The Issue Whether Respondent violated sections 458.331(1)(m), (q), and (t), Florida Statutes (2007-2011), and, if so, what discipline should be imposed.
Findings Of Fact The Parties DOH is the state agency charged with regulating the practice of licensed physicians pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. DOH is pursuing sanctions against Respondent based on her provision of medical care to patients A.M., C.B., and P.A. At all times relevant to this case, Respondent was licensed as a medical doctor within the State of Florida, having been issued license number ME 59800. Respondent is board certified by the American Board of Internal Medicine with a specialty in Infectious Disease. Respondent received her medical degree from Christian Medical College in India in 1984. Her medical career, according to her curriculum vitae, includes the following places of employment: 1996 Bay Area Primary Care 1997 American Family and Geriatrics 1998 Faculty appointment at University of South Florida – voluntary 2/99-11/99 Veteran’s Administration (Medical Officer on Duty) 1993-present Private Practice Respondent’s June 30, 2014, deposition testimony was that she is currently working as a medical provider at Fort Tryon Rehab and Nursing Home in New York, and prior to that she was working at a walk-in clinic in Queens, New York. Respondent testified that she currently resides in Pinellas Park, Florida. In 2008, Respondent’s Florida practice, Bay Area Infectious Disease (BAID), was located at 5840 Park Boulevard, Pinellas Park, Florida, and most recently at 1527 South Missouri Avenue, Clearwater, Florida. Each practice location is now closed. Respondent later testified that she had a practice located at 6251 Park Boulevard, Pinellas Park, Florida, which is also closed. Jamie Carrizosa, M.D. (Dr. Carrizosa) is a board- certified internal medicine and infectious disease physician who testified as an expert for DOH. Prior to his retirement in July 2011, Dr. Carrizosa had an active medical practice including hospital privileges. He is currently an Associate Professor of Medicine at the University of Central Florida, teaching first and second year students in the areas of microbiology and immunology. While in private practice, he treated patients with suspected skin infections, MRSA skin infections, candidiasis and other types of skin diseases. Issa Ephtimios, M.D. (Dr. Ephtimios) is a board- certified physician in internal medicine, infectious diseases and infection control who testified as an expert for Respondent. He is an attending physician at Sacred Heart Hospital, West Florida Hospital, Baptist Hospital, and Select Specialty Hospital in Pensacola, Florida. DOH Case No. 2009-13497 (DOAH Case No. 13-0595PL) On October 8, 2008, A.M. presented to Respondent with complaints of fatigue, headaches, and moodiness, according to a History and Physical Medi-Forms document. A BAID contract for services and an authorization for BAID to disclose protected health information (PHI) were executed on October 8. Within the records there was a diagram that contained pictures of a front and back body diagram and the handwritten words: “fatigue cold sweats fevers headaches.” Neither A.M.’s name nor the date appeared on the diagram, yet Respondent identified the diagram as belonging to A.M. and showing A.M.’s small lesions. On October 9, A.M. executed a Bay Area Infectious Disease and Infusion, PLC, “CONSENT FOR TREATMENT” form. Respondent’s progress notes are generally listed in the S.O.A.P. format.16/ The following appeared on one of A.M.’s October 9th Progress Notes: S: Complaint: MRSA,17/ headecha [sic], she like [sic] to talk W Dr. Pimple on but [sic] 3 rounds Zyvox, [illegible] c/o lethargic, gain wt, fatigue, headaches Pale, feets [sic] not Percocet –[illegible].” O: Exam: Ht 5.6” Wt 172 Age 16 M/F BMI T BP 118/64 P 65 R PO2 99_ Gluc A: General Appearance: WNL/18 HEENT: WNL Neck: WNL Chest: WNL Breast: WNL Heart: WNL Lungs: WNL Abdomen: WNL Genitalia: WNL Skin: WNL + multiple abcees [sic] Spine: WNL Extremities: WNL [All the “WNL” were typed capital letters.] DIAGNOSIS: Skin Abcess- Buttock, leg MRSA – Community Acquired P: PLAN: Vancomycin 1 gr daily [illegible] A second Progress Note for A.M., also dated October 9, contains the same information in the “S” and “O” portions, but at the “A” portion, it has no notations other than the pre-printed “WNL” at the “Skin” section, and it does not contain a “Diagnosis.” Respondent admitted that there were times when she would “complete records later on.” Respondent’s progress notes for A.M. from October 10 through October 16 were in a slightly different SOAP