The Issue Whether Petitioner's license as an Osteopathic Physician in the state of Florida should be revoked, suspended or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary adduced at the hearing, the following relevant facts are found: Respondent is, and has been at all times material hereto, a licensed osteopathic physician in the State of Florida, having been issued license number OS 0003822. Respondent's last known address is 1804 Nelson Street, No. 15, Ormond Beach, Florida 32074. From on or about July 17, 1985, until on or about April 28, 1987, Respondent diagnosed patient L.K. as suffering from, and rendered medical care and treatment for, juvenile fibromatosis or fibromatosis colli. Juvenile fibromatosis and fibromatosis colli are conditions characterized by the occurrence of multiple fibromas. Fribromas are benign (non- malignant) neoplasms. On or about July 17, 1985, Respondent executed a letter which was sent to the Exceptional Student Education Services section of the School Board of Volusia County (School Board) wherein Respondent represents that the patient L.K. "is being treated for a malignancy of the neck, etiology undermined." On or about August 22, 1986, Respondent executed a letter intended to allow the patient L.K. to avoid required immunization wherein Respondent represents that patient L.K. "...has a malignancy which was not identified by multiple biopsy." The representations made to the School Board in his letters of July 17, 1985, and August 22, 1986, were made in Respondent's practice of Osteopathic Medicine. Only one biopsy of the patient's neck mass was performed prior to Respondent's letter of August 22, 1986, to the School Board. This biopsy was performed during March of 1980 by Gary Horndeski, M.D. The pathology report concerning this biopsy was not received by Respondent until March 18, 1987. The patient's neck mass had not been subjected to multiple biopsy as represented by the Respondent on August 22, 1986. The Respondent's representations in the August 22, 1986 letter were deceptive, untrue, and fraudulent. The medical records of Respondent fail to document that Respondent performed multiple biopsies on the mass. Respondent has failed to keep written medical records justifying the course of treatment of the patient, including but not limited patient histories, examination results, and test results. Respondent prescribed, dispensed or recommended BHI Regeneration, Polyzyme 022 and Vitamin C 500 mg tablets to patient L.K. On or about November 21, 1986, Respondent executed three separate forms authorizing the administration of BHI Regeneration, Polyzyme 022 and Vitamin C to patient L.K. by school personnel of Volusia County, indicating that he had ordered the administration of these substances as a "part of scheduled med program." BHI Regeneration and Polyzyme 022 are "drugs" as defined by Section 499.003(8), Florida Statutes. Respondent failed to note in patient L.K.'s medical records his prescribing, dispensing or recommendation of BHI Regeneration and Polyzyme 022. Respondent's written medical records fail to document "informed consent" to the drug therapy initiated including medically acceptable alternative procedures or treatments. The preferred course of treatment for a mass of the size and location as existing on patient L.K. would be surgical intervention. Respondent's written medical records fail to adequately document the reason for not following the preferred course of treatment (surgery), that surgery was discussed with the patient's parents, or that the parents declined surgery. Respondent's entry for March 10, 1987, in the medical record of patient L.K. indicates "recommend to get physiotherapy in lieu of surgery." Respondent's medical records fail to justify the course of treatment of the patient, including but not limited to patient histories, examination results, and test results. A reasonably prudent similar physician under similar conditions and circumstances would have referred patient L.K. to a specialist or obtained a consultation with a specialist. Respondent failed to do so. A reasonably prudent similar physician under similar conditions and circumstances would not have recommended that patient L.K. not receive standard immunizations nor would such a physician have executed a school form allowing patient L.K. to be exempted from required immunizations. A reasonably prudent similar physician would have obtained and reviewed prior biopsy report or conducted a biopsy on patient L.K. soon after undertaking the care of the patient. Respondent has failed to practice osteopathic medicine with that level of care, skill and treatment which is recognized by a reasonably osteopathic physician as being acceptable under similar conditions and circumstances. On or about April 7, 1987, the Board of Osteopathic Medical Examiners issued a Subpoena Duces Tecum commanding Respondent produce for copying and inspection any and all medical records of patient L.K. On or about May 8, 1987, the aforementioned subpoena was served on Respondent to produce copies of any and all medical records of patient, L.K., on May 10, 1987, at 6501 Arlington Expressway, Jacksonville, Florida. Respondent did not file a challenge or object in any fashion to the subpoena. As a result of the Petitioner filing a petition for enforcement of the subpoena, Respondent furnished to Petitioner what was purported to be the medical records of patient L.K., and did not in any way advise Petitioner that there were certain records pertaining to L.K. that he did not consider medical records. The medical records of patient L.K. submitted by Respondent in response to the subpoena were incomplete. Respondent's license to practice osteopathic medicine in the state of Florida was disciplined by the Board of Osteopathic Medical Examiners (Board) by its final order issued on April 19, 1988, wherein Respondent's license was suspended for one year; to be followed by a three year period of probation.
Recommendation Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Board enter a Final Order finding Respondent guilty of violating Section 459.015(1)(n), (p), (y) (cc), Florida Statutes (1989), as set forth in Counts I, III, IV and V of the Second Amended Administrative Complaint, as amended, and for such violation, considering the guidelines for imposing penalties set forth in Rule 2IR-19, Florida Administrative Code, and the aggravating or mitigating circumstances allowing the Board to deviate from those guidelines set forth in Rule 2IR-19, Florida Administrative Code, it is RECOMMENDED that Respondent's license to practice osteopathic medicine in the State of Florida be suspended for one year subject to the terms and conditions the Board deems appropriate for reinstatement. It is further RECOMMENDED that Count II be DISMISSED. Respectfully submitted and entered this 27th day of October, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 Administrative Hearings this 27th day of October, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0308 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on the proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1-26. Adopted in Findings of Fact 1-26, respectively. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Respondent filed a one page, two paragraph Proposed Findings of Fact and Proposed Conclusion of Law that was an argument consisting of facts and law. To the extent that there are facts contained in his argument, they are either not material or not relevant. COPIES FURNISHED: Bruce D. Lamb, Esquire Chief Trial Counsel 730 S. Sterling Street Suite 201 Tampa, Florida 32609 David L. Sturdivant, Sr. 1804 Nelson Street, #I15 Ormond Beach, Florida 32704 Rod Presnell Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Prior to and during part of 1983 Dr. Sturdivant practiced as an osteopathic physician. Dr. Sturdivant operated an office in Bradenton, Florida. Sometime during 1983 Dr. Sturdivant met and discussed employment with Dr. Daniel Clark. Dr. Clark operated the Total Health Care Clinic Center (hereinafter referred to as the "Center"), in Ormond Beach, Volusia County, Florida. Dr. Clark had been licensed as a physician in Florida. Dr. Clark's license to practice medicine in Florida was revoked, however, on April 21, 1983. As a result of his discussions with Dr. Clark, Dr. Sturdivant practiced medicine at the Center four days a week during most of 1983. One day a week Dr. Sturdivant continued to work out of his office in Bradenton. Sometime during 1984 Dr. Sturdivant left the Center. He did not return to the Center until 1985. During the early part of 1985 Dr. Sturdivant returned to the Center where he worked full time as the Center's Medical Director. Dr. Sturdivant worked at the Center from at least March 27, 1985 to at least June 22, 1985. During the period of time during 1985 that Dr. Sturdivant acted as the Medical Director of the Center, Dr. Clark's title was Administrator of the Center. During the period of time after April 21, 1983, that Dr. Sturdivant was employed at the Center Dr. Sturdivant knew or had reason to know that Dr. Clark's license to practice medicine in the State of Florida had been revoked. During the portion of 1985 that Dr. Sturdivant was employed as the Medical Director of