The Issue At issue herein is whether or not the Respondent has engaged in conduct violative of Section 459.14(2)(a), Florida Statutes. 1/
Findings Of Fact Based upon the testimony adduced at the hearing and the entire record compiled herein, the following relevant facts are found. Pursuant to an Administrative Complaint filed herein dated July 8, 1978, the Florida State Board of Osteopathic Medical Examiners, herein sometimes referred to as the Board, seeks to discipline the Respondent/Licensee, Albert Jack Berg, based upon an Order of Summary Suspension entered against Respondent's Michigan Osteopathic license on February 16, 1977. The basis for the summary suspension in Michigan was a charge that Respondent had engaged in the unlawful sale and delivery of a controlled substance. Respondent was noticed of a hearing which was convened on May 9, 1978, to consider the allegations of the alleged unlawful delivery of the controlled substance. On July 10, 1978, a Final Order of Revocation was entered by the Board of Osteopathic Medicine and Surgery of Michigan, revoking Respondent's license to practice osteopathic medicine and surgery in Michigan. 2/ Respondent did not contest, at the hearing, the material allegations of the Administrative Complaint, but rather, offered mitigating evidence. In this regard, the evidence reveals that the Respondent has been licensed in Michigan since approximately July of 1961 and has been licensed in Florida since approximately 1972 (License No. 3460). In relating the circumstances surrounding his arrest in Michigan in February of 1977, Respondent avers that he was under tremendous emotional strain due to a divorce and that resultant pressures brought about from being a father of four children whose wife threatened suicide and being left with the task of rearing children alone. He related that he was undergoing parental pressure to remarry his wife and that he carried an excessive overload in his office practice. Respondent delivered several thousand Amphetamine tablets to an undercover agent in Michigan. The Amphetamine tablets had been in Respondent's possession for more than seven years and a laboratory analysis revealed that they contained ten percent (10 percent) of the Amphetamine content found in a commercially sold Amphetamine tablet. For his conviction in the State of Michigan, Respondent was initially sentenced for a period of two years, which sentence was later reduced to six months in jail, and he was thereafter released during the day hours to serve in a community guidance center under the supervision of a Dr. Richard M. Brown of Michigan. As evidence by the letter of recommendation from Doctor Brown, Respondent worked in ghetto areas of Detroit, Michigan, treating in excess of one hundred patients on a weekly basis for a period of approximately five months. Respondent has been under the care of a psychiatrist since approximately August of 1977, where he has been placed on a high protein diet with a reduced work load. Respondent presently attends "How To Control Your Life" seminars and is presently doing "pro bono publico" work for agricultural referral centers. Respondent purchased a degree from a school in Louisiana that issued medical doctor (M.D.) degrees to persons such as himself. He was motivated to purchase the degree based on instructions from a publisher who was interested in contracting to publish a book that Respondent was then writing. Respondent wrote a letter to the American Cancer Society withdrawing the "M.D." designation from his title. (Respondent's Exhibit 1.) If allowed to continue practice in Florida, Respondent intends to maintain a "ghetto" practice in order to provide medical services to the disadvantaged and those unable to pay the usual fee for such services. Respondent related that he did what sick physicians normally do; that is, turn to (1) drugs, (2) alcohol or (3) suicide. Respondent referred to an article published by the American Medical Association entitled, "The Sick Physician", dated February 5, 1973. (Respondent's Exhibit 2.) An examination of the pre-sentence memoranda submitted by Respondent to the Michigan authorities reveals that he has accounted for the mistakes and problems that he encountered in the State of Michigan during early 1977 and based on such memoranda, it is obvious that he recognized that a mistake was made and curative efforts have been taken (by Respondent) to rehabilitate himself. (Respondent's Composite Exhibit 3.)
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent be placed on probation in the State of Florida for a period of two (2) years. During the above two-year period of probation, it is RECOMMENDED that the Respondent be directed to engage only in the performance of medical services in a community service organization, with semi-monthly reporting requirements in a manner prescribed by the Board to its agents. RECOMMENDED this 21st day of July, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of July, 1980.
The Issue Whether the Petitioner is entitled to reimbursement for medical treatments received by his wife for 4 manipulation treatments received in 1983?
