lesioning procedure himself and so could not appropriately also have performed the duties of anesthesiologist for that procedure.3/ Each of these forms indicates that the surgeries started at 12:04 p.m. and ended at 13:14 p.m., that the patient was in the PACU at 13:20 p.m., and that anesthesia started at 12:01 p.m. and ended at 13:24 p.m. There are differences in the two forms, however. In the section entitled "Technique," the first form has "MAC" written in next to the "Other" block, while the second form has "MAC local" written in this space.4/ In addition to the drugs shown as administered on the first form, the second form also shows the administration of what appears to read "Depo Medrol" and "epinephrine." Neither form documents the administration of either midazolam or propofol. Neither form records any patient temperature readings or breath sounds. While the first form records the last reading of blood pressure and heart rate at 13:15 p.m., the second form shows additional readings taken at 13:20 p.m., which reflect a considerable drop in heart rate to 40, a drop in systolic blood pressure to 75, and a drop in diastolic blood pressure to 20. The second form also contains hand-written notations in the "Remarks" area of the form which appear to read "postop instability," "See Nursing Notes," "See separate dictation(s)," "1324," and "intubated to PACU SR->sat 96%." In the "Post Op Visit" area of the second form a box marked "Complications" is also checked. A hand-written note in J.D.'s file reads as follows: Dr[.] Noback Escobar wanted me to leave this for you. The record was corrected after the fact due to disconnected IV so there might be two slightly different versions. You may call if this is confusing in any way Dr. Rodenberg Assuming that this note was made with respect to the two different Anesthesia Records, it does not provide an adequate explanation of all of the differences in the forms. Most significantly, the second form includes notations at 13:20 p.m. reflecting significant changes in J.D.'s blood pressure and heart rate, and reference to her post-operative instability and complications. These differences would not be explained by a disconnected IV, and the note does not otherwise explain them. There is, however, only one Anesthesia Record prepared and signed by Dr. Rivera-Kolb in J.D.'s medical records. Dr. Rivera-Kolb testified repeatedly at hearing that this form pertained to the third procedure, that is, the facet radiofrequency lesioning.5/ Dr. Rivera-Kolb's testimony on this point is rejected as not credible. The times indicated on the Anesthesia Record he signed are those of the first procedure, the two-level discogram, and are consistent with the time of the pre- operation procedures as documented on the form signed by Nurse Lerfald, with the Anesthesia Charge Sheet also signed by Dr. Rivera-Kolb, and with the times indicated on the Anesthesia Records prepared by Dr. Rodenberg for the second and third procedures. While Dr. Rivera-Kolb insisted that he prepared and kept an Anesthesia Record for the facet radiofrequency lesioning, he offered differing accounts with respect to that form. Dr. Rivera-Kolb's written statement to the medical investigator notes that J.D. was finally stabilized and sent to the hospital, and then continues: In the aftermath of the above described events, I returned to the OR and noticed the anesthesia sheet that I had used to tabulate the vital signs for Dr. Rodenberg was left on the anesthesiologist's table. I retrieved the data and went to the administrative office to hand him the document. Dr. Rodenberg was in the administrator's office with Dr. Moya and Dr. Escobar so I waited outside until their conference was over. As I handed the document to the records keeper Johan Castenada, Dr. Rodenberg exited the office. When I told him that I was placing the document on the operative record, he instructed me to destroy the record. He stated that it was unnecessary for me to get involved in this case since he had been monitoring the patient from his position in the OR and he did not need my tabulations. I was hesitant to destroy the records and asked Dr. Escobar for advice in the matter. Dr. Escobar insisted that I place the recorded data in the operative records where it stands now. He also advised me to file an incident report which I did. Yet in his deposition, Dr. Rivera-Kolb testified that he did not initially record the numbers on the Anesthesia Record, but instead entered them on a Progress Note form: I asked him first, where's the anesthesia sheet? He responded, you know, I don't want you writing in my official documents. And then I was concerned that this could have been a Monitored Anesthesia Care case, I was going to ask him what-–if there had been any changes but he said to me, this is still no anesthesia, local only case, like I told you before. * * * I looked for an anesthesia sheet. They told me they're supposed to be there. I opened a few drawers. I found a progress note and I wrote it on a progress note paper and later transferred it to this page [referencing the Anesthesia Record for the earlier discogram procedure]. * * * I had finished all the numbers in the monitors, yes. I had finished them all but I had to go to another room to transfer it to an anesthesia sheet that I found, you know, when I asked one of the circulating nurses. If the Anesthesia Record for the facet radiofrequency lesioning was not created in the operating room, but was created later in another room from notes made on a Progress Note sheet, the Anesthesia Record could not have been left on the anesthesiologist's table in the operating room following the third procedure. It is undisputed that Dr. Rivera-Kolb sat at the head of the table for the first and third of J.D.'s procedures on June 25, 2008. Numerous medical records of J.D. prepared at or near the time of her procedures provide clear and convincing evidence that the procedures were to be conducted under MAC. The Anesthesia Record dated June 25, 2008, and signed at the bottom by Dr. Rivera-Kolb indicates "MAC local." A Pre-Anesthesia Evaluation form dated June 25, 2008, indicates "MAC w/ GA b/u" after the words "anesthetic plan." The two different Anesthesia Records prepared by Dr. Rodenberg indicate either "MAC" or "MAC local." The Operative Report prepared by Dr. Moya dated June 25, 2008, and describing the second and third procedures, identifies Dr. Rodenberg as anesthesiologist and references "local MAC anesthesia." A Progress Notes form dated June 26, 2008, indicates "Anesth Rivera MD (MAC)." An Anesthesia Charge Sheet dated June 25, 2008, prepared for the discogram indicates the procedure is to be conducted under "MAC" and is signed by Dr. Rivera-Kolb as "Anesthesiologist 1." The