the Center Dr. Sturdivant was aware that he was responsible for the medical care of patients seen at the Center. Ms. Judy Baxley was seen as a patient at the Center several times beginning in March, 1985, while Dr. Sturdivant was the Medical Director. Ms. Baxley was treated for asthma and a "yeast" infection. Ms. Baxley was seen by Dr. Clark on some of her visits. She received medical tests and treatments at the direction of Dr. Clark, as evidenced, at least in part, by progress notes signed by Dr. Clark. Ms. Shirley Van Gampler was seen as a patient at the Center on May 8, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Van Gampler was seen by Dr. Clark as a patient. Dr. Clark's treatment of Ms. Van Gampler included examination, testing and diagnosis, as evidenced, at least in part, by progress notes signed by Dr. Clark. Mr. Douglas Cutsail was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director. Mr. Cutsail had a history of heart attacks and hypertension. He went to the Clinic in an effort to control his high blood pressure. Dr. Clark treated Mr. Cutsail as a patient, performing tests on Mr. Cutsail and directing chelation therapy treatments of Mr. Cutsail's medical problems. Dr. Clark signed the progress notes on Mr. Cutsail. Dr. Sturdivant also signed the progress notes but his signature was added at a later date after Dr. Clark had already treated Mr. Cutsail. Ms. Eileen Deasy was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Dr. Clark treated Ms. Deasy as a patient, as evidenced by progress notes signed by Dr. Clark. Ms. Lonna Sloan was seen as a patient at the Center in April, 1985, while Dr. Sturdivant was the Medical Director of the Center. Ms. Sloan, who is now deceased, had breast cancer at the time she was seen by Dr. Clark. Ms. Sloan was treated as a patient by Dr. Clark. The treatment received by Ms. Sloan was substandard treatment. Dr. Sturdivant allowed Dr. Clark to exercise professional medical responsibilities during 1985 while Dr. Sturdivant was the Medical Director of the Center and with knowledge that Dr. Clark was not licensed to carry out those responsibilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of law, it is RECOMMENDED that Dr. Sturdivant's license to practice in the State of Florida be suspended for a period of one (1) year. It is further, RECOMMENDED that the recommended suspension of Dr. Sturdivant's license for one (1) year be stayed and set aside and that he be placed on probation for a period of three (3) years in lieu thereof. During the period that Dr. Sturdivant is on probation, he should be required to work under the supervision of an osteopathic physician. He should not work in any supervisory capacity. During the period of his probation, Dr. Sturdivant and his supervisor should submit quarterly written reports of Dr. Sturdivant's employment activities. DONE and ENTERED this 8th 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 8th day of February, 1988. APPENDIX 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 of Acceptance or Reason for Rejection 1 Stipulated to by the parties. 2 3. 2 and 4. 5 and 6. 5 6. 6 7. 7 8. 8 9. 9 10. 10 11. 11 12. 12-13 13. This is a conclusion of law. Lonna Sloan's deposition is hearsay. It has been accepted only to the extent that it corroborates the testimony of Dr. Smith and Petitioner's exhibit 3, the progress notes on Ms. Sloan. Summary of testimony. Cumulative and hearsay. The Respondent's Proposed Findings of Fact Not supported by the weight of the evidence and irrelevant. The evidence established that Dr. Sturdivant was aware that Dr. Clark's license to practice in Florida had been revoked. Whether Dr. Clark had a license to practice in Georgia is irrelevant. The evidence failed to prove this contention. The evidence did prove that some of the products sold by the Center were nutritional products available in health food stores. The evidence also proved that persons who received nutritional products were treated medically by Dr. Clark. The evidence failed to prove that these nutritional products were prescribed as only for nutritional purposes. COPIES FURNISHED: Susan Branson, Esquire William O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 David L. Sturdivant, D.O. 800 South Nova Road Suite H Ormond Beach, Florida 32074 Mr. Rod Presnell Executive Director Department of Professional Regulation Osteopathic Medical Examiners 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 =================================================================
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
The Issue The issues are: (1) Whether Respondent exercised influence within a physician-patient relationship for the purpose of engaging a patient in sexual activity in violation of Subsection 459.015 (1)(l), Florida Statutes; (2) Whether Respondent engaged a patient in sexual activity outside the scope of practice or the scope of generally accepted examination and treatment of the patient in violation of Section 459.0141, Florida Statutes; and (3) If so, what disciplinary action should be taken against his license to practice as an osteopathic physician.
Findings Of Fact Petitioner, the Department of Health, Board of Osteopathic Medicine, is the state agency charged with regulating the practice of osteopathic medicine pursuant to Chapters 455 and 459, Florida Statutes. Respondent is and has been at all times material hereto a licensed osteopathic physician in the state of Florida, having been issued License No. OS-004450. Respondent has a bachelor’s degree and a master’s degree in clinical psychology and experimental psychology from Temple University, was an assistant professor of psychology at a community college before studying osteopathic medicine, and taught as an assistant professor of psychiatry in family practice at Southeastern Osteopathic Medical School. Respondent completed a residency program at Southeastern Osteopathic Hospital in North Hollywood, Florida, and also completed a three-year family practice residency program. After completing his residency programs, Respondent moved to Sarasota, Florida, and began as a family practice physician. In December 1998, Patient K.C. (K.C.) was 33 years old, married, and the mother of two children, six and two years old. Before getting married, K.C. had lived with her parents. She had attended community college for two years but did not obtain a degree. K.C. had been employed as a sales clerk and clerical staff person. On or about December 29, 1998, K.C. first presented to Respondent suffering from migraine headaches and neck pain, chronic conditions she had suffered for approximately ten years. From December 29, 1998, through or about October 1, 1999, Respondent provided osteopathic medical treatment for pain to K.C. During this period of time, Respondent treated K.C.'s migraine headaches and neck pain with heat, osteopathic manipulation, and prescription medication. Respondent also diagnosed anxiety and depression for K.C. and prescribed medication, Ativan, for this condition. Throughout the time Respondent saw K.C., he also prescribed up to six tablets per day of a sedative, Fioricet. During the time that Respondent was treating K.C., he saw K.C. once or twice a month, except for April, August, and September 1999. Respondent's records reflect that he saw K.C. four times in April, three times in August, and six times in September. There are several manipulation techniques used by Respondent in treating patients. One manipulation technique used by Respondent involves traction of the neck and movement of the patient’s head while the patient is lying down on her back. Another technique, while the patient is lying on her back, involves Respondent’s using his chest to exert pressure down on the patient’s crossed arms and body through the spine to Respondent’s hands located behind her neck and thoracic spine. Another technique has the patient roll over to the side with the leg up to the side while Respondent adjusts her pelvic bone. During this procedure, Respondent’s hand and forearm arm are placed on the buttocks to effect a pushing or pulling of the pelvic bone. The last technique Respondent provides is for the upper thoracic and lower neck area. For this, the patient places her hands on top of her head. Respondent then brings his hands around the torso from behind, placing them at the back of her neck. While the hands provide traction to the neck, Respondent pushes his chest against the spine of the patient to lift the thoracic vertebrae. It is not uncommon during this procedure for Respondent to brush his hands on the patient’s breast. Respondent’s normal office procedure is to do manipulations on patients in his treatment room with the door closed and no other persons present for 10 to 15 minutes. From December 1998 until August 12, 1999, Respondent provided adjustments to K.C. and prescribed medication and did not engage in any sexual activity or relationship with K.C. Prior to August 12, 1999, during his treatments of K.C., Respondent sometimes engaged in "random conversations." For example, during one treatment Respondent asked what kind of car she drove and when she told him, Respondent asked K.C, if her husband cared about her. Respondent told K.C. that a sports utility vehicle (SUV) was