format. A.M.’s October 10 Progress Note reflects the following: S: Complaint: Vanco reaction O: Examination: BP P T R HT WT PO2 Glucose General Appearance; Awake alert,orientedx3 Head: Normocephalic atraurmatic EENT: PERLA, EOMI,Sclera-non-icteric, conjunctiva-pink Neck: Supple, no JVD. No Lymph nodes Heart: S1 S2 normal, murmurs Lungs: clear Abdomen: Soft, no masses, no tenderness, BS+, no hepatomegaly, no splenomegaly Left Lymph-inguinal: WNL Right Lymph-inguinal: WNL Extremities: No clubbing, cyanosis, edema Neurological: Motor-5/5, sensory-5/5, Deep tendon reflexes 2+ Cranial nerves Intact Skin: no rashes + circled Abscess Muskuloskeletal: WNL CLINICAL ASSESSMENT: MRSA, Skin Abcess CVIO PLAN: Zyvox A.M.’s progress notes between October 11 and 31, 2008, reflect various subjective complaints regarding her skin conditions. The physical examinations for each day do not contain consistent information regarding A.M.’s blood pressure, her height, weight, respirations, PO2, and glucose. On two days the “skin” section reflected “no rashes,” yet the clinical assessment reported “Skin Abces – improvely” [sic] or just “skin abcess.” On three progress notes (October 17, 18 and 20, 2008), there is a hand-written notation at the “Heart” section which indicates that A.M. might have a heart murmur, yet in the diagnosis section there is no mention of a heart issue or endocarditis.19/ All other progress notes regarding the “heart” contain the pre-printed “WNL.” A.M.’s IV/IM procedure notes beginning on October 10 and continuing through October 31, each reflect “heart murmur” in the diagnosis section along with “MRSA Skin abcess.” Respondent testified that she felt justified in using IV Vancomycin because A.M. was “doing the heart murmur.” However, Respondent’s initial plan included Vancomycin before any heart murmur was detected or assessed. Vancomycin is a prescription medication used to treat staphylococcal infections, and is usually utilized for more serious infections such as endocarditis. Zyvox is a prescription medication that comes in either an IV or oral form used to treat infections. Respondent claimed that there were missing medical records for A.M. However, with respect to patient A.M., Respondent claimed a progress note (part of the history and physical exam) from October 8 was the only medical record that was missing. Respondent then asserted that A.M. brought in her primary doctor’s referral which reflected A.M.’s treatment, including the medication prescribed; yet those medical records are not present. Respondent further testified that she “usually” puts prior treatment provider records in her patient’s file. Respondent maintained that she kept a lot of A.M.’s medical records on a computer that was bought in January 2001. However, that computer crashed in October 2011. A computer crash is plausible; however, the DOH subpoena was properly issued and served on Respondent on January 28, 2010, more than nine months before the alleged computer crash. Respondent then claimed that she “did not have access to that computer, which later crashed,” followed by her claim that “that practice was closed and when they came here, we only had the old, whatever, paper records.” Respondent’s position on these records was disingenuous at best. Respondent claimed that A.M. was seen and her medical records were at a different location (6251 Park Boulevard) than where the subpoena was served (5840 Park Boulevard).20/ Respondent then claimed the records that were moved from one facility to another facility could not be located. Respondent alluded to a potential police report regarding an alleged theft of medical records and other office items; however, nothing substantiated that, and Respondent’s testimony about possible criminal activity is not credible. Respondent admitted that some of A.M.’s medical records, specifically progress notes, were pre-printed, and that she wrote on some of the progress notes. In the progress notes dated October 10, 11, 13 through 18, 20 through 25, and 27 through 30, the handwriting appears to be the same, except for the change in each date. Further, Respondent confirmed A.M.’s 18 pages of progress notes of Vancomycin administration, yet distanced herself from them by saying “sometimes the charts were completed later on, so it’s possibility that it -- that it -- you know, it’s progress notes for the IV administration, but – um . . . the dates are written by nurses, so I don’t -- I don’t know.” Respondent’s inability or unwillingness to identify who may have written on A.M.’s progress notes and her avoidance in answering direct questions or claiming she did not recall the patient (and then discussing the patient) greatly diminished her credibility. Respondent claimed that there were “some verbal changes” she gave that were in a “set of nursing records,” which were not present. Any “changes” or directions given by Respondent should have been contained within her medical records for the care of A.M. Respondent maintained that her diagnosis of A.M. was based on Respondent’s total clinical picture of A.M., including A.M.’s “symptoms, her presentation, her lesions, her course -- she’d had repeated courses of oral antibiotics, and was getting recurrence.” Yet, Respondent also claimed A.M. “came in with these culture results from the primary, and that’s how the staff . . . it states MRSA, because it was already documented MRSA.” Standard of Care Respondent was required to practice medicine in her care of A.M. with “that level of care, skill, and treatment which is recognized in general law related to health care licensure.” Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of A.M. violated the standard of care for the following reasons. A reasonably prudent health care provider suspecting a patient has MRSA would observe the abrasion(s), culture the abrasion (MRSA), send the culture out for laboratory confirmation, prescribe oral antibiotics, and if the MRSA does not respond to the oral antibiotics, prescribe and administer IV antibiotics. Dr. Carrizosa noted that Respondent did not provide a description of A.M.’s abscesses, did not indicate that A.M.’s abscesses were drained, incised, cleaned or bandaged, or that Respondent provided any patient education to A.M. Although labs were ordered, there was no request for a bacterial culture or for an antimicrobial susceptibility test to be completed. Dr. Carrizosa expressed concern that young people can eliminate antibiotics within six to eight hours and there is a need for monitoring their medications to ensure they maintain a therapeutic level. Dr. Carrizosa opined that Respondent did not meet the standard of care in her treatment of A.M. The evidence clearly and convincingly establishes that Respondent violated the standard of care applicable to an infectious disease practitioner. Respondent presented the deposition testimony of Dr. Ephtimios. Dr. Ephtimios reviewed the same records as Dr. Carrizosa. Dr. Ephtimios admitted he had several lengthy conversations with Respondent during which time she provided additional information to Dr. Ephtimios that was not in A.M.’s written records regarding “the rationale for using the Vancomycin.” Respondent shared additional information with Dr. Ephtimios yet failed to recall or remember the patient during her own deposition testimony. Dr. Ephtimios’ opinion is not credible. Respondent’s deposition behavior lessens her credibility. Medical Records Medical records are maintained for a number of reasons. Primarily, medical records are necessary for the planning of patient care; for continuity of treatment; and to document the course of the patient’s medical evaluation, treatment, and progression through treatment. Further, medical records should document any communications between health care providers, and they serve as a basis for health care providers to be paid by either the patient or another party. See, rule 64B8-9.003. The medical records of A.M.’s contact with Respondent’s office between October 8, 2008, and October 31, 2008, do not meet Florida’s standards for medical records. A.M.’s records do not describe the abscesses, do not indicate if any of the abscesses were drained, incised, or cultured. Respondent failed to provide any assessment of a staph infection or provide any laboratory support for the use of the medication administered. Respondent did not document A.M.’s possible heart murmur, and failed to provide a diagnostic basis for endocarditis. Further portions of the medical record are illegible. There is no clear indication that Respondent provided A.M. with any education on her condition. Inappropriate Drug Therapy Respondent authorized the administration of Vancomycin and/or Zyvox to a 16-year-old female without adequately monitoring A.M.’s condition, or documenting the need for such use. Respondent’s failure to document the need for Vancomycin through appropriate or adequate testing was not in the best interest of A.M. DOH Case No. 2011-06111 (DOAH Case No. 14-0514PL) On February 28, 2011, patient C.B., a 42-year-old female, presented to Respondent with complaints of food allergy issues, and gastrointestinal problems, gas, bloating, and other stomach issues.21/ When she presented to Respondent in February 2011, C.B. did not have any concerns about candida or