Anesthesia Charge Sheet dated June 25, 2008, prepared for the discectomy and facet radiofrequency lesioning indicates that the anesthesia is "MAC" and shows an anesthesia start time of 12:01 p.m. and an anesthesia end time of 13:24 p.m. A Florida Atlantic Orthopedics form dated June 25, 2008, and signed by Nurse Lerfald shows "MAC," indicates the anesthesiologists as Dr. Rodenberg and Dr. Rivera-Kolb, and notes that anesthesia starts at 11:25 a.m. and ends at 13:14 p.m. Dr. Rivera-Kolb's argument that all of these references to MAC surgery should be ignored because the records might have been altered by Dr. Rodenberg is rejected. If Dr. Rodenberg had an opportunity to alter the records, it is not clear why he would not have simply replaced the Anesthesia Record rather than write a note to Dr. Noback. Even if Dr. Rodenberg did have an opportunity to alter the records, however, there is no apparent motive for him to systematically alter numerous documents prepared by different individuals to indicate that the surgeries were MAC if they were not, or any evidence that he did so. Mr. Escobar's testimony in general and, on this point in particular, was not credible. The documents prepared at or near the time of J.D.'s procedures are credited over other documents prepared after the procedures were completed, which were less consistent. A Physician Office Incident Report, which appears to have been stamped as received by the Department of Health on August 11, 2008, states that "[p]atient underwent lumbar discography, percutaneous discectomy, and facet ablation under local anesthesia." Dr. Rivera-Kolb's statement for the medical investigator, dated March 2, 2010, states that "Dr. Rodenberg, the anesthesiologist, requested that I monitor the patient's vital signs and post them in the anesthesia record sheet while he performed minimally invasive procedures under local anesthesia with Monitored Anesthesia Care." Dr. Moya, in his August 21, 2014, deposition, testified, "Well, at that stage of the procedure [the discography], which is done solely under local anesthesia, the person assigned by the anesthesiologist would be someone that looks at the graphs and makes sure that all is within normal limits." Dr. Moya went on to state that Dr. Rodenberg was always the anesthesiologist for all three procedures. Standards Dr. Orlando G. Florete, Jr., holds active and valid Florida Physician's License No. ME 0058430. He is a specialist in anesthesiology with a subspecialty in pain management. He is Board certified in anesthesiology, is a Diplomate of the American Board of Anesthesiology, and was recently elected as president of the Florida Society of Interventional Pain Physicians. He practices anesthesiology on a regular and routine basis at the Jacksonville Surgery Center. He is also the medical director of a pain management office at the Baptist Hospital in Jacksonville. He has been engaged by the U.S. Department of Justice as a consultant and is an expert medical advisor for the Florida Department of Labor and Employment Security and for the Florida Department of Health. He served as clinical assistant professor in the Departments of Anesthesiology and Medicine at the University of Florida, College of Medicine, from 1994 until 2000, where he trained residents, fellows, and medical students. He has recently been engaged by the university to teach again in the field of anesthesia and pain management. Dr. Florete is an expert in anesthesiology and has knowledge, skill, experience, training, and education in the prevailing professional standard of care recognized as acceptable and appropriate by reasonably prudent anesthesiologists in Florida. No evidence was presented that Dr. Florete has been recently engaged in active clinical practice, consultation, the instruction of students, or a clinical research program in the general practice of medicine. Dr. Florete conducted a complete review of records provided to him by the Department pertaining to J.D.'s medical treatment on June 25, 2008, including records prepared by Dr. Rivera-Kolb, Dr. Rodenberg, Dr. Moya, Mr. Escobar, and Nurse Lerfald. He also reviewed the depositions of Dr. Moya and Dr. Rivera-Kolb and heard live testimony from Dr. Rivera-Kolb. As Dr. Florete testified, under the American Society of Anesthesiologist's physical status classification system, a patient classified as "P2" is a patient with systemic disease with mild limitation. A classification of "P3" means that the patient has significant or severe systemic disease with definite severe systemic or physical dysfunction. As Dr. Florete testified, the classification of a patient has an impact on the procedure and type of anesthesia used; so, an anesthesiologist must know the physical status of the patient. As Dr. Florete testified, midazolam is a generic name for Versed, in the benzodiazepine class, that is a very potent intravenous sedative that can produce amnesia and loss of consciousness. Propofol, in a one percent emulsion, is a milky- colored intravenous anesthetic that can promote rapid loss of consciousness. Dr. Florete testified, and it is found, that Versed and propofol are the most commonly used combination under monitored anesthesia care to produce that unique level of sedation that allows the surgeon to perform surgery without the patient being agitated, moving, or crying out. As Dr. Florete explained, the acronym "MAC" stands for "monitored anesthesia care." Monitored anesthesia care is a type of anesthesiology in which a qualified anesthesiologist monitors the patient. MAC requires an anesthesiologist to monitor physiological variances of the patient, such as rising blood pressure, increase of heart rate, loss of airway, or agitation in the patient. In MAC, the anesthesiologist must determine what level of anesthesia is advisable and be prepared to administer the medications to induce deep sedation as required. As Dr. Florete testified, a nurse may "tabulate" a patient's oxygen levels, breathing, circulation, and temperature in a case involving only local anesthesia, but simple tabulation of these vital signs by a nurse is not permitted in a MAC case because a nurse is not qualified to make the required judgments. Only an anesthesiologist is authorized to perform monitoring in a MAC case or to fill out an Anesthesia Record. As Dr. Florete testified, a person who assumes the position at the head of the table monitoring a patient in a case of monitored anesthesia care assumes the responsibilities of an anesthesiologist. As Dr. Florete testified, the prevailing professional standard of care requires an anesthesiologist to perform a physical examination of the patient and review the history of the patient prior to MAC. An anesthesiologist must keep records that document