a safe vehicle, especially for someone with her condition and indicated that his wife drove an SUV. Respondent then insinuated that if K.C.'s husband cared about her, he should or would buy her an SUV. During another treatment, Respondent told K.C. that she had a good body and asked if she had been a cheerleader. During another treatment, Respondent, while engaging in conversation with K.C., made an unrelated statement about how many times per week the average married couple has sex. At another time, while treating K.C. at his office, Respondent mentioned that the sex life of people with chronic pain may be affected by their condition and asked if her sex life was so affected. Still, during another treatment, Respondent asked K.C. about her relationship with her husband, specifically inquiring as to how they related to one another. In the summer of 1999, K.C. traveled by car to Canada to visit her husband's family. For K.C., the trip to Canada was stressful and while there, she was in a lot pain. Because of the pain she was experiencing, K.C. called Respondent's office while she was still out-of-town to schedule an appointment for an adjustment upon her return to Sarasota and to request that one of her prescriptions be refilled. After K.C. returned from the trip to Canada, on the morning of August 13, 1999, she went to Respondent's office for her scheduled appointment for an adjustment. When K.C. arrived at Respondent's office, she was in a lot of pain and began to cry. K.C. told the nurse or medical assistant that she was in a lot of pain and had had a "bad trip to Canada." The nurse then escorted K.C. to an examination room. When Respondent came into to examination room, K.C. was sobbing and could hardly talk. Respondent asked K.C. to explain why she was so upset. Respondent proceeded to do an adjustment and, again, asked K.C. why she was so upset. K.C. described her feelings to Respondent, who then told K.C. that he used to counsel with patients, that he had helped a girl just like her, and that he could help her if she were willing to come back to the office and talk with him. After K.C. agreed to come back and talk to Respondent, he asked K.C. how he could reach her. In response, K.C. gave Respondent her pager number. After K.C.'s morning appointment on August 13, 1999, Respondent contacted K.C. on her pager and asked if she had made arrangements for her sons to be taken care of so that she could come back to the office to talk with him. K.C. told Respondent that she had made arrangements for her sons and agreed to return to Respondent's office that afternoon. When K.C. returned to Respondent's office on the afternoon of August 13, 1999, Beverly Carrington (Beverly), a medical assistant in Respondent's office, was vacuuming the office. At Respondent's direction, Beverly took K.C. to an examination room. Several minutes later Respondent came into the examination room and told K.C. that he had to make some calls and that he would be back in a few minutes. Respondent gave K.C. a sandwich that he said he had left over from lunch. After Respondent gave K.C. the sandwich, he left the examination room, closing the door behind him. Respondent eventually returned to the examination room and sat in a chair next to the chair in which K.C. was sitting. Respondent began asking K.C. questions about herself, similar to questions that she had been asked by counselors or psychologists. While Respondent was talking to K.C., Beverly knocked on the door of the examination room and told Respondent that she had finished vacuuming the office. Respondent indicated to Beverly that she could go home and soon thereafter, Petitioner heard Beverly leave the building.1 After Beverly left the office, Respondent continued to ask K.C. questions for the next 15 or 20 minutes. Respondent then asked K.C. to get up from her chair, face the mirror in the room, and look in the mirror. K.C. felt uncomfortable looking in the mirror, so she kept her head down. Respondent then put his hands on K.C.'s face and held her face up so that she was looking in the mirror. While doing this, Respondent asked K.C., "Don't you know you're beautiful?" Respondent placed his hands on K.C.'s shoulders and brushed his lips against her neck. Respondent began rubbing or massaging K.C.'s neck and while doing so told K.C. that she was "real tight in [her] neck" and that he would like to work on her neck again and see if he could loosen it up and help her relax. Respondent then led her to the examination table and "proceeded to rub [her] neck and then he started to take off [her] clothes." While on the examination table, Respondent helped K.C. take off her shirt, shorts, bra, and shoes and the only remaining clothing that she had on was her underwear. After her clothes were removed, K.C. presumed Respondent would cover her with a towel or give her a robe, but he did not provide K.C. with any covering. Instead, Respondent sat behind K.C., massaged her neck, and talked to her "soothingly" for about ten minutes. Respondent then took his hands and rubbed her arms and then moved his hands to her breasts, and then down to her waist and towards her panties. When Respondent moved toward K.C.'s panties, she would "tense up" and then Respondent would "start rubbing up the top part of her again." Respondent's hands again went toward her underwear and he "put his hand to go under [K.C's] underwear." K.C. was nervous about what was going on and told Respondent that she was uncomfortable. After K.C. told Respondent that she was uncomfortable, he acknowledged that she seemed uncomfortable. Respondent then handed K.C. her clothes, assisted her in sitting up on the examination table, and sat on the table while K.C. dressed herself. After talking to Respondent for about five minutes, K.C. left the doctor's office with a worse headache, feeling distraught. K.C. next saw Respondent a few days later, on a Monday or Tuesday, for an adjustment for a headache and pain. Respondent performed an adjustment on K.C. that day. During this appointment, Respondent, again, told K.C. that he wanted to help and counsel her. He told K.C. about an upcoming gun show and stated that they could talk while driving to the gun show. Later that week, Respondent paged K.C. and asked her to come to his office. In response to Respondent's request, K.C. went to Respondent's office. Once there, Respondent took K.C. to an examination room and talked to her again about the gun show. Respondent again told her that he would like for her to go to the gun show with him so that they could have time to talk. K.C. was in Respondent's office that day about ten minutes and did not receive a treatment. A few days later, on Saturday, K.C. met Respondent at his office to go the gun show. When she got there, Respondent recommended that she leave her car at the office and ride in his Toyota 4-Runner so that they could talk. Respondent stated that he and K.C. were going somewhere in Palmetto, Florida, but they actually ended up at the Manatee Civic Center. While Respondent was driving to the gun show, he told K.C. that he hoped that he was not mistaken as to the dates of the gun show. In fact, when Respondent and K.C. arrived at the Manatee Civic Center, there was no one there. Nevertheless, Respondent pulled his car into a space in the parking lot on the side of the building. Respondent left the car running and took off his seat belt as he talked to K.C. At some point, Respondent kicked his shoes off and loosened his pants and/or pulled them down, reached over toward K.C., took off her seat belt, told K.C. to get more comfortable, and adjusted her power seat in his Toyota 4-Runner to lean back more. Respondent then touched K.C.'s genitals and proceeded to get on top of her and have intercourse. While on top of her, Respondent pointed out that there were police cars in the back of the parking lot. Once Respondent pointed out the police cars, K.C. observed two or four police cars in the parking lot. Even though there were no policemen in the cars, K.C. expressed concern about the police cars to Respondent. Respondent told K.C. that she should not worry because the windows in his vehicle were tinted. Respondent and K.C. were in the parking lot about 20 minutes, although the intercourse was only three to five minutes. After the intercourse, Respondent put his clothes back on or pulled his pants up and drove back to his office. This was the first time that Respondent and K.C. had intercourse. A few days later, K.C. and Respondent engaged in sexual activity in Respondent’s vehicle during lunch while they drove to Marina Jack’s. Respondent picked up lunch at the hospital and then returned to the parking lot of his office, where K.C. met him. K.C. left her car in the parking lot and got in Respondent's Toyota 4-Runner. Respondent gave K.C. her lunch and then "fingered" her while she ate her lunch as he drove to Marina Jack's. During the period between August and October 1999, K.C. went to Respondent's house on Siesta Key. The house was in a gated community, and in order to gain entry, K.C. told the guard at the gate that she was going to Respondent's house and would give the guard her name or another name that Respondent had told her to use. At other times, K.C. would follow