Findings Of Fact At all times pertinent hereto, the Petitioner was an insured employee under the State of Florida Employees' Group Health Insurance Plan, as provided in Section 110.123, Florida Statutes. Nora Gomez, the Petitioner's wife, is entitled to participate in the Plan as an eligible dependent. Mrs. Gomez first visited David L. Hartz, a chiropractic physician on August 2, 1983. Dr. Hartz's office is located at 1610 West Plaza Drive, Tallahassee, Florida. Dr. Hartz treated Mrs. Gomez primarily for upper back and neck pain. Between August 2, 1983, and December 14, 1983, Dr. Hartz treated Mrs. Gomez 33 times. Initially, Mrs. Gomez received chiropractic manipulations 3 times per week. Visits were subsequently reduced to 2 times a week and from November 1, 1983, until December 14, 1983, when treatments stopped, her treatments were reduced to once a week. Twenty-nine of the 33 visits received by Mrs. Gomez have been paid by the Respondent. The Respondent is not seeking to be reimbursed for payments made to the Petitioner in excess of 26. The Respondent has refused to pay for 4 of the visits. The Petitioner was charged $18.00 per visit for Mrs. Gomez's treatments. The Respondent has refused to pay the Petitioner a total of $72.00 (4 visits x $18.00). Mrs. Gomez received her 26th treatment on November 1, 1983. Mrs. Gomez's condition at that time was, according to Dr. Hartz, as follows: I show that she had improved considerably over her initial findings but she still had some persistent pain in her neck and upper back and some inflammation, some nerve roots in her neck and some persistent muscle weakness. Deposition testimony of Dr. Hartz, page 15, lines 18-21. Dr. Hartz also indicated that he believed that Mrs. Gomez "could still improve some past that point." Deposition testimony of Dr. Hartz, page 11, lines 12-13. Based upon Dr. Hartz's testimony, Mrs. Gomez's problem was of a type which could be eventually treated on a "periodic supportive type treatment, on a periodic nature." Dr. Hartz was trying to treat Mrs. Gomez's problem, however, during 1983 to a point where she could receive such treatment. She did not, however, continue the treatments long enough to reach that point because of the Respondent's position that only 26 treatments would be reimbursed by the Petitioner's insurance. The Respondent reimburses for rehabilitative therapy but not for maintenance therapy under the State Plan. The Respondent determined that Mrs. Gomez's treatments after November 1, 1983 (her 26th visit) were for maintenance and not rehabilitative therapy because the Respondent determined that her condition stabilized. Therefore, the Respondent refused to make further payments. Dr. Hartz did indicate that Mrs. Gomez reached a point where she had persistent pain that would feel better for a while and then would return, and therefore, he "either had a choice to extend her treatment and let her hurt or treat her and keep her feeling as good as possible." This statement and the rest of Dr. Hartz's testimony is not sufficient to conclude, however, that Mrs. Gomez stabilized as of November 1, 1983, and therefore was receiving maintenance treatment only after that date. Dr. Hartz did not, however, based upon all his testimony, believe that Mrs. Gomez had reached a point during her treatment in 1983 where her treatment was in the nature of maintenance only. Dr. Hartz was still treating Mrs. Gomez through her last visit in 1983 in an effort to correct her condition sufficiently for her to receive only maintenance treatments. The 4 visits in 1983 for which reimbursement has not been made, were part of Dr. Hartz's effort to get Mrs. Gomez to a point where she would only need maintenance type treatment. The visits were in the nature of rehabilitative therapy, for which the Petitioner is entitled to reimbursement.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent reimburse the Petitioner $72.00 for the 1983 treatments received by the Petitioner's wife for which reimbursement has been refused. DONE AND RECOMMENDED this 3rd day of December, 1986, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2595 The Respondent has 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 were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." Paragraph Number of Petitioner's Proposed Findings of Fact: Accepted in RO 1-2. Accepted in RO 3-4. Accepted in RO 5. Accepted in RO 6. Accepted in RO 6-7. Accepted in RO 7. Accepted in RO 9-10. Accepted in RO 11 and 15. The quotation of Dr. Hartz's testimony contained in the last sentence of this proposed findings of fact is taken slightly out of context. See RO 15. Accepted in RO 14. This proposed finding of fact is rejected as contrary to the weight of the evidence. See RO 15-16. COPIES FURNISHED: Michael J. Gomez 2404 Harbor Drive Tallahassee, Florida 32303 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gilda Lambert, Secretary 435 Carlton Building Tallahassee, Florida 32301
The Issue The issue in the case is whether sufficient deficiencies existed during the March 3, 1999, inspection of the Lee Convalescent Center by the Agency for Health Care Administration to warrant licensing the facility with a "conditional" rating.