the pre-operative medical examination; indicate the type of anesthetic technique employed; indicate the start and end times of anesthesia; record the patient's vital signs over time; and indicate who provided anesthesia to the patient and when. An anesthesiologist must stay with the patient after a procedure until the patient is safely delivered into the PACU. Dr. Florete testified that in a MAC case, it would be a violation of the prevailing professional standard of care for a single person to both perform surgery and attempt to act as anesthesiologist for that same procedure. In a local anesthesia case, a single person could perform both roles. Dr. Florete testified that because Dr. Rivera-Kolb was not an anesthesiologist he "had no business" filling out an Anesthesia Record. Dr. Florete credibly testified that in his opinion, Dr. Rivera-Kolb's actions in monitoring Patient J.D. during surgical procedures that he knew or should have known were to be conducted under MAC and in preparing the Anesthesia Record for a procedure constituted the acceptance and performance of the responsibilities of an anesthesiologist, which Dr. Rivera-Kolb was not competent to perform. Medical Records As Dr. Florete testified, in assuming the responsibility to perform the professional duties of an anesthesiologist, it was incumbent upon Dr. Rivera-Kolb to keep complete and accurate Anesthesia Records that documented a pre- operative medical examination of J.D.; indicated the type of anesthetic technique that was employed; indicated the start and end times of the anesthesia; recorded J.D.'s vital signs over time; and indicated who provided anesthesia to her and when. While Dr. Rivera-Kolb did prepare an Anesthesia Record for the discogram, it failed to record any temperature readings, breath sounds, or EKG readings. As Dr. Florete testified, this Anesthesia Record was incomplete. As for the facet radiofrequency lesioning procedure, it is clear that Dr. Rivera- Kolb, contrary to his testimony, did not keep an Anesthesia Record containing a complete and accurate report of J.D.'s vital signs or documenting who provided anesthesia and when. As Dr. Rivera-Kolb admitted in his testimony, he was the only physician present after the third procedure when J.D. began to exhibit bradycardia and desaturation. Yet he did not document his evaluation of these events in J.D.'s medical records to justify his treatment of J.D. There was no evidence that Dr. Rivera-Kolb conducted a complete physical examination at the time of either the first cardiac arrest in the operating room, or the second cardiac arrest in the PACU. Dr. Rivera-Kolb was present and assisting in the medical treatment of J.D. through two procedures and during two cardiac arrests; yet, the only medical records kept by Dr. Rivera-Kolb were those pertaining to the first procedure. While Dr. Rivera-Kolb maintained that he completed an incident report, this testimony is rejected as not credible. No such report is found in J.D.'s medical records, and Dr. Rivera-Kolb's suggestion that Dr. Rodenberg may have removed it for some unknown reason is only unsupported speculation. There is clear and convincing evidence that Dr. Rivera- Kolb failed to keep legible medical records that justified the course of treatment of Patient J.D., including Anesthesia Reports and records of his evaluations. Dr. Rivera-Kolb was charged with violating the standard of care both in performing as an anesthesiologist during J.D.'s procedures and in assisting in treatment of her complications afterwards. He failed to keep medical records reflecting his participation in the treatment of J.D. for either of those times. The Department did not show that in earlier discipline, Dr. Rivera-Kolb was found to have failed to keep medical records. Medical Malpractice Dr. Rivera-Kolb assumed the responsibility of monitoring J.D. and preparing Anesthesia Records, thereby practicing as an anesthesiologist when he was not competent to do so. As Dr. Florete testified, the prevailing professional standard of care for a given health care provider is that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. In assuming the responsibilities of an anesthesiologist, Dr. Rivera-Kolb is held to the standards recognized by reasonably prudent anesthesiologists. The Department proved that Dr. Rivera-Kolb did not complete a residency, have adequate training, and did not have board certification in anesthesia, all of which Dr. Rivera-Kolb himself admitted. As Dr. Florete testified, a general practitioner engaged in providing anesthesia care would not meet the prevailing professional standard of care. In evaluating Dr. Rivera-Kolb's actions after the three procedures that were performed on J.D., however it was not clearly shown that Dr. Rivera-Kolb continued to act as an anesthesiologist. To the contrary, it appears that Dr. Rivera- Kolb performed as an anesthesiologist during the procedures themselves, in part, because he knew that the surgeon was an anesthesiologist. After the procedures, Dr. River-Kolb resumed the role of a general practitioner, deferring to Dr. Rodenberg and Dr. Moya, and even acting at their direction. The prevailing professional standards of care applicable to the general practice of medicine with respect to J.D.'s post-operative complications were not established. Dr. Florete did testify that, as an "intensivist" who used to "run codes" for some hospitals in Jacksonville, he was familiar with emergency and critical care procedures. He also testified that "any medical doctor" should be able to diagnose pneumothorax "within one minute," because air trapped under the skin produces bulges or swelling which when pressed produces an unmistakable "crackling" sound as the gas is pushed through the tissue. He provided compelling testimony as to the proper diagnosis and treatment of pneumothorax. However, it was not shown that Dr. Florete was qualified to give expert testimony regarding the prevailing standards of care for a general practitioner.6/ Moreover, even if these had been established as the prevailing professional standards of care applicable to a general practitioner, it is not clear that they were violated by Dr. Rivera-Kolb in his treatment of Patient J.D. on June 25, 2008. Dr. Rivera-Kolb was charged with failing to fully evaluate the cause of the bradycardia and the desaturation once the first cardiac arrest occurred. The evidence showed that Dr. Rivera-Kolb immediately put a mask over J.D. and began to ventilate her. Dr. Rodenberg arrived within one minute and assumed control over the situation. Dr. Florete credibly testified that because of training and experience, an anesthesiologist should take the lead in such "code" situations, followed by the surgeon, and finally a general