Respondent through the gate in her car. Some of these visits were on weekdays during Respondent's lunch break. During some of those visits, K.C. and Respondent would talk and have intercourse. K.C. and Respondent had intercourse at Respondent's house about ten times. One Saturday between August and October 1999, K.C. went to Respondent's house after he invited her to come out and talk to him and go to the beach. That day Respondent met K.C. somewhere in town and drove her to his house. When they arrived at Respondent's house, K.C. took out a bathing suit and went upstairs to change. It is unclear whether K.C. and Respondent had intercourse or engaged in any sexual activity on this day. K.C. contemporaneously reported the sexual relationship with Respondent to her husband and to a minister who had known and counseled her before she met Respondent. K.C. told her minister that the sexual activities with Respondent had occurred in Respondent's office, vehicle, and home. K.C. and Respondent had intercourse a couple of times at the home of a friend of Respondent's, Carole, that was on Tangerine Street and at the home of one of Respondent's friends, Jack Kentish. One Sunday morning in late September, K.C. went to Respondent’s office.2 While there, she went into an examination room to change clothes so that she would have attire appropriate to accompany Respondent to a gun show. About that time, K.C.'s husband showed up at Respondent's office, knocked on the office door, expressed his displeasure at the fact K.C. was there, and had a verbal confrontation with Respondent. K.C.'s husband stopped at Respondent's office after he saw his wife's car parked there. The incident described in paragraph 29, led to Respondent sending a letter dated September 28, 1999, to K.C., advising her that his professional relationship with her would terminate within 30 days. The reason for the 30 days was to allow K.C. time to find another physician. In October 2000, K.C. was admitted to Sarasota Memorial Hospital suffering from major depression, Fioricet dependence, and chronic pain. At or near the time of her admission and at this proceeding, K.C. acknowledged that she had some loss of memory surrounding the events related to the three-month period in which Respondent engaged in improper sexual conduct with her.3
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, enter a final order finding that Respondent violated Subsection 450.015(1)(l) and Section 459.0141, Florida Statutes, and Subsection 459.015(1)(bb), Florida Statutes (1999), now 459.015(1)(pp), Florida Statutes, and suspending his license to practice osteopathic medicine in the State of Florida for one year and imposing an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of August, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 5th day of August, 2003.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the final hearing, the following relevant facts are found: HRS District VIII includes Sarasota, DeSoto, Charlotte, Glades, Lee, Hendry and Collier Counties. There are presently no existing and operating osteopathic hospitals within District VIII. However, there are two applications now pending for new for new osteopathic facilities within the District. One is in Sarasota and one is on behalf of the intervenor Doctors' Osteopathic Medical Center, Inc., d/b/a Gulf Coast Hospital, Inc. (Gulf Coast), which seeks to build and operate a 120-bed acute care osteopathic hospital to be located in south lee County. That application has proceeded through the administrative hearing process, received a Recommended Order for approval of 120 beds, a Final Order for approval of 60 beds and is currently on appeal. The intervenor Naples Community Hospital is an existing allopathic acute care hospital located in Collier County, which is immediately south of Lee County. The intervenor Lee Memorial Hospital is an existing allopathic acute care hospital located in Lee County and has approval to construct and operate a satellite facility in south Lee County. The petitioner Family Center Hospital Osteopathic, Inc., proposes to construct and operate a 100-bed full service, osteopathic teaching hospital in southwest Lee County. A particular site has not yet been selected or acquired. If the proposed facility was established, it would be in competition with allopathic hospitals for patients and staffing. The petitioner's original application for a Certificate of Need was submitted to HRS in the summer of 1982. That application was prepared by a health planning consulting firm, no member of which testified in this proceeding. The original application was amended prior to the hearing with regard to the need for osteopathic beds in the area, the financial projections and the architectural design of the facility. Petitioner intends to retain a full-time management firm to be responsible for managing the proposed facility. No firm commitments have been made and no tentative price quotations have been received for such an arrangement. Petitioner proposes to construct a two-story 90,000 square foot building with ancillary services on the first floor and patient areas on the second floor. The patient areas include a 15-bed obstetrical until, a 10-bed pediatrics unit, an 8-bed ICU/CCU and the remaining beds would be medical- surgical beds. The architect had no knowledge of the location of the site proposed, and thus no site plan has been developed. While the average construction cost per square foot of a health care facility in Florida is approximately $115 or $120, that cost can vary depending upon site development requirements, construction materials, floor coverings, wall coverings and the like. These details have not yet been determined The fact that the proposed facility is to be teaching hospital was not taken into account in the schematic design. An accountant, who had no prior experience with projecting financial feasibility for a health care facility was retained by the petitioner to prepare a projected financial statement for the proposed facility. His opinion that the project would be financially feasible within the second year of operation was based primarily upon occupancy projections made by a health planner, the itemization and costs associated with manpower, salaries, equipment, supplies, etc., as projected in the original application and conversations with a "Mr. Becker" relating to bond financing. He compared his estimates and projections with other Certificate of Need applications in the Lee County area. The accountant was unaware of whether nor not the applications relied upon for comparison purposes had been update or revised at some subsequent time. He also received data concerning revenues of a "select group" of hospitals as published in a Hospital Cost Containment Board report for 1984, but made no determination of that Board's grouping of hospitals for comparative purposes. No independent investigation of the accuracy of the contents of the original application was performed by the accountant or anyone on his behalf. Although the accountant adjusted the manpower requirements as originally projected to conform with his perception of the occupancy projections, he was unaware of the minimum staffing requirements imposed upon hospitals by state and/or federal regulations. The witness candidly admitted that he did not consider it within his expertise to determine the manpower or equipment requirements for the proposed facility. He is unaware of whether or not the bond financing proposed for this project is available. There was no showing that petitioner had sufficient funds available to make expenditures for project development or other pre-opening expenses, estimated to be over $400,000.00. His revenue projections did not take into account the existence of other osteopathic beds in the area. By utilizing alternative methodologies which took into account both statewide and district wide statistics regarding osteopathic utilization rates, the number and distribution of osteopathic physicians, and population projections; the petitioner's health care planner concluded that there is a gross need in the year 1991 for 144 osteopathic acute care hospital beds in District VIII. Assuming that there are no other osteopathic hospitals in District VIII, the health care planner was of the opinion that there is a net need for the same number of beds in that District. She further concludes that the proposed osteopathic hospital would obtain 90% of the osteopathic patients of Lee County, 50% of the osteopathic patients in other District VIII Counties and an occupancy rate of approximately 73% for the second year of operation. She admits that if Gulf Coast is awarded a Certificate of Need for 60 beds or 120 beds and/or if the Sarasota applicant is awarded a Certificate of Need, the net bed need of 144 would be reduced accordingly and the projected market share and occupancy rates would be affected. Petitioner presented no evidence concerning its ability to adequately staff its proposed facility. Likewise, no evidence was presented as to petitioner's ability to obtain funds for capital expenditures or for the operation of the facility. The impact of the proposed project upon the cost of providing health services was not addressed by the petitioner. There is a need for research and educational facilities to train doctors of osteopathic medicine at the student, internship and residency levels. Both Manasota Osteopathic General Hospital in Sarasota and Gulf Coast Hospital in fort Myers have indicated their desires to become teaching facilities.