The Issue The issues to be determined are whether Respondent violated section 478.52(1)(m), Florida Statutes (2017),1/ by accepting and performing professional responsibilities that she knew or had reason to know she was not competent to perform; and, if so, what penalty should be imposed for the violations proven.
Findings Of Fact The Department is the state agency charged with the licensing and regulation of electrolysis pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to the Administrative Complaint, Respondent has been licensed as an electrologist in the State of Florida, having been issued license number EO2650. Respondent is also licensed by the State of Florida as an acupuncturist, license number AP 1378. Respondent is a certified surgical assistant, having obtained certification through the American Board of Surgical Assistants. Documents in the record indicate that in 1998, Respondent completed medical school at Universidad Libre in Barranquilla, Columbia. However, Respondent is not a licensed medical doctor in the State of Florida. Respondent’s address of record is 8210 West Waters Avenue, Tampa, Florida 33615. At all times material to the Administrative Complaint, Respondent owned and operated Orozco Medical Center (“OMC”), located at 8210 West Waters Avenue, Tampa, Florida 33615. Patient N.M. Patient N.M. is a female born in 1964. She testified that she was familiar with OMC because she had therapy there following a car accident in 2000. N.M. presented to OMC in early 2015 for consultation regarding a liposuction with fat transfer procedure, commonly called a “Brazilian Butt Lift” (“BBL”). Fat is taken from one part of the body and reinjected into the buttocks. N.M. testified that Blanca Cabrera, who performs massages at OMC, recommended a “doctor” at OMC named Marlon Barcelo to perform her BBL. Marlon Barcelo worked at OMC as a surgical assistant but was not a medical doctor. N.M. testified that she believed Mr. Barcelo would perform her BBL procedure and that she never knew that he was not a physician. Ms. Cabrera told her that Mr. Barcelo had been a very good doctor in Columbia. N.M. testified that at her initial consultation at OMC regarding the BBL, she met exclusively with Respondent, who showed her where the fat would be removed and where it would be injected. N.M. testified that she met with Respondent three times before her surgery. N.M. testified that, at the conclusion of the initial consultation, she was given an appointment card directing her to return to OMC on January 13, 2015, for an electrocardiogram, lab work, and the medication she would be expected to take before the procedure. The medical records indicate that N.M. was confused as to the dates. It appears from the records that her initial consultation was on January 13, 2015, that her EKG and lab work were performed on March 2, 2015, and the date of her surgery was March 13, 2015. N.M. testified that each time she visited OMC prior to the surgery, she met only with Respondent, who examined her and explained the procedure to her with no other persons present. N.M. testified that on the date of the surgery, her daughter drove her to OMC. After she checked in at the front desk, N.M. was taken to an exam room and told to change into a hospital gown. Respondent then marked her body to identify the locations where fat was to be removed. Respondent gave N.M. a medication to calm her prior to the procedure. The medical record indicates that N.M.’s pre- operative medications included Keflex (cephalexin, an antibiotic), lorazepam (a sedative and anti-anxiety medication), and Benadryl (diphenhydramine, an antihistamine with sedative properties). N.M. described the medication’s effect as “like a Xanax.” N.M. testified that the medication relaxed her but did not affect her recollection of the procedure. She testified that she was awake throughout the surgery and was allowed to use her cell phone during the procedure. N.M. did not recall meeting Dr. Mark Kantzler and denied ever meeting Dr. Amina Edathodu. She believed that Mr. Barcelo was going to perform the surgery, though up until the morning of the procedure she had not met him. N.M. was taken to the surgical room and placed on a table. She stated that there was a drape that blocked her view of the surgical area, but that it was low enough to allow her to see everyone in the room. She could see two men, Mr. Barcelo and someone identified as “Abel,” and Ms. Cabrera, the massage therapist, who appeared to be assisting. N.M. testified that Mr. Barcelo performed the liposuction. She testified that everyone in the room was wearing surgical gowns and gloves but no surgical masks. N.M. testified that during the liposuction procedure, Respondent told her that she would be performing the fat injections because she was very good at that procedure. N.M. testified that after the liposuction was completed, Mr. Barcelo called on Respondent to perform the fat injections into her buttocks. N.M. stated that she saw Respondent walk into the room carrying a syringe. During this portion of the procedure N.M was positioned on her stomach but stated that she knew from the conversation in the room that it was Respondent who was placing the injections into her buttocks. Upon conclusion of the procedure, Respondent gave N.M. pain medication for post-surgical pain. N.M. returned to OMC for a follow-up visit regarding the lack of drainage from her incision. During this visit, Respondent examined N.M. and gave her medication to reduce the swelling she was experiencing. Dr. Edathodu testified that she has been a licensed physician in the State of Florida for over 25 years. From 2015 through 2017, she worked as a contract physician at OMC and acted as medical director for the facility. Dr. Edathodu developed the protocols for OMC’s tumescent liposuction procedures and ensured they were followed. Dr. Edathodu remembered N.M. as a patient who had undergone previous surgeries and presented for further liposuction and fat transfer. Dr. Edathodu testified that she performed the liposuction procedure on N.M. Dr. Edathodu’s signature is on the cosmetic surgery consent form that was also signed by N.M. on March 3, 2015. The “Liposuction and Autologous Fat Transfer” consent form signed by N.M. on March 3, 2015, specifically names Dr. Edathodu as the surgeon who will perform the procedure and was signed by Dr. Edathodu. Dr. Edathodu testified that she reviewed the procedure with N.M., discussing the risks and benefits. Dr. Edathodu does not speak Spanish and uses Respondent to translate with Spanish speakers such as N.M. She identified herself to N.M. as a surgeon through Respondent’s translation. Dr. Edathodu spoke to N.M. about having realistic expectations and cautioned her that she may not obtain an optimal result because of her previous procedures. Dr. Edathodu testified that, aside from her, the persons in the surgical theater were three surgical assistants: Respondent, Mr. Barcelo, and Pavel Cabanes. It is found that Mr. Cabanes must have been the “Abel” referred to by N.M. Dr. Edathodu testified that during the surgery, there is a drape between the surgical field and the patient’s face and head, to prevent the patient from being disturbed by the sight of the procedure. The drape is made of disposable paper and is about five feet high. When performing the surgery, Dr. Edathodu is unable to see the patient’s face and the patient is unable to see past the drape. Dr. Edathodu testified that she performed the entire surgical procedure on N.M. Dr. Edathodu made the site markings on N.M. while Respondent took photographs. Respondent did not perform any part of the surgical procedure. Respondent performed none of the fat transfer on N.M. Respondent did nothing other than what Dr. Edathodu specifically directed her to do. Dr. Edathodu testified that she met with N.M. on four or five occasions after the surgery. Dr. Edathodu’s testimony, as supported by the medical records, is credited. Perhaps because of her inability to speak English, N.M. appeared confused and inconsistent in her testimony, at least as it appeared in the Transcript. N.M.’s credibility was strained by her uncertainty as to dates and medications. She offered improbable details, such as the lack of coverage by the surgical drape and the failure of the surgical team to wear masks. N.M. was certain that Respondent was performing the fat injection, even though N.M. could not see what was happening. Though N.M. testified that she was awake and alert during the procedure, the undersigned cannot disregard that she had been given a medication that she likened to Xanax, most likely the lorazepam. The undersigned hesitates to rely upon N.M.’s disjointed testimony where it conflicts with the straightforward and credible testimony of Dr. Edathodu.3/ Based on the foregoing findings of fact, it is found that the Department has failed to establish by clear and convincing evidence that Respondent performed an invasive/surgical medical procedure on Patient N.M. Patient R.C. Patient R.C. is a female born in 1988. At the time of the hearing, she worked as a claims specialist. She testified that a friend from her previous job at HealthPlan Services referred her to OMC for a consultation. She first went to OMC on or about June 6, 2016. R.C. testified that this initial consultation was with Respondent. She told Respondent that she wanted liposuction on her back and waist and wanted the fat transferred to her buttocks. They discussed the procedure and pricing. From that point until the day of the surgery, R.C. went to OMC only to drop off periodic payments for the surgery. Her only contact was with the person at the front desk. She testified that she did not see Respondent again until the day of her surgery. R.C.’s surgery was scheduled for August 5, 2016. R.C. testified that she was dropped off at OMC by her children’s father. She went in and met Respondent and a few workers in the front of the facility. When she went to the back to prepare for the procedure, she met a man wearing scrubs whom she had never seen before. Two other staff persons were present, but R.C. stated she only talked with the one staff person who spoke English. R.C. testified that Respondent and the man in scrubs marked her body for the surgery. She believed that Respondent was going to perform the surgery. R.C. stated that she was not familiar with Dr. Edathodu. R.C. stated that she filled out the consent forms on August 5, 2016. An assistant gave her medication, saying it would calm her down. R.C. was not told the name of the medication, but testified that she took a blue pill and half of a white pill. The medical records indicate she was given Ativan (a brand name for lorazepam) and Benadryl. R.C. testified that the medications made her drowsy. R.C. was assisted to the room where the surgery would be performed. R.C. testified that she was placed on her stomach, face down. Everyone in the room was wearing a surgical mask. In the room were Respondent, the man in the scrubs, and two assistants. R.C. stated that she was awake during the procedure, but was drowsy and did not recall much about it. She could hear Respondent’s voice and the noise of the liposuction machine. She could not see who actually performed the procedure. After it was over, one of the assistants phoned R.C.’s driver and helped R.C. get up and walk. Respondent handed her a bag containing pills that R.C. believed were antibiotics. She received post-operative instructions. R.C. testified that she returned to OMC for a follow- up visit about a month after the surgery and met with Respondent. Dr. Edathodu testified that she performed the surgical procedure, called “tumescent liposuction,” on R.C. on August 5, 2016. On August 2, 2016, R.C. signed a “liposuction & autologous fat transfer consent” form that specifically named Dr. Edathodu as the surgeon who would perform the surgery. Dr. Edathodu ordered, reviewed, and signed R.C.’s lab results. Dr. Edathodu met with R.C. prior to the procedure and completed a “pre-operative clearance” form to document R.C.’s fitness and willingness to go through the surgery. Both R.C. and Dr. Edathodu signed the pre-operative clearance form. Dr. Edathodu testified that she met with R.C. three or four times post-surgery. As in the case of N.M., all of the medical records support the version of events described by Dr. Edathodu.4/ Dr. Edathodu’s testimony, as supported by the medical records, is credited. R.C. frankly conceded that she did not remember much about the surgery and could not see who performed it. Dr. Edathodu clearly and credibly recalled performing the procedure. The greater weight of evidence supports the finding that Dr. Edathodu performed the surgery, assisted by Respondent and Mr. Barcelo. The evidence could not sustain a finding that Respondent performed a surgical procedure on R.C. R.C. was a more credible witness than N.M., and her testimony on some of the details regarding her consultations and pre-operative events was persuasive. However, it must be kept in mind that the only relevant factual question is whether Respondent performed an “invasive/surgical medical procedure” on R.C. The evidence on this question is not persuasive. Based on the foregoing findings of fact, it is found that the Department has failed to establish by clear and convincing evidence that Respondent performed an invasive/surgical medical procedure on Patient R.C. Patient K.H. Patient K.H. is a female born in 1989. She learned of OMC from a friend at work. She first came into OMC for a consultation