practitioner. It was therefore appropriate for Dr. Rivera-Kolb to defer to Dr. Rodenberg when he arrived. The evidence did not show that before Dr. Rodenberg arrived, there was sufficient time for Dr. Rivera-Kolb to have performed a complete physical examination of J.D. or to auscultate J.D.'s lungs, even if he had had a stethoscope, which he testified that he did not. There is no evidence that in this brief period of time, Dr. Rivera-Kolb caused any significant delay in recognizing the evolving medical emergency or in beginning treatment of J.D. Dr. Rivera-Kolb was also charged with medical malpractice in connection with the treatment of Patient J.D. after she had been stabilized following the first cardiac arrest and moved to the PACU. The Department alleges that Dr. Rivera- Kolb misdiagnosed J.D.'s condition, failed to identify the pneumothorax, and caused delay of treatment. One allegation of misdiagnosis stems from the written statement provided to the Department's medical investigator, as quoted earlier: The symptoms she displayed were consistent with a vasovagal syndrome secondary to local anesthetics injected in the cervical area during the procedure, which is not an uncommon complication. Dr. Florete did testify that vasovagal syndrome could be drug induced. However, contrary to Dr. Rivera-Kolb's statement, it is clear that no local anesthetic would have been administered intravenously through J.D.'s jugular for her procedures. The statement therefore fails to provide an explanation of J.D.'s condition to that extent. In his deposition, Dr. Rivera-Kolb admitted this, testifying that he became confused when writing the statement "two years later." He said that he was thinking that perhaps the jugular IV had pulled away from the vein and was "dripping all those chemicals" into her. Dr. Rodenberg did in fact conclude that the left jugular IV was infiltrated, which is why he inserted the second external jugular line into J.D.'s right side. In any event, Dr. Rivera-Kolb's statement was written some 20 months after the event. It is not clear that Dr. Rivera-Kolb's statement was his diagnosis on June 25, 2008. It may have been that the analysis in his statement was simply Dr. Rivera-Kolb's recollection of Dr. Rodenberg's diagnosis or simply his own opinion in looking back at the events of that day. Another allegation of misdiagnosis is predicated on Nurse Lerfald's identification of J.D.'s facial swelling. Nurse Lerfald went to get Dr. Rodenberg as soon as she noticed it. Patient J.D.'s face was "completely swollen" when they returned, and Dr. Rodenberg immediately assumed control of her treatment. However, there is scant evidence as to how much time passed between the time the swelling was first noticed and the time Dr. Rodenberg arrived. Nurse Lerfald's statement doesn't discuss it. Dr. Rodenberg's statement notes only that when he was called back to the PACU "[a]bout ten minutes had elapsed since the initial period of instability," with no mention of how long it took him to respond after he received the summons. Dr. Rivera- Kolb testified in his deposition that after the swelling was noticed, he put the head of J.D.'s bed down and pushed the endotracheal tube down, saying "[i]t took about less than a minute" before Dr. Rodenberg arrived. While Dr. Florete also testified that it should take "less than a minute" to diagnose pneumothorax from observation of the swelling, it was not clearly shown that Dr. Rivera-Kolb had even that much time before Dr. Rodenberg assumed control for the second time. It is clear that once the pneumothorax was identified, it should have been immediately treated by inserting a large-bore needle into each side of the chest to allow the air to escape while waiting to place the chest tubes. The failure of Dr. Rivera-Kolb to insert such needles immediately after the diagnosis was also alleged to constitute malpractice. But, it is undisputed that the pneumothorax was identified by Dr. Moya; after which diagnosis, Dr. Moya immediately began to insert the chest tubes. The diagnosis and treatment occurred very close in time. It was not clear from the evidence that there was any "wait" time after the diagnosis but prior to Dr. Moya's insertion of the tubes in which Dr. Rivera- Kolb could have acted, even assuming it was appropriate for him, as a general practitioner, to take over treatment of the patient from the orthopedic surgeon who had just made the diagnosis. Even if there had been competent testimony as to the prevailing professional standard of care for a general practitioner, the evidence did not clearly show that Dr. Rivera- Kolb failed to meet that standard or failed to use reasonable care. The Department established by clear and convincing evidence that Dr. Rivera-Kolb committed medical malpractice when, as a general practitioner, he engaged in providing anesthesia care. Scope of Practice The Department presented evidence indicating that propofol was in fact administered to J.D. on June 25, 2008. First, there were pharmacy bills in J.D.'s medical record indicating propofol had been issued for her procedures on that date. Second, there were written statements from Nurse Lerfald and Dr. Rivera-Kolb himself that when the left chest tube was placed, air bubbles and a white-colored fluid were discharged. Dr. Florete indicated that the discharge of the whitish fluid from the chest tube was evidence that propofol was given to J.D., because no other drugs administered in this case other than propofol would have produced a white milky fluid.7/ It was not necessary for the Department to show that Dr. Rivera-Kolb himself administered propofol to J.D., that he knew that Dr. Rodenberg had done so during J.D.'s second procedure, or even that he "feared that that was the case" in order to show that Dr. Rivera-Kolb accepted or performed professional responsibilities which he knew he was not competent to perform. The evidence is clear and convincing that Dr. Rivera-Kolb knew, or should have known, that the procedures were to be conducted under MAC.8/ He signed more than one paper indicating this, once in a block designated as "Anesthesiologist 1." He also knew, from his earlier treatment of Patient J.D., that she had accelerated hypertension and that MAC procedures might be advisable. Despite his testimony to the contrary, it is clear that Dr. Rivera-Kolb accepted the responsibility to act as an anesthesiologist during two procedures and to prepare the Anesthesia Record for at least the first of these, and then proceeded to do so. The fact that Dr. Rivera-Kolb knew that Dr. Rodenberg was an anesthesiologist and was in the room performing the surgeries does not excuse Dr. Rivera-Kolb's actions or lessen his responsibility. If Dr. Rivera-Kolb at the time of the facet