Conclusions Sovereign immunity extends to “corporations primarily acting as instrumentalities . . . of the state, county, or municipalities.” See § 68.28(2), F.S.; Pagan v. Sarasota County Public Hospital Board, 884 So.2d 257 (Fla. 2d DCA 2004). MRHS was deemed to be an instrumentality of the hospital district by the Attorney General in an opinion dated December 8, 2006 and the circuit court in Marion County has reached the same conclusion in several cases. As a result, MRHS is entitled to sovereign immunity under § 768.28, F.S. The public policy basis for extending sovereign immunity to private entities such as MRHS has recently been questioned by two appellate courts. See University of Florida Board of Trustees v. Morris, 32 Fla. L. Weekly D1803 (Fla 2d DCA July 27, 2007) (Altenbernd, J., concurring), rev. denied, 2008 Fla LEXIS (Fla. Jan. 7, 2008); Andrews v. Shands at Lakeshore, Inc., 33 Fla. L. Weekly D30 (Fla 1st DCA Dec. 20, 2007). The nurses are employees of MRHS and they were acting within the scope of their employment when providing services to Tyler. As a result, the nurses’ negligence is attributable to MRHS. The nurses had a duty to provide competent medical care to Tyler. They breached this duty and violated the standards of care for nursing personnel by failing to report the cyanotic episodes to Dr. Pierre and by failing to properly perform the four-extremity blood pressure test. The nurses’ actions and inactions contributed to the delayed diagnosis of Tyler’s heart condition. However, Dr. Pierre’s failure to order an immediate cardiology consultation when she detected a heart murmur shortly after Tyler’s birth also contributed to the delayed diagnosis of Tyler’s heart condition. The delayed diagnosis of Tyler’s heart condition led to his “crash” on December 16 because it is more likely than not that Tyler would have been transferred to Shands or another tertiary facility had his condition been diagnosed sooner. Tyler was not a candidate for the second and third stages of the Norwood procedure because of the damage caused by the “crash,” and he also suffered brain damage during the “crash” that caused his developmental delay. The amount of damages agreed to by MRHS is reasonable, even though Dr. Pierre likely shares some of the responsibility for Tyler’s condition. Indeed, the life care plan prepared for Tyler reflects that the cost of a transplant is between $650,000 and $700,000 and Tyler is expected to require multiple transplants over the course of his life. Moreover, the non-economic damages (e.g., pain and suffering) of Tyler and his parents could very well have exceeded the settlement amount had the case gone to jury trial. LEGISLATIVE HISTORY: This is the first year that this claim has been presented to the Legislature. ATTORNEYS’ FEES AND LOBBYIST’S FEES: The claimants’ attorney provided an affidavit stating that that attorney’s fees will be capped at 25 percent of the amount awarded by the claim bill in accordance with §768.28(8), F.S. Lobbyist’s fees are not included in the 25 percent attorney’s fees. Lobbyist’s fees will be an additional 4 percent of the amount awarded by the claim bill, which would be $28,000 based upon the $700,000 claim. The Legislature is free to limit the fees and costs paid in connection with a claim bill as it sees fit. See Gamble v. Wells, 450 So. 2d 850 (Fla. 1984). The bill does so by stating that “[t]he total amount paid for attorney’s fees, lobbying fees, costs and other similar expenses relating to this claim may not exceed 25 percent of the amount awarded [by the bill].” If this language remains in the bill (and the bill is amended as recommended below to reflect the allocation approved by the circuit court), the claimants will receive a total of $525,000, with $393,750 going into Tyler’s special needs trust and $131,250 going to his parents. The remaining $175,000 will go to attorney’s fees, costs, and lobbyist’s fees. If this language was not in the bill (and the bill is amended as recommended below to reflect the allocation approved by the circuit court), the claimants would receive approximately $362,000, with approximately $271,500 going into Tyler’s special needs trust and approximately $90,500 going to his parents. The claimants’ attorney would receive a total of approximately $310,000 ($175,000 for attorney’s fees and approximately $135,000 for costs), and the lobbyist would receive $28,000. OTHER ISSUES: The bill identifies the Marion County Hospital District as the entity responsible for payment of the claim. The parties agree, and I recommend that the bill be amended to reflect MRHS as the entity responsible for payment because it is responsible for operating the hospital pursuant to a lease from the hospital district. The bill requires the entire claim to be paid into Tyler’s special needs trust. The parties agree, and I recommend that the bill be amended to require payment of the claim in accordance with the allocation approved by the circuit court, i.e., 75 percent into Tyler’s special needs trust and 25 percent to his parents. The bill requires any funds remaining in Tyler’s special needs trust upon his death to revert to the General Revenue Fund. The parties agree, and I recommend that the bill be amended to remove this language because the bill is being paid from the hospital’s funds, not State funds. The bill should be also amended to include the standard language requiring payment of Medicaid liens prior to disbursing any funds to the claimants. See § 409.910, F.S. RECOMMENDATIONS: For the reasons set forth above, I recommend that Senate Bill 68 (2008) be reported FAVORABLY, as amended. Respectfully submitted, cc: Senator Charlie Dean Representative Marcelo Llorente Faye Blanton, Secretary of the Senate T. Kent Wetherell Senate Special Master House Committee on Constitution and Civil Law Tony DePalma, House Special Master Counsel of Record
The Issue The issue for determination is whether Respondent, a licensed physician, committed violations of Chapter 458, Florida Statutes, as alleged in the Administrative Complaint, sufficient to justify the imposition of disciplinary sanctions against his license.