regarding a liposuction and fat transfer on November 29, 2016. K.H. testified that she met only with Respondent at this initial consultation. On November 29, 2016, K.H. signed an “information certification” form accepting Dr. Mark Kantzler as the physician who would be in charge of her liposuction procedure. K.H. came back to OMC on January 9, 2017, to make a $500 deposit and to schedule the surgery. The procedure was scheduled for February 11, 2017. Again, K.H. testified that she met alone with Respondent, who told her that she would need to come in a couple of days before the surgery to get medication and a list of things she would need for post-operative care. K.H. testified that she believed that Respondent was a physician and that she would be performing the liposuction procedure. The “liposuction and autologous fat transfer consent” form that K.H. signed on February 9, 2017, authorized Dr. Kantzler to perform the liposuction and fat transfer procedure. The “surgery certification” form that K.H. signed on February 9, 2017, indicated that Dr. Kantzler reviewed the entire medical file with her before performing the procedure. On February 11, 2017, K.H. was driven to OMC by her mother. Shortly after arriving, K.H. noted the presence of a tall man with white hair and blue eyes. An OMC assistant escorted K.H. to a room with a bed and a chair. Respondent came in to the room and marked K.H. for surgery. Respondent then called in the tall man with white hair and blue eyes, who looked at the surgical markings and then asked K.H. some questions about her stretch marks. During her direct examination, K.H. testified that she was not given the man’s name. During cross-examination, K.H. was forced to concede that during an August 2017 interview, she told Department investigators that she had been introduced to the tall man with white hair and blue eyes and that his name was Dr. Mark Kantzler. K.H. testified that Respondent gave her a pill to take before surgery. She was taken to the surgical suite and was placed on the table. K.H. testified that the surgical drape prevented her from seeing the surgical area. The only people she had noted in the room were Respondent and “Claudia,” a woman K.H. recognized as a massage therapist at OMC. She could not be certain whether or not Dr. Kantzler was in the room. K.H. testified that she was awake during the surgery. She stated that she was in pain during the surgery and complained, in Spanish, to Respondent. K.H. stated that Respondent told her she had “a little stubborn fat” and continued the procedure without doing anything to alleviate her pain. K.H. testified that all conversation during the procedure was in Spanish. She heard no English being spoken. K.H. confirmed that Dr. Kantzler was the physician who signed the letter requesting that she be excused from work immediately after her surgery. Dr. Kantzler testified that he had no specific recollection of K.H. or of her procedure. He stated that he worked on a contract basis with OMC for about three years. He came in about once a week to perform liposuction procedures, conforming to the protocols established by Dr. Edathodu. He saw the patients only briefly before their procedures, relying on Respondent to perform the patient consultations and Dr. Edathodu to prescribe the pre-operative tests in her role as medical director. He was paid by the procedure. Dr. Kantzler testified that he does not speak Spanish, but that his surgical assistants, Respondent and Mr. Barcelo, would often converse in Spanish during surgery. Dr. Kantzler reviewed the medical records and confirmed that he signed the documents and performed the surgery on K.H.: Q. Is there any doubt in your mind about whether or not you performed these procedures? A. Not when I’m looking at the files, no. Q. And if you had not done the procedures, would you have signed off on the documentation? A. I wouldn’t have had them to sign. No. Dr. Kantzler’s lack of a clear recollection distinguishes this procedure from those involving Dr. Edathodu. However, an offsetting distinguishing factor is that K.H. had a clear recollection of seeing and speaking with Dr. Kantzler at OMC on the morning of her surgery. She did not see him enter the surgical suite or hear him speak during the procedure, but she was unable to say that he was not in the room. The medical record is replete with indications that Dr. Kantzler performed the liposuction and fat transfer procedure on K.H. Dr. Kantzler testified that he voluntarily relinquished his Florida medical license in 2017 “for my own reasons not relevant to this [case].” The Department’s Proposed Recommended Order suggests that this relinquishment was “in response to or in anticipation of disciplinary proceedings.” There is no record evidence to support the Department’s suggestion, and it is disregarded here. Based on the foregoing findings of fact, the Department has failed to establish by clear and convincing evidence that Respondent performed an invasive/surgical medical procedure on Patient K.H.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order dismissing Count I of the Administrative Complaint against Respondent, Claudia Patricia Orozco-Fandino, E.O. DONE AND ENTERED this 18th day of April, 2019, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 2019.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent is licensed as a physician in Florida, holding license # ME 0038234. His specialty is orthopedics but he is not Board certified in that field. Respondent practices medicine, specializing in orthopedic surgery with emphasis on the spine, at the Gulf Coast Orthopedic clinic in Hudson, Florida. Among the procedures he has performed at times pertinent to the issues herein are percutaneous lumbar foraminotomy, also known as foraminectomy or foraminostomy, (PLF); percutaneous cervical discectomy, (PCD); and percutaneous cervical foraminotomy, (PCF). A PLF is an arthroscopic surgical procedure wherein instrumentation introduced through a succession of progressively larger cannulae via a posterolateral approach to the lumbar spine is utilized to remove spurs which have formed at the area of the neural foramen. A PCD involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove disc material from a cervical disc for the purpose of decompressing the nerve root at the corresponding level. A PCF involves a similar introduction of instrumentation via an anterolateral approach to the cervical spine to remove spurs which have formed at the area of the neural foramen at the corresponding level. The three procedures referred to above, the PLF, the PCD and the PCF, are not commonly used or widely performed in the field of orthopedic surgery in the United States. Petitioner contends they are experimental procedures. Petitioner contends that a procedure whose safety and efficacy have not been established is experimental. It asserts that physicians performing procedures whose efficacy and safety have not been established must specifically advise a prospective patient on whom such procedure is anticipated to be done of the experimental nature of the procedure as a part of obtaining informed consent prior to the procedure. However, the efficacy and safety of a procedure are not, by themselves determinative of experimentation. PCD's are a logical extension/evolution of techniques that are already in use. They are being done in various places throughout the world, including the United States, and insurance companies have, in the past, paid for both PLDs, conceded by the Board to be non-experimental, and PCDs. The instant procedures in issue, including PLFs, which are done by physicians around the world, and the PCFs are not radical departures from present concepts. Though innovative, they are the natural evolution of existing techniques and procedures. For example, chemonucleolysis, recognized by the medical profession as non-experimental, is a percutaneous procedure in which enzymes are injected into the intervertebral disc in order to dissolve it. There is little difference between this procedure, which has been used for approximately ten years and the PCD, save the injection of the enzyme. Another percutaneous procedure which is widely done is the use of the nucleotome, a reciprocating suction cutter consisting of a steel tube with a spinning blade. This is not considered by the medical profession to be an experimental procedure. To be sure, Dr. Abram, a Board certified orthopedic surgeon with extensive experience in treating spinal pathology, is the only expert witness who practices in Florida. He has, however, by his own admission, not done any percutaneous or arthroscopic procedures involving the back or neck. On the other hand, Respondent's experts, Dr. Gristina, also a Board certified orthopedic surgeon, but who is not licensed in Florida, has extensive experience in orthopedic surgery. He was formerly Associ ate Professor of orthopedic surgery and associate to the chairman of that department at New York University Hospital; he was chairman of the Department of Orthopedic Surgery at Bowman Gray Hospital at Wake Forest University; and at present he is President and Senior Scientist at the Medical Sciences Research Institute and practices orthopedic surgery in northern Virginia. For the year just prior to this hearing, he was associated with the Northern Virginia Spine Institute, and though he has not been lead surgeon in the near term, he has associated with the director of the institute in the performance of major spinal surgery. Under the circumstances, as a scientist his opinion as to what constitutes an experimental procedure and what is mere innovation is pertinent to the resolution of that issue. Dr. Sherk, testifying for the Respondent, is a Board certified orthopedic surgeon and professor of surgery and chief of the division of orthopedics and rehabilitation at the Medical College of Pennsylvania. He is familiar with and has performed percutaneous procedures on the spine, most specifically chemonucleolysis and laser discectomy, and is familiar with Dr. Bonati and the percutaneous procedures he performs from having heard Respondent's presentations at international conferences on orthopedics. As a practitioner and academician, his opinion regarding the experimental nature of the procedures in issue is pertinent. Dr. Hopkins, a Board certified orthopedic surgeon, came to percutaneous disc surgery through the microdiscectomy process and the percutaneous laser procedure which he still uses. He also has performed in the neighborhood of two hundred percutaneous disc surgeries, about half with the nucleotome and half with laser. He has done percutaneous foraminectomy procedures. Some time ago, while working for a laser company in Minneapolis, he became aware of Respondent's practice in percutaneous disc surgery. As a result, he came to GCOC on two occasions and observed Respondent perform the procedure on both lumbar and cervical discs. He has presented papers on percutaneous disc surgery at international conferences and gave a course on percutaneous procedures at the American Academy of Orthopedic Surgery in San Francisco approximately two years ago. Taken together, and with all due respect and credence being afforded the opinion of Dr. Abram, the evidence of the experimental nature of the PLF, the PCD and the PCF is not persuasive and it is found that the procedures, though new and innovative, are logical extensions of and new uses of established procedures and are not experimental. Respondent's records reflect that in each case in issue, written consent was obtained from the patient. The records also reflect that each patient was informed about the surgery, the pathology and the treatment to which the patient had agreed. An informed consent was also obtained by the anesthesiologist. Under the circumstances, it having been found that the percutaneous procedures are not experimental procedures, the informed consent obtained by the Respondent was adequate. Clearly, Dr. Bonati's clinic is very well organized. As explained by Respondent and various members of his staff, once Respondent recommends surgery, the patient is given printed brochures and materials which explain the proposed procedure. If the patient is unclear as to the nature of the procedure or has any questions about it, he or she is given the opportunity to voice his or her concerns either to Respondent or to a nurse, and no further action is taken unless all questions are answered to the satisfaction of the patient. Each patient is also given a video tape describing the procedure to be performed, and once the tape is viewed by the patient, further opportunity to ask questions is afforded. Respondent and a nurse meet with each patient so that he can explain to the patient what the proposed procedure consists of, how it is to be performed and the risk involved. The patient is also advised of alternative methods of treatment which include physical therapy. Each patient is advised that an open procedure is also an alternative to the percutaneous procedure. The patient is under only a local anesthetic during the percutaneous procedure and is aware of what is going on. The patient actually assists the surgeon by reporting feelings and sensations experienced. Respondent claims an anesthesiologist is present in the operating room during the surgery and talks with the patient throughout the procedure. There was no evidence introduced that any patient had ever complained after the procedure that what was done was not what had been explained beforehand. Generally, patients