radiofrequency lesioning did not know specifically what sedatives were and were not administered earlier by Dr. Rodenberg or some other person, that fact would not be exculpatory, but incriminating. Dr. Rivera-Kolb is not board certified in anesthesiology. He has not completed a residency in anesthesiology and has not had adequate training in anesthesiology for him to perform the duties of an anesthesiologist. Dr. Rivera-Kolb knew that he was not competent to perform the professional responsibility of providing monitored anesthesia care to Patient J.D. during her procedures. There is clear and convincing evidence that Dr. Rivera- Kolb accepted and performed the professional responsibilities of an anesthesiologist, which he knew that he was not competent to perform. Dr. Rivera-Kolb's actions in knowingly accepting and performing professional responsibilities which he knew that he was not competent to perform exposed J.D. to potentially severe injury or death. Prior Discipline In December 2003, an Administrative Complaint was filed against Dr. Rivera-Kolb in the Department's Case No. 2001-22573. The complaint alleged that he failed to keep required medical records, prescribed a legend drug other than in the course of his professional practice, and committed medical malpractice in violation of sections 458.331(1)(m), (1)(q), and (1)(t), Florida Statutes (2001), respectively. In December 2003, another Administrative Complaint was filed against Dr. Rivera-Kolb in Case No. 2002-13550. The complaint alleged that he failed to keep required medical records and committed medical malpractice in violation of sections 458.331(1)(m) and (1)(t), Florida Statutes (2002), respectively. In February 2006, Dr. Rivera-Kolb entered into a Consent Agreement with the Department of Health in settlement of these two complaints. In a Final Order incorporating the Consent Agreement issued on April 19, 2006, the Department imposed a reprimand, fine, and two-year period of probation against Dr. Rivera-Kolb's license. The Consent Agreement contained no provision finding that Dr. Rivera-Kolb had committed any of the offenses alleged in the complaint. Dr. Rivera-Kolb was not under any legal restraints on June 25, 2008. It was not shown that Dr. Rivera-Kolb received any special pecuniary benefit or self-gain from his actions on June 25, 2008. It was not shown that the incidents involved any trade or sale of controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Health, Board of Medicine, finding that Dr. Rivera- Kolb violated sections 458.331(1)(m), (t), and (v), Florida Statutes, as charged in the Administrative Complaint, and imposing an administrative fine of $20,000.00 and a four-year suspension of his license to practice medicine. DONE AND ENTERED this 19th day of December, 2014, 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 19th day of December, 2014.
The Issue Did Mary Moshier violate Section 464.21(1)(b) , Florida Statutes, as alleged in the Administrative Complaint?
Recommendation It is noted as a fact in mitigation that Moshier was suspended for 21 days by the hospital where she worked for the incidents that gave rise to this Administrative Complaint. Based upon the foregoing Findings of Fact and Conclusions of Law, and considering the facts in mitigation, the Hearing Officer recommends that Mary Moshier be placed on probation for a period of six months for the violation of Section 464.10(1)(f) , Florida Statutes, by using profane language regarding a patient in the vicinity of the patient. DONE and ORDERED this day of May, 1980, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Joseph S. Farley, Jr., Esquire 350 East Adams Street Jacksonville, Florida 32202 Geraldine B. Johnson, R. N. Beard of Nursing 111 Coastline Drive East, Suite 504 Jacksonville, Florida 32202
The Issue The issue is whether respondent's license as a physician should be disciplined for the reasons cited in the administrative complaint filed on December 21, 1992.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, Kenneth Aung-Din, is a licensed medical doctor having been issued license number ME 0051923 by petitioner, Agency for Health Care Administration, Board of Medicine (Board). He is board certified in emergency medicine having received his certification in 1994. When the events herein occurred, respondent was an emergency room physician at Memorial Medical Center (MMC) in Jacksonville, Florida. On the evening of February 21, 1991, V. P., a thirty-five year old female who was then eight months pregnant, presented herself to the MMC emergency room complaining of lower abdominal discomfort, difficulty urinating, and a five-hour history of nausea and vomiting. After being examined and treated by respondent, and diagnosed as having a urinary tract infection, the patient was released the same evening. Less than an hour later, however, the patient went into labor and delivered a new born. On December 21, 1992, the Board issued a two-count administrative complaint charging that, while treating V. P., respondent failed to practice medicine with that level of care, skill, and treatment which a reasonably prudent similar physician recognizes as acceptable under similar conditions and circumstances in that he "failed to obtain fetal heart tones, determine fetal position, and ausculatate for fetal heart tones with a doppler that was available to him in the ER when he examined (the) patient, who was a high risk near term obstetrical patient." The complaint further alleges that respondent failed to keep written medical records justifying the course of treatment of V. P., "including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations." Respondent denied all material allegations and requested this hearing to contest these charges. Did respondent deviate from the standard of care? On presentment to the emergency room nurse around 8:53 p.m. on February 21, 1991, V. P. complained of generalized abdominal pain and pressure since around 3:30 p.m. that day, with nausea and two episodes of vomiting. She also complained that she was unable to urinate since approximately 2:30 p.m. An additional complaint was allegedly made by the patient, but it is not a part of the nurse's notes and thus is hearsay in nature. The patient further disclosed that this was her second pregnancy. After recording in her notes the patient's complaints, the nurse, on her own volition, conducted a nitrozine test which was negative. It later came to light that the test was improperly conducted by the nurse, but respondent was never told this fact. Respondent first observed the patient around 9:08 p.m. and recalled that she "was obviously in discomfort." Based on V. P.'s complaints, respondent initially suspected that she might be in preterm labor. After