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for a Certificate of Need be DENIED. Respectfully submitted and entered this 7th day of May 1986 in Tallahassee, Florida. DIANE D. TREMOR 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 7th day of May 1986. APPENDIX The proposed joint findings of fact submitted by Doctors' Osteopathic Medical Center, Inc., d/b/a Gulf Coast Hospital, Inc., and Naples Community Hospital have been approved and/or incorporated in this Recommended Order, except as noted below. Paragraph 7: Rejected as unnecessary to the issues in this proceeding. Many of the proposed findings of fact contain recitations of a lack of evidence regarding certain criteria. Where these have not been included in the factual findings, they are included in the Conclusions of Law, where pertinent. COPIES FURNISHED: Claude H. Tison, Jr., Esquire MCFARLANE, FERGUSON, ALLISON & KELLY Post Office Box 1531 Tampa, Florida 33601 R. Sam Power, Esquire Office of General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Room 407 Tallahassee, Florida 32301 John D. C. Newton, II, Esquire CARSON & LINN, P.A. Cambridge Centre 253 East Virginia Street Tallahassee, Florida 32301 W. David Watkins, Esquire OERTEL & HOFFMAN, P.A. Post Office Box 6507 Tallahassee, Florida 32314-6507 Ivan Wood, Jr., Esquire WOOD, LUCKSINGER & ESPTEIN One Houston Center Suite 1600 Houston, Texas 77010 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent, Alexandra Konowal, D.O., violated Subsections 459.015(1)(x) and (o), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed osteopathic physician in the State of Florida, having been issued license number OS 7169. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.42, Florida Statutes. On July 20, 1998, Respondent first saw Patient B. M., a 75-year-old female, at Eye Health of Fort Myers, for a complaint of poor vision and cataracts. Respondent scheduled cataract surgery for July 30, 1998, at an outpatient surgery center. On Thursday, July 30, 1998, at approximately 10:30 a.m., Respondent performed the surgery, removing the lens of Patient B. M.‘s left eye and replacing it with an implant. Patient B. M. was discharged from the surgery center at 11:17 a.m., with instructions to go to Eye Health of Fort Myers for follow-up examination that afternoon. On Saturday, August 1, 1998, Patient B. M. telephoned Eye Health early in the morning complaining of inability to see from the left eye and severe pain in the left eye. At about 9:00 a.m., August 1, 1998, Patient B. M. was examined at Eye Health of Fort Myers by James Campbell, an optometrist with Eye Health. Dr. Campbell found residual cortex in the left eye, with corneal edema, but observed no pus in the eye. Dr. Campbell changed the antibiotic eye drops for the patient. At approximately 10:00 a.m., on August 1, 1998, Dr. Campbell had a telephone conference with Respondent and Dr. Franz to discuss the symptoms of Patient B. M. At approximately 4:45 p.m., on August 1, 1998, Patient B. M. again called Eye Health complaining of unbearable pain. Dr. Campbell, in turn, called Respondent at approximately 5:00 p.m. to advise her of Patient B. M.’s complaints. During the 5:00 p.m. telephone call from Dr. Campbell to Respondent, Dr. Campbell discussed the possible diagnosis of endophthalmitis. At 5:36 p.m., August 1, 1998, Respondent spoke with Patient B. M. on the telephone for nine minutes. During the 5:36 p.m. telephone call, Patient B. M. reported shooting pains in her eye and that her vision was bad. During the 5:36 p.m. telephone call, Respondent advised Patient B. M. that she needed to be evaluated. When Patient B. M. said she could not come in, Respondent advised of the possible risks including damage to the optic nerve from excessive pressure and infection. Respondent suggested going to the emergency room and offered to provide transportation, but Patient B. M. refused. During the 5:36 p.m. telephone call, Respondent recommended that Patient B. M. take Percocet that the Patient already had for the pain; Respondent would call in a prescription for erythromycin ointment and told the patient to call back if the eye didn’t improve. Following the 5:36 p.m. telephone call, Respondent did phone in a prescription for erythromycin to a Walgreens Pharmacy near Patient B. M.'s residence. It appears the patient did not pick up this prescription. The "standard of care" expert witness offered by Petitioner found it "difficult to answer" a hypothetical question directed to the "standard of care" of Respondent's care of Patient B. M., incorporating all relevant facts set forth hereinabove in these Findings of Facts and, essentially, failed to render an opinion incorporating all relevant facts; therefore, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances as alleged in this matter. Respondent prepared an office note dated August 1, 1998, 7:30 p.m., as a record of Respondent’s telephone call to Patient B. M. This note was, in fact, prepared on the morning of August 3, 1998. The note reads in its entirety: 8/1/98 7:30 PM Spoke with patient. States having pain in left eye. Recommended artificial tears for shooting pain, and continue using Ocuflox and Pred Forte. Patient states she has been taking Percocet every four hours with no relief, but she takes Percocet regularly for neuropathy. Told to use two every four hours and call if no improvement. While the August 1, 1998, office note records a great deal of relevant information, Respondent's testimony revealed it does not reflect Patient B. M.'s refusal to come in for evaluation, Respondent's warnings regarding the risks of not being evaluated, an offer of transportation to an emergency room, or a prescription order for Erythromycin. Petitioner's expert witness testified on deposition that, "I'm not sure what the standard of care is" for charting weekend telephone calls. When he receives a telephone call at home from a patient, he makes notes on "a scrap of paper" and later records the note in the patient's record. Respondent testified that she now keeps a book at home in which she records every conversation when patients call her at home; she then brings the book to her office for reference in recording the entire conversation in the patient's record. However, she does not believe that anyone in her practice does it the way she now does. There is no standard procedure in the practice of osteopathic medicine for memorializing conversations in the patient's record between a physician and patient which occur outside the office or hospital setting. On August 3, 1998, Patient B. M. returned to Respondent’s office complaining of no vision and sharp pain. Respondent’s examination revealed Patient B. M.’s left eye to be swollen and with hypopyon (internal pus). Respondent diagnosed endophthalmitis and immediately referred Patient B. M. to a retinal specialist. On August 3, 1998, Patient B. M. was seen by the retinal specialist who found near total hypopyon, so that neither the iris nor any posterior detail could be visualized. Ultrasound showed dense mobile vitreal opacities, primarily anteriorly. The specialist recommended a vitrectomy with injection of antibiotics, and discussed at length the possibility of loss of vision, loss of the eye and uncertainty of any visual benefit. He performed the surgery for Patient B. M. the night of August 3, 1998. Endophthalmitis is a recognized complication of cataract surgery that occurs in less than one percent of patients, but does not presumptively indicate a departure from the standard of care. The standard of care required Respondent see Patient B. M. and treat her for endophthalmitis on August 1, 1998, or to warn Patient B. M. on August 1, 1998, of the serious consequences of endophthalmitis if Patient B. M. did not have an examination. The evidence revealed that Respondent warned Patient B. M. of the serious consequences of her failure to go to the clinic or an emergency room for treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, that the Department of Health, Board of Osteopathy, enter a final order finding that Respondent, Alexandra Konowal, D.O., is not guilty of violating Subsections 459.015(1)(x) and (o), Florida Statutes, and dismissing the Administrative Complaint filed in this matter. DONE AND ENTERED this 18th day of December, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 18th day of December, 2001. COPIES FURNISHED: Bruce A. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39A Tallahassee, Florida 32399-0450 Bruce M. Stanley, Jr., Esquire Henderson, Franklin, Starnes & Holt 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902-0280 William H. Buckhalt, Executive Director Board of Osteopathic Medicine Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue to be resolved in this proceeding concerns whether the licensure examination taken by the Petitioner qualifies him under Section 459.007(3), Florida Statutes, for licensure as an osteopathic physician in the State of Florida.