are referred to the in-house physical therapist after surgery, and there was no indication any patient had complained of that either. AS TO THE PATIENT M.A. In August, 1989, Patient M.A., a 21 year old female, presented to the Respondent complaining of neck and back pain. Respondent had the patient undergo an MRI on the area. On September 12, 1989 he informed her that the MRI studies revealed posterior disc bulge at C3/C4 through C6/C7 levels, with the largest bulging at C4/C5 through C5/C6 levels. Additional MRI studies were done of the patient which, on November 17, 1989, Respondent interpreted as showing a grade II bulging at the C5/C6 and C6/C7 levels. On or about December 5, 1989, Respondent performed a PCD on this patient for a grade II bulge at the C5/C6 level on the left. Further MRI studies performed on this patient on or about October 30, 1990, indicated there was no change in the bulge at the C5/CB level as a result of Respondent's surgery. As a result, the Board's expert concluded that the surgery performed on this patient by the Respondent was not needed because the MRI's failed to show a condition requiring surgery and Respondent incorrectly interpreted them to indicate they did. The evidence shows, however, that in her visits to Dr. Bonati, the patient complained of pain in an area associated with the 6th nerve root, and evidence of the emergency room visit she made refers to a diagnosis of possible 6th nerve root involvement. Respondent's medical records for this patient reflect that before he recommended surgery, he waited out a period of conservative non-surgical treatment which included physical therapy. He also had her undergo another MRI on November 17, 1989, before the surgery, which showed a bulge at C5/C6. Respondent believed this bulge could be creating all the symptoms being experienced by the patient. In light of this additional evidence, to which Petitioner fails to refer in its Proposed Findings of Fact, it cannot be reasonably be found that the evidence of record is clear and convincing that Respondent performed unnecessary surgery. AS TO THE PATIENT R.L. On or about May 1, 1990, R.L., a 36 year old male, was seen by Dr. Jeffrey S. Walker, a Board certified neurosurgeon for evaluation of neck and back injuries sustained in a then-recent motor vehicle accident. Dr. Walker had this patient undergo an MRI which was interpreted by a Board certified radiologist as showing no large disc herniations and only minimal posterior bulging of the C4/C5 disc associated with degenerative disc disease. As a result of this test and interpretation, Dr. Walker diagnosed the patient as having severe cervical and lumbar strain with no evidence of radiculopathy or myelopathy. Radiculopathy is disease of the spinal nerve root, and myelopathy is a disturbance or disease of the spinal cord. Dr. Walker concluded that this patient's condition did not require surgery and recommended a conservative, non- surgical treatment. Nonetheless, on June 25, 1990, this patient went to see Dr. Bonati complaining of persistent neck and back pain. On this visit, the patient showed Dr. Bonati the MRI taken for Dr. Walker on May 31, 1990. When Respondent reviewed this MRI he noted a bulging disc at C4/C5 and recommended the patient undergo a PCD at that level. Before any surgery was done, however, another MRI was done on June 26, 1990 which Respondent interpreted as showing a 1 mm posterior disc bulge at L4/L5 and a 2 mm bulge at L5/S1, and as a result, Respondent recommended a PLD also be done. On July 12, 1990, Dr. Bonati performed a PCD on this patient at C4/C5 left, and on July 31, 1990 he also performed a PCD at C4/C5 right. Thereafter, on August 21, 1990, Respondent performed a PLF at L5/S1 on this patient. While the Board claims this was done to decompress the S1 nerve root, both the Board and Dr. Bonati indicate it is impossible to decompress the S1 nerve root by a foramenectomy at that level. The Respondent claims the procedure was done to remove the pressure on the L5 nerve root, and this was deemed possible by the testimony of Dr. Sherk. This would seem to be a more accurate description of what was done. In any case, Dr. Bonati also performed a PLD at L5/S1 right that same day in order to relieve the pressure on the S1 nerve root. In short, taken together, the evidence indicates that the surgery on the left was to relive pain on the left side and that on the right to relieve pain on the right side. There is a discrepancy in Respondent's records relating to the above surgery wherein left side pain is indicated where right side pain was intended. A review of these records, however, reveals that the patient complained of pain on both sides from the very beginning and clearly traces the course of pain from the first visit through the surgeries. The Board contends that Respondent failed to correctly interpret the MRIs done on this patient. It asserts these MRI's, when coupled with the patient's complaints, fail to indicate a need for surgical intervention and that Respondent's subsequent surgery performed on the patient was, therefore, inappropriate. This conclusion was stated by the Board's expert, Dr. Abram, who cited Respondent's own publications to the effect that a PLD is not indicated until a disc bulge is 4 mm or greater. Apparently Respondent had taken the position that a disc bulge of 3 mm or less does not merit surgery. It would appear Respondent's published indications also call for a certain amount of non- operative treatment to be provided, as well. It must be recognized, however, that there can be no hard and fast exclusionary rule regarding bulge size when determining whether surgery should be done. In the instant case, the records show that the patient continued to report pain which increased and diminished in cycles. The size guidelines are but one indicator of the need for surgery and Respondent cannot be faulted for doing surgery on a bulge smaller than that noted in his guidelines when other factors are present which indicate surgery is appropriate. AS TO THE PATIENT E.M. On or about April 4, 1991, Respondent saw patient E.M., a 51 year old male, who complained of pain in the lower back, the hip, groin and sciatic areas. Respondent had the patient undergo MRI studies which he interpreted as showing bulging discs at L4/L5, L5/S1, C4/C5 and C5/C6 levels. As a result of these indications, Respondent recommended the patient undergo both PLD and PCD procedures. Thereafter, on May 9, 1991, Respondent performed a PLF on this patient at L4/L5 left and a PLD at L4/L5 left. On June 19, 1991, he performed a PLF at L3/L4 left. He then performed a a PCD on this patient at C4/C5 left on July 1, 1991, and on July 18, 1991, performed a PLD at L5/S1 left. Finally, on August 6, 1991, he also performed a PCD at C5/C6 right on patient E.M. The bulges at C4/C5 and C5/C6 were categorized by the Respondent as grade II bulges. Respondent has previously stated that grade II bulges are normal pathology for which surgical treatment is not indicated. He performed three PLD procedures on this patient on three separate occasions rather than performing them simultaneously, and he performed the two PCD procedures separately rather than performing them simultaneously. The Board claims that to do this was inappropriate and constituted exploitation of the patient for financial gain. Dr. Gristina, however, indicates an alternative way of looking at the situation. He suggests that Dr. Bonati was following a plan to relieve the patient's symptoms utilizing the least invasive procedure available. Gristina suggests that Bonati's plan was to take the relief step by step, doing only so much surgery as was anticipated by him to be necessary to relieve pain. That a procedure was needed in each of five separate locations is unfortunate but not clearly shown by the Petitioner's evidence to be unnecessary. Petitioner must present evidence to show clearly that Respondent's actions were inappropriate. Petitioner's expert opinion must be considered, however, in light of the expert testimony to the contrary. The Board also notes that whereas this patient's medical records indicate the first procedure to be performed on May 9, 1991 was the PLD at L5/S1, in reality the initial PLD was performed at the L4/L5 level and there is no indication in the record as to why this was done. It also contends that Respondent attributed this patient's continued pain in the right leg to the L3/L4 level, and the performance of a PLD at that level without further diagnostic studies was a failure to practice medicine within standards. Dr. Abram also concluded that in light of the above, the Respondent's medical records for this patient, in failing to reflect the justification and appropriateness of his treatment of the patient, were inadequate. It would again appear that Petitioner has not given a complete reading to Respondent's medical records for this patient. His notes regarding the visits the patient made to the office reveal the patient was complaining of pain in the neck, shoulder and arms on both sides and indicate Respondent's concern that the patient might need surgery at L4/L5 as well as at L5/S1, and consent forms were obtained from the patient relating to both areas. An additional claim of Respondent's misconduct is made in regard to the Respondent's failure to do additional diagnostic studies before performing the PLD at L3/L4. However, Respondent contends that, contra to the importance placed on ancillary tests, he considers clinical examination of the patient and the patient's history as more significant. This position would appear to be supported by the testimony of Dr. Hopkins who opined that where, after a surgery has been done, if the patient is able to describe his or her condition, and nothing happened in the interim to cause the doctor to suspect any other problems, he would proceed without subjecting the patient to additional diagnostic procedures. All matters being considered, this would appear to be the more conservative approach. AS TO THE PATIENT P.H. Respondent first saw Patient P.H. in January, 1989 at which time he ordered an MRI be done which was interpreted as showing disc degeneration at L5/S1. When this was considered along with the patient's history, going back to 1970, of two disc removals, three spinal fusions and a laminectomy without relief, Respondent concluded a less conservative approach was demanded. Thereafter, on January 30, 1989, Respondent performed both a PLD and a PLF on this patient at L3/L4. No evidence was presented to clarify the apparent level discrepancy. The medical records indicate that after this surgery, Respondent prescribed Keflex, an antibiotic, and Colchicine, a gout treatment, for the patient. According to Dr. Abram, neither medication is justified in the medical records. The use of an antibiotic after surgery is not at all unusual nor inappropriate, however, especially in light of the fact that the surgery was done on an outpatient basis and the patient did not remain in the hospital, under observation, for a period of recuperation after the procedure. As to the Colchicine, a careful examination of the records pertaining to this patient reveals that a prior administration of the substance was indicated, and even Dr. Abram admitted that this drug could properly be used to treat back pain. The use of neither substance, therefore, was inappropriate. One year later, the patient again came to Respondent complaining of foot paralysis, and on February 1, 1990, Respondent performed a PLD on the patient at L4/L5. Twenty days later, on February 20, 1990, Respondent performed a repeat PLD on the patient at L4/L5. In the interim between the February 1 and February 20 procedures, notwithstanding Petitioner's contention that Respondent did not perform any diagnostic studies to determine whether further surgical intervention was necessary, the records indicate Respondent had clinical testing of the patient done on February 7, 1990, and a Physical Assessment Test was conducted which showed several anomalies which Respondent correlated to the MRI findings. Petitioner also claims that surgery at the L4/L5 disc space cannot treat the L5 nerve root compression that Respondent's tests showed in this patient. Both Dr. Bonati and Dr. Gristina agree, however, that the surgeon can reach the L5 nerve root from the L4/L5 disc space. This opinion by Dr. Gristina would apply equally as well to arthroscopic surgery as practiced by Respondent as to the more classical and conservative open procedures more widely done. Respondent billed the patient for all three surgeries performed. Evidence introduced at hearing, in the form of the opinion testimony of Dr. Abram, would seem to indicate surgery was not appropriate for this condition, and that the performing of the three surgeries was exploitation of the patient for financial gain. He also is of the opinion that the medical records fail to justify the course of treatment the Respondent rendered this patient. However, the evidence of record tends to indicate that a second surgery at a place where surgery has already been done is not unusual. Symptoms can recur and problems, thought to be resolved, can again surface. The evidence indicates that this patient had very little relief from discomfort and, in fact, the symptoms persisted for three weeks after the initial surgery. When results obtained from surgery do not produce an expected change in the patient's symptomology, Dr. Gristina concludes it is logical to again operate at any time after a procedure