Findings Of Fact Respondent is Yasar Hasan Loutfi, a licensed physician at all times pertinent to these proceedings, holding medical license number ME 0037378. Respondent's last known address is 2005 Natalie Street, Panama City, Florida. Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. At all times material to the subject matter of this proceeding, Doctors Memorial Hospital (DMH) was a primary care facility located in Perry, Florida. At one time, DMH was known as Crest Medical Center. Tallahassee Memorial Regional Medical Center (TMRMC) was a full service tertiary treatment facility located approximately 50 miles from Perry, Florida, which maintained a provider contract with DMH/Crest Medical Center. A tertiary care facility is an institution that provides access to all major specialities in the field of medicine on site 24 hours a day, and is available to serve smaller, primary care hospitals. FACTS RELATING TO DOAH CASE NO. 92-5687 P.Y. was an 82 year old resident of Perry Health Facility (PHF). She was normally treated by Dr. Eulogio Vizcarra, a physician with whom Respondent shared office facilities. Between August and November of 1991, P.Y. experienced various abdominal difficulties. During a visit by her to Dr. Vizcarra on November 7, 1991, Respondent examined P.Y. On November 11, 1991, Respondent performed a colonoscopy on the patient's midtransverse colon and diagnosed P.Y. as suffering from chronic diverticulitis. Respondent recommended further radiological study of P.Y.'s colon and specifically a barium enema. According to Respondent, though not documented in the patient's records, P.Y. refused to undergo a barium enema. Respondent provided no further follow-up examinations or diagnostic testing to address P.Y.'s difficulties until January 10, 1992. On January 10, 1992, P.Y. was brought to Dr. Vizcarra's office suffering abdominal pain and nausea. She was seen at that time by Respondent. He ordered an X-Ray which disclosed an obstruction of the large bowel. He then performed a manual bowel disimpaction. The patient was returned to the nursing home with orders by Respondent for enemas and placement of rectal tubes. Interestingly, Respondent used the non-medical term "no hokey pokey" in describing the fashion in which these procedures were to be performed on the patient. The rectal tube procedures and enemas were performed regularly from January 10, 1992, through January 13, 1992. P.Y. continued to eat and perform bowel movements. On January 16, 1992, P.Y. suffered severe abdominal pain. P.Y.'s daughter had P.Y. transferred to Crest Medical Center (DMH) where P.Y. underwent surgery by another physician, revealing obstruction of the ileum with perforation of the small intestine and mesenteric thrombosis. As established by testimony of Dr. Miles Nelson, a minimal period of 48 to 72 hours elapses before perforation occurs as the result of an acute bowel obstruction. No evidence was presented regarding the maximum period of time which could elapse before a perforation occurs. Accordingly, there is insufficient evidence to determine that the obstruction of the small intestine existed on January 10, 1992. Respondent failed to keep medical records which documented his recommendation for further study of P.Y.'s condition or her refusal of the recommended barium enema. He also failed to keep written medical records which adequately explained or justified the use of the term "no hokey pokey" or the method of treatment for P.Y.'s condition, rectal tubes. FACTS RELATING TO DOAH CASE NO. 92-5688 Patient J.W., a 36 year old male, arrived at the DMH emergency room on February 6, 1990, complaining of pain in the lower right quadrant of his abdomen. The pain had been ongoing for three days. The patient's abdomen was soft. Respondent admitted J.W. to the hospital with a diagnosis of acute appendicitis and performed an appendectomy on J.W. In the course of removing the non-perforated appendix, Respondent noted his observation of free pus in the abdominal cavity and two fiery red colored beefy loops of small bowel. He also noted the possibility of Crohn's disease. Following the operation, Respondent's postoperative diagnosis of patient J.W. remained acute appendicitis. The pathology report of an appendix specimen, dated February 8, 1990, contradicts Respondent's diagnosis. The pathology report stated that the sample revealed serosal congestion with focal exudate and some chronic inflammation in the serosa. There was no significant intraluminal or mucosal acute inflammation. While stating that could reflect acute appendicitis with resolution of previous intraluminal component, the report concluded with a diagnosis of acute and chronic periappendicitis, or secondary involvement of the appendix by an extrinsic inflammatory process. Periappendicitis and acute appendicitis are different illnesses or diseases. While Respondent talked with J.W. and told him that he might require further abdominal surgery, Respondent did not change his diagnosis to conform with the pathology report. He recorded the diagnosis of acute appendicitis in the discharge summary of patient J.W. J.W. departed DMH without Respondent's approval and subsequently received treatment for his symptoms at the Veteran's Administration Hospital in Lake City, Florida, where physicians diagnosed and treated him for acute perforated diverticulitis with local abscess formation. In a June 19, 1991 letter to Petitioner in the course of Petitioner's disciplinary investigation, Respondent stated that the "pathology report reflects the exceptionally high degree of accuracy of my operative findings." This statement of Respondent is in conflict with Respondent's misdiagnosis of patient J.W. as having acute appendicitis and Respondent's failure to reconsider or change his diagnosis in the face of the pathology report proving the diagnosis to be incorrect. In view of the pathology report and expert testimony of Dr. Milton Caster presented at the final hearing, the testimony of Respondent that he observed J.W.'s appendix to be acutely inflamed at the time of removal is not credited. Respondent gave J.W. a discharge diagnosis of acute appendicitis when he knew, or had reason to know, that this diagnosis was wrong. Further, Respondent misrepresented the facts when he stated in his June 19, 1991 letter to Petitioner that the pathology report verified his diagnosis. As established by testimony of Petitioner's expert, Dr. John C. Fletcher, Respondent's medical records of J.W. fail to justify his diagnosis of acute appendicitis. Respondent failed to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances in that he misdiagnosed J.W. and failed to reconsider or change that diagnosis when the pathology report documented that another diagnosis was more appropriate. Respondent also made a deceptive or untrue representation in or related to the practice of medicine when he knew, or had reason to know that his diagnosis of J.W. was incorrect and yet confirmed to Petitioner in the June 19, 1991 letter that the pathology report verified Respondent's operative findings. This action by Respondent also constitutes the misrepresentation or concealment of a material fact during a phase of a disciplinary process or procedure. FACTS RELATING TO DOAH CASE NO. 92-5689 From January 18, 1989 until January 26, 1989, Respondent provided medical treatment to M.H., a 74 year old male with a history of stroke with resultant decreased mental capacity and aphagia. M.H. was admitted to DMH on January 18, 1989, suffering from severe malnutrition and cachexia. That same day, Respondent performed a laparotomy on M.H. and inserted a silicone jejunostomy feeding tube into the small intestine to attempt to alleviate M.H.'s malnutrition. Respondent's medical records with regard to patient M.H. failed to document the size of the jejunostomy tube inserted in the patient's small intestine, or whether the tube had been irrigated at the time of insertion to confirm that it was appropriately placed. Following the onset of severe abdominal pain and tenderness, M.H. was subjected to an x-ray contrast study on January 20, 1989, revealing that the jejunostomy tube implanted by Respondent had perforated the wall of M.H.'s small intestine. Respondent performed a second operation on M.H. that same day and verified the small intestine perforation. M.H.'s small intestine was also observed to be severely thickened and inflamed, with pus and small bowel content in the abdominal cavity. Respondent diagnosed M.H. as having acute peritonitis, repaired the perforation and inserted a second jejunostomy tube made of red rubber. Postoperatively, M.H. was diagnosed with septicemia, pneumonia, and respiratory failure. He continued to deteriorate and expired on January 26, 1989. Respondent made a serious