Findings Of Fact Lee Convalescent Center (Center) is a nursing home located in Fort Myers, Florida, and licensed by the Agency for Health Care Administration (AHCA). On March 3, 1999, AHCA conducted an inspection of the Center. At the time of the inspection, the Center had a license rating of "Superior." During the inspection, AHCA identified several alleged deficiencies in the Center's operation. The alleged deficiencies are identified in the inspection report and referenced by "tag" numbers. The inspection report identifies "Tag F241" as a failure to "promote care for 2 of 21 sampled residents and 1 random observation in a manner that maintains resident dignity." Tag F241 is identified in the inspection report as a violation of the regulatory standard set forth at 42 CFR S.483.15(a). Although the inspection report indicates that there was a total of three incidents underlying the alleged failure, only one complaint by one resident was addressed during the hearing. During the inspection, the resident apparently complained to inspectors that her hair was not being washed to her satisfaction. She allegedly complained that it was unclean and that she had dandruff. Inspectors testified that the resident complained that the facility employee who shampooed her hair wore rubber gloves when doing so, and that the gloves pulled the hair and caused her scalp to hurt. The resident told inspectors that she had complained about the situation to the appropriate person at the facility, but that nothing had changed. According to the facility policy as discussed during the hearing, staff members assess the cleanliness of the hair and condition of the scalp prior to shampooing. Shampoos are offered to residents twice weekly. The policy provides that the staff may wear gloves "when appropriate." Although there were no open sores on the resident's head, the resident had dandruff. The assistant who shampooed the resident's hair wore surgical latex gloves. Although the resident who complained of the shampoo was described as "not shy" about complaining, the director of nursing for the facility had not been told of the complaint prior to the resident's discussion with the AHCA inspector. The resident is a 44-year-old quadriplegic, with a history of alcohol dependency. She is fully alert. Facility records suggest the resident is inclined towards manipulation of staff members and attempts to create conflict between persons at the facility. The inspection report notes that even after the resident's hair was shampooed she continued to state that she had excessive dandruff and "felt unclean." The evidence fails to establish that the wearing of gloves to shampoo the resident's hair was a violation of facility policy, or of any state or federal regulation. The evidence fails to establish that the alleged violation set forth at Tag F241 warranted amending the facilities licensure rating to "conditional." The inspection report identifies "Tag F314" as an allegation that two residents "developed avoidable pressure sores." Tag F314 is identified in the inspection report as a violation of the regulatory standard set forth at 42 CFR S.483.25(c). There is no credible evidence, medical or otherwise, that the residents' wounds were "avoidable." It should be noted that none of the AHCA inspectors actually observed the "pressure sores." The sole indication of the "pressure sores" on the residents comes from the facility's records. At hearing, the two residents were identified as Resident 13 and Resident 17. According to the inspection report, Resident 13 suffered from Alzheimer's disease and peripheral vascular disease. She was completely dependent on the facility staff for all "activities of daily living." Shortly after her admission on December 1, 1998, Resident 13 was identified as being at risk for development of pressure sores due to incontinence and inactivity. Persons suffering from peripheral vascular disease are susceptible to development of pressure sores in the extremities of the body. The facility's records establish that employees were conscious of the resident's susceptibility. The facility provided special chairs and mattresses to minimize the potential development for development of pressure sores. The patient was moved frequently, and incontinence care was provided. Despite the facility's efforts, at some point the resident developed a continuing skin rash. As of February 15, 1999, the "nurses notes" state that the certified nursing assistant indicated Resident 13 had an "open area" on her buttocks. A skin assessment dated February 21, 1999, notes the "open area on buttocks" of the resident. The "nurses notes" of February 26, 1999, state that facility personnel were changing the dressing on the "open area in gluteal fold" during each shift. Another "nurses note" dated March 1, 1999, records the "open area on gluteal fold" of Resident 13. The facility's nutritionist noted in the dietary progress note on February 16, 1999, that the resident should receive a multivitamin and additional Vitamin C. In a dietary progress note dated February 19, 1999, the nutritionist again recommended the vitamin supplements and a protein supplement. The recommendations of the nutritionist were not forwarded to the attending physician until March 2, 1999. There is no credible evidence that the nutritionist's vitamin regimen, whatever the impact on the resident's general health, would have caused the open area to heal. There is no medical evidence that the facility's delay in implementing the nutritionist's recommendations caused any effect at all on the resident's condition. The AHCA inspection report also alleges that from 9:00 a.m. until 2:00 p.m. on the date of the survey