has been done. AS TO THE PATIENT M.M. Respondent first saw patient M.M. in July 1990 for symptoms of a back injury which he attributed to the S/1 nerve root and which had been present for over one year. The patient history for this patient reveals that she had approximately fifteen months without relief from pain before seeing Respondent and indicate that after Respondent had treated her for a week to ten days, the symptoms changed which caused Respondent to then attribute the cause to the L5 nerve root. An MRI showed a 4 mm bulge at L4/L5, and on September 6, 1990, Respondent performed both a PLD and a PLF at L4/L5. More than six months later, on May 7, 1991, M.M. went to Dr. Zubillaga, a Board certified neurologist, for treatment of pain running from the head to the sacrum. Dr. Zubillage took a complete patient history and reviewed the MRIs which had been taken by or for the Respondent. His examination indicated to him that no surgical intervention was indicated, and he recommended a more conservative treatment including stretching exercises and physical therapy. Dr. Abram concluded that Respondent's medical records for this patient contain inconsistencies in the examination and diagnostic tests. The patient's symptoms and the findings of diagnostic imaging should match up before the patient is offered surgical treatment. In the instant case, the records indicate a strength deficit of 26 percent at S1 and an L5 deficit of 16 percent, yet the treatment is directed against the L5 nerve root, even though the initial impression is that it was the S1 nerve root that was compressed, and Dr. Abram is of the opinion that is below the acceptable standard of care. Unexplained, it well may be. AS TO THE PATIENT D.R. On or about July 18, 1990, Dr. Bonati performed both a PLD and a PLF at L5/S1 on this patient for back and leg pain but the patient failed to improve after the surgery. Thereafter, on October 24, 1990, Respondent performed both a PLD and a PLF on the patient at L4/L5. Still later, on March 13, 1991, the patient saw Dr. Thomas Freeman, a Board certified neurological surgeon, who reviewed the patient's medical records, the discogram and the two MRI scans which had been done by Respondent both before and after the July 18, 1990 surgery, none of which showed an extruded disc. By the same token, a previous MRI done by a prior treating physician, Dr. Feldman, failed to disclose it as well. According to Dr. Freeman, the two MRI's done by Respondent were essentially identical with no change in the patient's condition following the surgery. Based on his examination of the patient, Dr. Freeman diagnosed the patient as having a large extruded disc at L5/S1 which, he claims, was shown in the MRI's taken by the Respondent. The evidence is in conflict on that point, however. It is Dr. Freeman's professional opinion that extruded discs are normally very difficult to remove by a percutaneous procedure. In fact, Respondent's own publications indicate that a percutaneous procedure is contraindicated in the case of an extruded disc. As a result of his evaluation, Dr. Freeman subsequently performed open back surgery on this patient removing the discs at L4/L5 left and at L5/S1 left and right. It is Dr. Abram's position that Respondent's failure to do an open procedure instead of a percutaneous procedure in this case, especially after the first procedure was unsuccessful, was below acceptable standard. It would appear, however, that none of the physicians who saw this patient were able to make a positive determination that there was an extruded disc. There is a difference between an extruded disc which is still in contact with the annulus and one which has broken free from the annulus and extruded through the posterior longitudinal ligament to enter the spinal canal. It is this latter situation which Respondent's writings denote as contraindication to a percutaneous procedure. The disc had not extruded in the instant case and, therefore, a percutaneous procedure was not necessarily contraindicated. Dr. Abram also asserts that Respondent's medical records for this patient contain a discrepancy between the admissions form and the general rule regarding the gravity and location of the patient's pain, which, he claims, is considered below standard. In fact, the admission form is set up so that the patient can describe the current severity of the leg pain and the back pain independently of each other. It does not attempt to compare them. AS TO THE PATIENT L.Q. Sometime between January and April, 1990, the patient, L.Q. saw Respondent complaining of pain in the neck and arm. Respondent took an MRI of the patient which indicated a grade I impression of the thecal space at both the C4/C5 and the C5/C6 levels. Even though Respondent's own publications regarding the PCD suggest that a grade I impression does not require surgery, Respondent recommended the patient undergo a PCD at C4/C5. Before agreeing to the surgery, however, on April 30, 1990, prior to what was described as the onset of significant pain compromising the 5th nerve root, the patient went to see Dr. Michael Slomka, a Board certified orthopedic surgeon who, without an MRI or CT scan, upon examination, found a normal neurological evaluation and a normal cervical spine x-ray. Based on his findings Dr. Slomka saw no basis for surgery and recommended a program of activity and rehabilitation for the patient. Thereafter, however, the patient returned to Respondent on May 14, 1990 and Respondent did a PCD at C4/C5. While Petitioner claims there was no justification shown for the surgery completed in this case, there is evidence in the patient records that the patient underwent an extended period of constant pain in the shoulder, injections into the shoulder by another physician prior to the visit to Respondent, continued medication for the discomfort claimed, and other symptoms and discomfort in an area consistent with the diagnosis, which were supported by a physical assessment test and consistent with the MRI. These factors may well justify surgery when all else has failed. The Petitioner asserts that Respondent's medical records do not reflect justification for the surgical intervention, but the above information disputes that conclusion. AS TO THE PATIENT R.H. This patient was seen by Respondent several times between July, 1991 and April, 1992 for treatment for neck and shoulder pain. An MRI of the patient ordered by the Respondent was interpreted by him as showing a grade I impression at both C3/C4 and C4/C5, and a grade II impression at C5/C6. On December 4, 1991. Respondent did a PCD on this patient at C5/C6, but the medical records maintained by Respondent on the patient show no improvement following the surgery. The Respondent's medical records relating to this surgery do not reflect he had any discussion with the patient before surgery about the risks or benefits of surgery, the anticipated outcome or alternative treatment options. On May 30, 1992, the patient went to see Dr. Michael Piazza, a Board certified orthopedic surgeon who also took an MRI of the patient. This scan revealed very mild degenerative disc disease at C5/C6 without any evidence of disc herniation or other operable lesion. He could see no indication for or reason to do surgery on the patient. The patient was 54 years old when she was seen by Dr. Piazza. The doctor indicated that approximately 90 percent of the adult population have as much arthritis in the neck by that age as does this patient. Therefore, he recommended non-operative treatment, including therapy, and the patient's condition improved markedly with this regimen. Here again the Respondent contends that Petitioner draws a misleading conclusion from the evidence and attempts to minimize the severity of the patient's long-term complaints of pain, failed conservative treatment and disc bulge which is attributed to arthritis. Respondent also contends that the use of a minimally invasive percutaneous procedure was appropriate in light of the circumstances, especially in light of the fact that there was a four month hiatus between the cited entries in the medical records. These contentions by Respondent are supported by the testimony of his experts. Respondent's records regarding this patient, are less than appropriate, however. They reflect the patient had full range of shoulder motion, albeit with pain, but also contain a diagnosis of frozen shoulder and capsulitis. This would indicate a marked reduction in the patient's range of shoulder motion. The records also indicate a degenerative labral tear in the biceps tendon, but there was no such tear indicated on the MRI. This tear was, however, located by Respondent through a diagnostic arthroscopy. In Dr. Abram's opinion, these inconsistencies rendered the records below acceptable standard. AS TO THE PATIENT O.J.P. This patient was seen at the Respondent's clinic, by Dr. Merken, on April 14, 1992, for an evaluation of the patient's strength related to the neck. The doctor's opinion was that the patient's neck strength was normal though, even as Dr. Abram admits, he found abnormalities of the neck resulting in painful flexion, lateralization and extension. Several days later, the patient underwent several MRIs which covered the left shoulder and the cervical and lumbar spine in which Respondent saw bulges of 2 mm, 3 mm, and 4 mm in the lumbar spine. When, on May 12, 1992, the Respondent discussed the results of the MRI's with the patient he noted a significant weakness in the patient which had not been noted by Dr. Merken earlier. Even though the patient's medical record does not reflect any long-standing weakness or participation in an extensive rehabilitative program, Respondent nonetheless recommended the patient undergo a PCD at C6/C7 left and a PLD at L4/L5 left. The surgery was not done, however. Instead, on July 16, 1992, the patient went to see Dr. Glen Barden, a Board certified orthopedic surgeon, because of persisting neck and back pain. Dr. Barden did an examination of the patient and reviewed Respondent's medical records on her. Dr. Barden's diagnosis was that the patient exhibited mild symptoms of disc disease without neurological deficits. He concluded that surgery was not needed or appropriate for the condition at that time but recognized that surgical intervention to the neck might be required. In fact, Dr. Barden's records show he found " cervical intervertebral disc disease, moderately severe, involving C4-5, C5-6. C6-7 and C7-T1, as well as degenerative lumbar disc disease", among other problems, all of which, Dr. Barden admits, can cause pain and restriction of motion without a neurological deficit. As such, surgery can be justified even where there is no neurological deficit. Notwithstanding Petitioner claims the medical records kept by Respondent on this patient did not reflect any long-standing weakness or conservative care, the patient history clearly reflects numerous complaints of pain and limitations on movement following a 1978 car accident. In addition, the records reflect the patient had been taking medication and received chiropractic treatment in addition to the physical therapy prescribed by Respondent prior to surgery.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Administrative Complaints in DOAH Cases 94-1866 and 94-1867, except for Counts Six and Fifteen of Complaint 94-1867, of which Respondent, ALFRED O. BONATI, should be found guilty, be dismissed, and that his license be reprimanded. RECOMMENDED this 21st day of August, 1995, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 21st day of August, 1995. APPENDIX TO RECOMMENDED ORDER IN CASES NOS. 94-1866 AND 94-1867 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: & 2. Accepted and incorporated herein. 3. - 7. Accepted and incorporated herein with the addition, as to #7, of the phrase, "in the U.S." 9. - 8. Accepted and incorporated herein. 11. Accepted and incorporated herein. 12. & 13. Accepted and incorporated herein. 14. & 15. Accepted. 16. & 17. Accepted. 18. - 21. Accepted. 22. - 24. Accepted and incorporated herein. 25. Accepted. 26. Rejected as not proven. 27. - 29. Accepted. 30. - 35. Accepted and incorporated herein. 36. - 38. Rejected as not proven by clear and convincing evidence. 39. Rejected except for last sentence which is accepted. 40. Accepted. 41. & 42. Rejected as not proven. 43. - 53. Accepted and incorporated herein. 54. Accepted that surgery was done, but not for the purpose stated. 55. Accepted and incorporated herein. 56. Accepted and incorporated herein. 57. - 62. Rejected as not proven. 63. Rejected as not proven. 64. Accepted as to what record states, but rejected as to the lack of a complaint on the right side, as contra to the weight of the evidence. 65. Rejected as not proven. 66. - 68. Accepted but considered of little probative value. 69. Accepted. 70. & 71. Rejected as not proven. 72. & 73. Accepted and incorporated herein. 74. & 75. Accepted and incorporated herein. 76. - 80. Accepted and incorporated herein. 81. - 84. Rejected as not proven. 85. Accepted. 86. - 92. Rejected as not proven. 93. Accepted. 94. - 97. Rejected as not proven, and 97 is duplicative of 84 and 84. 98. - 104. Accepted and incorporated herein. 105. - 109. Rejected as not proven. 110. Accepted and incorporated herein. 111. Rejected as unproven. 112. & 113. Accepted and incorporated herein. 114. Rejected as unproven. 115. - 117. Accepted. 118. & 119. Rejected as unproven. 120. Accepted. 121. Rejected as unproven. 122. - 128. Accepted and incorporated herein. 129. - 132. Rejected as unproven. 133. Accepted. 134. & 135. Rejected as unproven. 136. - 148. Accepted and incorporated herein. 149. - 152. Rejected as unproven. 153. - 159. Accepted, but 158 is duplicative of 146 160. & 161. Rejected as unproven. 162. - 168. Accepted and incorporated herein. 169. Rejected as unproven. 170. Accepted and incorporated herein. 171. - 175. Rejected as unproven. 176. Accepted. 177. & 178. Rejected as unproven. 179. - 191. Accepted and incorporated herein. 192. - 194. Rejected as unproven. 195. Accepted. 196. & 197. Rejected as unproven. 198. - 208. Accepted and incorporated herein. 209. - 211. Rejected as unproven. 212. Accepted. 213. Rejected as unproven. FOR THE RESPONDENT: 1. - 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. & 7. Accepted and incorporated herein. Accepted and incorporated herein. & 10. Accepted. 11. & 12. Accepted. - 15. Accepted. 16. - 18. Accepted and incorporated herein. 19. & 20. Accepted. 21. - 23. Accepted and incorporated herein. 24. Accepted. 25. First sentence accepted. Second sentence not proven. 26. & 27. Accepted. 28. Accepted and incorporated herein. 29. Accepted. 30. - 32. Accepted. 33. Accepted. 34. & 35. Accepted since the contrary was not proven. 36. Accepted as represented. 37. Accepted since the contrary was not proven. 38. Accepted that the treatment and records were within standards. COPIES FURNISHED: Britt Thomas, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathan W. Lubell, Esquire 750 Lexington Avenue New York, New York 10022 Salvatore A. Carpino, Esquire 8001 North Dale Mabry Highway Suite 301-A Tampa, Florida 33614 Jerome W. Hoffman General Counsel Agency for health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether the Respondent is guilty of the violations alleged in the Amended Administrative Complaint; and, if so, what penalty should be imposed.