Findings Of Fact The Petitioner, Lawrence Edward Suess, is an osteopathic physician licensed by the Boards of Medical Examiners in Texas, Alabama, and Kentucky. He seeks licensure in Florida, pursuant to Section 459.007(3), Florida Statutes. He is also licensed in Arizona and Texas as a registered nurse, holds BS and MS degrees in child development and nursing and a Ph.D. in nursing. The Respondent, the Board of Osteopathic Medicine (Board), is an agency of the State of Florida, charged with regulating the admission to practice and the practice and licensure standards of osteopathic physicians licensed or seeking to be licensed in the State of Florida. The Board issued an order, as corrected, on November 9, 1995, granting application of licensure to the Petitioner upon the condition that within one year, he successfully complete Part III of the NBOME examination for purposes of licensure in the State of Florida, and not for diplomate status. The Board found in that order that the Petitioner had not passed all three parts of the NBOME examination and had submitted certification of passage of only Parts I and II. The Board found that the “FLEX” examination was not a substantially-similar examination to the required NBOME examination since the FLEX examination did not contain an osteopathic medicine component. The Board also found that the completion by the Petitioner of a Board certification examination was not substantially similar to the NBOME examination because it tested only a single subject matter and not the broad principles contained in Part III of the NBOME examination. On November 13, 1995, a Petition for Formal Hearing was filed by the Petitioner disputing the decision of the Board which precluded him from obtaining licensure to practice medicine in the State of Florida because of failure to complete Part III of the NBOME examination. He contended that he was outside the time period in which he would be allowed to take Part III. He further contended that the FLEX examination was a substantially-similar examination to the NBOME examination. The Petitioner contends that taking the FLEX examination should be sufficient to justify licensure, although he also acknowledged that Part III of the NBOME examination tests osteopathic philosophy and principle; and he acknowledged that the FLEX examination does not, although he was attempting to testify and argue that the FLEX examination was substantially similar to the NBOME examination. He provided no testimony or evidence, however, to establish that the FLEX examination tests osteopathic philosophy and principle. The Respondent presented the testimony of Joseph Smoley, Ph.D. by deposition. Dr. Smoley holds a Ph.D. in educational measurement and has served for ten of the last eleven years as Executive Director of the NBOME. The NBOME is an organization that develops an examination that is independent of the osteopathic medical schools to evaluate osteopathic physicians who are either currently in undergraduate or in graduate medical programs. The NBOME’s main mission is to provide state licensing examinations with an independent assessment of the knowledge base of candidate osteopathic physicians. Dr. Smoley oversees NBOME policy and supervises educational measurement within the osteopathic profession. His oversight responsibilities include the examination section of the NBOME. He provides a constant review of the process of testing for the Board of Directors. The NBOME developed its examination by having questions drafted by faculty members and osteopathic physicians in independent practice. Faculty members may be D.O.’s or Ph.D.’s in the various basic sciences, and there is a multi-tiered process for preparing and reviewing questions. A copy of the bulletin of information concerning the NBOME examinations was attached to and made part of the deposition. Dr. Smoley testified that typically the candidates take Part I as a sophomore during medical school, Part II as a senior, and Part III as an intern in their first post-graduate year. He established that the purpose behind that examination is “the integration of osteopathic principles and practices as well as the philosophy of osteopathic medicine.” No allopathic physicians are involved in the grading process of that examination. Some allopathic physicians associated with osteopathic colleges may submit questions that, after the review process, may be used on the examination. The purpose of the NBOME examination, as shown by Dr. Smoley, is to make sure that each question integrates osteopathic principles and practices in some way and that the entire examination is reflective of the practice of osteopathic medicine. Dr. Smoley is also familiar with the FLEX examination, as well as the current licensure examination for allopathic physicians, the USMLE. The Federation of State Medical Boards (FSMB) does not prepare any complete examination or any additional components for its regular examination concerning manipulation or osteopathic practice and principles. According to Dr. Smoley, there has never been an official comparison or analysis between the NBOME examination and the FLEX examination. Based upon his experience and educational measurement, he has determined that if one examination, the NBOME, contains osteopathic principles and practice and the other examination, the FLEX, does not incorporate those principles and practices, then the two examinations could not be considered equivalent. The NBOME examination is more extensive because it integrates osteopathic principles and practice throughout its content. This osteopathic examination is not simply one that tests manipulation. Therefore, it is not asserted to be appropriate for chiropractors or M.D.’s who have been trained in manipulation but only for persons who have received an osteopathic medical education. The Respondent also presented the testimony by deposition of James R. Winn, M.D. He is Executive Vice President of the FSMB. The FSMB assists state medical boards in conducting their evaluation of physicians regarding their fitness to practice medicine. The FSMB developed examinations which are administered by state boards. Dr. Winn serves as the supervisor for the examination services section of the FSMB. Those examinations are developed in cooperation with the National Board of Medical Examiners. The current examination available from the FSMB is the United States Medical Licensing Examination (USMLE) used since 1992. Prior to that time, the FSMB administered the FLEX examination, which was for the evaluation of all physicians requesting licensure. The FLEX examination did not have a section on osteopathic practice, as shown by Dr. Winn. The FSMB allows all physicians seeking licensure in the United States to take that examination, including graduates of osteopathic medical schools and graduates of foreign medical schools. With the FLEX examination, unlike the NBOME examination, medical students are not eligible, only graduates of medical schools are eligible to take the examination. Dr. Winn is familiar with the examination of the NBOME and its purpose. He is not aware of any side-by-side comparison between the two examinations to determine equivalency. In his expert opinion, there would have to be such an evaluation in order to determine whether the examinations are equivalent. The testimony of Drs. Smoley and Winn was elaborated upon and corroborated by Dr. Morton Morris. Dr. Morris is a licensed osteopathic physician in the State of Florida and is board certified in osteopathic surgery by the American Osteopathic Board of Orthopedic Surgery. He is also certified by the American Board of Quality Medical Assurance and is a fellow of the American College of Legal Medicine. He is Vice-Chancellor for academic affairs in the health professions division at Nova Southeastern University, a Florida osteopathic medical school. Additionally, Dr. Morris is a licensed, practicing attorney in the State of Florida. He practices in the areas of medical malpractice, general health law and administrative law. Dr. Morris is familiar with the NBOME examination, having served as a test item writer for the NBOME. He recognizes Dr. Smoley as one who helps develop the philosophy of the examinations in question. The philosophy of the NBOME is that content concerning osteopathic practice and principles permeates the entire examination. Even when certain questions on their face are not osteopathically oriented, the evaluation and the grading of the responses is carried out from an osteopathic viewpoint and philosophy. The test item writers are directed to draft test questions which include osteopathic philosophy. In the past, the NBOME has agreed to allow a candidate to take only Part III or an equivalent examination and receive the score from the NBOME. In fact, Dr. Morris represented that person in his capacity as an attorney. He worked out the arrangements whereby that candidate could take and pass Part III of the NBOME examination in order to obtain a Florida osteopathic medical license, as the Petitioner seeks herein, even though, since he would not have taken Part III within the required seven years, he could not receive diplomate status with the NBOME. The Board’s order in this case specifically requires passage of Part III of that