Resident 13 remained in her wheelchair. The evidence fails to establish the allegation. There is no evidence that an AHCA inspector paid such close attention to the resident as to credibly testify that the resident remained unmoved and unattended in the chair during the cited period. Resident 17 was admitted to the facility on December 10, 1998, and suffers from diabetes, osteoarthrosis, and hypertension. She also suffered from incontinence. As of January 4, 1999, the "nurses notes" noted a "small" Stage II wound on the resident's right buttock. On January 31, 1999, the attending physician recommended Vitamin C and Zinc supplements, and the application of "Replicare" to the wound. On February 15, 1999, a care plan was developed to address the pressure wound. The Center asserts that Resident 17's skin problem was not a "pressure sore" but instead developed from the resident's scratching of a rash resulting from a yeast infection. The greater weight of the evidence fails to support the assertion. The facility asserts that the skin condition was a "stage II" rash. There is no credible evidence that rashes are commonly identified and classified by "stage" description. There was extensive disagreement at the hearing on whether the facility's representatives acknowledged the existence of the allegedly "avoidable pressure sores" during a post-inspection meeting with ACHA representatives. The evidence is insufficient to establish that such admissions by the facility occurred.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order establishing a "standard" rating for the Lee Convalescent Center. DONE AND ENTERED this 15th day of December, 1999, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 15th day of December, 1999. COPIES FURNISHED: Karel L. Baarslag, Esquire Agency for Health Care Administration State Regional Service Center 2295 Victoria Avenue Fort Myers, Florida 33901 Donna H. Stinson, Esquire Broad and Cassel Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Julie Gallagher, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether disciplinary action should be taken against the Respondent's license based on the alleged violations of Section 459.015(1), Florida Statutes, and Rule 21R-20, Florida Administrative Code, as set forth in the Administrative Complaint: By fraudulently misrepresenting that he met the criteria for exemption from demonstrating financial responsibility. By failing to demonstrate his financial responsibility to pay claims for medical care. By falsely swearing on his Physician's License Renewal form. By violating a term of the Final Order of the Board of Osteopathic Medical Examiners dated August 22, 1988.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 459, Florida Statutes. Respondent is and has been at all times material hereto licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001663. Respondent's practice is in Tampa, Florida. Respondent was employed, in his capacity as an osteopathic physician, as an independent contractor at a walk-in clinic owned and operated by Dr. J. Eloian followed by Mitchell D. Checkver, D.O., which office is currently located at 7211 N. Dale Mabry, #100, Tampa, Florida, from 1984 through 1990. Respondent's license to practice osteopathic medicine was in a probationary status from August of 1988, until June 15, 1990, pursuant to a Final Order filed by the Board of Osteopathic Medical Examiners (Board) on August 2, 1988, regarding case numbers 0055173, 0038979 and 00372994. As a condition of probation Respondent was to comply with all state and federal statutes, rules and regulations pertaining to the practice of osteopathic, including Chapters 455 and 459, Florida Statutes and the Florida Administrative Code. As a condition of probation, Respondent was to pay the Board a total administrative fine of $3,000, which was said. About a year before Dr. John Eloian retired in August 1988, he discussed the possibility of utilizing the exemption for part time physicians (in Section 459.0085, Florida Statute) with other doctors in his office, including Respondent. A condition of renewing an active license to practice osteopathic medicine in the State of Florida, is compliance with Section 459.0085, Florida Statutes. The licensee must demonstrate financial responsibility or meet the criteria for exemption. Two years later, on November 6, 1989, Respondent submitted a Board of Osteopathic Medical Examiners' Physician's License Renewal Form, and signed a sworn affidavit as to the veracity of the information provided therein. A sign was posted announcing to the patients that no malpractice insurance was carried by Respondent and Dr. Eloian. Within the License Renewal Form, Respondent represented that he was exempt from demonstrating financial responsibility based on his meeting all of the criteria listed. The exemption which the Respondent attempted to utilize had criteria which included the condition that the Respondent has not been subject, within the past ten (10) years of practice, to a fine of $500.00 or more for a violation of Section 459, Florida Statutes. The form specifies that a regulatory agency's acceptance of a stipulation, in response to filing of administrative charges against a licensee, shall be construed as action against a licensee. The exemption also had criteria which specified that the Respondent had maintained a part time practice of no more than 1,000 patient contact hours per year. Based on Respondent's submission to the Board of Osteopathic Medical Examiners of this Physician's Licensure Renewal Form in November 1989, and the information given therein, his license to practice osteopathic medicine was renewed through 1991. Subsequently, Respondent acknowledged he was ineligible for the exemption and obtained medical malpractice insurance, effective July 1, 1990. Respondent read, or should have read, the Physician's License Renewal form sufficiently to be aware of the language therein.