The Issue Whether Respondent violated Subsections 458.331(1)(g), 458.331(1)(x), and 455.667(4) Florida Statutes, and Rule 64B8- 10.002(4), Florida Administrative Code, and, if so, what discipline should be imposed.
Findings Of Fact Dr. Linda M. Boczar is and has been at all times material to this proceeding a licensed physician in the state of Florida, having been issued license number ME 0041564. In 1983, Dr. Boczar began practicing medicine in Sarasota, Florida. Due to her own illness and the illness of her husband, Dr. Boczar closed her medical practice in Sarasota in April 1999. In mid-March, 1999, she began to inform some of her patients that she was closing her practice. After closing her practice, she spent a short time in Indiana and then went to work for a physician in Moultrie, Georgia, doing office work until her Georgia medical license was granted. She remained in Georgia from May to December 1999. Dr. Boczar was unaware of the rules promulgated by the Department, which govern the retention and disposition of patient records when a physician is closing her practice. She was aware that the American Medical Association did provide guidelines for dealing with patient records when closing a practice. When Dr. Boczar closed her practice, she hired her former receptionist to continue to answer the telephone and respond to patients' requests for records. During April, May and part of June 1999, the receptionist was supposed to be spending 20 to 30 hours per week with these duties. It came to Dr. Boczar's attention that the receptionist was not performing her duties, and Dr. Boczar fired her. Dr. Boczar took the patient records to Georgia. Beginning in August 1999, Dr. Boczar hired her son to respond to patients' requests for records. In October 1999, her son discovered that approximately 20 to 30 requests for patient records were in the bottom of a box of files. Dr. Boczar did not know whether the receptionist had responded to these requests. Dr. Boczar sent a letter to each of the patients whose requests were discovered in October, advising them that the requests had been recently discovered. Each patient was requested to advise whether she had received a copy of her record and, if not, whether she wanted a copy for a $20 fee for copying and postage. The patients were advised that they would receive their records within seven to ten days. Dr. Boczar had a notice published in the Sarasota Herald-Tribune on October 25, 1999, which stated: Patients of Dr. Linda Morrison-Boczar can continue to receive their medical records by sending a WRITTEN REQUEST to the office address of 1215 East Avenue, Suite 303, Sarasota, Fl 34239 with a fee of $20.00 for retrieving, copying, and mailing the records. In January, 2000, Dr. Boczar moved to Indiana, where she is currently practicing. In mid-summer of 1999, J.D., a patient of Dr. Boczar, called Dr. Boczar's office to schedule an appointment for her annual examination. When J.D. called, she reached a recording which advised that Dr. Boczar had retired due to ill health and that patients desiring their medical records should write to a post office box in Sarasota and request their records. The recording did not indicate that the patients should include a payment for the costs of copying and mailing the records. On July 9, 1999, J.D. wrote to Dr. Boczar at the address given in the telephone recording and requested her medical records. She stated that she needed the records by August 8, 1999, which was the date of her appointment with another physician. By September, J.D. had not received her records. She tried to contact Dr. Boczar's office and reached a recording, which stated that the telephone had been disconnected. On October 19, 1999, J.D. filed a complaint with the Agency for Health Care Administration (AHCA), complaining that she had not received her medical records from Dr. Boczar. Sometime after she filed her complaint, J.D. received a form letter with Dr. Boczar's letterhead, explaining that because an employee of Dr. Boczar had failed to perform her job, there may not have been a response to some of the requests for medical records. J.D. was told that her request had been found in a box of files. She was advised to send $20 to Dr. Boczar's old office address in Sarasota if she wanted her medical records. The letter was unsigned. By letter dated November 19, 1999, J.D. wrote to the address given on the form letter and stated that she was not going to send $20 to "a post office box, an empty office on East Avenue, nor an anonymous person who does not sign their letters or provide a phone number for verification." She asked that a copy of her medical records be sent to her new physician. J.D. never received her medical records