thrush.22/ Respondent prescribed a Medrol Pak (a steroid) and directed C.B. to have lab tests for the candida antibody and an immune system panel. One week later, C.B. again presented to Respondent. C.B. did not have any of the symptoms for a chronic yeast infection such as vaginal itching or thrush. Respondent advised C.B. that she had a chronic yeast infection and her immune system required treatment. However, Respondent did not prescribe any medication to C.B. at that time. On March 14, 2011, C.B. returned to Respondent’s office and received Immunoglobulin23/ via an intravenous (IV) line. On March 22, 24 and 25, 2011, C.B. received IV Ambisome.24/ Thereafter, C.B. developed a rash on her arm where the IV had been placed and a papule on her stomach. C.B. declined further IV treatments because she did not think the medication was working. On March 29, Respondent prescribed VFEND25/ to C.B. On March 30 and 31 and April 1, 2011, C.B. was a “no show” at Respondent’s office. Yet each of C.B.’s progress notes contained information regarding C.B.’s general appearance. Respondent testified that those progress notes are preprinted forms and would be adjusted upon a patient’s examination. On April 4, 2011, Respondent’s progress note for C.B. reflects “Discuss with patient in detail, patient complains of one papule, advised patient about candidiasis, GI tract not responding to azoles. Complains of diarrhea, abdominal symptoms, wants IV meds.” C.B.’s progress note dated April 5, 2011, reflects under the “S: COMPLAINT: No show - Refused to get PICC line out. Patient walked out yesterday. Patient was told to wait for dressing change. Patient states to receptionist she will come today.” Respondent elected to document on April 5, something that happened on April 4, despite the fact that the progress note for April 4 reflected a discussion with C.B. On April 11, 2011, C.B. presented a request for her medical records to Respondent’s staff. C.B. received copies of her medical records and provided them to DOH. Respondent testified as to C.B.’s 2011 presentation and Respondent’s course of treatment, including what medications were prescribed. Respondent confirmed that an undated “History and Physical” (H&P) for C.B. was C.B.’s “initial history and physical” created from a template. This H&P purports to reflect that C.B. was “discharged [from Respondent’s practice] for misbehavior . . . was in jail. . . [and] begging [for Respondent] to help her.” This H&P also contained Respondent’s physical examination of C.B., which was recorded on a “Progress Note” of the same date. Differences in the two records of the same date exist. C.B. testified that she has never been in jail and that she had not been discharged from Respondent’s practice. C.B. is found to be a credible witness. Respondent’s testimony is not credible. Respondent averred that she discussed C.B.’s vaginal itching with C.B. during the March 7, 2011, office visit, yet Respondent did not prescribe any medications for C.B. C.B.’s first IV immunoglobulin was administered on March 14, a week later. Respondent claims she discussed her care and treatment with C.B. on Wednesday, March 23, 2011. C.B. did not see Respondent on March 23, as C.B. went to Respondent’s office located on Park Boulevard in Pinellas Park and that location was closed. C.B. found out that Respondent was working at an address in Clearwater. C.B. did not have adequate time to get to that Clearwater location before it closed for the day. Thus, C.B. missed the appointment on that day. C.B.’s candid and succinct testimony is credible. Respondent testfied that certain medical records for C.B. were missing: anything that was documented electronic or anything -- any reports or any old records, old reports, it doesn’t contain anything. And she came in for the treatment of a disease that’s been existing since 2006, so a lot of workup that’s done in the prior years for -- which is the relevant basis of the treatment at this point is not there. Respondent was not clear which medical records were missing. C.B. had not been a patient of Respondent for approximately two years. Respondent’s reliance or purported reliance on C.B.’s “old records, old reports” without adequate confirmation of C.B.’s current health issues via appropriate work-ups, laboratory studies and tests falls below the reasonably prudent similar health care provider standard. Standard of Care Respondent was required to meet the same standard of care as outlined in paragraph 25 above. Dr. Carrizosa’s testimony was clear, concise, and credible. He did not appear to have any prejudice against Respondent as a person, but was concerned about how she was practicing medicine. Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of C.B. violated the standard of care for the following reasons. Respondent failed to practice in such a manner as to determine within a reasonable degree of medical certainty that C.B. had systemic candida as was diagnosed by Respondent. Further, the laboratory results were not positive for an antimicrobial sensitivity culture taken from C.B. Additionally, C.B.’s complete blood count (CBC) and the differential count, which included neutrophils and lymphocytes, were normal. The administration of Ambisome, the most expensive of all the drugs available, was not warranted as C.B. did not have systemic candidiasis. Further, the immunoglobulin treatment was inappropriate as there was no evidence that C.B. had an immune dysfunction. Medical Records Dr. Ephtimios also provided an opinion on behalf of Respondent. Dr. Ephtimios had a discussion with Respondent regarding the care and treatment provided to C.B. outside the medical records provided. Dr. Ephtimios admitted that he does not use a Medrol Pak in his practice; he does not feel comfortable practicing immunology (and would have referred C.B. out to an immunologist.) Dr. Ephtimios would not have ordered the laboratory tests that Respondent ordered; his understanding of what candidiasis means may differ from Respondent’s, and he speculated on what he thought Respondent “meant” in several instances. Dr. Ephtimios provided a somewhat exhaustive approach to the various forms of candidiasis; however, he qualified each approach. Each physician practices medicine using their own skill set and different methods of providing clinical assessments and treatment. However, Dr. Ephtimios provided various qualifiers to his opinion which rendered it less credible. The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. The medical record of C.B.’s contact with Respondent’s office during this time does not meet Florida’s standards for medical records. C.B.’s records do not reflect an appropriate evaluation, as they fail to analyze C.B.’s main complaints, they fail to analyze the previous evaluations of C.B., and her physical exams were incomplete. DOH Case No. 2011-17799 (DOAH Case No. 14-0515PL) According to Respondent, patient P.A., a 38-year-old female, was “an ongoing patient [of hers] for over ten years.” Respondent saw P.A. between February 2008 and December 2011. Respondent provided medical records to DOH regarding P.A. However, Respondent admitted she did not provide all P.A.’s medical records because “a lot of records were missing,” and Respondent knew “at one point when they were very old records in the 6251 office some of them were also shredded.” Respondent further claimed in response to additional questioning about her shredding statement, [B]ecause the statute says, you know, after three years, so I’m not sure if the -- because I know some of the records were shredded by one of the secretaries. * * * The one [statute] which says once a practice is closed retain records for three years. Respondent identified one of P.A.’s progress notes (dated January 26, 2011) as “our procedure note,” but when asked “What was going on here according to these notes,” Respondent answered: “It’s hard to say. It’s not my handwriting.” Respondent could read the handwriting, but had “no clue” who wrote the progress note. Further, Respondent was unable to state if P.A. was administered either the gentamicin 40 milligrams or the clindamycin 600 milligrams as listed on the progress note. Medical Records The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. In this instance, the testimony of Respondent clearly and convincingly proves Respondent violated section 458.331(1)(m) and rule 64B8-9.003. No evidence was presented that Respondent has been previously disciplined.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that Respondent, Neelam Uppal, M.D., violated section 458.331(1)(m), (q) and (t), Florida Statutes; suspending her license for six months followed by two years probation with terms and conditions to be set by the Board of Medicine; imposing an administrative fine of $10,000.00; requiring the successful completion of a course or courses to make, keep and maintain medical records; requiring a course in professional responsibility and ethics, and such other educational courses as the Board of Medicine may require; and assessing costs as provided by law. DONE AND ENTERED this 17th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of September,2014.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.
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.