technical surgical error during the initial operation on M.H. when he perforated M.H.'s small intestine. He should have recognized his error immediately and taken appropriate corrective action. Because Respondent inappropriately perforated M.H.'s small intestine during the initial surgery, and inappropriately failed to recognize this perforation and take corrective measures, Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Respondent's medical records, as the result of omissions regarding the size of the tube and documentation of procedures following to insure proper tube placement, fail to justify the course of treatment of patient M.H. FACTS RELATING TO DOAH CASE NO. 92-6249 Patient P.R., an 83 year old female nursing home resident at Perry Health Facility (PHF) in Perry, Florida, was treated by Respondent from June 22, 1990 to July 18, 1990. P.R. had been admitted to the hospital for acute abdominal pain, fever, vomiting, distension, and hypotension on July 16, 1990. She suffered from organic brain syndrome, a form of senility. P.R.'s family requested that she not be resuscitated in the event of death or become the subject of heroic lifesaving measures. The family's desire was that she be kept comfortable in the hospital. On July 18, 1990, P.R.'s temperature was more than 100 degrees. She had a white blood count of over 50,000, but was resting comfortably as a result of pain medication. P.R. was unable to eat since she had a nasal gastric tube in place to relieve abdominal pressure. Faced with what he perceived as the need to either treat the patient's illnesses more aggressively or make alternative arrangements for her care, Respondent issued discharge orders to permit P.R.'s return to PHF, conditioned upon the willingness of the nursing home to accept her in her condition. This action was taken following Respondent's request that hospital staff attempt to locate P.R.'s brother to authorize further medical care which would justify her retention in the hospital. The attempts to contact the brother were not successful. The patient was discharged to the nursing home. Upon receiving the patient, personnel at PHF communicated with the hospital, pointing out that the patient could not be accepted under current regulations since she could not eat. In response to the nursing home's concern about retaining P.R., Respondent authorized removal of her nasal gastric tube and provision to her of a liquid diet. As a result, P.R. began to vomit and, on July 19, 1990, was brought back to the hospital. She was readmitted by another physician and successful contact with family members resulted in the recission of previous directives regarding her treatment. Respondent's authorization of P.R.'s hospital discharge was premature and inappropriate in view of her need for further medical supervision and treatment. As a consequence, Respondent's discharge of P.R. constituted a failure to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under the circumstances. FACTS RELATING TO DOAH CASE NO. 93-1198 Patient C.T. On October 24, 1989, C.T., a 49 year old female, presented to DMH with complaints of severe abdominal pain, nausea, vomiting, fever and abdominal distention. Respondent diagnosed a bowel obstruction and surgery was performed on the day of admission. In the course of the exploratory laparotomy on C.T., Respondent discovered C.T. had a small bowel obstruction, several abdominal adhesions, and severe liver cirrhosis with acute alcoholic hepatitis. A biopsy of C.T.'s liver confirmed the patient's condition. The patient improved after surgery and was awake and alert. On October 26, 1989, Respondent discussed C.T.'s condition with her and her family. He informed C.T. that she was suffering from end stage liver disease in the form of severe liver cirrhosis and recommended that she be transferred to Tallahassee Memorial Regional Medical Center for further treatment. The refusal of the patient's husband to assent to transfer of the patient was documented in medical records on October 31, 19889. Respondent asserts that the patient also refused to be transferred, although no signature of the patient exists to document such a finding. Respondent did not order an appropriate consultation with a specialist in liver disease and proceeded to provide medical treatment for the patient. She expired on November 2, 1989. As established by testimony of Petitioner's expert, James H. Corwin, M.D., management of postoperative care of a patient with advanced liver disease is beyond the expertise of a general surgeon. Respondent attempted to provide C.T. with postoperative care necessary for patients with severe liver cirrhosis and attempted to perform professional responsibilities which he knew or had reason to know that he was not competent to perform. Respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Patient B.M. On March 8, 1990, B.M., an 80 year old female, was admitted to DMH with a chief complaint of breathing difficulty. On the morning of March 9, 1990, B.M. was in shock and near death. Respondent provided resuscitative measures to the patient and examined her. Respondent found B.M.'s abdomen to be hard with negative bowel signs. Her white blood cell count was 55 thousand. Respondent made a diagnosis of acute abdomen. Respondent thought that B.M.'s shock was the result of acute abdominal catastrophe. Although an administrative consultation of the patient was ordered by the hospital prior to surgery on B.M., neither of the two consultants appointed by the administrator of DMH provided the results of their review of B.M.'s case to Respondent. While Petitioner's expert, Dr. James H. Corwin, M.D., testified that Respondent treated B.M. inappropriately, Corwin's opinion was based on the understanding that Respondent had been provided access to the results of the administrative consultation prior to surgery on B.M. Accordingly, to the extent that Corwin's opinion that Respondent should not have operated relies on the mistaken belief that Respondent was aware of results of the administrative consultation, that opinion is not credited. Corwin's expert opinion does establish, however, that Respondent's medical records were unclear and failed to document or justify Respondent's treatment of B.M. in that the records did not adequately document preoperative diagnostic testing. During surgery on March 9, 1990, Respondent performed a total colectomy, an ileostomy, and lysis of adhesions. On March 11, 1990, B.M. was returned to surgery for reexamination of her bowel which was found to be septic. On March 18, 1990, B.M. expired due to multiple organ system failure. Respondent did not perform surgery on the patient B.M. in disregard of consultants' advice against such surgery. Patient N.C. A 40 year old male, N.C. was first seen on June 14, 1990, in the emergency room of DMH. N.C. was not seen by Respondent at that time and was treated by another physician. He was then released, although he was vomiting blood. N.C. returned to the emergency room on June 27, 1990, with severe epigastric pain, tenderness, nausea, and vomiting. N.C. was admitted to the hospital at that time. On June 28, 1990, Respondent performed an endoscopy on N.C. and discovered a huge peptic ulcer. On June 29, 1990, N.C. developed massive GI bleeding with recurrent hematemesis, abdominal distention, and frank shock. Respondent transferred N.C. to the intensive care unit and resuscitated him through use of blood transfusions and gastric suction. On June 30, 1990, N.C. was the subject of the following surgical procedures by Respondent: vagotomy; gastric resection; exclusion of the peptic ulcer; oversewing of the gastroduodenal artery; hemigastrectomy with Bilroth II, enteroenterostomy; and left lateral anal sphincterotomy with dilation of the anus. Postoperatively, N.C.'s recuperation was uneventful and Respondent discharged him from DMH on July 9, 1990. Within two hours of the discharge, N.C. returned to the emergency room after an episode of vomiting of blood. He was readmitted to the hospital by Respondent for massive upper GI bleeding and blood loss shock. N.C. was placed in the intensive care unit, treated with intravenous fluids, blood transfusions and medication. On July 10, 1990, an abdominal x-ray of N.C. revealed an undefined "ground glass appearance" on the left side of the mid and upper abdomen of N.C. The radiologist expressed concern and a need for a computerized axial tomography (CAT) scan of N.C.'s abdomen for further evaluation. Subsequent x-ray studies were done on July 13 and July 15, 1990. Respondent sent N.C. to Tallahassee Memorial Regional Medical Center (TMRMC) in Tallahassee, Florida, on July 16, 1990, to undergo the recommended CAT scan. Shortly after his arrival, N.C. began vomiting blood and went into shock. Dr. J.W. Stockwell, a