Findings Of Fact Findings based on stipulation Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 459, Florida Statutes. Respondent is, and has been at all times material hereto, licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001228. Respondent's last known address is 577 N.E. 107th Street, Miami, Florida 33161. Findings based on evidence at hearing On November 5, 1990, patient N. S. initially presented to the Respondent's office for a physical examination for the purpose of obtaining health insurance with Blue Cross & Blue Shield of Florida. During the course of the initial visit, when the Respondent became aware of where N. S. and her mother lived, it was obvious to him that N. S. lived in an expensive residential area and was probably a person of substantial financial means. Patient N. S. subsequently presented to the Respondent and received treatment from him for a variety of complaints on the following dates: November 14 and 27, 1990; December 10 and 20, 1990, January 7, 23, and 28, 1991, March 5, 1991, and April 15, 1991. Patient N. S. paid for all of the treatments and laboratory tests on the dates the treatments and tests took place. At the request of the Respondent, the checks written by patient N. S. to pay for services provided by the Respondent were made out to "cash." One day in early January of 1991, the Respondent contacted the patient N. S. by telephone at her home and asked her to loan him $8,000.00 or $8,500.00. The Respondent told the patient N. S. he needed the money because he was three months behind in making payments on the mortgage on his office-house, and because the mortgage was going to be foreclosed if he failed to pay the past due amounts in the next couple of days. In the course of this conversation the Respondent also remarked to N. S. that he would not be able to help her get well if the mortgage were to be foreclosed and he were to lose his office. Patient N. S. initially refused to loan any money to the Respondent. During the course of the next two days, the Respondent made numerous repeated pleas to N. S. for a loan. Ultimately, N. S. agreed to loan the Respondent a total of $1,000.00. The loan was to be repaid within sixty days and was without interest. On January 11, 1991, patient N. S. wrote a personal check to the Respondent in the amount of $1,000.00. Thereafter, the Respondent cashed the check. The patient N. S. made the $1,000.00 loan to the Respondent because she wanted the Respondent to be able to continue to treat her and not have his office repossessed. The Respondent did not timely repay the $1,000.00 loan. Shortly after the due date, the patient N. S. asked the Respondent on several occasions to repay the loan. On April 15, 1991, the patient N. S. sent a certified letter to the Respondent requesting repayment of the loan. On July 2, 1991, the patient N. S. sent the Respondent another certified letter requesting repayment of the loan and advising the Respondent that if the loan was not repaid by July 12, 1991, she intended to send complaints to the Department of Professional Regulation and to the Internal Revenue Service. During March and April of 1991, the Respondent was ill. Towards the end of April the Respondent was hospitalized and underwent surgery. The surgery was followed by several weeks of recuperation. During this period the Respondent had very little income and it was not possible for him to repay the loan to the patient N. S. On July 24, 1991, the patient N. S. sent yet another certified letter to the Respondent. In the letter of July 24, 1991, the patient N. S. requested that the Respondent provide her with various specified documents related to his treatment of her, including "my complete medical records." The patient N. S. sent a copy of the July 24, 1991, letter to the Department of Professional Regulation. On that same day, the patient N. S. signed and mailed to the Department of Professional Regulation a Uniform Complaint Form complaining about the Respondent. On August 29, 1991, the Sunshine Messenger Service delivered to the patient N. S. a letter from the Respondent dated August 28, 1991, which read as follows: Enclosed is the sum of $1000 in return for the check you loaned to me. I'm sorry that it took as long as this date to return same. Your request for your records, etc. are being copied and will be mailed very soon. Sorry for the delay. Hope you are in good health. The letter was accompanied by two postal money orders payable to the patient N. S., each in the amount of $500.00. On September 16, 1991, Petitioner's investigator Schaublin spoke by telephone with the Respondent and at that time advised him of the Complaint that had been filed against him by his patient N. S. Investigator Schaublin advised the Respondent that two principal issues were being investigated: (1) his request and receipt of a loan that was not timely repaid, and (2) his failure to provide medical records requested by the patient. During the telephone conversation of September 16, 1991, the Respondent agreed to meet with the investigator at the investigator's office on September 25, 1991, and to bring with him at that time the medical records of the patient N. S. On September 25, 1991, the Respondent went to the investigator's office and delivered to the investigator a set of medical records for the patient N. S. The records appeared to be facially complete. The investigator handed the Respondent a subpoena for the records at the time the records were delivered to the investigator. At some time between the Respondent's receipt of the July 24, 1991, request for records and his delivery of records to the investigator on September 25, 1991, the Respondent discovered that two pages were missing from the records of the patient N. S. The missing pages consisted of the Respondent's progress notes regarding the treatment of the patient N. S. The Respondent conducted an extensive, but unsuccessful, search for the two missing pages. Upon concluding that he was unlikely to find the missing pages, the Respondent contacted an attorney and requested advice as to what he should do under the circumstances. The attorney advised the Respondent that he should do the best he could to reconstruct the missing records from his memory and from whatever other information was still available. The Respondent did his best to follow the advice he had received from the attorney. In an effort to verify dates, the Respondent called the pharmacy to which he had called in prescriptions for the patient N. S. With the information he had at hand, and based on his memory of his treatment of the patient N. S., the Respondent reconstructed the two missing pages of progress notes. In the process of reconstructing the progress notes, the Respondent made some inadvertent mistakes regarding the dates on which certain office visits took place. Other than the mistakes as to some of the dates, the reconstructed records accurately and sufficiently describe the Respondent's treatment of the patient N. S. The Respondent's records of his treatment of the patient N. S. do not contain a notation that the progress notes are reconstructed notes. When the Respondent delivered medical records to the Petitioner's investigator on September 25, 1991, he did not tell the investigator that two pages of the records had been reconstructed. Upon review of the medical records delivered by the Respondent, the investigator noted that some of the dates in the progress notes did not match dates with other documents in the investigator's possession and also noted that the progress notes looked like they had all been written at the same time. On September 27, 1991, the investigator contacted the Respondent by telephone and brought these apparent irregularities to the Respondent's attention. During the telephone conversation of September 27, 1991, the Respondent told the investigator that he had reconstructed the progress notes after being unable to find the missing notes. This was the first time the Respondent had mentioned to the Petitioner that the subject medical records contained two reconstructed pages. On October 4, 1995, the Respondent sent copies of his records to the patient N. S., along with a letter addressed to the patient N. S. The letter read as follows: Sorry for the delay in mailing your records. I have diligently looked thru your file and in the office and at home for the medical records missing that are the two written pages that I have reconstructed to the best of my ability as to dates. The billing ledger was also in the chart and has not been found. In order to recreate the bills for tax purposes, I could help you if I had the dates and amounts from photocopies of the cancelled checks. The Respondent did not destroy any medical records regarding the patient N. S. The Respondent did not falsify or attempt to falsify any medical records of the patient N. S. The documents of which official recognition has been taken reveal that the Respondent has been the subject of prior disciplinary action by the Petitioner. The most significant instances of prior disciplinary action were DPR Case No. 0052390, in which the Respondent stipulated to the imposition of disciplinary action on the basis of violations related to the improper prescription of controlled substances, and DPR Case No. 89-008659, in which the Respondent stipulated to the imposition of disciplinary action on the basis of a violation related to exploitation of a patient for financial gain by borrowing money from a patient. At the time of the Respondent's treatment of the patient N. S., the Respondent was still serving the term of probation imposed in DPR Case No. 0052390.