examination, but it does not require diplomate status. Such an arrangement would thus seem to provide a means to alleviate the Petitioner’s predicament in the instant situation. The Petitioner, in questioning Dr. Morris upon cross- examination, inquired about the possibility of a person taking all three parts of the NBOME examination, even if he had already taken Parts I and II. Dr. Morris stated that that was possible. Page 7 of the Bulletin of Information, in evidence in Respondent’s Exhibit 1, although stating that the candidate cannot take the examination “to attempt to improve his score”, states nothing to indicate preclusion of a candidate taking the entire examination for any other purpose. Dr. Morris stated that the Petitioner could take Part III of the examination and that the NBOME would make arrangements to allow him to do that, with the understanding that if he passed Part III, he would not be able to receive diplomate status from the NBOME (because of passage of time before taking Part III). In making comparisons between osteopathic medical education and allopathic medical education, Dr. Morris acknowledged that in some cases, osteopathic medical colleges use the same textbooks as used by allopathic medical schools. That does not, however, make them similar professions. Although anatomy and physiology may not be different, the philosophy of treating the whole patient is different. Responding to the Petitioner’s contention that having obtained board certification in his specialty area should count as equivalency to the entry level examination, Dr. Morris pointed out that all that the board certification accomplishes is to show that an osteopathic physician is recognized by his or her peers as competent to practice a specialty. It does not mean that the person is osteopathically oriented enough to be eligible for licensure and to be able to pass a minimum competency examination. The Petitioner contends that having passed Parts I and II of the NBOME examination, FLEX should quality him for osteopathic licensure in the State of Florida, in lieu of taking Part III of the NBOME examination, because anything of an osteopathic nature would have already been tested on Parts I and II. Dr. Morris established to the contrary, however, that Part III is the clinical testing, the testing of how the individual puts to use his clinical evaluation in treatment of patients. It is the ultimate test of whether an individual has developed and is able to apply a philosophy of practice sufficient to show that he is competent to be an osteopathic physician. Parts I and II of the NBOME examination do not test clinical skills. The FLEX does test clinical skills, but it does not test for osteopathic practices as to clinical skills. The NBOME requires that a person take Part III within seven years of having taken Part I, if that person wishes to be a diplomate of the NBOME. There is no apparent preclusion, however, in a person arranging to take only Part III, simply for purposes of state licensure. The record is not clear whether a person could take Parts I, II and III within the period of one year. It does seem apparent, however, that the Petitioner could take Part III within a one-year time period, which is all that is required in the Board’s order. Further, the statute requires that a person take all parts of the NBOME examination or a substantially-equivalent examination. What the Petitioner attempts to do is to take two parts of the NBOME examination and then substitute a different examination (FLEX) for Part III. This does not constitute a substantially-equivalent examination for the above reasons. A substantially-equivalent examination would have to be equivalent to all three parts of the NBOME examination. During discussion of the difference between osteopathic and allopathic schools of medicine, Dr. Morris pointed out that many osteopathic physicians use the same modalities that allopathic physicians use. It is just that they also use osteopathic modalities. He gave the example of a cardiac patient whom an osteopathic physician would treat just as a medical doctor would treat the basic condition with appropriate drugs but then would incorporate osteopathic philosophy, such as the “lymphatic pump”, meaning that the osteopathic physician would incorporate muscle techniques of stretching and passive manipulation in order to help the patient. The osteopathic physician would possibly use manipulative techniques on the lymphatic system and not just use drugs or other allopathic techniques. In the context of the NBOME examination, a question might reference a cardiac patient. Although the question would not mention the lymphatic pump, a proper answer might entail a clinical response that would consider that modality of treatment. In orthopedics, Dr. Morris’ specialty, an osteopathic physician can make significant use of manipulative techniques, as well as general surgery, casting and other modalities normally used by allopathic physicians. Use of the FLEX examination, rather than the NBOME examination, would not lower standards for osteopathic physicians. Rather, the FLEX examination simply embodies a different standard than the one used to test for competency in osteopathic principles and medicine. The Petitioner acknowledged that he could have taken Part III of the NBOME examination but chose not to because it was then more convenient for him to take the FLEX examination to continue his training in the State of Texas which required passage of the FLEX examination for osteopathic licensure. The Petitioner contended that if he applied for a Florida osteopathic medical faculty certificate (MFC), the FLEX examination would be acceptable and he would be eligible. That fact, he contends, by analogy, establishes that he is qualified to practice osteopathic medicine in the State of Florida. He has never applied for such a certificate nor has he been offered an osteopathic medical faculty position in the State of Florida. Thus, determination of that issue is not before this tribunal. Even if it were, there are significant differences between a full license to practice osteopathic medicine indefinitely and a medical faculty certificate. With the MFC, the Petitioner would not be allowed to be engaged in private practice of osteopathic medicine and the MFC would only allow him to practice in the academic realm for only two years. Finally, the statutory requirements for an MFC do not require the passage of any licensure examination. Accordingly, to the extent that the Petitioner’s argument and testimony implies some analogy or equivalency between eligibility for the MFC and eligibility for full licensure, such equivalency is not borne out by the greater weight of the evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the application of the Petitioner, Lawrence Edward Suess, D.O., for licensure as an osteopathic physician, without conditions, is denied on the basis that the FLEX examination has not been shown to be substantially similar to the NBOME examination.DONE AND ENTERED this 28th day of February, 1997, in Tallahassee, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997. COPIES FURNISHED: Lawrence E. Suess, D.O., Ph.D. Owensboro Psychiatric Institute 1700 Frederica Street, Suite 106 Owensboro, Kentucky 42301 M. Catherine Lannon, Esquire Department of Legal Affairs The Capitol, Room PL-01 Tallahassee, Florida 32399-1050 William H. Buckhalt, Executive Director Board of Osteopathic Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0757 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue in this proceeding is whether the Respondent, Jules Jonas Dossick, D.O. violated statutes governing the practice of osteopathic medicine on the grounds alleged in the administrative complaint and if so, what disciplinary action is appropriate. Background and Procedural Matters This proceeding commenced when Petitioner filed its administrative complaint and Respondent timely requested a formal hearing. At the hearing Petitioner verbally amended its complaint by deleting all factual and legal allegations relating to sexual misconduct and violations of Section 459.015(1)(k) Florida Statutes. Petitioner presented evidence through three witnesses and four exhibits. Respondent testified on his own behalf and presented one exhibit. All exhibits were admitted without objection. Petitioner has submitted a proposed recommended order, which proposal has been considered and, in part, included in this order. A specific ruling on each proposed finding of fact is found in the appendix attached hereto. By pleadings dated May 23, 1986, Respondent has moved for a re- hearing and has objected to the Petitioner's proposed recommended order, both on the grounds that he has now retained counsel and should have the opportunity to have the case re-heard with the benefit of an attorney. Respondent had an attorney in an earlier part of this proceeding and discharged him by letter dated February 22, 1986. (see letter attached to motion to withdraw filed March 3, 1986). Approximately two months later the final hearing was held. Respondent had ample time to retain new counsel or ask for a continuance. He proceeded to hearing, aware of his rights and without protest. The record is void of any basis to consider such extraordinary relief.