gastroenterologist, took over treatment of N.C. and admitted him to TMRMC. Respondent waited approximately six days after the readmission and recurrence of bleeding by N.C. to obtain proper consultation and the use of a tertiary medical facility to assist in the treatment of the patient, inaction constituting a failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. Respondent's medical records fail to reflect any attempt to take any such consultative action earlier and do not contain any justification for this delay in treatment. Respondent failed to keep written medical records which justified such a course of treatment of N.C. On July 23, 1990, N.C. was discharged following treatment at TMRMC. In the course of that treatment another shallow ulcer was discovered just inside his cardioesophageal junction by Dr. Stockwell in the performance of an endoscopy on the patient on July 18, 1990. On July 30, 1990, N.C. arrived at Walker Hospital in Avon Park, Florida, in a comatose condition with severe hypotension and recorded hemoglobin of 2.2 grams. N.C. expired several hours after admission. The conclusion of an autopsy report of N.C.'s body on August 1, 1990, was uncorroborated by any direct pathologist testimony at final hearing and appears to contradict the testimony of Dr. Stockwell and his discharge summary. Accordingly, the autopsy report's conclusion is not credited.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered revoking Respondent's license as a physician in the State of Florida. DONE AND ENTERED this 22nd day of December, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5687, 3-5688, 93-5689, 93-6249 AND 93-1198 The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-12. Accepted. 13. Rejected, argument. 14.-17. Accepted. 18.-19. Rejected, subordinate. 20.-25. Accepted. 26.-27. Rejected, Respondent never given results of consult. 28.-30. Accepted. 31. Rejected, weight of the evidence. 32.-44. Accepted. 45. Rejected, subordinate. 46.-50. Accepted. Rejected, subordinate. Accepted. Rejected, subordinate. 54.-55. Accepted. 56. Rejected, subordinate. 57.-92. Accepted. 93. Rejected, greater weight of the evidence. Respondent's Proposed Findings 1.-3. Accept. 4.-8. Rejected, subordinate. Accepted. Accepted, except for last sentence, which is rejected as speculation. 11.-12. Rejected, relevance. 13. Accepted. 14.-21. Rejected, subordinate. 22.-23. Accepted. 24.-25. Rejected, subordinate. 26.-27. Rejected, weight and argumentative. 28.-31. Rejected, subordinate. Rejected, hearsay. Accepted, but for last sentence which is rejected as conclusionary. Accepted, except for last sentence, rejected, weight of the evidence. Accepted, except for last sentence, rejected, weight. 36.-38. Accepted. 39.-44. Rejected, subordinate. 45.-50. Rejected, argumentative. Accepted. Rejected, weight of the evidence. Rejected, subordinate. Rejected, unnecessary. Rejected, subordinate. 56.-57. Rejected, argumentative. 58.-59. Rejected, relevance. 60.-67. Rejected, argumentative. 68.-69. Accepted. 70.-72. Rejected, subordinate. 73.-75. Rejected, argumentative. 76.-78. Accepted, but not verbatim. 79.-81. Rejected, relevance. 82.-85. Accepted, not verbatim. 86.-89. Rejected, subordinate. 90. Rejected, relevance. 91.-100. Accepted. 101.-104. Rejected, relevance and unnecessary. 105.-111. Rejected, argumentative. 112.-117. Accepted, not verbatim. 118.-122. Rejected, argumentative. COPIES FURNISHED: Yaser Hasan Loutfi, M.D. 2005 Natalie Street Panama City, Florida 32401 Albert Peacock, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Business and Professional Regulation The Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dr. Marm Harris Executive Director Board of Medicine Department of Professional Regulation The Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Petitioner is entitled to a medical license in the State of Florida by examination?
Findings Of Fact The Petitioner is a graduate of a foreign medical school. She graduated from the University of Ceylon, Colombo, Sri Lanka. The Petitioner was licensed in Sri Lanka on March 8, 1976. From March 8, 1976, through May, 1979, the Petitioner was employed as a physician at a government hospital located in Galle, Sri Lanka. From May, 1979, until January 24, 1981, the Petitioner was employed as a physician at a government hospital located in Colombo, Sri Lanka. While employed at the government hospitals in Galle and Colombo, Sri Lanka, the Petitioner earned 21 days of vacation time and 24 days of "casual" leave a year. Upon the termination of her employment at the government hospital in Colombo, Sri Lanka, the Petitioner was paid for 21 days of her accrued vacation and casual leave. If the 21 days for which the Petitioner was paid for upon her departure from the government hospital at Colombo, Sri Lanka are counted as time during which the Petitioner worked as a licensed physician, the Petitioner's employment during this period of time would run from March 8, 1976, to February 14, 1981. This is a total of 4 years and 343 days. If the 21 days are not counted, the Petitioner's employment would run from March 8, 1976, to January 24, 1981. This is a total of 4 years and 322 days. On January 24, 1981, the Petitioner traveled from Sri Lanka to the United Kingdom to be with her husband. Therefore, the Petitioner did not practice medicine as a physician after January 23, 1981. The Petitioner remained in the United Kingdom from January 24, 1981, to July 11, 1982. The Petitioner was issued a Certificate of Limited Registration as a Medical Practitioner by the General Medical Council in the United Kingdom which authorized her to practice medicine. The Certificate limited the Petitioner's "employment" as a physician to the following: Any supervised employment in hospitals within the National Health Service excluding employment in casualty or in accident and emergency departments except to give a second opinion with a view to management or to assist a casualty officer in treatment or to administer anesthetics. The Certificate also provided the following "period of limited registration": 9 Oct. 981 to 8 Oct. 1982. In substance the Petitioner's practice as a physician in the United Kingdom was limited only as to where she could work (National Health Service hospitals) and the period during which she could practice (9 Oct. 1981 to 8 Oct. 1982). The requirement that her employment be supervised was consistent with the manner in which all physicians in the hospitals of the National Health Service are treated; "consultants" supervise all other physicians. The exclusion of the Petitioner's employment in casualty or in accident and emergency departments was included on the certificate only because the Petitioner did not choose to pay an additional 15 Pounds Sterling. While in the United Kingdom, the Petitioner worked as a physician from October 1, 1981 until July 10, 1982, a total of 283 days. On July 11, 1982, the Petitioner returned to Sri Lanka to visit with her son and her family before joining her husband in the United States. The Petitioner remained in Sri Lanka from approximately July 11, 1982, until October 30, 1982. In August of 1982 the Petitioner took over the practice of Dr. S. H. M. Kaleel, on 7 intermittent days. Dr. Kaleel's practice consisted of a general-family practice. Dr. Kaleel was in the United Kingdom from September 1, 1982, to October 7, 1982. This was a period of 37 days. During this period the Petitioner operated Dr. Kaleel's office for him. On October 30, 1982, the Petitioner left Sri Lanka to join her husband in the United States. She arrived in New York, New York, on October 31, 1982. The Petitioner and her husband initially lived in Athens, Georgia, where her husband attended the University of Georgia. The Petitioner and her husband subsequently moved to Gainesville, Florida. The Petitioner still resides in Gainesville. The Petitioner has more than 5 years of licensed practice if her employment with the government hospitals in Sri Lanka (March 8, 1976 to February 14, 1981), her employment in the United Kingdom (October 1, 1981 to July 10, 1982), and her employment by Dr. Kaleel (7 days in August, 1982, and from September 1, 1982 to October 7, 1982) are counted. If the period from January 24, 1981 to February 14, 1981, and the Petitioner's employment in the United Kingdom are not counted, the Petitioner still has more than 5 years of licensed practice. If the period from January 24, 1981 to February 14, 1981, the Petitioner's employment in the United Kingdom and her employment by Dr. Kaleel are not counted the Petitioner has less than 5 years of licensed practice. The Petitioner filed an Application for licensure by examination which was received by the Respondent on February 13, 1985 (hereinafter referred to as the "First