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Counts Two, Three, Four, Five, and Six of the Administrative Complaint; Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint; and Imposing a penalty consisting of all of the following: (a) an administrative fine in the amount of one thousand dollars ($1,000.00), (b) suspension of the Respondent's license for a period of ninety (90) days, (c) placing the Respondent on probation for a period of one (1) year following the suspension, and (d) restricting the Respondent's practice by prohibiting him from entering into any financial arrangements with patients other than those arrangements reasonably necessary to assure payment for osteopathic medical services provided by the Respondent. DONE AND ENTERED this 6th day of March 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March 1996. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 10: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as irrelevant. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraphs 16 through 20: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 21: First sentence accepted in substance. Second sentence rejected as subordinate and unnecessary details. Paragraph 22: Rejected as irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in part and rejected in part. Accepted that the Respondent and N. S. had a physician-patient relationship during the relevant time period. The notion that the Respondent and N. S. also had a business venture relationship is rejected as contrary to the greater weight of the evidence. N. S. made suggestions to the Respondent as to how he could improve his practice, but there was no joint business venture relationship. Paragraph 4: First sentence accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence; there was no business relationship. Paragraph 5: Accepted in substance. Paragraphs 6 and 7: Rejected as subordinate and unnecessary details. Paragraphs 8 through 12: Accepted in substance. Paragraph 13: Accepted in substance, with the exception of the second sentence and the last sentence. The second sentence is rejected as not supported by persuasive competent substantial evidence. The last sentence is rejected as subordinate and unnecessary details. Paragraph 14: Accepted in substance. COPIES FURNISHED: Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Doddo, Esquire 100 Southeast 12th Street Fort Lauderdale, Florida 33316 William H. Buckhalt, Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The word "rewrote" in paragraph 14 of the Recommended Order has been changed to "modified." The Board finds that this word more accurately reflects the activity of the Respondent as set forth by the evidence in the record. A comparison of the "original" medical record and the subsequently prepared medical record unequivocally establishes that Respondent did more than just copy over the "original" medical record. The language in paragraph 23 stating that the original medical record would verify that the subsequently prepared medical record was identical to the original is rejected as not being supported by any competent and substantial evidence in the record. To the contrary, a comparison of exhibits 1 and 2 clearly establishes that the two versions of the medical record are not identical. Paragraph 40 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The first sentence of paragraph 48 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Paragraph 48 is further modified to reflect Respondent's failure to reveal the existence of an "original" record. This failure is admitted by Respondent and Respondent's attorney witnesses in their testimony and reiterated by Mr. McPherson in his testimony. The final sentence of paragraph 53 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Furthermore, as a matter of policy, the public safety is harmed by exposure to potential and real injury due to the egregious nature of Respondent's fraudulent act and hiding that fact from appropriate authorities for several years. The harm that would be done to the public by tolerating the fraudulent reconstructing of medical charts is such that it strikes deep at the public safety and welfare. Paragraph 54 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The proposed finding of fact ignores the fundamental and obvious fact that at least one of Respondent's stated motive in reconstructing the medical record was to better protect against exposure in a malpractice action. Appendix B RULINGS ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT 1. - 3. Accepted Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. Accepted. - .7 Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. 8. - 9. Accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of Count Two of the Administrative Complaint filed herein; Finding Respondent not guilty of Counts One, Three, and Four and dismissing those Counts of the Administrative Complaint filed herein; Imposing an administrative fine of $250 to be paid by a date certain; and Requiring that Respondent perform 150 hours of community service over a 3-year period. DONE and ENTERED this 3rd day of May, 1994, at Tallahassee, Florida. LINDA M. RIGOT 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 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6228 Petitioner's proposed findings of fact numbered 1, 3-9, 11, 14-16, 19, 20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 10, 12, 13, 17, 18, 21, and 25 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 23, 24, and 26-29 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-29, 31-41, and 43-92 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 30 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed finding of fact numbered 42 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Joseph Harrison, Esquire Slepin, Harrison & Feuer 2500 North Military Trail, Suite 275 Boca Raton, Florida 33431 Michael Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact At all times pertinent to the issues contained herein, the Respondent was a licensed medical doctor in Florida having been issued license number ME 0041256. Respondent was awarded his medical degree by the University of Tennessee in 1977. He came to southwest Florida in January, 1983 starting his practice in August of that year. He thereafter applied for and was granted privileges at Lee Memorial Hospital and practiced in Lee County until January, 1985 when he moved to Collier County. In January, 1985, Dr. Heiss notified Lee Memorial Hospital that he was moving his practice and that he no longer needed privileges at that facility. This was partly in response to a letter from the hospital asking him to resign which was, at least in part, based on his failure to keep his medical records current. He admits that prior to that time, he had received some notices involving incomplete records at the hospital and went in to work on them as best he could. However, due to his own medical problem which involved a prolonged throat infection that left him tired and weak, he could not accomplish much. This medical problem lasted for several months and when he was feeling better, he tried, to the best of his ability, he claims, during the summer of 1985, to complete the incomplete records. He went to the hospital and worked on some of them, but in late 1986, when he checked with clerical personnel in the medical records section, he was told his records were complete, and coincidentally, he stopped getting delinquency notices. Under the procedure in effect at Lee Memorial Hospital for correcting incomplete records in 1984, once a week, Ms. Lindahl, the assistant manager of the records section, would go through the files to determine which records were delinquent. If dictation was needed, the chart would be declared delinquent in 15 days. If only the signature was missing, the doctor was give 45 days to correct it. When the record was declared delinquent, medical records personnel would send a weekly reminder letter to the physician setting a one week suspense for correction and indicating that if the correction was not made, the doctor's hospital privileges could be suspended. These temporary suspensions, however, were not being enforced. According to Ms. Lindahl, in 1985, Dr. Heiss was identified and placed on the delinquent list 35 times. Because of this, he would have been sent 35 letters. In January, 1985, at the time Respondent left Lee Memorial Hospital, he left incomplete 84 charts. Because of the volume of incomplete records left by Respondent, the hospital Medical Records Committee, on May 2, 1985, authorized Ms. Lindahl to transfer these incomplete records to the permanent records section of the archives, a procedure that would not normally have been done with incomplete records. This transfer was accomplished in August, 1985. After Respondent left the hospital, in January, 1985, up to March, 1985, Ms. Lindahl contacted him both at home and at his new office both by phone and by letter on several occasions, and asked him to come in and complete his records. Each of the letters sent indicated those charts, by name, which needed completion. After the charts were transferred to permanent records in August, 1985, until February, 1987, Ms. Lindahl did not make any further effort to contact Dr. Heiss, nor did he contact her. However, she was informed by the Hospital Administrator that Dr. Heiss was to come in and work on the records. Therefore, she pulled these records for him and, in fact, the Respondent did, on some occasions, come in at night to work on them. Ms. Lindahl agreed to pull records for him as needed but advised him that she could not and would not pull all his incomplete records at one time. Charts are placed on microfilm after a period of years. Some of Respondent's charts were microfilmed before he completed them. However, the hospital made arrangements for him to complete these records as well in an effort to accommodate him. Once the records were placed on microfilm, it was more difficult for Dr. Heiss to complete them since, initially, there was no dictating equipment available in the microfilm reading area. However, it could have been done by Respondent taking notes from the film and thereafter dictating those notes in the records room where dictating equipment was available. However, that was not necessary, since the hospital set up a booth with