obtaining a patient history, respondent palpitated V. P.'s abdomen for any pain, tenderness, abnormalities or contractions. Although V. P. was eight months pregnant, she was nontender and exhibited no signs of active labor. The patient also denied that she was having contractions. Based on V. P.'s primary complaint of urinary retention, respondent asked the nurse to insert a Foley catheter in V. P.'s bladder. Before the nurse did so, V. P. was able to urinate on her own accord. Even so, respondent ordered a catheter inserted around 9:30 p.m. to empty any residual in the bladder. This procedure yielded approximately 200cc. of urine which was used for a urinalysis test. By now, having urinated at least once, and having her bladder emptied, V. P.'s pain and discomfort had gone away, and she appeared to be "totally comfortable and with no complaints." After seeing the results of the nitrozine test around 9:55 p.m., respondent conducted a pelvic examination. Still considering the possibility of preterm labor, respondent inserted a vaginal speculum into the patient to see if there was any bleeding or fluid. Neither was present, and a manual examination of the patient revealed that the opening to her cervix was thick and closed. A patient in preterm labor would generally present signs of bleeding or fluid, and the cervix would have begun to open and "thin out." Given these findings, and the fact that V. P. was exhibiting no signs of labor or discomfort, it was reasonable for respondent to conclude that V. P. was not in preterm labor. The results of the urinalysis were reviewed by respondent around twenty minutes before the patient's discharge. By that time, she had voluntarily urinated at least three times since first arriving at the emergency room. The test results revealed 1+ protein, trace ketones, and 0-2 white and red blood cells. Also, they indicated that a sterile (uncontaminated) specimen had been taken, and that trace bacteria were present. Because trace bacteria, if not treated, can lead to "a very significant" urinary tract infection, and V. P. had previously experienced abdominal "pressure" and an inability to urinate, both signs of an infection, respondent prescribed Ampicillin, an antibiotic, on the assumption V. P. had a urinary tract infection. This diagnosis is not unusual for pregnant women, and even petitioner's expert agreed that V. P. had presented some of the "classical signs" of a urinary tract infection. After having observed the patient for almost two hours, during which time V. P. exhibited no objective clinical signs of active labor, respondent discharged the patient around 10:50 p.m. In doing so, respondent relied not only on the above observations, but also upon the results of his pelvic and abdominal evaluations, the urinalysis test results, and the fact that all of V. P.'s complaints (pain, nausea and vomiting) had been resolved. It was also reasonable to conclude that had the patient been in preterm labor, her symptoms would have progressed, rather than abated, during the two hours she was in the emergency room. At the time of discharge, respondent gave V. P. instructions to make a follow-up visit that week with her primary physician at University Medical Center (UMC), and if her condition did not improve during the interim, to return to MCC or call the "emergency department right away for further assistance." She was also given a prescription for an antibiotic for the urinary tract infection. Just prior to leaving the hospital, V. P. urinated one last time and allegedly told the nurse that she had started "spotting." Even if V. P. actually reported this critical fact, the nurse failed to disclose this to respondent, and he cannot be faulted for the nurse's omission. Had respondent known, or even suspected, that she had just begun bleeding, he would have sent her upstairs to the obstetrical wing for further observation. The complaint levels a number of criticisms at respondent's conduct which, if true, indicate that he failed to meet the appropriate standard of care. In addressing these criticisms, it should be noted that petitioner's own expert agreed that, at best, this was "a difficult case," and one that all emergency room physicians "hate to see." The complaint characterizes V. P. as a "high risk near term obstetrical patient." The use of the term "high risk" is based principally on the fact that an ultrasound conducted at UMC on February 19, 1991, revealed that the fetus was in a breech position. But respondent was never told this fact, and even petitioner's expert conceded that without this information, it was reasonable for respondent to consider V. P. as a normal risk pregnancy. The complaint first alleges that respondent "failed to assess the status of the fetus by neglecting to auscultate for fetal heart tones with a doppler that was available to him in the Emergency Department." A doppler is a device used to listen for fetal heart tones and, while not as effective as other monitoring devices, is nonetheless useful in detecting fetal distress or preterm labor. Here, respondent did not assess the status of V. P.'s fetus because her pain and discomfort had disappeared after her urinary tension was resolved, and she no longer exhibited any signs, clinical or otherwise, of preterm labor. At the same time, while doppler machines were available in emergency rooms, including MMC, during the early 1990's when this incident occurred, it was not prevailing protocol for emergency room physicians to automatically conduct fetus monitoring for what they perceived to be normal risk pregnancies. While the standard for emergency room physicians has subsequently changed, and fetal heart tones are now routinely monitored on all pregnant women twenty weeks and above, respondent did not deviate from the prevailing standard of care in February 1991 by failing to use a doppler. The complaint next alleges that a prudent physician "would have telephoned (V. P.'s) treating physician from UMC, or the obstetrician- gynecologist on call in order to properly assess (her) condition." As to calling V. P.'s treating physician, however, the more persuasive evidence shows that it would have been imprudent to attempt to contact V. P.'s primary treating physician because she had been treated by an unknown resident at another hospital, and at that hour of the night the chance of speaking with that resident was highly improbable. Then, too, since her complaints had been resolved, there was no need to contact another physician. As to respondent's failure to obtain a specialist consultation, the more persuasive evidence shows that the diagnosis of urinary tract infection was reasonable under the circumstances, and after the patient exhibited no signs of distress for at least an