Application"). In the First Application the Petitioner listed her current address as Gainesville, Florida. On the second page of the First Application, when requested to list "all places of residence since initiation of medical training," the Petitioner failed to list her residence in Athens, Georgia or Gainesville, Florida. The Petitioner also did not indicate that she had been in Sri Lanka from July 11, 1982, until October 30, 1982. Finally, the Petitioner indicated that she had resided in Sri Lanka until February, 1981. In completing this portion of the First Application the Petitioner did not list her residences. Instead, the Petitioner listed places of employment. Her failure to list all of her residences was caused by sloppiness and carelessness. The Petitioner was also requested to list her places of employment on the First Application. In doing so, the Petitioner indicated that she had been employed in Sri Lanka until February of 1981. This was consistent with the position she has taken in this proceeding. The Petitioner also failed to list her employment in Sri Lanka after leaving the United Kingdom in July of 1982. She failed to list this employment because she forgot about this period of employment. The Petitioner also filed a Professional Biodata dated February 9, 1985. Again she indicated that she worked in Sri Lanka until February, 1981, that she left for the United Kingdom in February, 1981, and failed to indicate that she had worked in Sri Lanka during 1982. Two routine certifications of personal knowledge of the Petitioner's practice were filed with the Respondent by a Dr. Yogasakaran and a Dr. de Lanerllore. By letter dated August 23, 1985, the Respondent informed the Petitioner that the affidavits submitted by Drs. Yogasakaran and de Lanerllore contain erroneous information about her Sri Lanka practice. The affidavits refer to her practice being from February 15, 1976 through February 14, 1981. The letter states that the Petitioner had stated in her letter to the Board that she was in the United Kingdom from February through October, 1981. The letter further advises that the practice in the United Kingdom is unacceptable toward the 5 years of licensed practice, because it was under a limited license. In a letter dated October 2, 1985, the Petitioner informed the Respondent for the first time that she had worked as a physician from September 1, 1982 to October 7, 1982, at Dr. Kaleel's clinic. She enclosed affidavits from Drs. Devacaanthan and Yogasarkara indicating that she had practiced as a physician from March 8, 1976, to February 14, 1981 and from September 1, 1982 to October 7, 19.82. She also enclosed a letter from Dr. Kaleel indicating that she had practiced from September 1, 1982 to October 7, 1982. In September, 1986, the Petitioner filed a second application for licensure by examination (hereinafter referred to as the "Second Application") pursuant to Section 458.311, Florida Statutes (1985), seeking a license based upon taking the FLEX examination and completing 5 years of licensed practice. In the Second Application the Petitioner again listed her current residence as Gainesville, Florida. She left off her residence in Athens, Georgia, and Gainesville on the second page of the Second Application, however, and again indicated that she had resided in Sri Lanka until February, 1981. Again the Petitioner listed her places of employment instead of her residence on the Second Application. Her failure to properly list her residences was caused by her sloppiness and carelessness. The Petitioner also listed her places of employment on the Second Application. Although the Petitioner had informed the Respondent about her employment in Sri Lanka during 1982, the Petitioner again failed to list this employment. By Order filed June 19, 1987, the Respondent denied the Petitioner's Second Application. The Petitioner incorrectly answered the question, "[h]ave you ever had to discontinue practice for any reason for a period of one month or longer," on the First and Second Applications. She did so because she was sloppy and careless in completing these Applications. Since at least 1978 the Respondent has interpreted Section 458.311(1)(c), Florida Statutes, to exclude practice by a physician pursuant to a limited or restricted license issued by a foreign jurisdiction for purposes of determining whether a physician has 5 years of licensed practice. Therefore, the Respondent did not accept the period during which the Petitioner practiced in the United Kingdom. The position of the Respondent set out in Finding of Fact 34 has not been adopted as a rule. It has been consistently applied by the Respondent. The Respondent has taken this position because it believes that it is unable to determine what actual restrictions apply to a limited or restricted license issued by a foreign jurisdiction. The evidence in this proceeding proved, however, that the actual restrictions which apply to a limited or restricted license can be determined and are a matter of proof. The Petitioner's testimony concerning the affidavits submitted by various physicians in support of the Petitioner's applications was not credible. The Petitioner testified that the dates of employment included by physicians who submitted affidavits were not provided to those physicians by the Petitioner and that she did not know where they got the dates. This testimony defies logic. Only one of those physicians, Dr. Kaleel, had any personal knowledge of the exact dates that the Petitioner engaged in the licensed practice of medicine. One of the physicians, Dr. Yogasakaran filed one affidavit with dates consistent with those supplied by the Petitioner. When the Respondent questioned those dates, Dr. Yogasakaran submitted a second affidavit with the new dates supplied by the Petitioner. The Petitioner's testimony on other matters was credible and her position that she has completed 5 years of licensed practice was substantiated by other credible evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued GRANTING the Petitioner's application for licensure by examination. DONE and ENTERED this 3rd day of February, 1988, in Tallahassee, Florida. LARRY J. SARTIN 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 3rd day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3004 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1-9 These proposed findings of fact were stipulated to by the parties. They are hereby accepted. 10 3, 4 and 21. The first sentence is accepted in paragraph 5. The rest of these proposed findings of fact are rejected as irrelevant. 5-8. The Petitioner did not resign from her employment effective February 14, 1981. Although the last sentence is true, it is not relevant to these proceedings. 13 8, 9, 14 and 16-18. 14 18. 15 These proposed findings of fact are summaries of testimony. See 34. The Respondent's Proposed Findings of Fact 1 1 and 22. 2 29. 3 24 and 31. 4 21 and 24. 5 25. 6-7 28. 8-16 and 18 These proposed findings of fact are generally correct. They have been taken into account in weighing all of the evidence in this case. See 26-28. 17 2-4 and 8. 19 9-10 and 13. 20 34. See 34 and 35. Irrelevant. 23 10. 24 1. 25-26 Not supported by the weight of the evidence. 27-28 33. COPIES FURNISHED: Paul Watson Lambert, Esquire Taylor, Brion, Buker & Greene Post Office Box 11189 Tallahassee, Florida 32302 Allen R. Grossman, Esquire Assistant Attorney General Department of Legal Affairs Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Ms. Dorothy Faircloth, Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact The Petitioner Mario Alberto Almeida applied to the Respondent Board of Medical Examiners to sit for the medical licensure examination and paid his application fee in September, 1985. At that time, the Petitioner Almeida was interning in New York and his wife, concerned that a prior application had been untimely filed, assisted the Petitioner in filling out the subject application. When filling out the application, Mrs. Almeida erroneously wrote on the application form that her husband had a "B.S. 1979, University of Miami," which error arose from the fact that she was unaware that the Petitioner had not completed his University of Miami undergraduate degree work despite completing 137 credit hours of courses and being eligible for graduation. Mrs. Almeida believed that her husband graduated from the University of Miami because he had not informed her that he had left prior to graduating and Mrs. Almeida had seen solicitations for funds addressed to her husband as a 1979 University of Miami graduate. Also omitted by the Almeida's was the Petitioner's race (which is caucasian), that he had successfully attended a junior college and that he was a United States citizen who had legally changed his name