dictating capability in it for him in the microfilm reading area. An Administrative Complaint was filed against Dr. Heiss in October, 1985, because of his incomplete files. The matter was referred to the Board of Medicine in February, 1987, after a stipulated settlement was reached between the Respondent and Counsel for the Board. On February 11, 1987, the Board of Medicine entered a Final Order which approved and adopted the stipulation entered into between Respondent and counsel for the Board on December 23, 1986. Paragraph 4 of the stipulated Disposition in this case provided that prior to the stipulation being presented to the Board, Respondent would complete all incomplete hospital records that he was responsible for at Lee Memorial Hospital. Dr. Heiss contends that at that time, he understood his medical records to be complete, based upon his inquiry to personnel in the medical records section at the hospital. He indicates he made several inquiries of at least two separate employees who told him they could find no record of any incomplete files charged to him. Once his incomplete records were transferred to permanent storage, they were deleted from the computer and a routine inquiry would not have disclosed them. However, Ms. Lindahl had in her possession a complete list of his still incomplete records and a simple inquiry to her, the person in charge, would have given him the correct information. Dr. Heiss did not check with Ms. Lindahl, who worked days even though he admits he may have been in the hospital for other reasons on several occasions during the day. He would usually come in during the evenings, and on one occasion, spoke with Mr. Shuler, the night records custodian, who checked the computer and found no record of the doctor's delinquency. Mr. Shuler, however, advised Dr. Heiss to check with Ms. Lindahl. Dr. Heiss states he believed that the Stipulation he worked out with counsel for the Board in response to the initial Complaint, took care of the problem. When he went before the Board in February, 1987, he had checked with medical records at the hospital and had been told his status was clear. This check was not with Ms. Lindahl, however. When he did so, he found he did have unfinished records. It was at that time, after the stipulation was signed, that he began to bring the records current. Dr. Heiss admits that during the period 1985 - 1986, believed there were some medical records that were incomplete but because they had been filed in the permanent records section, he believed his responsibility for them was fulfilled. As a practicing physician, he relies upon the medical records section to tell him what records need to be completed. When he was advised by that agency that he was no longer delinquent, he felt satisfied. This argument is specious and without merit. Respondent admits he did not make any attempt to work on the records from January to July, 1986. He contends that from July, 1986 to January, 1987, he called the hospital several times to check on his records but could get no indication he had files undone. It was not until after the Board meeting in February, 1987, when Mr. Shuler told him to speak with Ms. Lindahl, that he determined he did have some medical records incomplete. Notwithstanding, he knew he had some dictation that was incomplete and some matters were unsigned and in his opinion, it is more a question of semantics, (what the term, "incomplete" meant), and not knowing what he had to do. He contends he dealt in good faith with the hospital and with the Board of Medicine and was surprised to find out that he was not in good standing. This argument as well, is unbelievable. Dr. Heiss contends he relied on what he was told by the people at medical records but at no time until after he entered into the Stipulation with the Board of Medicine in 1987 did he contact Ms. Lindahl even though he knew she was the one who was in charge of delinquencies and was still employed by the hospital. It was incumbent upon him as the physician to contact the person in charge, especially in light of his suspicion that certain records were incomplete, and not rely on phone calls to anyone who answered. This does not constitute reasonably prudent action or the actions of a reasonable man. It cannot reasonably be claimed that Dr. Heiss' actions were based on an honest and reasonable mistake of fact. As a physician, he should have assumed that the Board wanted and required all records to be completed and it was his responsibility to insure that the records were, in fact completed. This he failed to do. On March 20, 1987, Respondent still had 53 charts incomplete of the 84 charts he had left incomplete when he departed the staff of Lee Memorial Hospital. These 53 charts were completed by November, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a medical doctor in Florida be suspended for ninety days and that he pay an administrative fine of $1,000.00. RECOMMENDED this 29th day of January, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2674 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. BY THE PETITIONER 1 & 2. Accepted and incorporated herein. 3. Accepted 4 - 8 Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the evidence. 11 - 13. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 17 - 19. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. 23 & 24. Accepted and incorporated herein. 25. Argument rather than Finding of Fact. 26 & 27. Accepted and incorporated herein. BY THE RESPONDENT No submittal. COPIES FURNISHED: Dorothy Faircloth Executive Director DPR, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dan E. Batchelor, Esquire Post Office Box 1899 Bonita Springs, Florida 33923
The Issue The issue presented for decision herein is whether or not the Respondent engaged in proscribed conduct, set forth hereinafter in detail, as is more particularly set forth in a two count administrative complaint filed herein dated May 12, 1986.
Findings Of Fact Respondent, Cecil Rolle, during times material was a licensed dentist in Florida having been issued License Number DN0005067. On January 24, 1984, Respondent treated Karen Fuller, a patient. For such treatment, Respondent charged $250 for dental services rendered and Ms. Fuller paid $50 on account. (Petitioner's Exhibit 8). Ms. Fuller never returned for follow- up treatment nor did she pay the outstanding balance of $200 for services rendered. On approximately July 26, 1985, Respondent received a letter and an accompanying executed medical release authorization from Fuller's attorney, Scott Saperstein, requesting copies of "any and all records, charts and x-rays regarding the care and treatment of Karen Fuller." (Petitioner's Exhibit 1). Respondent failed to provide the records requested in the July 26, 1985 letter until more than one (1) year later on August 11, 1986. On about September 6, 1985, Respondent received a second written request from attorney Saperstein requesting Ms. Fuller's records. (Petitioner's Exhibit 2). Respondent again failed to provide the requested records. Shortly after making the September 6, 1955 request, Scott Saperstein spoke to Respondent who advised that he had treated patient Fuller on one occasion, that she had not made payment or still owed money for that visit and that he would not release patient records while the outstanding fee remained unsatisfied. On October 25, 1985, attorney Saperstein wrote to the Department of Professional Regulation (DPR) advising of Respondent's failure to provide the requested documents and a copy of that letter was sent to Respondent. (Petitioner's Exhibit 3). On December 10, 1985, Respondent received a letter from DPR requesting that he explain his failure to provide the patient's records to attorney Saperstein. (Petitioner's Exhibit 4). On January 28, 1986, Respondent sent a written reply to DPR apologizing for having delayed responding to DPR's original request and furnished a summary of treatment he provided to Ms. Fuller on November 24, 1984. (Petitioner's Exhibit 5). However, Respondent offered no explanation as to the reason he did not provide Ms. Fuller's records as requested by her counsel. On February 3, 1986, Respondent received another letter from DPR requesting that he respond to the allegations, i.e., his failure to make patient's records available immediately. (Petitioner's Exhibit 6). Respondent never replied to this second request by DPR. On July 28, 1986, Respondent received written notification from Karen Fuller's counsel advising of his intent to initiate litigation alleging dental malpractice against Respondent relative to the treatment Petitioner provided Ms. Fuller. (Petitioner's Exhibit 7). On approximately, August 11, 1986, Respondent provided Ms. Fuller's counsel with her original medical records. (Petitioner's Exhibit 8). Respondent acknowledged that he is required to know the pertinent statutes and rules relating to the practice of dentistry. Respondent also acknowledged that he did not turn over Ms. Fuller's medical records initially based on an informed decision reached after consultation with his attorney and directives from his medical malpractice insurance carrier to the effect that he should not release medical records until his insurance carrier authorized him to do so. Respondent initially advised attorney Saperstein that since Ms. Fuller had failed to pay the entire fee for services rendered, he would not be releasing copies of her medical records. Respondent made the decision to withhold Ms. Fuller's medical records until the air was cleared surrounding the competing claims between attorney Saperstein and his malpractice insurance carrier.