Findings Of Fact Based upon the testimony of the witnesses and documentary evidence received at the hearing, I make the following findings of fact: The Department is the state agency charged with the regulation of the practice of medicine in Florida. At all times material to the allegations in the Amended Administrative Complaint, Respondent has been a licensed physician, in the State of Florida, license number ME 0027088. Respondent is board certified in three areas of specialty: gastroenterology, radiology, and internal medicine. Respondent is on the staff of several hospitals in the Palm Beach County region. From March 28, 1986, until April 4, 1986, Respondent treated Goldie Marshak. At the time of such treatment, Mrs. Marshak was a seventy-one year old in good health. Mrs. Marshak had been referred to Respondent by Dr. Neil Katz. Dr. Katz was Mrs. Marshak's regular physician who had unsuccessfully treated her for persistent gas and burping. In accordance with Mrs. Marshak's health plan guidelines, Dr. Katz had referred her to Respondent, a specialist in similar disorders, for additional diagnosis. The referral form indicated Mrs. Marshak suffered from persistent stomach pain and gas. Attached to the referral were the results from a prior upper GI series which established there were no abnormalities of the upper gastrointestinal tract. Respondent first met with Mrs. Marshak on March 28, 1986. At the initial visit Mrs. Marshak completed a form which identified her current problem as "burping and rectal gas as soon as I eat. Some pain upper chest that has diminished." In addition, Mrs. Marshak supplied a social history, a past medical history, drug allergy, operations, injury, hospitalizations, family history, immunizations, and a general review of systems. No other records prepared on that date were retained. There are no records from which it can be determined what physical examination, if any, Respondent gave to Mrs. Marshak on March 28, 1986. Apparently, after reviewing the referral form and discussing her symptoms with Mrs. Marshak, Respondent elected to schedule her for a procedure called a flexible sigmoidoscopy. After conferring With Dr. Katz, whose consent was required for health plan purposes, the procedure was set to be performed April 3, 1986. Mrs. Marshak was given instructions regarding preparations required in order for the examination to be performed. When Mrs. Marshak returned to Respondent's office on April 3, 1986, she had successfully followed the instructions and was ready for the proposed procedure. Mrs. Marshak was given an authorization form which she signed in the presence of Marina Harmon. Mrs. Harmon was an unlicensed employee who assisted Respondent by escorting patients to the procedure room, having them sign the authorization form, and by explaining the procedure to be performed. The authorization form signed by Mrs. Marshak authorized Respondent to perform a flexible sigmoidoscopy. The form did not disclose risks or inherent dangers regarding the procedure but did provide the following: The motive and purpose of the diagnostic procedure, possible alternative methods, the risks and possible consequences involved, and the possibility of complications have been fully explained to me. I acknowledge that no guarantee or assurance has been made as the results that may be obtained. I also specifically authorize the physician, or his designee, to perform such additional procedures or render such treatment as he may, in his professional judgement deem necessary in the event any unforeseen condition arise during the course of the consented-to- diagnostic procedure that would put the patient's (my) well-being in jeopardy. A flexible sigmoidoscopy is a procedure whereby an instrument is inserted into the rectum and is then passed up the colon the desired distance. The length the instrument is extended specifies what the procedure is called. A flexible sigmoidoscopy involves looking into the rectum and the sigmoid colon only. A colonoscopy looks into the digestive tract beyond an anatomical portion of the colon called the splenic flexure. A left-sided colonoscopy involves looking into the lower digestive tract beyond the sigmoid colon but not beyond the splenic flexure. In terms of length, the flexible sigmoidoscopy would be the shortest procedure of the three described. On April 3, 1986, Respondent performed a colonoscopy on Mrs. Marshak which resulted in a perforation of her colon. This perforation would have occurred regardless of the procedure performed since the tear was located approximately twenty centimeters into the colon. During and following the procedure, Mrs. Marshak complained of extreme pain. Respondent presumed the pain to be that typically experienced during the procedure. The pain which continued after the instrument was removed, Respondent attributed to trapped gas within the colon which would be passed naturally in the hours following the procedure. Respondent sent Mrs. Marshak home for rest and advised her that the procedure had not revealed any abnormal condition in the area examined. Once home, Mrs. Marshak continued to have pain and discomfort. Her husband, Kalman Marshak, telephoned Respondent's office to advise of his wife's continued suffering. Respondent did not speak with either of the Marshaks' but did telephone a prescription for Tylenol with Codeine to their pharmacy. Mr. Marshak picked up the drug and administered it to his wife as directed. Codeine is an improper drug to prescribe for a patient who may be retaining gas since it inhibits parastoltic activity of the bowel. Respondent should have discussed the patient's symptoms with her to ascertain whether or not the pain suffered warranted further examination or emergency treatment. Despite the drug, Mrs. Marshak's pain continued through the night. On the morning of April 4, 1986, Mr. Marshak again telephoned Respondent's office to advise them of his wife's discomfort. The Marshaks were given an appointment for three o'clock that afternoon. The delay in setting the appointment or referring the patient for emergency treatment was inappropriate. At the time of her revisit, Mrs. Marshak had a distended abdomen with some tenderness. Respondent took x-rays of the area and reinserted the colonoscope a very short distance in an effort to expel what Respondent believed to be trapped gas in the colon. The procedure did not relieve Mrs. Marshak's pain and she was advised to go to the hospital for further treatment. Subsequent to Mrs. Marshak leaving the office, Respondent read the x-rays and discovered the perforation. Respondent immediately telephoned the emergency room to advise the physician on duty of Mrs. Marshak's condition and her need for attention. The perforation required surgery which resulted in Mrs. Marshak having to wear a colostomy bag for several months. Afterwards, a second surgery restored her colon to allow normal elimination. At the time of the final hearing, Mrs. Marshak had completely recovered from the perforation. On April 8, 1986, Respondent prepared a letter to Dr. Katz which outlined the treatment given to Mrs. Marshak. Any notes or other records used to prepare the letter were destroyed. The x-rays taken at Respondent's office on April 4, 1986, were lost and were, therefore, unavailable. According to Respondent, the missing x-rays were very similar to the ones taken at the hospital when Mrs. Marshak arrived on April 4, 1986. The Respondent did not obtain a consent form or written authorization for the procedure performed on April 4, 1986. The reinsertion of the instrument into the rectum was inappropriate since the x-rays clearly showed the perforation. Other than the letter written to Dr. Katz, Respondent did not maintain any medical records for the treatment he gave to Mrs. Marshak on March 28, April 3, and April 4, 1986.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Counts I and IV of the Amended Administrative Complaint, dismisses Counts II and III, imposes an administrative fine in the amount of $1000, places Respondent on probation for a period of two years, and requires Respondent to attend such continuing education courses as may be deemed appropriate by the Board. DONE and RECOMMENDED this 15th day of April, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 15th day of April, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3397 Rulings on Petitioner's proposed findings of fact: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 are accepted. To the extent paragraph 11 describes a colonoscopy as "more invasive" the paragraph is accepted. However, as to all of the examinations performed (colonoscopy, flexible sigmoidoscopy or left-sided colonoscopy) the basic description is similar. Consequently "more extensive explanation "is not required. Thus the balance of paragraph" is rejected as contrary to the evidence. Paragraph 12 is rejected as contrary to the weight of the evidence. Paragraph 13 is accepted. Paragraph 14 is accepted however it must be noted that such explanations given by Harmon are in supplement to those given by Rothenberg. Paragraph 15 is accepted but is unnecessary. Paragraphs 16 and 17 are accepted, however, see note above re: paragraph 14. Paragraphs 18 and 19 are accepted. Paragraph 20 is rejected as argument, irrelevant and immaterial. Paragraphs 21, 22, 23, 24 and 25 are accepted. Paragraphs 26, 27 and 28 are accepted with the note that the communications addressed were with Respondent's office. There is no evidence that Respondent personally spoke with Mr. Marshak to determine the patient's condition. Paragraph 29 is rejected as contrary to the evidence. It was inappropriate to delay the revisit until 3 o'clock, but there is no evidence Respondent made that decision. Based upon the testimony, The more appropriate course would have had Respondent discuss the situation directly with the patient (or her husband) and to schedule the revisit as soon as possible or have the patient go to the hospital. Paragraph 30 is accepted. Paragraphs 31, 32, and 33 are accepted. Paragraph 34 is rejected as repetitive and unnecessary. Paragraph 35 is rejected as contrary to the evidence. Paragraph 36 is rejected as irrelevant immaterial and assuming facts not in evidence. Paragraphs 37, 38, 39, 40, 41, 42, and 43 are accepted. Paragraphs 44, 45, 46, and 47, are rejected as argumentative or contrary to the weight of the evidence. Paragraphs 48 and 50 are rejected as argumentative. Paragraph 49 is accepted. Rulings on Respondent's proposed findings of fact: Paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11 are accepted. With regard to paragraph 12 the area of the perforation was between 15- 25 centimeters according to the weight of the evidence. Paragraphs 13 and 14 are accepted. Paragraph 15 is rejected as contrary to the weight of the evidence as to "reread." That paragraph with the word "read" for "reread" would be accepted. Paragraphs 16, 17, 18, and 19 are accepted. COPIES FURNISHED: Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Charles A. Nugent, Jr., Esquire Cone, Wagner, Nugent, Johnson, Roth & Romano Servico Centre-Suite 300/400 1601 Belvedere Road West Palm Beach, Florida 33406 Dorothy Faircloth, Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of, Florida having been issued license No. 0033496. Respondent's address is 133 Darnell Avenue, Spring Hill, Florida 33626. Respondent rendered medical care and treatment to patient B.R. during the period July 11, 1985 to July 15, 1985 while she was a patient at the Oak Hill Community Hospital, Spring Hill, Florida for, among other things, acute transmural myocardial infarction. On or about July 15, 1985, patient B.R. died from acute myocardial