to reflect his father's name, Alberto. Other than these erroneous statements and omissions, the Petitioner Almeida supplied the Respondent with all information requested, including additional information requested by letter dated November 4, 1985. Thereafter, the Respondent Board issued to the Petitioner Almeida an authorization to sit for the December, 1985, examination which card was inadvertently issued to and returned by the Respondent. In support of his application, the Petitioner was issued a letter which requested that he personally appear in Tampa, Florida, at 4:15 p.m. on November 22, 1985, at a meeting before the Foreign Medical Graduate Committee of the Board of Medical Examiners. Although the Petitioner was put under oath and was questioned at that meeting, he was not represented by legal counsel. The Committee referred his application to the full Board with no recommendation regarding approval. On November 23, 1985, the Board voted to deny the Petitioner's application. The Petitioner did not receive notice of this second meeting and, therefore, did not attend. By order dated September 9, 1986, the Petitioner was notified of the Respondent's denial of his application based upon "material discrepancies between the information stated on the application and the testimony given with regard to the applicant's education," citing Section 458.331(1)(a) and (2), Florida Statutes. The Petitioner's application did misstate his undergraduate, pre- medical school data. He failed to disclose his successful completion of Miami- Dade Community College and his 137 credit hours when he left the University of Miami before attaining the "B.S. 1979, University of Miami." He did however, accurately testify concerning these discrepancies under oath at the November 22, 1985, committee meeting. These discrepancies were unintentional and resulted from the Petitioner's preoccupation with his medical duties and his wife's concern that another application deadline not be missed. No evidence was submitted which would support a finding that fraud or deceit was intended by either of the Almeida's or that any advantage would be gained as a result of any errors or omissions in completing the form. The Respondent's order of September 9, 1986, finds that the Petitioner either has been found guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation or adjudicates him guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation. The Petitioner is presently a duly licensed physician in the State of New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Medical Examiners approving the application of the Petitioner Mario Alberto Almeida Suarez, to sit for the next scheduled medical license examination. DONE and ENTERED this 26th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3996 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but not in issue. Accepted. Accepted, but not in issue. Accepted. Rejected, not relevant to this proceeding. Accepted in part, rejected in part. Accepted. Accepted. Accepted. Rejected, not relevant. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted, but relevant only insofar as educational background is concerned. Accepted. Accepted. Accepted. Accepted, but not relevant. Accepted. Accepted. Accepted, but not relevant. Accepted, but not relevant. Accepted insofar as the information is characterized as incomplete. Accepted. Accepted. Accepted. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted. COPIES FURNISHED: Stephen Marc Slepin, Esquire SLEPIN & SLEPIN 1114 East Park Avenue Tallahassee, Florida 32301 Allen Grossman, Esquire Assistant Attorney General Department of Legal Affairs 1601 - The Capitol Tallahassee, Florida 32399-1050 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, 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 John D. Elder is a site worker at Port St. Lucie High School, having first been employed by the St. Lucie County School Board as a temporary employee in the summer of 1993. When first employed, Mr. Elder rejected the option to enroll in the employer's insurance plan. In September 1993, Mr. Elder was given an employer's insurance form allowing ninety days for enrollment. On November 12, 1993, he completed the form and became eligible for certain benefits on January 1, 1994. The St. Lucie County School Board Medical Benefit Plans, in which Mr. Elder enrolled, excludes coverge for pre-existing conditions until the end of 12 months of continuous coverage. The plans include the following definitions: A pre-existing condition is an injury, sickness or pregnancy or any condition related to that injury, sickness or pregnancy, where a diagnosis, treatment, medical advice or expense was incurred within twelve (12) months prior to the effective date of this coverage. Pre-existing condition will also include any injury, sickness or pregnancy or related condition that manifested itself twelve (12) months prior to the effective date of this coverage. Pre-existing condition will also include the existence of symptoms which would cause an ordinarily prudent person to seek diagnosis, care or treatment within twelve (12) months prior to the effective date of this coverage. (Emphasis Added.) From 1985 to 1988, Mr. Elder was treated by Dr. Urban who, on March 24, 1988, performed an electrocardiogram ("EKG"), which was normal. Dr. Urban treated Mr. Elder for respiratory illnesses, such as bronchitis and pleurisy, for back and shoulder muscle spasms, bursitis/tendonitis, and for high blood pressure. On September 21, 1988, Mr. Elder first saw Dr. Richard Dube. On that day, his heart rate was 62, as compared to the normal range of 60 to 100. In October 1988, Dr. Dube treated Mr. Elder for an inflammation of the muscle behind his shoulder. In December 1988 and January 1989, he treated Mr. Elder for high blood pressure and headaches. In July 1991, Mr. Elder called an ambulance and was taken to the hospital complaining of pain in his neck, across his shoulders, and down his arms. Among other tests, an EKG was performed. The diagnosis was tendonitis in his right shoulder. Later that same year, Mr. Elder complained of heart burn. Dr. Dube treated him for epigastric distress and high blood pressure. Blood test analyses of his cholesterol and high, low and very low density lipid levels indicated a cardiac risk factor of 10.3 for Mr. Elder, which is more than twice the standard male risk factor of 5.0. Dr. Dube ordered blood tests again in January 1993, at which time Mr. Elder's cholesterol and high density lipid levels were still high, but had decreased, reducing the cardiac risk factor to 8.0. Dr. Dube also referred Mr. Elder for an ultrasound of the gallbladder, which was diagnosed on January 29, 1993, as having calcification, which could represent a gallstone, and probably having a small polyp. At the same time he treated Mr. Elder for carpal tunnel syndrome and temporomandibular joint syndrome ("TMJ"). Most recently, on July 27, 1993, the same tests were repeated. With cholesterol in the normal range, the cardiac risk factor was decreased to 6.5. In the fall of 1993, Mr. Elder's complaints were diagnosed as episgastric reflux. To reassure Mr. Elder, Dr. Dube ordered another EKG, which was performed on November 23, 1993, and was normal. On January 3, 1994, Mr. Elder's complaints of ongoing pain caused Dr. Dube, who suspected he had a hiatal hernia, to refer him to Dr. Dan G. Jacobson for an upper endoscopy. Dr. Jacobson recorded a history of episgastric/chest pain, hypertension, ulcers and arthritis. Dr. Jacobson also noted a family history described as "remarkable for heart problems, heart attack." The admitting diagnosis was "history of episgastric pain refractory to medical therapy." Dr. Jacobson performed the endoscopy and diagnosed mild stomach gastritis. Based on a two week history of epigastric and chest pain, and his conclusion that the pain was too severe to result from the endoscopy findings, Dr. Jacobson consulted a cardiologist. Dr. Robert N. Blews, a cardiologist, saw Mr. Elder in the hospital. The history taken by Dr. Blews noted (1) that Mr. Elder's father died of a heart attack at age 68, and that his mother had coronary bypass surgery at age 48 and died at age 59, (2) that the onset of "chest tightness" was approximately one year prior, and (3) that he has a history of cervical spine disease. Dr. Blews' notes also reflected a change in the pattern of the chest pains in the last one to two months, and additional changes in the last two weeks. The longest episodes of pain were lasting from 20 to 30 minutes, with associated sweating and shortness of breath. Mr. Elder also told Dr. Blews that the pain could be with exercise, at rest, could awaken him, and occurred while he was just walking to his car. The report describes Mr. Elder as having a