hour and a half, her discharge was appropriate. While it is true, as petitioner suggests, that the initial complaints by V. P. of pressure, nausea, vomiting and abdominal pains can be signs of preterm labor, these complaints were resolved after the catheter was inserted, and there were no corroborating indications of labor. Then, too, based on the information at hand, respondent reasonably concluded that V. P. was a normal risk pregnancy. Finally, later inquiry disclosed that during her first pregnancy, V. P. was in labor for only fifteen minutes, a remarkably short period of time. Respondent was not aware of this fact at the time of treatment. As it turned out, V. P. experienced another remarkably short period of labor on the evening of February 21, 1991. In summary, the more persuasive evidence supports a finding that, while treating V. P. in February 1991, respondent practiced medicine with that level of care, skill and treatment which was recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. C. Adequacy of Medical Records The complaint generally alleges that respondent failed to keep written medical records justifying the course of treatment of the patient. In the history section of his notes for patient V. P., which have been made a part of this record, respondent made the following recordations: 2110 - 35-year old white female, eight months pregnant; complaining of unable to urinate; dysuria; feels like pressure; denies vaginal bleeding; no contractions; Under the physical examination portion of his notes, respondent reported as follows: white female, well developed, awake, alert, times 3. Abdomen, pregnant uterus equals 8 months; nontender. Pelvic - zero blood; oz thick and closed. Late entry - 2/26/91, Nitrozine Test performed, which was negative. Finally, under his diagnostic impressions and discharge instructions, respondent wrote as follows: UTI (urinary tract infection) Ampicillin 250 mg, q.i.d., for 7 times. Tylenol if needed. Follow up, UMC this week. Return if any problems. In responding to the charge that his notes were inadequate or incomplete, respondent agreed that the diagnostic impressions section would have been more accurate and complete if he had written "urinary retention- resolved/UTI" rather than "UTI" alone. This is because urinary retention was a secondary diagnosis which was resolved during the patient's visit. In this respect, the records are not adequate. In addition, because the records fail to note that V. P.'s symptoms of abdominal pain and pressure were resolved, they lack completeness. In all other respects, they are found to be adequate.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order finding respondent guilty of violating Section 458.331(1)(m), Florida Statutes, as described above, and that he be given a reprimand. Count I should be dismissed. DONE AND ENTERED this 1st day of October, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 1996. COPIES FURNISHED: Dr. Marm Harris, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Kevin W. Crews, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 W. Jerry Foster, Esquire 1342 Timberlane Road, Suite 101-A Tallahassee, Florida 32312-1775 Jerome W. Hoffman, Esquire Agency for Health Care Administration Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Petitioner applied for and took the 1982 acupuncture examination consisting of four parts. He failed Part IV the clinical practical, or hands- on, part of the examination dealing with needle insertions, manipulation and needle removal, patient care, sanitation and antiseptic application. In 1983 the Florida Legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section. In December, 1984, Petitioner was notified in writing as to his 1984 examination results and was advised in an accompanying document that the deadline for filing an application to retake the acupuncture examination in 1985 would be May 24, 1985. That same accompanying document also advised Petitioner that candidates who failed either section 1 or section 2 of Part III must retake both section 1 and section 2 of Part III. Petitioner made the decision that he would not take the 1985 acupuncture examination but rather would wait until the 1986 acupuncture examination was given. However, when Petitioner "got laid off" from his employment, he decided to take the 1985 examination, mailing his application therefor the day before the deadline. In July, 1985, Petitioner retook Part III of the acupuncture examination. Petitioner received a score of 54 on the written practical section and a score of 65 on the clinical practical section. A score of 70 or greater on both sections is required in order to achieve a passing grade for Part III. Petitioner requested a review of his grades. That review revealed that although errors were found in scoring the written practical section, Petitioner's adjusted grade on that portion of the practical Part of the examination remained below the required 70. The review of the clinical practical section of that Part of the acupuncture examination revealed that both examiners who graded Petitioner on the clinical practical section evaluated Petitioner identically as to those areas in which Petitioner's performance was inadequate, agreeing item by item.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner failed both sections 1 and 2 of Part III of the 1985 acupuncture examination; denying Petitioner's request that his grade be set aside and that he be permitted to retake the examination without first completing the educational requirements; and denying Petitioner's application for certification to practice acupuncture in the State of Florida. DONE and RECOMMENDED this 24th day of October, 1986, at Tallahassee, Florida. LINDA M. RIGOT 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 24th day of October, 1986. COPIES FURNISHED: Marcelle Flanagan, Executive Secretary Board of Acupuncture 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce Alexander, Esquire 9200 South Dadeland Boulevard Suite 515 Miami, Florida 33156 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner applied for certification as a physician assistant by application dated June 29, 1991. Under the statutory scheme regulating physician assistants, in certain circumstances, the Board of Medicine may grant temporary certification to applicants for licensure. The temporary certification is good only until the applicant receives notice of the applicant's scores received on the first available examination. At its meeting of October 30 through November 1, 1992, the Board approved Petitioner for temporary certification contingent upon his completion of specified requirements prior to such temporary certification and his completion of 25 hours of continuing medical education