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent pay Petitioner an administrative fine of $1,000 within thirty (30) days after entry of Petitioner's Final Order. Respondent be issued a written public reprimand by the Petitioner, Board of Dentistry. RECOMMENDED this 15th day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3676 Rulings on Petitioner's Proposed Recommended Order Paragraph 8. Accepted as modified in paragraphs 6 and 13, Recommended Order. Paragraph 14. Accepted as modified in paragraph 11, Recommended Order. Paragraph 15. Accepted as modified in paragraph 14, Recommended order. COPIES FURNISHED: Henry N. Adorno, Esquire Adorno Allen Schiff & Goodkind, P.A. 1501 Venera Avenue Park Place II, Suite 240 Coral Gables, Florida 33146 Harold C. Culmer, Esquire, P.A. 5020 Northwest Seventh Avenue Miami, Florida 33127 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation, Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether on or about October 8, 1978 while employed as a Licensed Practical Nurse at Florida Christian Health Center, the Respondent committed numerous medication charting errors, with respect to controlled substances and other medications, including but not limited to: Signing out on a narcotic control record for controlled substances and other medications on said date and indicating the hour to be 9:00 p.m., when in truth and fact, Respondent was not on duty at said hour on said date, having left the facility before the completion of her shift at approximately 6:35 p.m. Failing to record in the patient's medication administration records narcotics signed out for the patient. Charting in the nurses notes that she had administered medications to patients at 9:00 p.m., a time when she was not on duty on October 8, 1978. Charting on the patient's administration record the administration of drugs when there was no entry or record of said drugs being signed out on the narcotics control record. In the matter of patient, Aileen Scheuster, signing out on two separate narcotics control sheets for the controlled substance, Tylenol #3 at 5:00 p.m. and 9:00 p.m. for a total of four (4) tablets for the same date and time, and failing to account for the excess. Failing to chart in the nurses notes and/or medication administration record for all medications signed out by the Respondent on the narcotic control records. Whether on or about October 21, 1978, at approximately 5:10 p.m., Respondent left her assigned duties at Florida Christian Health Center and went home without notifying her supervisor of this fact, leaving the facility inadequately staffed for the 3:00 p.m. - 11:00 p.m. shift, which Respondent was working. (The items set forth in paragraphs 1 and 2 of the issue statement allegedly constitute a violation by the Respondent of Subsection 464.21(1)(b), Florida Statutes, in that the Respondent is accused of unprofessional conduct.)
Findings Of Fact This case has been presented for consideration based upon the Administrative Complaint of the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Nursing, dated December 20, 1978. The Respondent, Ollie Mae Williams, L.P.N., has challenged the accusations set forth in the Administrative Complaint and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes. In response to that request for formal hearing, the case has been referred to the Division of Administrative Hearings for consideration and the formal hearing was held on April 11, 1979. The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Nursing, is an agency of the State of Florida which has the responsibility to license and regulate members of the nursing profession who practice in the State of Florida. The authority for such activity on the part of the Petitioner is found in Chapter 464, Florida Statutes. The Respondent, Ollie Mae Williams, L.P.N., is a Licensed Practical Nurse, licensed by the Petitioner, Florida State Board of Nursing, and at all times pertinent to the Administrative Complaint held such license. The Petitioner has charged the Respondent with certain violations and the content of those allegations are as found in the issue statement of this Recommended Order. The facts reveal that Respondent was employed by the Florida Christian Health Center as a Licensed Practical Nurse, during the month of October, 1978. One of the patients whom the Respondent was attending in October, 1978, was the patient, Aileen Scheuster. Ms. Scheuster's physician prescribed for her the substance, Tylenol #3, to be taken one tablet every six hours PEN (as needed or required). The Respondent, while working the 3:00 p.m. to 11:00 p.m. shift on October 8, 1978, signed out two tablets for each record on two separate individual patient narcotic records for the period 5:00 p.m. to 9:00 p.m, which made the interval of medication four hours instead of the six hours prescribed by the treating physician and exceeded the authorized number of tablets to be given. The medication record for the patient indicated that the Tylenol tablets were given at 5:00 p.m. and 9:00 p.m. but only showed two tablets being given. The nurses notes for the patient showed that one tablet had been administered at 5:00 p.m. and another at 9:00 p.m. Moreover, there was a further discrepancy in the matters of charting, because the Respondent only worked from 3:00 p.m. to 6:35 p.m. on October 8, 1978. Aileen Scheuster's physician had also ordered Valium, 5 milligrams, for the benefit of the patient QID (4 times a day). The individual patient's narcotic record showed two tablets signed out for Ms. Scheuster, one at 5:00 p.m. and one at 9:00 p.m., on October 8, 1978. The 9:00 p.m. sign-out being at a time when the Respondent was not on duty. On the sane date, October 8, 1978, John Solomon was a patient in the facility. One of the medications prescribed for Mr. Solomon was Darvoset N-100, PRN, for pain. There was a tablet signed out for 3:00 p.m. and a tablet signed out for 9:00 p.m. These tablets for the benefit of Mr. Solomon were charted in the appropriate records, but as indicated before, the Respondent was not in attendance in the institution at 9:00 p.m., notwithstanding evidence to the contrary found in the records of the patient, John Solomon. Another patient who was residing in the facility on October 8, 1978, was Ms. Rose Davis. Her doctor had ordered the drug, Chloral Hydrate, to be given at bedtime, PRN. The patient's individual narcotic record indicates that the Respondent gave Rose Davis one of the tablets at 9:00 p.m., a time when the Respondent had already left the facility. Further, the drug, Chloral Hydrate, was not charted on the nurses notes as required. Helen Parmenter was a patient being treated in the facility on October 8, 1978. Her doctor had prescribed five milligrams of Valium, HS (hours of sleep, 9:00 p.m.). The patient's individual narcotic record showed that the Respondent had given the patient, Helen Parmenter, one of the tablets at 9:00 p.m., and this event in time was also indicated on the medication and administration record signed by the Respondent. Again, the Respondent was not in attendance at 9:00 p.m. on October 8, 1978. Lena Kelsey was a patient in the facility who was there on October 8, 1978, and her physician had prescribed the drug, Butisol. The patient's individual narcotic record shows that the Respondent gave two tablets of Butisol to the patient at 9:00 p.m., and this was also indicated on the patient's medication administration record. In fact, the Respondent did not administer these two tablets at 9:00 p.m. because she was not in attendance at the institution. Viola Snider was a patient in the facility who was there on October 8, 1978. Her physician had prescribed Dalmane, which is a sleeping pill. There is an indication on the medication administration record of the patient that she was given one of the pills at 9:00 p.m., October 8, 1978. There is no indication on the patient's individual narcotics record that such a pill was given and, had the pill bean given, it should have bean noted on the patient's individual narcotic record, as a sign-out. Again, the Respondent was not available to give the substance, Dalmane, to the patient, Viola Snider, as is shown, contrary to what the records reflect. In addition, on October 5 and 9, 1978, the Respondent has made an entry on the medication administration record of the patient, Viola Snider, to the effect that the substance, Dalmane, had been administered, but there is no corresponding record on the individual patient's narcotic record which shows the sign-out of that medication. Finally, one of the patients who was being treated in the facility on October 8, 1978, was a John Copeland. Mr. Copeland's physician had prescribed the drug, Meprobamate, 200 milligrams, one tablet QID. There is an indication in the patient's individual narcotic record to the effect that a tablet was signed out at 5:00 p.m. and 9:00 p.m., and the medication record shows these tablets as being administered at the same time. The Respondent was not available to have given the tablet at 9:00 p.m. The substances, Valium, Darvoset, Chloral Hydrate, Butisol, Dalmane and Meprobamate are controlled substances in terms of drug classification. The Petitioner has charged the Respondent with violations of Subsection 464.21(1)(b), Florida Statutes, for the events that transpired on October 8, 1978. That provision states: 464.21 Disciplinary proceedings.-- * * * (b) Unprofessional conduct, which shall include any departure from, or the failure to conform to, the minimal standards of acceptable and prevailing nursing practice, in which proceeding actual injury need not be established. A full consideration of the facts presented indicates that the Petitioner was guilty of unprofessional conduct in the charting entries, to the extent of falsifying those medical records in some instances. The Petitioner has filed a second violation against the Respondent and accused the Respondent of unprofessional conduct for allegedly leaving her duty station at Florida Christian Health Center on October 21, 1978, without notifying her supervisor, thus leaving the facility inadequately staffed. The facts reveal that the Respondent did notify an appropriate person and even though her absence worked a hardship on the management of the facility, it did not constitute unprofessional conduct on the part of the Respondent.