history of smoking. The EKG which Dr. Blews ordered on January 8, 1994 showed a major blockage on the left side of the heart, and is significantly different from all of the prior EKGs, including that taken on November 23, 1993. Dr. Blews concluded that Mr. Elder was having angina, or a decrease in the blood supply to his heart two weeks, two months, and a year before January 1994. Mr. Elder's wife, Florinda Elder, has been aware of his complaints of stomach problems for 10 years, but had no knowledge of his heart problems until January 1994. She was not aware of his having ever smoked or complained of shortness of breath. Although she was at the hospital, Mrs. Elder was not in the room when Dr. Blews took her husband's medical history. Mr. Elder's shoulder and muscle aches, and cervical spine pain are the result of a serious car accident in 1969. The pains are aggravated by cold weather. Mr. Elder claims to have been under the effects of anesthesia at the time Dr. Blews took his medical history, and denies having had a year of chest tightness, shortness of breath, or difficulty walking to his car. He has not smoked for 20-25 years, which is not inconsistent with Dr. Blews' report of a "history of smoking." Mr. Elder's attempt to undermine Dr. Blews history is specifically rejected. The McCreary Corporation is the administrator of the St. Lucie County School Board's self-insurance plan, which contracts with a consultant, Independent Health Watch. Kay Trentor, R.N., reviewed the claims submitted by Mr. Elder, and concluded that his coronary artery disease was a pre-existing condition. In part, Ms. Trentor was relying on Dr. Blews history of a year of "chest tightness." Mr. Elder's records were also sent for peer review, to two other consultant organizations, Professional Peer Review, Inc. and Medical Review Institute of America, Inc. They, in turn, sent the records to Board certified cardiologists, with cardiovascular disease subspecialties. The first report concludes that Mr. Elder "should have known that he had coronary disease because he had multiple risk factors for heart disease," and that "if he was reasonably prudent he would have had this taken care of during the time he was having chest pain walking to the car." The second peer review report also notes a year of chest tightness, with symptoms worsened "over the two months preceding the admission, but . . . not recognized as cardiac until the hospitalization on January 7, 1994." The report concludes that coronary artery disease was not diagnosed until after the effective date. The second report was prepared by Ronald Jenkins, M.D., who believes that Drs. Dube and Jacobson, "seemed to be focusing on gastrointestinal diagnoses . . . and had kind of missed the boat, so to speak . . .," but that "an ordinarily prudent person with John Elder's symptoms which he reported prior to January 1, 1994, [would] have sought medical treatment for those symptoms." Coronary artery disease takes years to develop, but is erratic in manifesting itself, with some people having no symptoms to severe symptoms over a matter of hours. Dr. Dube described it as "silent" coronary disease. Dr. Blews estimates that a heart attack is the first symptom in 40 percent of patients. There is no dispute that Mr. Elder has had other medical conditions, including TMJ, arthritis, and gastroenterological problems. Dr. Jenkins believes the most important manifestation of coronary artery disease was upper precordial chest tightness going to the left upper extremity as well as to the throat. When the history indicates that the tightness occurs with exercise, according to Dr. Jenkins that gives 90 percent confidence that it is anginal chest pain. That confidence level increases to 95 percent when he notes that Mr. Elder told Dr. Blews that chest discomfort occurs when he walks to his car. Without that history, however, Dr. Jenkins would not be able to conclude that the chest discomfort is due to heart disease or that the cardiac condition manifested itself prior to January 1, 1994. Dr. Jenkins described chest heaviness, aggravated by being in cold weather, as a symptom of coronary disease. The same pain without multiple risk factors, occuring irregularly, is a reason for "looking into other alternative diagnoses." Dr. Jenkins also acknowledges that episgastric reflux can cause chest discomfort and throat pain, and that cervical spine degenerative disc disease can cause a radiation of symptoms into the upper extremities, as it did when Mr. Elder called an ambulance in 1991. Dr. Blews did not have trouble getting a complete, detailed history from Mr. Elder. He typically has to elicit a more specific description from patients complaining of chest discomfort. He gives choices such as pain, burn, stab, jab, tight, squeeze or pressure, from which Mr. Elder chose "tight." Dr. Blews also found that Mr. Elder had chest wall pain in several spots or fibrosistitis, which is not a symptom of heart disease. Chest tightness could also be attributable to asthma, according to Dr. Blews, but with radiating pain into the left arm, jaw, and throat, shortness of breath, and sweating, he was certain Mr. Elder had heart disease. All of the doctors agree that Mr. Elder's heart disease existed before January 1, 1994, and that he had no diagnosis, treatment, medical advise or expense related to heart disease in the 12 months prior to January 7, 1994. There is no evidence that he was ever evasive or uncooperative with doctors. On the contrary, Mr. Elder was consistently described in doctor's notes and hospital records as anxious or concerned about his health. Coronary artery disease had not manifested itself to Mr. Elder or his doctors prior to Dr. Jacobson's decision to consult with Dr. Blews. "Manifest" is defined in Respondent's exhibit 9, a page from the International Classification of Diseases, 9th Revision, 1995, or ICD-9, as "characteristic signs or symptoms of an illness." The doctors who testified, in person or by deposition, described every sign or symptom experienced prior to Dr. Blews' consultation, as also being a sign or symptom of Mr. Elder's other medical conditions. Mr. Elder's symptoms might have been diagnosed as also indicating that he had heart disease, if he had been referred to a cardiologist sooner. There is no factual basis to conclude that Mr. Elder, or any ordinarily prudent person, should have sought diagnosis, care, or treatment for heart disease when, in fact, his doctor reassured him that his EKG was normal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order approving Petitioner's claim for payment of medical expenses in the amount stipulated by the parties. DONE AND ENTERED this 12th day of July, 1995, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of July, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0373 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted in preliminary statement and Findings of Fact 2. Accepted in Findings of Fact 3. Subordinate to Findings of Fact 3. Accepted in Findings of Fact 22. Accepted in Findings of Fact 5-8. Accepted in Findings of Fact 5-8 and 12. Accepted in Findings of Fact 7 and 10. Accepted in Conclusions of Law. Accepted in or subordinate to Findings of Fact 6. Respondent's Proposed Findings of Fact. 1. Accepted in Findings of Fact 1 and 2. 2-3. Accepted in Findings of Fact 2. 4-5. Accepted in Findings of Fact 3. Accepted as corrected in Findings of Fact 23. Accepted in Findings of Fact 9. Accepted in Findings of Fact 8 and 9. 9-12. Accepted in or subordinate to Findings of Fact 9. 13-15. Accepted in Findings of Fact 20. Accepted in Findings of Fact 22. Accepted in or subordinate to Findings of Fact 20. Accepted in or subordinate to Findings of Fact 15-23. Accepted in preliminary statement and Findings of Fact 13. Accepted in or subordinate to Findings of Fact 14-16. Accepted in Findings of Fact 14 and 15. Accepted in Findings of Fact 16. Accepted in Findings of Fact 8. Accepted in Findings of Fact 9 and 20. Accepted in Findings of Fact 23. Accepted in Findings of Fact 17. Accepted in Findings of Fact 23. Accepted, but Dr. Dube's testimony was found credible and corroborated by his notes. COPIES FURNISHED: John T. Kennedy, Esquire The Injury Law Offices of John T. Kennedy 309 East Osceola Street Suite 306 Stuart, Florida 34994 C. Deborah Bain, Esquire Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A. 1645 Palm Beach Lakes Boulevard Suite 700 Post Office Box 2508 West Palm Beach, Florida 33401 Frank T. Brogan Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. David Mosme, Superintendent St. Lucie County School Board 2909 Delaware Avenue Ft. Pierce, Florida 34947-7299
The Issue Whether osteochondral autograft transplant surgery should be authorized for Petitioner pursuant to Workers' Compensation Law.