after issuance of such certification. Petitioner completed the specified requirements for issuance of the temporary certification and was issued a temporary certificate. Petitioner was so notified by letter dated October 4, 1993. Petitioner was first notified of the need to pay a required fee for the licensure examination by letter dated February 27, 1993. That letter set forth that the fee must be paid by March 31, 1993. Petitioner did not pay the fee by that deadline. On June 8, 1993, Petitioner was notified that the deadline for payment of the required examination fee had been moved to June 25, 1993. The extension had been given because the Board was still involved with processing applications for this special licensure program. Petitioner did not pay the fee by that deadline. On October 11, 1993, Petitioner was sent another letter notifying him that the deadline had been extended once again. This time the deadline was set for November 15, 1993. The notice sent to Petitioner specified three times that the required examination fee must be received in the office of the Board by November 15, 1993. It specifically informed Petitioner that a postmark of November 15, 1993, would not be sufficient. Furthermore, the notice informed Petitioner that if he failed to submit the required examination fee in a timely fashion, he would not be eligible to take the licensure examination. Although Petitioner testified that he was confused with regard to when the required fee could be sent, it was established that he could read the letter and that he understood that his failure to timely pay the examination fee would result in his not being permitted to take the licensure examination. Petitioner did not have the money for the required examination fee until November 14, 1993. Petitioner mailed the examination fee from Miami to the Board office in Tallahassee by certified United States mail on November 15, 1993. Although Petitioner testified that he believed the fee would be delivered the same day or the next day, Petitioner did not use any type of special delivery to provide same day or next day delivery at the Board's office. The fee submitted by Petitioner in the form of three Travelers Express Company checks was received in the Board's office on December 22, 1993. Petitioner did not submit the required examination fee in a timely manner for any of the three deadlines set by the Board. With the exception of one case involving an applicant with a heart condition, the Board has uniformly denied any request for the late payment of the required examination fee. If he does not take and pass the first available licensure examination, Petitioner will not be able to receive his permanent certification as a physician assistant. The licensure examination for persons in Petitioner's category has not yet been given by the Board. Therefore, none of the applicants for certification as physician assistants through this special licensure program have yet been tested.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner is not eligible to take the physician assistant examination and that Petitioner's temporary certification is null and void. DONE and ENTERED this 9th day of February, at Tallahassee, Florida. LINDA M. RIGOT 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 February, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-4, 7-9, and 13 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being irrelevant. Petitioner's proposed finding of fact numbered 6 has been rejected as being subordinate. Petitioner's proposed findings of fact numbered 10-12 have been rejected as being not supported by any evidence. Respondent's proposed findings of fact numbered 1-17 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 18 has been rejected as not constituting a finding of fact. COPIES FURNISHED: Allen R. Grossman, Esquire Office of the Attorney General PL-01, The Capitol Tallahassee, Florida 32399-1050 Alexander J. Alfano, Esquire 45 Southwest 9th Avenue Miami, Florida 33130 Dr. Marm Harris, Executive Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration, Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner, Richard W. Merritt, D.C. is a chiropractic physician licensed under Chapter 460, Florida Statutes, and is actively practicing chiropractic in the State of Florida. By this action Petitioner challenges the validity of Rule 61F2- 17.007(6)(a), F.A.C.. The pertinent portions of the challenged Rule purport to define several terms to be utilized by the peer Review Committee in evaluation of chiropractor performance as brought before it. Specifically in issue are provisions of Rule 61F2-17.007: (6)(a) "Appropriate medical treatment" as used in Section 460.4104, Florida Statutes, is defined as a determination made of treatment and other services performed, which by virtue of a substantiated and properly diagnosed condition, appears to be of a type consistent with that diagnosis as reviewed by the peer review committee. "Properly utilized services" as used in Section 460.4104, Florida Statutes, means a determination made of appropriate medical treatment services rendered including frequency and duration which are substantiated as being necessary and reasonable by clinical records and reports of the provider as reviewed by the peer review committee. "Appropriate costs" as used in Section 460.4104, Florida Statutes, mean a determination made of charges submitted for properly utilized services performed which appear to be necessary and reasonable charges for similar provider services in the judgement of the peer review committee. As a licensed chiropractic physician subject to Chapter 460, Florida Statutes, Petitioner is substantially affected by the challenged rule because: he is a "health care provider" as defined by Section 460.403(5), Florida Statutes, and as used in Section 460.4104, the specific authority for and statute implemented by the challenged rule; the challenged rule expressly applies to health care providers and establishes definitions of statutory standards applicable to the peer review of the practice of chiropractic by chiropractic physicians including Petitioner; and the rule, when applied in conjunction with Section 460.4104, Florida Statutes, may subject chiropractic physicians, including Petitioner, to potential penal sanctions for the practice of chiropractic which violates the definitions incorporated in the challenged rule applied consistent with the statutory standard. The Respondent, Department of Business and Professional Regulation, (now Agency for Health Care Administration), Board of Chiropractic, (Board), promulgated the challenged rule and has the responsibility for implementing it as well as the whole of Chapter 460, Florida Statutes and Chapter 61F2, F.A.C..