from Dr. Boczar. L.B. became Dr. Boczar's patient in February 1999, when Dr. Boczar performed a gynecological exam on L.B. and prescribed Prempro, a combination of estrogen and progesterone. Dr. Boczar explained that taking estrogen without progesterone could raise the possibility of uterine cancer. L.B. was not happy taking Prempro because she experienced pregnancy-like symptoms while taking the drug. In June or July 1999, L.B. attempted to contact Dr. Boczar by telephone for a follow-up examination, but reached a recording which advised her that Dr. Boczar had terminated her practice because of illness and instructed her to send a written request for her medical records. L.B. sent a letter requesting her medical records from Dr. Boczar. Between July 1999 and September 6, 1999, L.B. also went by Dr. Boczar's office to get her records, but the office was not open. There was no sign on the door indicating the office was closed and no sign advising patients on how to obtain their medical records. L. B. still had received no response from Dr. Boczar. On September 6, 1999, L.B. filed a complaint with AHCA concerning Dr. Boczar. On October 18, 1999, Dr. Boczar sent a letter to AHCA with a copy to L.B., requesting that L.B. send $13.55 for her medical records. L.B. refused to pay the $13.55 and never received her records. S.W. had been treated by Dr. Boczar in 1995 and returned for an annual examination on January 28, 1999. Shortly after the appointment, S.W. was contacted by Dr. Boczar's office and told that she had severe dysplasia. She returned for treatment on February 22, 1999, and again on March 9, 1999. After her treatment on March 9, 1999, she experienced severe bleeding and called Dr. Boczar's nurse, who advised S.W. that the bleeding was normal and to return for a follow-up visit in three months. S.W. had an appointment for a follow-up visit on June 10, 1999. When S.W. went to Dr. Boczar's office for the appointment, she discovered that the office was closed. There was no sign on the door or anywhere on the office's exterior indicating how Dr. Boczar could be contacted. S.W. called the office and reached a recording that stated that Dr. Boczar had closed her practice due to illness and that patients could obtain their medical records by sending a written request. On June 10, 1999, S.W. sent a written request for her medical records. The telephone recording did not state that she had to send money to get the records; thus, she did not include any money with her request. If she had been told that she needed to send money in order to obtain the records, she would have sent the money with the request. In her request, S.W. advised that she urgently needed to have the records because she was going to see another doctor for a follow-up on the treatment given by Dr. Boczar in March 1999. After receiving no response from Dr. Boczar, S.W. filed a complaint with AHCA on September 24, 1999. On December 22, 1999, S.W. received a letter from Dr. Boczar stating that S.W. needed to send $29.55 in order to receive her medical records. S.W. was advised that there were 44 pages of records. S.W. sent money for the records in December 1999. In September 2000, S.W. received 24 pages of her medical records from Dr. Boczar. On December 6, 1999, L.W.B. attempted to contact Dr. Boczar for an annual examination. When she telephoned Dr. Boczar's office, she reached a recording that the telephone had been disconnected. L.W.B. contacted the two local hospitals and the Sarasota Medical Society but was unsuccessful in learning how she could contact Dr. Boczar. On January 2, 2000, L.W.B. signed a complaint with AHCA concerning Dr. Boczar. Up to that time, L.W.B. had not received any word from Dr. Boczar about the closing of the medical practice or a method for obtaining medical records. She provided a medical release to AHCA and a medical release to her physician for the purpose of obtaining her records. She does not know if her doctor requested the records from Dr. Boczar. At some point, Dr. Boczar did receive a written request for L.W.B.'s medical records. Dr. Boczar sent the records to L.W.B. in September 2000 and did not charge L.W.B. a fee for copying the records because L.W.B. had been a long- time patient. L.W.B. received no request from Dr. Boczar for payment for the records. Prior to her deposition being taken on June 8, 2001, Dr. Boczar called L.W.B. and told L.W.B. that she was calling from AHCA and that L.W.B. should call Kelly Reynolds, an investigator with AHCA, and tell him that she had received her records and whether she had paid for them. On September 27, 2000, L.W.B. sent a letter to AHCA stating that she had received her records and was going to drop the complaint. On April 9, 