infarction after resuscitative procedures were unsuccessful. Patient B.R. was brought to the emergency room at Oak Hill Community Hospital on July 11, 1985 by her husband after complaining of chest pains. Shortly after arrival she suffered a myocardial infarction and "coded." She was resuscitated and placed in the intensive care unit. As the medical services physician on call, Respondent was contacted and assumed the care of patient B.R., a 65 year old female. Respondent is Board-certified in internal medicine and is Board eligible in cardiology having completed a fellowship in cardiology at George Washington University in 1968. B.R. had formerly worked as a licensed practical nurse who suffered a back injury some years ago which resulted in back surgery three times. In 1978, some 10 years before her demise, B.R. suffered a heart attack. She also had a history of diabetes and recently had undergone a thyroidectomy. With this medical history she presented a complex case for care and treatment. With patient presenting the history and symptoms of B.R., a reasonably prudent physician would have ordered daily chest X-rays, had an echocardiagram taken, inserted a Swan-Ganz catheter and consulted with a cardiologist on the treatment of this patient. None of these were done by Respondent. While acknowledging those procedures above listed were clearly indicated, Respondent testified he suggested those procedures to B.R. but, while she was fully competent to understand his recommendation, B.R. refused to be further X-rayed, refused the echocardiagram because she thought it produced some type of nuclear radiation, and also specifically refused to have any tubes inserted in her veins which would result if the Swan-Ganz catheter was inserted. None of the patient's refusals to accept recommended procedures was charted in B.R.'s hospital records. Respondent testified that B.R. specifically directed him to not chart on her hospital record her refusal to undergo the test and procedures recommended by Respondent. Respondent further testified that following her refusal to undergo the test and procedures and under directions to him not to chart those refusals on the hospital chart, he put this history in his office notes. To corroborate thin testimony Respondent presented Exhibit 5, a copy of those office notes containing entries dated July 12, 13, 14, 15, and 23, August 13, September 26, December 13, 1985 and January 29, 1986, comprising 4 typewritten pages. While a patient has a absolute right to refuse treatment or procedures recommended by his/her physician, the patient does not have the right to direct the physician to prepare an incomplete record of his treatment and progress. The principal purpose of the chart is to record medical evidence of the patient's condition, treatment rendered and results obtained to provide a history from which another physician can, if necessary, adequately take over the care of the patient. The record also provides a history of the patient's response to treatment. Respondent's explanation that if he had expected to be away and another physician had to take over the care and treatment of B.R. he would have made the other physician aware of B.R.'s refusal to undergo the recommended procedures totally failed to satisfy the need for a complete record of the patient in one place. To prove the validity of the office notes as a "business record," Respondent testified that for the past 30 years he has maintained office notes in which he has placed information the patient didn't want in the hospital record. An expert witness in the field of questioned documents testified that each dated entry on Exhibit 5 was typed following a new insertion of the paper in the typewriter rather than all entries being typed at the same time or with the same insertion of the paper in the typewriter and this was consistent with what would be expected in normal office procedures. Respondent's office manager and secretary during the times reported on Exhibit 5 testified she was the one who normally transcribed Respondent's dictated notes, that Exhibit 5 was consistent with the normal office practice which would be to date the entries when they were typed, and, although she does not specifically recall typing each entry on Exhibit 5, they were probably all typed by her. Evidence questioning the validity of Respondent's testimony that the office notes were dictated contemporaneously with his treatment of B.R. and typed on the dates indicated included the testimony of the husband of B.R. that B.R. had a zest for life and it would be contrary to her nature to refuse certain procedures or consultations; the fact that on July 14, 1985 B.R. was intubated with the Respondent present; that there was no financial consideration involved as B.R. was adequately insured; the office manager and secretary of Respondent during the period the office notes are alleged to have been prepared is the daughter of Respondent; and the fact that at the peer review committee inquiry into the facts surrounding the death of B.R., Respondent never mentioned the existence of office notes although he was extensively questioned regarding his failure to maintain a more complete medical record in this case. From the foregoing it is found that B.R.'s refusal to submit to the procedures allegedly recommended by Respondent were not contemporaneously recorded in Respondent's office notes and Exhibit 5 was prepared after Respondent appeared before the hospital peer review committee if not also after the administrative complaint was filed in this case.
The Issue The issues for determination are whether Respondent violated Subsections 458.331(1)(f) and (m), Florida Statutes (1997), by assisting an unlicensed person to practice medicine contrary to Chapter 458 and by failing to maintain adequate medical records; and, if so, what discipline, if any, should be imposed against Respondent's license. (All references to chapters and statutes are to those promulgated in Florida Statutes (1997) unless otherwise stated.)
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of medicine in Florida. Respondent is licensed to practice medicine in Florida pursuant to license number ME 0015824. Respondent owns and operates an ambulatory surgical center doing business as the Dermatologic & Cosmetic Surgery Center (Surgery Center). The Surgery Center is located at 2666 Swamp Cabbage Court, Fort Myers, Florida 33901. Respondent is a Board-certified Dermatologist and also performs cosmetic surgery that includes breast augmentation. Dermatology and cosmetic surgery involve similar procedures. The procedures used to remove skin cancers from the face are similar to those used in face-lifts and eyelid surgery. Respondent performs approximately a thousand skin cancer surgeries a year, has been doing cosmetic surgery since 1986, and has practiced breast surgery since 1989. Respondent is a member of the American Board of Cosmetic Surgery. That board is not approved by the American Board of Medical Specialties or the Florida Board of Medicine. Respondent has attended numerous seminars and satisfied relevant continuing education requirements throughout his career. Respondent has never been sued by a patient and has no prior discipline against his license. Prior to August 12, 1997, Respondent performed breast augmentations through the patient's nipple. Respondent made a small incision in the lower part of the binary nipple. He used his fingers to separate the overlying breast tissue from the muscle and create a pocket in which to place an implant. The incision left a scar at the nipple, and Respondent sought to develop competency in a different procedure identified in the record as the axillary method of breast augmentation. The axillary method allows the surgeon to access the breast from the patient's armpit. The surgeon makes a 1.5 inch incision under the armpit, uses an instrument to create a pocket in the breast, inserts a partially inflated implant into the pocket, and repeats the same procedure in the other breast. The surgeon then checks the breasts for symmetry, fills the implants, closes the pockets, and concludes the procedure. In the axillary method, a surgeon must use instruments rather than his fingers to create a pocket for the implant. The initial incision and placement of the implant do not require great skill. The greater skill is required in reaching the proper plane in the breast tissue and in creating the pocket. The brachial plexis is just below the incision in the armpit and contains all of the nerves that make the arm work. From the armpit, the surgeon must proceed over the sternum. If the surgeon applies too much pressure, the surgeon can cross the center of the chest and create a condition known as a unibreast. Respondent developed a basic understanding of the axillary method by watching video tapes for several years and by attending seminars approved for professional education credit in the State of Florida. In May of 1997, Dr. Daniel Metcalf taught one of those seminars in Orlando, Florida. Dr. Metcalf is licensed to practice medicine in Oklahoma. He is qualified by training and experience to perform the axillary method and to teach the method to other physicians. For approximately 25 years, Dr. Metcalf has limited his medical practice to breast surgery and performs approximately 650 surgeries each year. At the time that Dr. Metcalf taught the accredited seminar in Orlando, his license to practice medicine in Oklahoma was suspended. On November 13, 1995, Dr. Metcalf pled guilty to a felony charge that he violated federal interstate commerce law by selling silicon implants during a moratorium on their sale. The federal court fined Dr. Metcalf $5,000 and sentenced him to six months in federal prison beginning on April 5, 1996. The State of Oklahoma suspended Dr. Metcalf's medical license for one year beginning on the date of his release from prison. The suspension expired on or about October 5, 1997. In May of 1997, Respondent discussed the axillary method with Dr. Metcalf during the seminar in Orlando. Respondent and Dr. Metcalf had known each other since the early 1980s, and Dr. Metcalf agreed to come to the Surgery Center and teach the axillary method to Respondent. Respondent scheduled the teaching session at the Surgery Center for August 12 and 13, 1997. Five of Respondent's patients agreed to participate. The patients are identified in the record as B.D., T.R., R.K., M.P., and D.C. Each patient acknowledged in writing that it would be the first time Respondent would perform the axillary method. Neither Respondent nor Dr. Metcalf charged the patients for a surgeon's fee, and Dr. Metcalf did not charge Respondent. However, the patients paid the costs of the implant, the operating room, and the blood work. Respondent conducted a preoperative interview with each patient. He advised the patient that Dr. Metcalf would be in the operating room teaching Respondent. On August 12 and 13, 1997, Respondent introduced Dr. Metcalf to each patient. Respondent and Dr. Metcalf then scrubbed, gloved, and proceeded with the teaching session. Dr. Metcalf performed approximately 60 to 70 percent of the first surgery. Respondent performed progressively more of each successive surgery until Respondent performed the vast majority of the surgery. The surgery that Dr. Metcalf performed included at least one incision and pocket, insertion of an implant, use of the appropriate surgical instruments, and closure of an incision on at least one patient. Neither Respondent nor Dr. Metcalf caused any harm to a patient. The results of all five procedures were positive and without complication. No patients complained about their treatment. Two of Respondent's former employees are the complaining witnesses in this case. The first issue is whether Dr. Metcalf practiced medicine within the meaning of Section 458.305(3). Section 458.305(3) defines the "practice of medicine" as: [T]he diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition. Dr. Metcalf did not diagnose, treat, or prescribe medicine for any human disease, pain, injury, or deformity, or mental condition. The breast augmentations that he participated in were elective and cosmetic and did not treat any disease, pain, injury, or deformity. Dr. Metcalf must have performed an "operation" for some "other physical . . . condition" in order to practice medicine within the meaning of Section 458.305(3). Respondent's counsel argued during the hearing that the issue of whether Dr. Metcalf practiced medicine was an issue of law, rather than fact. Counsel argued that expert testimony would invade the province of the ALJ. If Respondent's counsel were correct, the result could be problematic for Section 90.702. Although a physician would be qualified by training and experience to opine that a peer's activities satisfy the standard of care applicable to the practice of medicine, the physician would not be qualified to know whether he or his peer practiced medicine. In an abundance of caution, the ALJ requested the parties to cite relevant legal authority in their respective PROs. Neither party cited any direct or analogous legal authority that resolves the issue raised by Respondent's counsel or construes the statutory definition of the practice of medicine in Section 458.305(3). Each party submitted expert testimony concerning the issue of whether Dr. Metcalf practiced medicine. As the trier of fact and arbiter of credibility, the ALJ must resolve the evidential conflicts between the experts. Accordingly, the fact finder has