Recommendation It is recommended that the license of the Respondent, Ollie Mae Williams, L.P.N., be suspended for a period of one (1) year on the basis of these events which transpired on October 8, 1978, pertaining to the charting errors. It is further recommended that the action under Count II of the Administrative Complaint pertaining to the events of October 21, 1978, be dismissed. DONE AND ENTERED this 11th day of May, 1979, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Julius Finegold, Esquire 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Ollie Mae Williams, L.P.N. 2125 West 39th Street Jacksonville, Florida 32209 Geraldine B. Johnson, R.N. Florida State Board of Nursing Richard P. Daniel State Building 111 East Coast Line Drive Jacksonville, Florida 32202 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE FLORIDA STATE BOARD OF NURSING IN THE MATTER OF: Ollie M. Ellis Williams 2125 W. 39th Street Jacksonville, Florida 32209 CASE NO. 79-113 As a Licensed Practical Nurse License Number 31453-1 /
Conclusions Having reviewed the Amended Administrative Complaint, the Amended Notice of Intent to Deny Renewal License, the Administrative Complaint, the Agency for Health Care Administration finds 1 The Final Order adopts a Settlement Agreement that has applies to parties other than the named Respondent. 2 The Final Order correctly reflects the applicant as the petitioner in the case style for this licensure action. Filed February 18, 2014 10:37 AM Division of Administrative Hearings and concludes as follows: 1. The Agency has jurisdiction over the above-named Provider pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Amended Administrative Complaint, Amended Notice of Intent to Deny Renewal License, Administrative Complaint and Election of Rights forms to Brandia Presha d/b/a Personal Care I]. (Ex. 1) The Election of Rights forms advised of the right to an administrative hearing. The Settlement Agreement also includes the assisted living facility known as Personal Care, also owned by Brandia Presha. The two assisted living facilities will be referred to as “the Provider.” In addition, the Settlement Agreement includes Tamik Presha. 3. The parties and Tamika Presha have entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Provider’s assisted living facility licenses to operate Personal Care II, license number 8730, and Personal Care [“I”’], license number 4829, are VOLUNTARILY SURRENDERED effective December 14, 2014. The Provider may consent to a Change of Ownership (“CHOW”) application with an unrelated party for either or both of the facilities with an effective date of, or prior to, December 14, 2014. Should there not be a CHOW with an effective date of, or prior to, December 14, 2014, the Provider is responsible for the safe and orderly discharge of the facility residents. 3. The Provider and Tamika Presha shall not apply for any type of license issued by the Agency or obtain any interest in any private entity which holds a license issued by the Agency for a period of 5 years of the date of this Final Order. 4. An administrative fine of $2,000.00 is imposed but STAYED against the Provider. The Agency shall not attempt to collect the fine against the Provider absent a breach of this Settlement Agreement. Should either Brandia Presha or Tamika Presha seek any type of license issued by the Agency within five years of the date of this Final Order, the $2,000.00 shall be immediately due and payable and full payment of the fine shall be a condition precedent for any type of Agency license. If payment is to be made, a check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number(s) should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 14 Tallahassee, Florida 32308 5. Should there not be a CHOW, the Provider is responsible for any refunds that may be due to any clients. 6. Should there not be a CHOW, the Provider shall remain responsible for retaining and appropriately distributing client records as prescribed by Florida law. The Provider is advised of Section 408.810, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions as well as any other statute that may apply to health care practitioners regarding client records. 7. Should there not be a CHOW, the Provider is given notice of Florida law regarding unlicensed activity. The Provider is advised of Section 408.804 and Section 408.812, Florida Statutes. The Provider should also consult the applicable authorizing statutes and administrative code provisions. The Provider is notified that the cancellation of an Agency license may have ramifications potentially affecting accrediting, third party billing including but not limited to the Florida Medicaid program, and private contracts. ORDERED at Tallahassee, Florida, on this_/7/_ day of Alauacte , 2014. Elizabeth Dudak, Secretary th Care Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correc y of this Final Order was served on the below-named persons by the method designated on this L2 ay of F a , 2014. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Shaddrick Haston, Unit Manager Facilities Intake Unit Licensure Unit (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Finance & Accounting Patricia Caufman, Field Office Manager Revenue Management Unit Local Field Office (Electronic Mail) Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Suzanne Suarez Hurley, Esq. Medicaid Accounts Receivable Office of the General Counsel Agency for Health Care Administration Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Corinne Porcher, Esquire Medicaid Contract Management Smith & Associates Agency for Health Care Administration 3301 Thomasville Road, Suite 201 (Electronic Mail) Tallahassee, FL 32308 (U.S. Mail) Lynne Quimby-Pennock Brandia Presha, Owner/Administrator Administrative Law Judge Personal Care & Personal Care II Division of Administrative Hearings 120 8" Avenue West (Electronic Mail) Bradenton, FL 34208 (U.S. Mail) J. D. Parrish Tamika Presha Administrative Law Judge 120 8"" Avenue West Division of Administrative Hearings Bradenton, FL 34208 (Electronic Mail) (U.S. Mail) NOTICE OF FLORIDA LAW. 408.804 License required; display.-- (1) It is unlawful to provide services that require licensure, or operate or maintain a provider that offers or provides services that require licensure, without first obtaining from the agency a license authorizing the provision of such services or the operation or maintenance of such provider. (2) A license must be displayed in a conspicuous place readily visible to clients who enter at the address that appears on the license and is valid only in the hands of the licensee to whom it is issued and may not be sold, assigned, or otherwise transferred, voluntarily or involuntarily. The license is valid only for the licensee, provider, and location for which the license is issued. 408.812 Unlicensed activity.-- (1) A person or entity may not offer or advertise services that require licensure as defined by this part, authorizing statutes, or applicable rules to the public without obtaining a valid license from the agency. A licenseholder may not advertise or hold out to the public that he or she holds a license for other than that for which he or she actually holds the license. (2) The operation or maintenance of an unlicensed provider or the performance of any services that require licensure without proper licensure is a violation of this part and authorizing statutes. Unlicensed activity constitutes harm that materially affects the health, safety, and welfare of clients. The agency or any state attorney may, in addition to other remedies provided in this part, bring an action for an injunction to restrain such violation, or to enjoin the future operation or maintenance of the unlicensed provider or the performance of any services in violation of this part and authorizing statutes, until compliance with this part, authorizing statutes, and agency rules has been demonstrated to the satisfaction of the agency. (3) It is unlawful for any person or entity to own, operate, or maintain an unlicensed provider. If after receiving notification from the agency, such person or entity fails to cease operation and apply for a license under this part and authorizing statutes, the person or entity shall be subject to penalties as prescribed by authorizing statutes and applicable rules. Each day of continued operation is a separate offense. (4) Any person or entity that fails to cease operation after agency notification may be fined $1,000 for each day of noncompliance. (5) When a controlling interest or licensee has an interest in more than one provider and fails to license a provider rendering services that require licensure, the agency may revoke all licenses and impose actions under s. 408.814 and a fine of $1,000 per day, unless otherwise specified by authorizing statutes, against each licensee until such time as the appropriate license is obtained for the unlicensed operation. (6) In addition to granting injunctive relief pursuant to subsection (2), if the agency determines that a person or entity is operating or maintaining a provider without obtaining a license and determines that a condition exists that poses a threat to the health, safety, or welfare of a client of the provider, the person or entity is subject to the same actions and fines imposed against a licensee as specified in this part, authorizing statutes, and agency rules. (7) Any person aware of the operation of an unlicensed provider must report that provider to the agency.