Findings Of Fact In 1998, Jackson fell at work and sustained an injury to her left knee. Jackson made a workers' compensation claim for the treatment of the injuries. She underwent treatment for her injuries, and her treating physician requested authorization from Jackson's Employer/Carrier to perform a surgical procedure commonly referred to by the trade name of OATS, but also known as mosaicplasty. The Employer/Carrier denied the authorization on the ground that OATS was investigative or experimental within the meaning of Rule 59B-11.002, Florida Administrative Code, and referred the request to the Agency for a determination under Section 440.13(1)(m), Florida Statutes, and Rule 59B-11.002(4), Florida Administrative Code. The Agency requested Dr. B. Hudson Berrey, the Chair of the Department of Orthopedics and Rehabilitation at Shands Hospital and Clinic at the University of Florida, to review Jackson's case to determine whether the procedure was investigative and whether the procedure would provide significant benefits to the recovery and well-being of Jackson. Dr. Berrey has been board certified in orthopedic surgery since 1982. After three years of practice, he took a fellowship in orthopedic oncology at Massachusetts General Hospital in Boston, Massachusetts. He then served as Chief of Orthopedic Oncology and, later, as Chief of Orthopedic Surgery at Walter Reed Army Medical Center in Washington, D. C. After his retirement in 1993, he served on the faculty of the University of Texas Southwestern Medical Center. He has been the Chair of the Department of Orthopedics and Rehabilitation at the University of Florida College of Medicine since 1996. In addition to his teaching duties, he continues to see patients weekly and to perform orthopedic surgery twice a week. His duties require him to keep abreast of developments in the field of orthopedic surgery. In preparation for rendering his opinion for the Agency, Dr. Berrey reviewed the medical literature, seeking articles discussing clinical trials of OATS. A clinical trial is an investigation in which patients with a certain condition may receive a treatment under study if they meet certain objective standards for inclusion. The treatment parameters are defined and outcomes are assessed according to objective criteria. Dr. Berrey found very little in peer-reviewed literature discussing clinical trials of OATS or mosiacplasty. Instead he found retrospective reviews and case reports. Based on his review of the medical literature, Dr. Berrey formed the opinion that mosaicplasty may be safe and efficacious; however, because the procedure has not been subjected to clinical trials, the procedure remains investigative. OATS involves the transfer of a patient's cartilage from one portion of the knee that is not considered weight- bearing or that is considered as having a minimal weight-bearing load to an area that receives greater force or is more weight- bearing. Dr. Berrey is of the opinion that OATS may be effective to treat isolated chondral defects on the weight- bearing surface of the knee. He describes the type of injury for which the procedure is effective as a focal lesion in an otherwise normal knee. Three components comprise the knee: the patella, the femoral articulating surface, or femoral condyle, and the tibial articulating surface or tibial plateau. The femoral condyle and tibial plateau are bony structures lined with articular cartilage that provide the gliding surface of the knee. The patella articulates with the femur at the patellar femoral joint, and the tibia articulates with the femur at the tibial femoral joint. The tibial femoral joint is made up of medial and lateral components. Other structures present in and about the knee include the menisici, the cruciate ligaments, and the collateral ligaments. Jackson's medical records, including the MRI report, show that there is a subchondral cyst and/or osteochondral defect on the anterior articular margin of the mid-media femoral condyle. There are subchondral cysts along the posterior portion of the mid-tibial plateau. In addition, there is a prominent osteochondral defect involving the patella. Jackson has articular damage to all three compartments of the knee: the femoral condyle, the patella, and the tibial plateau. Based on the degenerative changes in all three compartments of the knee, Jackson's changes are probably generalized. She does not have a focal defect of the articular cartilage of the knee. Her symptoms relate primarily to the patellar femoral joint. Her medical records describe her injuries as including chondromalacia of the patella. The term "chondromalacia" applies to a continuum of deterioration of the articular cartilage of the patella, from softening to frank fraying to fibrillation where the cartilage may be worn down to the bare bone. OATS or mosiacplasty is designed to address a localized, focal lesion. Because of the generalized nature of the diseased condition of Jackson's knee and the probability that her symptoms are related to the deterioration of her patellar femoral joint, the proposed procedure is not likely to improve her condition or to enable her to return to work.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying authorization for the OATS or mosaicplasty to be performed on Virginia Jackson. DONE AND ENTERED this 14th day of June, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of June, 2000. COPIES FURNISHED: Michelle L. Oxman, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Building 3, Suite 3421 Tallahassee, Florida 32308-5403 Virginia Jackson 5555 Northwest 17th Avenue Apartment 2 Miami, Florida 33142 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403
The Issue Whether Petitioner's application for license to practice medicine by endorsement pursuant to Chapter 458, Florida Statutes, should be approved. Petitioner appeared at the hearing unaccompanied by legal counsel and was advised of her rights and applicable procedures in administrative proceedings under Chapter 120, Florida Statutes. She elected to represent herself in this matter. This case arises from the provisional denial of Petitioner's application for licensure by endorsement to practice medicine, pursuant to Chapter 458, Florida Statutes. By Respondent's Order, dated January 29, 1982, the application was denied pursuant to subsection 458.313(1)(d), Florida Statutes, on the ground that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. In its Order, Respondent advised Petitioner-of her right to petition for a hearing. Petitioner so requested a hearing under Section 120.57, Florida Statutes, by letter to Respondent, dated May 2, 1982.
Findings Of Fact On October 1, 1981, Petitioner Elda Giannantonio filed an endorsement application with Respondent on a standard form provided by the agency, together with supporting documents and the standard application fee. (Exhibit 1) By "Final Order" of the Board of Medical Examiners, dated January 29, 1982,which recited action taken by the Board on December 4, 1981, it was found that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. It was therefore concluded by the Board that Petitioner had not met the statutory requirements for licensure by endorsement pursuant to Section 458.313(d), Florida Statutes. In all other respects, Petitioner has met the necessary requirements for licensure by endorsement. (Testimony of Faircloth, Exhibit 1, Stipulation) Petitioner was born and educated in Italy where she received her Medical degree in 1953. To be licensed by endorsement in Florida, a foreign graduate must have received a standard certificate after passing an examination given by the Educational Commission for Foreign Medical Graduates. Petitioner received such a certificate on March 28, 1962. (Testimony of Faircloth, Petitioner, Exhibit 1) A statutory requirement of all applicants for licensure by endorsement is that the applicant must have been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or certified by the National Board of Medical Examiners as having completed its examination; provided that said examination required shall have been so certified within the ten years immediately preceding the filing of the application for licensure. The National Board of Medical Examiners examination is administered only to students at Medical schools in the United States. Petitioner has not been certified by either licensure examination. All states, including Florida, recognize the FLEX examination as the standard test for licensure. (Testimony of Petitioner, Faircloth, Exhibit 1) Petitioner was of the mistaken opinion that the fact she had Practiced medicine in New York and had been certified by the Educational Commission for Foreign Medical Graduates was sufficient to qualify her for licensure by endorsement, without the need for either National Board or FLEX certification. However, the instructions provided applicants by Respondent clearly showed that both requirements must be met by foreign graduates. (Testimony of Petitioner, Faircloth, Exhibit 2)
Recommendation That the application of Petitioner Elda Giannantonio for licensure by endorsement pursuant to Section 458.313, Florida Statutes, be denied. DONE and ENTERED this 24th day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1982. COPIES FURNISHED: Elda Giannantonio, M.D. 27 Kohr Road Kings Park, NY 11754 Chris D. Rolle, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Dorothy J. Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