carefully considered the substance of the testimony of the two experts and determined the appropriate weight to be accorded the testimony of each. Respondent's expert based his opinion on a custom within the medical profession in which unlicensed persons, such as members of an emergency medical team, medical students, and first year residents, train under a physician. Respondent's expert opined that an unlicensed person does not practice medicine because the person is learning under the auspices of a physician who has responsibility for the unlicensed person. Respondent's expert relied on facts not in evidence. Unlike the custom described by Respondent's expert, the evidence shows that the person teaching was not licensed to practice medicine in the state where the teaching occurred. The person learning was the only person so licensed. While Respondent had ultimate responsibility, Respondent was not teaching Dr. Metcalf. Dr. Metcalf was teaching Respondent. The custom described by Respondent's expert operates within a framework of laws and rules that are inapposite to this case. Residents who are not licensed to practice medicine in Florida may practice under the supervision of a physician only if the residents, and the hospitals in which they work, comply with registration and reporting requirements in Section 458.345 and Florida Administrative Code Rules 648-6.008 and 6.009. None of those provisions apply to the facts in this case. (All references to rules are to those promulgated in the Florida Administrative Code on the date of this Recommended Order.) Respondent's expert also testified that doctors customarily teach other doctors in states where the teaching doctor is not licensed. In Florida, however, that custom is limited by Section 458.303(1)(b) to activities that satisfy the definition of a consultation. A consultation is defined in Rule 64B8-2.001(8) to include the taking of a medical history, the examination of a patient, the review of laboratory tests and x-rays, and the making of recommendations to a person licensed to practice medicine in Florida. A consultation is not a set of activities separate and apart from the practice of medicine. It is a subset of the "practice of medicine" in Section 458.305(3). The opinion of Respondent's expert is limited, by operation of law, to that part of the practice of medicine that is a consultation within the meaning of Section 458.303(1)(b) and Rule 64B8-2.001(8). That part of the practice of medicine that is not a consultation is the practice of medicine that is at issue in Section 458.331(1)(f). Further references in this Recommended Order to the "practice of medicine" refer to those activities described in Section 458.305(3) that are not a consultation within the meaning of Section 458.303(1)(b) and Rule 64B8-2.001(8). Some of the activities engaged in by Dr. Metcalf at the Surgery Center satisfied the definition of a consultation. Other activities comprised the practice of medicine. The proportion of each is not material in this case. Dr. Metcalf performed at least 60 percent of the first "operation" for some "other physical . . . condition" within the meaning of Section 458.305(3). Dr. Metcalf practiced medicine progressively less with each successive operation and performed progressively more consultation. One purpose of the teaching session was for Dr. Metcalf to first demonstrate the axillary method and then to assist Respondent in the practice of that medicine. As it turned out, this purpose was more qualitative than quantitative because Respondent quickly demonstrated competency. However, if it were unnecessary for Dr. Metcalf to first demonstrate the axillary method, Respondent could have gained the competency he sought by reviewing video tapes, attending seminars, and consulting with Dr. Metcalf. Respondent aided, assisted, procured, or advised Dr. Metcalf to engage in the practice of medicine for at least 60 percent the first surgery performed on August 12, 1997. The next issue is whether Dr. Metcalf was an "unlicensed person" within the meaning of Section 458.331(1)(f). Chapter 458 commonly uses the term "licensed" to refer to persons licensed outside of Florida. For example, Section 458.303(1)(b) refers to physicians "licensed" in another state. Section 458.3115(1) authorizes restricted licenses for "foreign- licensed" persons. Section 458.313(1)(c) authorizes licensure by endorsement for those "licensed" in another jurisdiction, and Section 458.315 authorizes a temporary certificate for persons "licensed" in any other state. Dr. Metcalf was a licensed person in Oklahoma when he practiced medicine at the Surgery Center in August of 1997. A person licensed to practice medicine is not an "unlicensed person" while the person's license is suspended. A contrary finding could be problematic under Florida law. If a person with a suspended Florida license were an unlicensed person during the suspension and the person violated the terms of the suspension, the person would have no professional license against which the Board of Medicine could take further disciplinary action, including revocation of the license. Rather, the Board would be required to seek criminal prosecution pursuant to Section 458.327(1)(a). During the period of suspension, Dr. Metcalf was a licensed person in Oklahoma. However, Dr. Metcalf was not authorized to exercise any privileges under the license or to enjoy the benefits of his license until the suspension expired. Section 458.331(1)(f) does not prohibit Respondent from aiding, assisting, procuring, or advising an unauthorized person to practice medicine. Such a statutory prohibition would have been broad enough to proscribe the practice of medicine by a licensed person whose authority to practice was temporarily suspended. Rather, Section 458.331(1)(f) prohibits Respondent from "aiding, assisting, procuring, or advising any unlicensed person" to practice medicine. (emphasis supplied) Relevant terms in Section 458.331(1)(f) must be construed strictly in favor of the licensee because this is a license disciplinary proceeding that is penal in nature. A finding that Dr. Metcalf was a licensed person in Oklahoma does not resolve the issue of whether Dr. Metcalf was an unlicensed person for the purposes of Section 458.331(1)(f). An "unlicensed person" in Section 458.331(1)(f) is properly defined by reference to Section 458.327(1)(a). Section 458.331(1)(f) prohibits Respondent from "aiding, assisting, procuring, or advising an unlicensed person to practice medicine contrary to this chapter " (emphasis supplied). Section 458.327(1)(a) prohibits the practice of medicine without "a license to practice in Florida." When the term "unlicensed person" in Section 458.331(1)(f) is harmonized with Section 458.327(1)(a), an "unlicensed person" means a person not licensed in Florida. 44. Sections 458.327(1)(a) and 458.331(1)(f) operate in concert. The former proscribes the practice of medicine inside this state without a Florida license. The latter prohibits a person licensed inside the state from assisting in the violation of the former. In August of 1997, Respondent violated Section 458.331(1)(f) by assisting an unlicensed person to practice medicine contrary to Section 458.327(1)(a). Respondent did not intentionally violate Section 458.331(1)(f) and had no prior knowledge of the violation. The cause of the violation is rooted in multiple instances of miscommunication, confusing circumstances, and statutory ambiguity that Respondent did not create. Respondent undertook reasonable efforts to comply with Florida law. Prior to the surgeries, Respondent contacted Ms. Anne Dean. Ms. Dean is the licensed risk manager for the Surgery Center and is qualified by training and experience to advise Respondent in matters of regulatory compliance. Ms. Dean owns and operates a risk management company in Deland, Florida. She is the certified risk manager for over 450 domestic and foreign ambulatory surgery centers. Ms. Dean provides a wide range of services including financial feasibility analysis and the processing of certificates of need. She also provides services to ensure that architectural design, equipment lists, inventories, and policies and procedures comply with applicable state and federal regulatory requirements. Ms. Dean also assists ambulatory surgical centers with other license certification, accreditation, and regulatory matters. Since 1988, Ms. Dean has been the risk manager required under state law for the Surgery Center. Ms. Dean was responsible for the Surgery Center's state licensure and Medicare certification. She has been present during each license and risk management survey conducted by the Agency for Health Care Administration (AHCA). AHCA has never cited the Surgery Center for a violation. Ms. Dean has assisted Respondent in ensuring that renovations to the Surgery Center complied with applicable regulations and, except for the calendar year 2000, has advised Respondent in all matters of regulatory compliance and accreditation. Respondent asked Ms. Dean to ensure that the teaching session to be conducted by Dr. Metcalf complied with applicable state law and any accreditation requirements. Ms. Dean spoke by telephone with unidentified representatives of both AHCA and Petitioner. The advice from those representatives was consistent for two areas of concern. The first area of concern involved the accreditation needed for Respondent to be certified to perform the axillary method. Pursuant to the advice of the agency representatives, Ms. Dean created a surgical proctor report and gave the form to Respondent. After the teaching session, Dr. Metcalf completed a report for each patient and provided the reports to Ms. Dean. Ms. Dean reviewed the reports and met with a three-member committee for the Surgery Center. The committee certified Respondent as qualified to perform the axillary method. The second area of concern involved the status of Dr. Metcalf's license to practice medicine. Respondent was specifically concerned that Dr. Metcalf was not licensed to practice medicine in Florida and that Dr. Metcalf's Oklahoma license was suspended. Respondent requested Ms. Dean to ensure that the teaching session complied with Florida law. Ms. Dean conferred with representatives for Petitioner and AHCA. Ms. Dean advised Respondent that if the person teaching were licensed in another state, the person would be entitled to practice medicine in Florida during the teaching session under the auspices of Respondent, a licensed person in Florida. However, if the person teaching were not licensed in another state, the person could not perform any function that required licensure. Ms. Dean conveyed the advice of the agency representatives to Respondent. The advice from those qualified by training and experience in regulatory compliance is consistent with an educational custom among practitioners. It is common for doctors to practice medicine for educational purposes in states where they are not licensed. Before Respondent began cosmetic surgery, Respondent spent four one-week periods with two different cosmetic surgeons in Texas and Virginia. Respondent was not licensed to practice in Virginia. Respondent obtained similar experience in California where he is not licensed. Respondent is 66 years old and did not attempt to become board certified in plastic surgery. That certification would have required two or three years of general surgery and plastic surgery. Respondent would have spent his time learning complex reconstructive procedures, including cleft lips and pallets, rather than simpler cosmetic surgery. The advice from Ms. Dean and representatives for Petitioner and AHCA was incorrect and based on a mistake of law. The statement that a person licensed in another state can do more than consult in Florida purports to amend or modify the limited authority in Section 458.303(1)(b) as well as the prohibitions in Sections 458.331(1)(f) and 458.327(1)(a). An agency cannot amend, enlarge, or deviate from a statute. The mistake of law arose from ambiguity in Chapter 458. Chapter 458 does not define the term "unlicensed person." An "unlicensed physician" is defined in Rule 64B8-6.001 to mean a medical doctor not licensed by the Board of Medicine. However, the term "unlicensed physician" applies only to Section 458.345 and does not apply to Section 458.331(1)(f). The law implemented in Rule 64B8-6.001 is limited to Section 458.345. The rule refers only to interns, residents, and fellows in a hospital setting. Rule 64B8-6.001 does not define an "unlicensed physician" for any purpose in Chapter 458 except Section 458.345. A broader reading of Rule 64B8-6.001 would conflict with the definition of a "physician" in Section 458.305(4). Section 458.305(4) defines a "physician" to mean a person licensed by the Board of Medicine. The rule defines an "unlicensed physician" as a medical doctor not licensed by the Board. Even if the rule were construed to imply that a medical doctor is not a person, for purposes of Section 458.305(4), the implication would not avoid the apparent oxymoron. Any ambiguity between Section 458.305(4) and Rule 64B8-6.001 must be resolved in a manner that effectuates the statute. Section 458.305(4) defines a physician "as used in this chapter. . . ." (emphasis supplied) Neither the definition of an "unlicensed physician" in Rule 64B8-6.001 nor the definition of a "physician" in Section 458.305(4) defines the term "unlicensed person" in Section 458.331(1)(f). Chapter 458 does not expressly state that a person licensed to