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that Respondent be found guilty of violating Sections 459.015(1)(a), Florida Statutes. As punishment therefore Respondent should pay a fine of $1,000, and he should be placed on probation by the Board of Osteopathic Medical Examiners with such reasonable terms and conditions as the Board may require. RECOMMENDED this 13th day of May, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 13th day of May, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-0395 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 of fact: Accepted in substance: paragraphs 1,3,4,5,6,7,8,9,10,11,12,13, 14,18 Rejected as irrelevant or as argument: paragraphs 2,15,16,17 Respondent's proposed findings of fact: Accepted in substance: paragraphs 1 (in part), 4 (in part), 7 (in part), 9 Rejected: paragraphs 2 (in part, as against the greater weight of the evidence and as a conclusion of law), 3 (conclusion of law), 5 (irrelevant), 6 (irrelevant), 7 (in part), 8 (irrelevant) 10 (irrelevant) COPIES FURNISHED: Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 John R. Feegel, Esquire Thomas Sabella, Jr., Esquire 401 South Albany Avenue Tampa, FL 33606 Bill Buckhalt Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation, Suite 60 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay General Counsel Department of Professional Regulation, Suite 60 Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
Findings Of Fact Respondent has been licensed as an osteopathic physician in Florida since 1952 and currently holds License Number 959 issued by Petitioner (stipulation, testimony of Respondent). On June 15, 1972 Respondent was convicted of three counts of violation of the Drug, Device and Cosmetic Act of 1961, Section 4, Laws of Pennsylvania. As a result of these convictions, Respondent was incarcerated for a two-year period from 1972 to 1974. He was released on bond and again incarcerated from the Spring of 1977 until September, 1977 (stipulation, testimony of Respondent). Subsequent to his release from confinement on parole, Respondent taught several night school courses at Duquesne University, Pittsburgh, Pennsylvania and also was employed by VISTA for approximately one year. In November, 1978, he commenced an osteopathic practice in St. Petersburg, Florida (testimony of Respondent, Respondent's Exhibit 2). On November 8, 1973, the Pennsylvania State Board of Osteopathic Examiners revoked Respondent's license to practice osteopathic medicine and surgery in Pennsylvania based on his criminal convictions (stipulation, petitioner's Exhibit 1). In February, 1979, parole supervision of Respondent was transferred from the State of Pennsylvania to the State of Florida. The parole and probation office in St. Petersburg files periodic reports to parole authorities in Pennsylvania. During the period of Florida parole supervision, Respondent has been cooperative with his parole and probation officer and has not been difficult to supervise. The maximum expiration date of Respondent's parole status is September 5, 1983. Release from such status will be determined by the State of Pennsylvania. In April, 1979, Respondent received a hearing before the Pennsylvania Board of Pardons based upon his application for commutation of sentence, but has not received a decision on the application at this time (testimony of Ferriter, Respondent, Respondent's Exhibit 3). Respondent entered into a brief "physician assistance agreement" with the St. Petersburg Osteopathic Hospital after his arrival in Florida which provided for mutual under-takings designed to assist Respondent in establishing a practice. This arrangement however, lasted only approximately three and one half months. A number of Respondent's current patients or their relatives testified as to his competence and satisfaction in his methods of treatment. Additionally, Respondent submitted various documents concerning lectures he has made on medical hypnosis to various organizations, and letters from Pennsylvania residents and physicians expressing belief that he is rehabilitated and has contributed by social work in the community. A St. Petersburg pharmacist who is located near Respondent's present office and handles his prescriptions, testified that, to his knowledge, Respondent had not prescribed controlled substances with the possible exception of Valium (testimony of Brown, Lewis, Drake, Bishop, Beville, Hodges, Penvel, Respondent's Exhibits 1-3). In June, 1979, Respondent voluntarily took a polygraph examination from a private examiner in St. Petersburg. Although Respondent was under some tension at the time, he was capable of being tested. The results of the examination indicated deception on the part of Respondent in denying his guilt of the offenses for which he had been convicted in Pennsylvania. The results of the polygraph examination were received in evidence at the hearing by stipulation of the parties (testimony of Liens). Respondent testified as a witness at the hearing. He stated that his practice currently consists of natural and preventive medicine, including ortho molecular therapy. He further testified that he does not prescribe controlled substances since his patients do not need the same due to his natural healing methods. He seeks to maintain his license as a practitioner under a supervised probationary period. His practice is small at the present time and he has only one or two patients a day (testimony of Respondent).