Findings Of Fact Respondent, Dr. Dossick, is now and at all times relevant has been licensed as an osteopathic physician in Florida under license number OS 0000874. He practices at his clinic, North Miami Medical Center, located at 4805 East 4th Avenue in Hialeah, Florida. (T-10,11). The clinic is comprised of a reception room, a kitchen that is also used as an office, a bathroom near the reception area, a supply room, two examining rooms, and two additional rooms with a bathroom and shower at the rear of the clinic. Dr. Dossick lives at the clinic and keeps the additional rooms for his bedroom, for storage and for personal use. One of the additional rooms was used several years ago as a third examining room. (T-43, 44, 114-116). In January 1985, two investigators from the Department of Professional Regulation went to Respondent's Clinic for an inspection. They took pictures and spoke to Dr. Dossick. Three other individuals were at the clinic the day of the inspection: a man and woman in one examining room, and a woman in what the inspectors thought was an examining room, but was identified by Dr. Dossick as his personal use and storage room. (T-41, 49, 57, 64, 116). The investigators found the clinic in varying stages of filth and disarray. The reception room was old and worn, unclean, but with little sign of current use. The kitchen had dirty dishes and exposed garbage. The examining rooms were fairly neat but the medications on the countertops were old, dirty and, in some cases, expired. There was no garbage in the two examining rooms, but they did not appear clean. The third room, the former examining room (now used for storage and Dr. Dossick's personal living quarters) was a mess: clothing, mail and fast food containers were strewn about, cotton swabs were exposed and piled on a counter; syringes and medications were also exposed on the countertops. In this room the narcotics supply was stored in a locked cabinet. Two dogs were present in the clinic, one of which had patches of hair missing as if diseased. (T-46, 49, Petitioner's Exhibits #3 and #4) There was no evidence that patients had access to the kitchen, supply room or Dr. Dossick's bedroom. Patients occasionally go to the former examining room and wait there prior to seeing the doctor. Dr. Dossick keeps his own dog at the clinic and, even though he does not encourage them, his patients sometimes bring their animals to the clinic with them. Dr. Dossick admitted that he had trouble for a while keeping the place clean. The woman who worked for him injured her knee in a karate tournament and had surgery. While the admission of problems was candid, the excuse regarding the former cleaning worker was confused: the handwritten statement Dr. Dossick presented from Barbara O'Rourke suggested that her accident and subsequent surgery occurred in April and July 1 85, respectively; that is, several months after the DPR inspectors' visit. (T-64, 87-89, 105-106, 112-113). Linda Joyce Godfrey is a patient of Dr. Dossick. She is thirty-nine years old, was born with cerebral palsy, and around 1981 was diagnosed with multiple-sclerosis. She is crippled and walks unaided with considerable difficulty. She has undergone several operations and lengthy periods of hospitalization. She has been under the care of various physicians, including an orthopedist, several neurosurgeons, and another osteopathic physician. (T-66, 69) Ms. Godfrey began seeing Dr. Dossick after an extended hospitalization period. She picked him at random and asked for percodan, a controlled narcotic substance, generally prescribed for pain relief. He refused to give her the percodan and prescribed a non-narcotic medication instead. She continued seeing him and later he prescribed placidyl, percocet and percodan at various times to help her sleep and for the severe pain in her muscles and bones. He did not give her these medications until he obtained her hospital reports and talked with her regular physicians. (T-66,69,81) Ms. Godfrey admits that she was an addict. She claims that Dr. Dossick was initially unaware of this but later helped her get off the habit. On one occasion she went to his office in the state of apparent overdose. He called Hialeah Fire and Rescue and got her out of there. He told her not to come around anymore because he didn't go for drugs. She later went back and asked for help. The evidence is inconclusive as to whether Ms. Godfrey's episode was an overdose or a grand mal seizure. (T-69, 73-76, 80, 90-91). According to Ms. Godfrey, Dr. Dossick injected her with Demerol on only one occasion, around six weeks prior to the hearing, after her apartment was broken into and she was raped. (T-71, 72). The practice of osteopathic medicine encompasses all aspects of medicine commonly referred to as allopathic medicine, but also includes physiotherapy, manipulative therapy, nutrition: a holistic approach. (T-13,14). This characterization of the distinction between the professions is borne out in the statutory definitions of "practice of medicine" and "practice of osteopathic medicine": "Practice of osteopathic medicine" means the diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition, which practice is based in part upon educational standards and requirements which emphasize the importance of the musculoskeletal structure and manipulative therapy in the maintenance and restoration of health. 1l. Except for the underlined verbiage the two definitions are the same. See Section 458.305(3) Florida Statutes, and Section 459.003(3) Florida Statutes. One of the rudiments of osteopathic medicine values the "laying of hands" as part of caring for a patient in a very kind and personal manner. Cleanliness of the person and the physical area surrounding the practitioner is essential to avoid transferring disease from one patient to another. (T-18,19) Animals should not be present in the clinic because of the potential for communicating disease to humans through fleas, flies or the animals. (T-18) Old, dirty drugs and syringes should be disposed of in such a manner as to avoid access and use. (T-19,20) The above standards were described in the competent, uncontroverted testimony of Petitioner's expert, Ralph Birzon, D.O. Those standards were violated by Dr. Dossick when he allowed dogs in the clinic, when he failed to properly dispose of old drugs and syringes, and when he failed to keep his clinic clean. Dr. Dossick does, however, treat his patients in a very kind and personal manner. Ms. Godfrey was called as Petitioner's witness. Her testimony was credible and touchingly candid, as also was Dr. Dossick's. Ms. Godfrey said Dr. Dossick helped her; he took pity on her; he is good to his patients and is a good man. She does not have the money to pay for his treatment or the prescriptions, so she sometimes files and answers the phone at the clinic. Dr. Dossick is the oldest physician in the area; he spends a lot of time with his patients and they depend on him. He regularly treats his patients without charge, or for a token fee. He also loans them money for prescriptions. He has treated some patients for 25-30 years. (T-81, 83, 93, 95-96, 103) Dr. Dossick has previously been suspended by the Board of Osteopathic Medical Examiners for six months because of allegations that he prescribed medication without performing an examination. He volunteered this fact. (T-97, 107-109) The violations occurred approximately ten years ago. See Board of Osteopathic Medical Examiners v Dossick DOAH #76-1814; Dossick v Florida State Board of Osteopathic Medical Examiners, 359 So. 2d 12 (Fla. 3rd DCA 1978). The clinic has been cleaned up since the investigators' visit and the dirty and outdated drugs have been discarded. (T- 88,104)