2000, Dr. Boczar notified the Department that her new address was Post Office Box 35, Moultrie, Georgia. Prior to this address change, Dr. Boczar had advised the Department that her address was 1215 East Avenue, Suite 303, Sarasota, Florida. Dr. Boczar failed to notify the Department within 30 days of closing her office. By letter dated May 23, 2001, the Agency for Health Care Administration advised Dr. Boczar as follows: Please be advised that the Probable Cause Panel for the Board of Medicine met on May 11, 2001, to consider the complaint which had been filed against you in the above-referenced case [Case No. 2000- 08415]. After careful consideration of the complaint and the investigative report, the Panel dismissed the case. However, the Panel directed the issuance of this Letter of Guidance. The panel requested that you be advised of the following provision of the Practice Act, contained in Chapter 458, Florida Statutes: Section 458.331(1)(x) Violating any provision of this chapter, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department. The panel directed that the Letter of Guidance be issued because you relocated your practice without complying with the notice requirements in Rule 64B8-10.002(4), Florida Administrative Code. Please be advised that a Letter of Guidance is not considered to be disciplinary action; instead, it is an alternative to disciplinary action provided for by the legislature. Furthermore, this Letter of Guidance is not considered to be a finding of guilt. The Probable Cause Panel is only empowered to make a finding of probable cause. Due to the Probable Cause Panel's decision to dismiss this case without a finding of probable cause, this case remains confidential. At the final hearing, Dr. Boczar waived confidentiality relating to Case No. 2000-08415. No evidence was presented concerning the factual basis for Case No. 2000- 08415 other than as set forth in the Letter of Guidance dated May 23, 2001. A partial transcript of the meeting of the Probable Cause Panel of the Florida Board of Medicine on May 11, 2001, was entered into evidence as Petitioner's Exhibit The transcript indicated that no Tab C-20 was considered by the panel; however, no evidence was presented that Tab C-20 involved a complaint against Dr. Boczar or related to the Letter of Guidance dated May 23, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered, finding that Dr. Linda M. Boczar violated Rule 64B8-10.002(4), Florida Administrative Code, and, thus, Subsection 458.331(1)(x), Florida Statutes (1999); finding that Dr. Linda M Boczar violated Subsection 455.667(4), Florida Statutes (1999); and, thus, Subsection 458.331(1)(g), Florida Statutes (1999); issuing a public reprimand; imposing an administrative fine of $250, and assessing costs of investigation and prosecution. DONE AND ENTERED this 6th day of February, 2002, in Tallahassee, Leon County, Florida. ___________________________________ SUSAN B. KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2002. COPIES FURNISHED: John E. Terrell, Esquire Shirley J. Whitsitt, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 James Boczar, Esquire Linda M. Boczar, M.D. Post Office Box 490 Knox, Indiana 46534-0490 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency issued the attached Administrative Complaint to the Respondent. (Ex. 1) The Respondent filed a Petition for Hearing and the case was referred to the Division of Administrative Hearings. During the proceedings, the Agency filed a Motion to Relinquish Jurisdiction. (Ex. 2) In addition, the Administrative Law Judge issued an Order to Show Cause on the Respondent. (Ex. 3) The Respondent failed to respond to the Motion to Relinquish Jurisdiction and failed to respond to the Order to Show Cause. Thus, the Administrative Law Judge entered an Order on the Motion to Relinquish stating that the Agency was authorized to enter a Final Order against the Respondent. (Ex. 4) Based upon the foregoing, it is ORDERED: 2. The Agency’s Administrative Complaint is UPHELD and the above-named Respondent’s license is REVOKED. 3. In accordance with Florida law, the Respondent is responsible for retaining and appropriately distributing all client records within the timeframes prescribed in the authorizing statutes and applicable administrative code provisions. The Respondent is advised of Section 408.810, Florida Statutes. 4. In accordance with Florida law, the Respondent is responsible for any refunds that may have to be made to the clients. 5. The Respondent is given notice of Florida law regarding unlicensed activity. The Respondent is advised of Section 408.804 and Section 408.812, Florida Statutes. The Respondent should also consult the applicable authorizing statutes and administrative code provisions. The Respondent 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 1 Filed April 4, 2012 1:32 PM Division of Administrative Hearings private contracts. 6. The Respondent shall pay the Agency $12,183.00. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number 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 I? - ORDERED at Tallahassee, Florida, on this “+ day of Apt , 2012. Bad _— Elizabeth Dudek, “A Agency for Health Carc\ad inistration