The Issue At issue in these consolidated cases is whether respondent committed the offenses alleged in the amended administrative complaints and, if so, what disciplinary action should be taken.
Findings Of Fact Background Respondent, Jeffrey G. Tardiff, was, at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0021567. His office address is 2950 Crystal View Court, Miami, Florida. Respondent graduated from George Washington Medical School in 1967; completed his internship at Jackson Memorial Hospital, Miami, Florida, rotating in internal medicine and surgery; and, completed a two-year residency program in internal medicine, surgery and emergency medicine, at the University of California at Los Angeles Medical Center, Los Angeles County Harbor General Hospital, Jackson Memorial Hospital, Miami, Florida, and Veterans Administration Hospitals in Long Beach, California, and Wadsworth, Virginia. Currently, much of respondent's practice involves removing tumors of the face, both benign and cancerous, as well as micro surgery to repair the results of acne. During the approximately 19 years respondent has been licensed to practice medicine in Florida, he has never previously been the subject of any disciplinary proceeding. Facts relating to Patient #1 (Case No. 92-0228, Counts Two and Three) On September 11, 1989, Patient #1 (the "patient") was first seen by respondent. When he presented himself, the patient's chief complaint was a very large number of skin growths, which had the appearance of small black warts, on his face, neck and upper body, and which were spreading rapidly. The patient indicated that people were talking about these growths, and that he wanted to "get them taken care of before they cover me." Respondent took a history from the patient. At the time, the patient was 54 years of age, 69.5 inches tall, weighed 199.5 pounds, and had a blood pressure of 140/90 and a temperature of 98.0. The patient was described as very health, and expressed no allergic reaction or adverse side effects from penicillin or other known medications. During this initial visit, respondent excised one of the lesions on the patient's right cheek for pathology. Pathology characterized the lesion as "intradermal nevus." Respondent diagnosed the condition as "multiple viral premalignant facial verroucose papillomas to the neck and below." On September 20, 1989, the patient returned to respondent's office, and respondent removed approximately 197 skin lesions from the patient by hyfercation. During the procedure in which the lesions were removed, the patient was administered Meperidine, 210 mgs., and Diphenhydramine, 150 mgs., by micro drip I.V., to the point of twilight anesthesia. Additionally, the patient was administered Nitrous Oxide 75 percent and Oxygen 25 percent by inhalation during the procedure, and each lesion was injected with Xylocaine and 2 percent epinephrine locally before it was removed. While respondent administered the patient Meporidine and Diphenhydramine by micro drip I.V. during the course of the two and one half hour procedure, the proof demonstrates that the medications were administered at moderate levels necessary to relieve pain and nausea, and that the patient remained alert throughout the procedure. Respondent, although unassisted throughout the procedure, had immediate control of the I.V. flow, such that he could increase or decrease its administration as necessary for pain, and continuously monitored the patient during the course of the procedure. Regarding the techniques applied by respondent to monitor the patient, the proof demonstrates that before the procedure began respondent took the patient's blood pressure and pulse, and periodically checked the patient's pulse during the course of the procedure. Moreover, respondent engaged the patient in a continuing dialogue concerning a matter of common interest, automobiles, and compelled the patient to respond to requests that he reposition himself, as a means of monitoring the patient's alertness. Finally, respondent visually observed the patient for any signs of respiratory distress or changes in skin tone. During the course of the foregoing procedure, respondent had available numerous items of monitoring equipment which he elected not to use, and numerous items of emergency requirement which he was not required to use, including: blood pressure cuffs, an EKG, an Edak plethysmograph, a power breather, amu bags and masks, a heart rate monitor, a Debidick Life Pack 6 monitor defibrillator, and Narcon and other drugs needed to reverse the effects of a medication or to revive a patient. Respondent did not, however, have on hand or use a pulse oximeter during the procedure, did not utilize any of his equipment to take or monitor the patient's vital signs during the course of the procedure, did not record the patient's vital signs during or after the procedure, and did not have a second person present to assist him in monitoring the patient's vital signs during the procedure. The patient tolerated the procedure well and, as heretofore noted, was cognizant and alert during its course. Following completion of the surgery, the patient was released without ill effect, and has expressed satisfaction with the results of respondent's labors. Here, petitioner charges that respondent failed to practice medicine with that level of care, skill, and treatment which a reasonably prudent similar physician recognizes as acceptable under similar conditions and circumstances because he failed to have a second person assist him in monitoring the patient's vital signs during the course of the September 20, 1989, procedure, and because he failed to use a pulse oximeter to measure the patient's oxygen satiation level during the course of such procedure. Petitioner further charges that respondent failed to keep written medical records justifying the course of treatment of the patient because he failed to record the patient's vital signs before, during or after the anesthesia and surgery. In response, respondent contends that due to the nature of the procedure, the type and level of sedation, and the alertness of the patient, it was appropriate to monitor the patient in the manner he elected, without resort to utilizing a pulse oximeter; that, under the circumstances, it was unnecessary to have a second person present to monitor the patient's vital signs; and that, under the circumstances, his failure to record the patient's vital signs before, during and after the anesthesia and surgery does not evidence a failure to keep medical records justifying the course of treatment of the patient. To support its position, petitioner offered the testimony of Dr. Bruick, a board certified plastic surgeon, and, through deposition, Dr. Kruse, a board certified anesthesiologist. Dr. Bruick opined that to comport with the requisite standard of care in circumstances where I.V. anesthesia is employed, a pulse oximeter must be used, an assistant must be present to monitor the patient's vital signs, and such signs must be recorded before, during and after the anesthesia and surgery. Dr. Bruick was not, however, totally familiar with the combination of drugs used in the subject procedure, and based his opinion regarding the use of a pulse oximeter on a rule of the Department of Health and Rehabilitative Services relating to minimum requirements for licensing of ambulatory surgical centers, a matter not pertinent to this case. Dr. Kruse rendered opinions consistent with Dr. Bruick, but was familiar with the combination of medications used in the subject case and did not rely on any rules of the Department of Health and Rehabilitative Services. Dr. Kruse further opined, however, that if practitioners in South Florida did not routinely use a pulse oximeter during this type of procedure then the standard of care would not mandate its use. Juxtaposed with the proof offered by petitioner, the proof offered on behalf of respondent consisted of his own testimony, as well as the opinions of two local physicians, a registered nurse/trauma nurse specialist, and one of petitioner's own investigators, who offered persuasive proof that pulse oximeters were not routinely used during the course of procedures like that at issue in this case, and that considering the nature of the procedure, the type and level of sedation, and the alertness of the patient it was within the accepted level of care for respondent to have monitored the patient in the manner he elected, without the utilization of a pulse oximeter, without having a second person present to monitor the patient's vital signs, and without the necessity of recording the patient's vital signs before, during and after anesthesia and surgery. Considering the proof, it cannot be concluded, with the requisite degree of certainty required by law, which opinions accurately