practice medicine in another state is an "unlicensed person." Moreover, Chapter 458 uses the term "licensed" interchangeably to mean persons licensed inside and outside of Florida. The correct meaning of the term "unlicensed person" is not found in a single provision in Chapter 458. A licensee must glean the meaning from reading Sections 458.427(1)(a) and 458.331(1)(f) in a manner that harmonizes the two provisions. The following hypothetical further illustrates the unintended ambiguity in Chapter 458. If Dr. Metcalf were licensed in Florida in August of 1997, Section 458.331(1)(f) would not have prohibited Respondent from assisting Dr. Metcalf to practice medicine contrary to Chapter 458, including gross and repeated malpractice. Section 458.331(1)(f) does not prohibit Respondent from helping a licensed person to violate Chapter 458. Statutory ambiguity also exists in the distinction between a consultation and other activities defined as the practice of medicine. Although Chapter 458 recognizes a legal distinction between the two kinds of activity, the practical distinctions evidently ebb and flow on a daily basis through a custom in which practitioners teach others in states where the practitioners are not licensed. The ambiguity in Chapter 458 gave rise to, confusion, mistakes of law by individuals qualified by training and experience in regulatory compliance and miscommunications to Respondent. Respondent reasonably relied on the advice of those qualified by training and experience to advise him in his attempt at regulatory compliance. Respondent did not intend to violate Section 458.331(1)(f). The remaining issue for determination is whether Respondent maintained adequate records for the teaching session at the Surgery Center. The statutory requirement for adequate medical records is set forth in Section 458.331(1)(m). In relevant part, Section 458.331(1)(m) provides that Respondent's license is subject to discipline if Respondent fails: [T]o keep . . . medical records that identify the licensed physician or the physician extender and supervising physician by name and professional title who is or are responsible for rendering . . . supervising, or billing for each . . . treatment procedure and that justify the course of treatment of the patient. (emphasis supplied) The parties do not dispute that the medical records adequately identify Respondent. The contested issue is whether the medical records justify the course of treatment by adequately identifying Dr. Metcalf by name and title. The medical records include operative reports that identify Respondent by name but do not identify Dr. Metcalf. Petitioner argues that Section 458.331(1)(m) requires the operative reports to identify both Respondent and Dr. Metcalf. Petitioner argues that Respondent was the "licensed physician" and Dr. Metcalf was the "physician extender and supervising physician." Dr. Metcalf was neither the "physician extender" nor the "supervising physician" during the teaching session. Section 458.305(4) defines a physician as a person who is licensed by the Board of Medicine. Dr. Metcalf was not licensed by the Board and was not a physician under Florida law. Respondent was the "licensed physician." Petitioner admits that the medical records adequately identify the "licensed physician" in accordance with Section 458.331(1)(m). If the definition of a physician in Section 458.305(4) were disregarded, the ALJ agrees with Petitioner that Section 458.331(1)(m) implicitly distinguishes a "licensed physician" from a "physician extender and supervising physician." However, the implicit distinction does not serve the ends that Petitioner seeks. Rather, the implicit distinction suggests that the physician extender and supervising physician may be someone other than a licensed physician. If the implied distinction in Section 458.331(1)(m) were correct, it would need to be construed in pari materia with Section 458.331(1)(f) in a manner that gives force and effect to both subsections. The prohibition in Section 458.331(1)(f) could not prohibit Respondent from assisting an unlicensed person who is "physician extender and supervising physician" without nullifying the implied distinction in Section 458.331(1)(m). The interplay between Subsections 458.331(1)(f) and (m) does not alter the outcome of this case. However, it further elucidates the statutory ambiguity that Respondent, his risk manager, and two different agency representatives faced in attempting to ascertain whether the teaching session complied with Florida law. Assuming arguendo that Petitioner's view of Dr. Metcalf as the physician extender and the supervising physician were correct, Petitioner's statutory interpretation conflicts with the literal terms of Section 458.331(1)(m). Section 458.331(1)(m) requires the medical records to identify either the licensed physician or the physician extender and supervising physician. The statute does not require the medical records to identify the licensed physician and the physician extender and supervising physician. Relevant terms in Section 458.331(1)(m) must be construed strictly in favor of the licensee because this is a license disciplinary proceeding that is penal in nature. If it were determined that Dr. Metcalf could be a physician extender without being a physician defined in Section 458.305(4), no statute or rule cited by the parties defines a "physician extender." Although the term may be a term of art within the medical profession, Petitioner failed to adequately explicate that form of art. The evidence was less than clear and convincing that Dr. Metcalf was a physician extender. If it were determined that Dr. Metcalf could be a supervising physician without being a physician defined in Section 458.305(4), the definitions of "direct supervision and control" and "direct responsibility" in Rule 64B8-2.001(1) and (6) and Rule 64B8-4.026(1) aren't probative. The rules merely define the quoted terms by reference to physical proximity. Both Respondent and Dr. Metcalf were physically proximate. The evidence shows that Respondent was ultimately responsible for the surgeries. Respondent had actual control of each surgery, could have stopped each surgery at any time, and was responsible for billing each patient. Unlike the operative reports, the anesthetist reports identify Respondent and Dr. Metcalf by name and title. The parties agree that the anesthetist reports are part of the medical records. Petitioner argues that the identification of Dr. Metcalf solely in the anesthetist reports is inadequate. Petitioner claims the operative reports must also identify Dr. Metcalf. Each party submitted expert testimony concerning the issue of whether the identification of Dr. Metcalf solely in the nurse anesthetist reports was adequate. Petitioner's expert was tendered and accepted "as a physician, in general, and as a plastic surgeon." Respondent's expert practices emergency medicine, rather than cosmetic or plastic surgery, but is an expert in quality assurance. Respondent's expert is better qualified by training and experience, within the meaning of Section 90.702, to assist the trier of fact in a determination of whether the medical records are adequate. The testimony of Respondent's expert is consistent with the record-keeping requirements in Section 458.331(1)(m) and Rule 64B8-9.003. Neither the statute nor the rule requires medical records to identify Dr. Metcalf in multiple parts of the medical records or to identify Dr. Metcalf in any specific document. The anesthetist reports comprise adequate medical records that identify both Respondent and Dr. Metcalf. Petitioner argues that the patient consent forms do not identify Dr. Metcalf; and that Respondent did not tell his patients that Dr. Metcalf would be operating on them or that Dr. Metcalf's license to practice medicine was suspended. No finding is made concerning these issues because they are not relevant to any allegation contained in the Administrative Complaint. The Administrative Complaint does not allege that Respondent failed to obtain informed consent from his patients. If it were determined that Section 458.331(1)(m) requires the operative reports to identify Dr. Metcalf when the anesthetist reports already do so, Respondent did not cause the omission of Dr. Metcalf's name from the operative reports. Respondent instructed his circulating nurse and surgical supervisor (circulating nurse) to identify Dr. Metcalf in the operative reports that Respondent signed but did not read. The regular duties of the circulating nurse included the identification of surgeons in the operative reports. Respondent reasonably relied on the circulating nurse to perform her assigned duties correctly. The Administrative Complaint does not charge Respondent with failure to supervise his employee or with failure to review the operative reports he signed. The circulating nurse failed to identify Dr. Metcalf in the operative reports she prepared for Respondent. Sometime after the teaching session in August of 1997, the circulating nurse abruptly terminated her employment at the Surgery Center following several employment problems. When Respondent hired the circulating nurse in July of 1996, she was in an impaired physician or nurses (IPN) program for treatment of a previous addiction to Xanex and Demerol that she developed during her divorce. However, representatives of the IPN program assured Respondent that the circulating nurse was successfully completing the program. After the circulating nurse terminated her employment, Respondent discovered that drugs were missing from the Surgery Center. Respondent also learned that the circulating nurse had stopped going to the IPN program in August of 1997 and had stopped taking her urine tests. In October, 1997, the IPN program dismissed the circulating nurse. Sometime between August 13 and September 11, 1997, the circulating nurse told Respondent that she suspected the anesthetist of being addicted to drugs because he was falling asleep during surgeries. The circulating nurse also thought some drugs were missing from the Surgery Center. Respondent barred the anesthetist from further surgeries and asked the circulating nurse to conduct a drug count. Respondent left the next day with his wife on a previously scheduled vacation but stayed in communication with the circulating nurse. The circulating nurse conferred with the risk manager and conducted a drug count but did not comply with prescribed procedures. The circulating nurse entered her drug count on a form but did not make any written findings. The circulating nurse told Respondent that she thought some drugs were missing. Respondent requested the circulating nurse to fax him the portion of the Surgery Center manual that prescribed drug audit procedures. The circulating nurse faxed the material and then terminated her employment. When Respondent returned from his vacation, the office keys used by the circulating nurse were in Respondent's mailbox. The circulating nurse quit her job because she felt Respondent expected too much of her. Prior to January 1998, Respondent requested a pharmacy consultant to assist Respondent and his wife in a second narcotic count. The pharmacy consultant confirmed that some drugs were missing from the Surgery Center. The missing drugs included Versed, Demerol, Tylox, and Valium. Respondent reported the missing drugs to the risk manager, and the risk manager reported the incident to the state. The appropriate state agency began an investigation in January of 1998 that included the potential involvement of the anesthetist and the circulating nurse. The anesthetist died shortly after January 1998, and the agency concluded the investigation without charging the circulating nurse. The circulating nurse and Respondent's former insurance secretary are the complaining witnesses in this case. On September 11, 1997, the insurance secretary altered the computer entrees for the employee manual so that the number of hours needed to be eligible for insurance benefits conformed to the number of hours that the insurance secretary worked. Respondent's wife is the office administrator. She discovered the changes and corrected them. She then instructed the insurance secretary not to come into the Surgery Center while Respondent was on vacation. When Respondent and his wife returned from their vacation, they discovered that the insurance secretary had copied all of the patient charts for August 12 and 13, 1997, and had resigned from her job. Neither Respondent nor his wife could locate any of the copied charts. The proctor forms that had been completed by Dr. Metcalf and reviewed by the risk manager and accreditation committee were missing from their files. Whole parts of the surgery manual were missing. The risk manager conducted an independent search for the missing records without success. The risk manager had helped compile the compliance files, was familiar with the records, and would have recognized any misfiled records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding Respondent not guilty of violating Subsection 458.331(1)(m), guilty of violating Subsection 458.331(1)(f), and imposing no penalty. DONE AND ENTERED this 3rd day of December, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 3rd day of December, 2002. COPIES FURNISHED: Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 John E. Terrel, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 H. Roger Lutz, Esquire Lutz, Webb & BoBo One Sarasota Tower Two North Tamiami Trail, Fifth Floor Sarasota, Florida 34236