Recommendation That Petitioner revoke the license of Respondent, Maurice L. Kaye to practice osteopathic medicine, but that the operation of such revocation be suspended for the period and in the manner stated in Paragraph 8 of the foregoing Conclusions of Law. DONE and ENTERED this 15th day of August, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Drawer 1838 Tallahassee, Florida 32302 Maurice L. Kaye, D. O. Post Office Box 14202 St. Petersburg, Florida 33733
Findings Of Fact At all material times, Respondent has been a licensed physician, holding Florida license number ME 0047032. In June 1988, Respondent worked as an emergency room physician at East Point Hospital emergency room. He had been so employed since 1987. At 11:26 pm on June 10, 1988, the wife of A. L., a 71 year old male, summoned an ambulance for her husband, who had been suffering from severe headaches and vomiting. He was transported by ambulance to the East Point Hospital emergency room at 11:55 pm. The notes of the admitting nurse state that A. L.'s headache started about 9 pm and he had vomited twice at home, but without signs of bleeding or diarrhea. He vomited once at the hospital and had a history of five heart attacks. The stated patient complaint is severe headache. The vital signs were normal. The admitting notes record that A. L. was taking numerous medications. Of particular importance is Coumadin, which is an anticoagulant whose chief side effect is bleeding. There is an increased risk of intracranial bleeding associated with the use of Coumadin. Respondent's notes record a frontal headache of three to four hours' duration with intermittent sinus problems for several months. The notes reflect a physical examination that disclosed some tenderness over frontal and maxillary sinuses, which are above and below the eyes. Respondent did not perform a neurological examination. A neurological examination is an examination of the cranial nerves, including the nerves of the eyes and head, and an assessment of motor strength and reflexes. Respondent claims to have performed a neurological examination and also that an examination of the eyes was precluded by recent cataract surgery. He testified that he did not document the neurological examination because the vital signs were good, the patient was alert and cooperative, and the problem was a sinus headache. As to checking motor strength, Respondent testified, "I did check his extremities. I think he was moving around." Respondent's claim to have performed an undocumented neurological examination is uncredited. Even if eye surgery precluded an examination of the eyes, Respondent did not examine other nerves of the head. Nor did he even claim to have tested reflexes. His claim to have tested motor strength is based on the assertion, "I think he was moving around." Motor strength involves more than self-ambulation. Respondent's failure to perform a neurological examination constituted a failure to practice medicine with the level of care, skill, and treatment that is recognized by a reasonably prudent similar physician as being acceptable under similar conditions. Following his examination of A. L., Respondent observed A. L. for about an hour. When A. L. reported he was feeling better, Respondent allowed A. L.'s wife to take him home with instructions to return if there were more problems. Respondent's diagnosis was sinusitis with headache, and he prescribed 50 mg of Demerol for pain. About an hour and a half after discharge, A. L. fell into a stupor. Returned to the hospital in an ambulance, A. L. was in an unresponsive state. Subsequent testing revealed that he had suffered a subdural hematoma and intracerebral hemorrhage. He died a week later. Petitioner did not prove that Respondent's failure to order a CT scan was a violation of the minimum standard of care. A. L. had a long history of sinus problems. The severe headache and use of Coumadin were not, of themselves, sufficient cause to mandate a CT scan without implying that all patients taken to the emergency room complaining of severe headaches must be given CT scans. Respondent's failure to perform a neurological examination and misdiagnosis probably had no bearing on A.L.'s prognosis. Intracranial bleeding is not susceptible to surgical correction, although a subdural hematoma is. In fact, the neurological exam might not have clearly indicated the presence of the intracranial bleeding, although, properly interpreted, it should have indicated the necessity of a CT scan, which typically would indicate the presence of intracranial bleeding. There is no evidence whatsoever that any delay in bringing the case to the Probable Cause panel or filing the Administrative Complaint had any prejudicial impact upon Respondent.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order imposing an administrative fine against Respondent of $5000. ENTERED on May 18, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 18, 1995. APPENDIX Rulings on Petitioner's Proposed Findings and 3: rejected as irrelevant. and 4-25: adopted or adopted in substance. 26-30: rejected as unsupported by the appropriate weight of the evidence, irrelevant, and unnecessary. 31: adopted. 32: rejected as repetitious. 33-36: rejected as irrelevant except that an intracerebral hemorrhage is an inoperable condition. Rulings on Respondent's Proposed Findings All rejected as not findings of fact, irrelevant, unsupported by the record, and legal argument. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Attorney Joseph S. Garwood Agency for Health Care Administration 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Dr. Rufus Paul Palmer 5581 Amoroso Drive Ft. Myers, FL 33919