reflect the appropriate standard of care prevalent within the State of Florida. Therefore, considering the fact that the burden of proof in these proceedings rested on petitioner, as discussed infra, it must be concluded that the proof fails to support the conclusion that respondent is guilty of having committed the offenses charged in Counts Two and Three of the amended administrative complaint filed under Case No. 92-0228. Facts relating to the notice requirements of Section 458.320(5), Florida Statutes, relating to a practitioner's election not to carry malpractice insurance. (Case No. 92-0228, Count One) By Count One of the amended administrative complaint filed in Case No. 92-0228, petitioner charges that respondent "failed to post notice in the form of a sign prominently displayed in the reception area or to provide a written statement in the language required by Section 458.320(5) . . ., Florida Statutes, to Patient #1 in regard to respondent's financial responsibility to pay claims and costs ancillary thereto arising out of the rendering of, or the failure to render, medical care or services." Regarding the notice provided by respondent, the proof demonstrates that respondent had taped on the counter where all patients presented themselves upon arrival at his office a photo copy of Section 358.380, Florida Statutes, which bore the following language prominently printed above the statutory provisions: TO ALL DR. TARDIFF'S PATIENTS I have elected not to carry medical malpractice insurance or otherwise demonstrate financial responsibility; however, I have agreed to satisfy any adverse judgments up to the minimum amounts pursuant to s 458.320(5)(g)1, F.S. I understand that I must post notice in the form of a "sign" prominently displayed in the reception area or provide a written statement to any person to whom medical services are being provided that I have decided not to carry medical malpractice insurance or otherwise demonstrate financial responsibility. I understand that such a sign or notice must contain the wording specified in s. 458.320(5)(g), F.S. No other "sign" or notice was posted in respondent's reception area. Numerous portions of Section 458.320, Florida Statutes, which was reproduced immediately under the foregoing statement, were underlined, including portions of the subsections dealing with the notice requirement. The specific notice requirements were not, however, emphasized in toto or in such a manner as to be readily discernible. Rather, the apparent random underlining was confusing and did little, if anything, to emphasize the required statutory notice. In addition to the foregoing notice, respondent provided each patient, including Patient #1, a form which provided them with various information and disclaimers regarding respondent's practice. Prominently displayed at the top of such form was the following statement: TO ALL OUR PATIENTS: BE IT KNOWN THAT DR. TARDIFF DOES NOT CARRY ANY MAL-PRACTICE INSURANCE AND ALL ASSETS HAVE BEEN PROTECTED EXTENSIVELY. Receipt of such form was routinely acknowledged by the patient's signature thereon, including that of Patient #1. Patient #1 acknowledged, through his testimony, his awareness that respondent did not carry malpractice insurance. Such awareness was gleamed from the foregoing form, as well as the notice he observed taped to the counter in respondent's reception area. Whether Patient #1 specifically noted the disclaimer's language set forth in the statute does not, however, appear of record. Facts relating to respondent's possession of expired medications and record keeping regarding controlled substances. (Case No. 92-1156) On July 19, 1990, the petitioner's investigators made an inspection of the respondent's office located at 2950 Crystal View Court, Miami, Florida. Follow-up inspections were conducted by petitioner's investigators on October 29, 1990, and May 3, 1991. At the time of the aforesaid inspections, the respondent was a dispensing practitioner and registered with the Drug Enforcement Administration (DEA), having been issued DEA number AT589553. At the conclusion of the inspection of July 19, 1990, petitioner's investigators were critical of certain aspects of petitioner's practices. These concerns related to petitioner's record keeping, or lack thereof, with regard to controlled substances; his possession of pharmaceuticals bearing an expiration date that had been reached; his failure to maintain DEA Form 222 as required by Federal law; and, his storage of controlled substances, which included Dilaudid, Demerol, Morphine and Fiorinal with codein number three, in what the investigators perceived to be an unlocked double door refrigerator. With regard to respondent's record keeping with respect to controlled substances, the proof demonstrates that respondent failed to maintain a record of controlled substances received that showed the date of receipt, name and address of the person from whom received, and the kind and quantity of controlled substances received, except to the extent respondent's DEA Forms 222 could be construed to satisfy, in part, such requirements. Respondent's DEA Form 222's do not, however, as hereinafter discussed, reflect the date he received the controlled substances ordered, if at all, and do not account for the variety of controlled substances in his possession. Moreover, respondent failed to maintain any log or record that reflected the controlled substances he sold, administered, dispensed or otherwise disposed of. Regarding the DEA Forms 222, the proof demonstrates that the federal government strictly controls the acquisition of controlled substances and that for a practitioner, such as respondent, to legally order such substances he must be registered with DEA and utilize DEA Form 222 when ordering such substances. See, 21 CFR Sections 1305.01, et seq. The DEA Form 222's issued to practitioners, such as respondent, are sequentially numbered, and each form consists of three copies. The practitioner in ordering controlled substances with the form, fills in the name and address of the supplier from who he is ordering, the number of packages and size of the package ordered, the name of the item, and signs the form. Pursuant to 21 CFR 1305.09(a), the practitioner, as the purchaser, "shall submit Copy 1 and Copy 2 of the order form to the supplier, and retain Copy 3 in his own files." The supplier, pursuant to 21 CFR 1305.09(d), retains "Copy 1 of the order form for his own files and forward[s] Copy 2 to the Special Agent in Charge of the Drug Enforcement Administration in the area in which the supplier is located." The practitioner, pursuant to 21 CFR 1305.13(a), is required to "retain Copy 3 of each order form which has been filled . . . [as well as] . . . all copies of each . . . defective order form . . . ." for a period of two years. The DEA Form 222's produced by the respondent, which total four in number, were not issued in sequential order; Order Form number 861093790 was not retained by respondent; the copy of Order Form number 861093789, retained by respondent, was the Supplier's Copy 1, as opposed to the Purchaser's Copy 3; none of the forms reflect the number of packages received or the date received by respondent; and the forms retained by respondent do not, as discussed infra, account for all controlled substances found in his office. Regarding the missing Order Form number 861093790, respondent averred at hearing that, because he made an error in filling out the form, he destroyed it. Regarding the investigator's concerns regarding expired pharmaceuticals located on respondent's premises, the proof demonstrates that at the time of the July 19, 1990, inspection of respondent's office, the investigators observed a "[l]arge amount of medications over the counter, such as Tylenol, nasal sprays, birth control, antibiotics, muscle relaxants, pain medication covering 21 open shelves about four feet wide each and shelves inside cupboards between five and ten feet. Approximately 40 percent of these medications were expired" [Tr. p. 154]. As to the quantitative amount of expired medications, petitioner's investigator estimated it to be in excess of one hundred medications [Tr. p. 185]. The investigators did not, however, inventory all the medications and the record fails to persuasively demonstrate which of the medications listed on the shelves, if any, carried an expiration date at least four months old. There were, however, expired medications, with an expiration date at least four months old located in the refrigerator, along with current medications, including: Acidophilus culture (expiration date 1986) and Small pox vacine (expiration date May 1978). The expired medications were not, however, shown to be co-mingled with similar medications and the location (the refrigerator) was not shown to be within the "prescription department," as that term is commonly known. Respondent concedes that there were several boxes of expired medications, approximately 80 to 90 pounds worth, at the time of the July 19, 1990, inspection, and certainly some of them carried an expiration date over four months old. Respondent denies, however, that any drugs with an expiration date of over four months were co-mingled with current medications destined for dispensing to patients in Florida and, but for the two items located in the refrigerator, there is no competent or persuasive proof to the contrary. At hearing, respondent offered proof, which is credited, regarding his rational for possession of such large quantities of expired medications. According to respondent, in addition to being licensed to practice medicine in the State of Florida, he is also licensed as a surgeon under the Health Practitioners Law of 1974 in the Cayman Islands, and collects expired medications and samples from other physicians and drug reps which he transports to the Cayman Islands for dispensation or donation to the local hospital or clinic. Use of such medications is apparently permissible under the laws of the Cayman Islands, and it was not suggested or demonstrated in this proceeding to be contrary to the laws of the United States or the State of Florida. Respondent has not, however, been charged or shown to have ever dispensed any expired medications during the course of his practice in Miami, Florida. Finally, regarding the observations of the investigators regarding the storage of controlled substances in an unlocked double door refrigerator, the proof is conflicting. The investigators averred that when they inspected the premises on July 19, 1990, the refrigerator was not locked and that respondent, upon questioning, advised it was never locked. Respondent averred that no such question was posed to him and that had it been he would have advised the investigators that it was his practice to lock the refrigerator with a large combination lock, similar to those used on bicycles, through the double handles on the front of the refrigerator when he was absent from the office or when the office was closed. Moreover, after hours, the operating suite, where the refrigerator is located is locked and the office is locked. Here, the conflict in the proof is resolved to accord deference to respondent's testimony. During the reinspection of October 29, 1990, most of respondent's expired medications were segregated from current medications within the open shelving or boxed. The majority of such expired medications were expectorant, antihistamine and similar medications. There is, however, no competent or persuasive proof as to which, if any, of the medications bore an expiration date of over four months, except for Haldol (expiration date 1981), and as to the Haldol there was no competent or persuasive proof that it was co-mingled with current medications. As with the expired medications observed on the first inspection, respondent averred that the expired medications, as well as others that were not expired, were acquired from other physicians and drug reps for use in the Cayman Islands, and that he did not dispense expired medications to his patients in Miami, Florida. Respondent's testimony is credited. As with the first inspection, the reinspection of October 29, 1990, revealed deficiencies in respondent's record keeping with respect to controlled substances. Respondent still did not have a record of controlled substances received that showed the date of receipt, name and address of the person from whom received, and the kind and quantity of controlled substances received, except to the extent respondent's preexistent DEA Form 222's, heretofore discussed, could be construed to satisfy such requirements. There was, however, no proof that respondent had received any additional controlled substances since the initial inspection. Moreover, while respondent now had a record or log to reflect the controlled substances he sold, administered, dispensed or otherwise deposed of, it had but one entry and that entry was limited to the patient's name, the date dispensed, and an itemization of the medications and the quantities dispensed. During the reinspection of May 3, 1991, petitioner's investigator located only a few medications, approximately six or seven, that were expired. The nature of such medications was not disclosed of record, and whether such medications bore an expiration date at least four months old was not disclosed of record. Respondent was also found to be in possession of pharmacy dispensed medications prescribed to other people. The investigator did not know the nature of such medications but was advised by respondent that it was "expensive" AIDS medication that had been prescribed for his AIDS patients, who had died. It was respondent's intention, which is accepted, to use such medications in the Cayman Islands, and not to distribute such medications to his patients in Miami, Florida. As with the first inspection and the reinspection of October 29, 1990, the reinspection of May 3, 1991, again revealed deficiencies in respondent's record keeping with respect to controlled substances. Respondent had still not compiled a record of controlled substances received that showed the date of receipt, name and address of the person from whom received, and the kind and quantity of controlled substances, except to the extent respondent's preexistent DEA Form 222's, heretofore discussed, could be construed to satisfy such requirement. There was, however, no proof that respondent had received any additional controlled substances since the initial inspection. While respondent's record of controlled substances received was deficient, he had inventoried the controlled substances he purportedly had on hand as of October 30, 1990, and entered such information in the log he maintained to reflect controlled substances sold, administered, dispensed or otherwise disposed of. Neither such inventory nor respondent's DEA Form 222's account, however, for the controlled substance Dilaudid then in his possession, and dispensed subsequent to October 30, 1990, according to his log. As to the log itself, it continued to only reflect the patient's name, the date dispensed, and type and quantity of drug dispensed.
Recommendation Based on the foregoing findings of fact and conclusions of law it is Recommended that a final order be rendered consistent with the foregoing findings and conclusions, and that for those violations for which respondent has been found guilty, that respondent's license to practice medicine be reprimanded, that a fine in the amount of $5,000 be assessed, and that respondent's license to practice medicine be placed on probation for a period of two (2) years subject to such terms and conditions as the Board of Medicine might reasonably prescribe, including continuing medical education courses in record keeping with regard to controlled substances. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of September 1993. WILLIAM J. KENDRICK 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 28th day of September 1993.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following Findings of Fact: The Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME 0031545. The Respondent practices in south Florida as a cardiologist. The Respondent treated patient William Dean from 1979 through 1982. William Dean died of heart failure on August 30, 1982. Following Mr. Dean's death, his wife, Elizabeth Dean, obtained from Respondent copies of Dean's medical records. On July 2, 1983, Elizabeth Dean filed a complaint by letter with the Department of Professional Regulation against the Respondent. As a result of Mrs. Dean's complaint, the Petitioner began an investigation of the Respondent and notified Respondent of same. In addition, Mrs. Dean sued the Respondent for malpractice. During the investigation by Petitioner, copies of Mr. Dean's records were obtained from the Respondent. When the records obtained by Petitioner were compared with the earlier records obtained by Mrs. Dean, it was discovered that Respondent had made at least two additions to them. After being notified of the complaint and investigation, the Respondent added entries to the progress notes on Mr. Dean for November 12, 1981 and May 15, 1982. Among other things, the additions to the progress notes indicated that Respondent had advised Mr. Dean to take a stress test and angiogram and that Dean had refused. The Respondent dictated Mr. Dean's patient Expiration Summary, which appears in the hospital's patient charts, on October 17, 1983, fourteen months' after Mr. Dean's death. Humana Hospital Cypress, where Mr. Dean died, requires that physicians prepare patient expiration summaries within thirty (30) days after the patient's death.