The Issue The issue presented is whether Respondent's proposed Rule 64B18-23.001, Florida Administrative Code, is an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner Florida Medical Association is a statewide organization of approximately 16,000 physicians and osteopathic physicians licensed in Florida pursuant to Chapters 458 and 459, Florida Statutes, respectively. Petitioner assists Florida physicians in improving the health and welfare of the citizens of the State of Florida by representing the physicians in regulatory, legislative, and educational venues. Respondent Department of Health, Board of Podiatric Medicine, is the regulatory body responsible for regulating podiatrists licensed pursuant to Chapter 461, Florida Statutes. Section 461.003(5), Florida Statutes, provides that: 'Practice of podiatric medicine' means the diagnosis or medical, surgical, palliative, and mechanical treatment of ailments of the human foot and leg. The surgical treatment of ailments of the human foot and leg shall be limited anatomically to that part below the anterior tibial tubercle. The practice of podiatric medicine shall include the amputation of the toes or other parts of the foot but shall not include the amputation of the foot or leg in its entirety. A podiatrist may prescribe drugs that relate specifically to the scope of practice authorized herein. Medically and anatomically, the term "leg" means that part of the lower extremity below the anterior tibial tubercle, i.e., below the knee. The region above the knee is referred to as the "thigh." These are basic anatomy terms and definitions used by healthcare professionals, including podiatrists. These basic terms are found in the textbooks used to teach podiatric students, and podiatric schools use these definitions when requesting body parts from the State Anatomical Board. In response to an insurance carrier denying a claim on the basis that a podiatrist had treated a patient beyond the scope of the practice of podiatry, the Board considered the statutory definition of the practice of podiatric medicine. It discovered that some textbooks include a secondary definition for the term "leg" as being the entire lower extremity. The Board determined, therefore, that it would promulgate a rule using the secondary definition of leg rather than the medical or anatomical definition. It also determined it would define the term "surgical treatment," which appears in the statute. The Board's Proposed Rule 64B18-23.001, Florida Administrative Code, contains the following definitions: The term "human leg," as used in s.461.003(5), Florida Statutes, means the entire lower extremity, extending from the head of the femur to the foot, but does not include the hip joint. The term "surgical treatment," as used in s.461.003(5), Florida Statutes, means a distinctly operative kind of treatment, such as a cutting operation. As such, injections, x-rays, and other medical, palliative, and mechanical diagnostic techniques and treatments are not surgery. Specific Authority 461.005 FS. Law Implemented 461.003(5) FS. History -- New. The definition of leg in the proposed rule expands the scope of practice authorized by the statute. The definition of surgical treatment in the proposed rule expands the scope of practice authorized by the statute and creates confusion in that certain diagnostic techniques do fall under the medical definition of surgical treatment. The proposed rule substantially affects orthopedic physicians, vascular surgeons, physical medicine rehabilitation physicians, plastic surgeons, family practitioners, and other physicians in Florida, including those represented by Petitioner, in that under the proposed rule the practice of podiatry is expanded to include areas of the body treated by physicians and not by podiatrists and to allow podiatrists to perform procedures not previously authorized. Petitioner has an interest in assuring that patients are treated by appropriately trained personnel practicing within their authorized scope of practice. The proposed rule substantially affects the general healthcare of patients in the State of Florida. This is a concern for the physicians represented by Petitioner since these physicians are often involved in treating patients who have been inappropriately treated by other professionals. The proposed rule allows podiatrists to practice beyond their areas of training and expertise.