Other Judicial Opinions A patty 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 1 CERTIFY that a true and correct copy of this Final Order was served on the below-named persons by the method designated on this lay of FO0« / , 2012. 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 Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Shaddrick Haston, Unit Manager Licensure Unit Agency for Health Care Administration (Electronic Mail) | Finance & Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Arlene Mayo-Davis, Field Office Manager Local Field Office Agency for Health Care Administration (Electronic Mail) Katrina Derico-Harris Medicaid Accounts Receivable Agency for Health Care Administration Tria Lawton—Russell, Senior Attorney Office of the General Counsel Agency for Health Care Administration (Electronic Mail) (Electronic Mail) Shawn McCauley Felicia Dawson Medicaid Contract Management Rapha Manor, Inc. Agency for Health Care Administration 4555 41st Avenue (Electronic Mail) Vero Beach, Florida 32967 (U.S. Mail) Jessica E. Varn Felicia Dawson Administrative Law Judge Division of Administrative Hearings (Electronic Mail) 10090 Mill Run Circle, Apt. 325 Owings Mills, Maryland 21117-4270 (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 The issue for determination at formal hearings was whether Respondent committed the offenses set forth in the amended administrative complaint, and, if so, what action should be taken.
Findings Of Fact The Agency for Health Care Administration (AHCA) is the state agency charged with regulating the practice of medicine pursuant to Sections 20.165 and 20.42, Florida Statutes, and Chapters 455 and 458, Florida Statutes. At all times material hereto, Alejandro Jose Vilasuso (VILASUSO) has been a physician licensed in the State of Florida, having been issued license number ME 0042999. At all times material hereto, VILASUSO's primary practice was located at 4995 S.W. 82nd Street, Miami, Florida. This address was filed with the Board of Medicine and for the past five years was a part of its records. Also, at all times material hereto, VILASUSO had a satellite office located at 2245 S.W. 27th Street, Miami, Florida. On or about March 11, 1993, Patient J. K. presented to VILASUSO at his satellite office for hypertension. From March through June 1993, she had monthly appointments with him at the satellite office. Patient J. K.'s former husband, Patient C. M., was having a prostate problem. Patient J. K. recommended that he consult with VILASUSO regarding his prostate problem. On or about June 28, 1993, Patient C. M. presented to VILASUSO, at his satellite office, regarding the prostate problem. Patient J. K. accompanied Patient C. M. to VILASUSO's office. Patient C. M.'s blood was drawn for lab tests. He was also provided with a two-week prescription for medication and scheduled for a follow-up appointment on July 8, 1993, at which time VILASUSO would discuss the lab results and his recommendations. Patient C. M. informed Patient J. K. that he had had blood drawn for lab tests, regarding his prostate problem, and that he was returning on July 8, 1993, to discuss the test results with VILASUSO and his (VILASUSO's) recommendations. VILASUSO and his landlord at the satellite office had been having an ongoing rent dispute, concerning an increase in VILASUSO's rent. VILASUSO had refused to sign a long-term lease agreement and, as a result, was on a month-to- month lease. Hoping to force a settlement of the dispute, VILASUSO withheld his rent for June 1993. However, in the last week of June, approximately two days before July 1, 1993, the landlord reacted by threatening to lock VILASUSO out of his office. It was clear to VILASUSO that the dispute could not be resolved and that he had to move on or before July 1, 1993. On or about July 1, 1993, VILASUSO relocated his satellite office. However, he saw all patients scheduled for that day before relocating. He moved about five blocks away. Before leaving his office that day, VILASUSO indicated his new address on a piece of cardboard and posted it on the outside of the office. Telephone service for the satellite office was discontinued between June 28, 1993, and July 8, 1993. Attempting to directly notify his patients of his relocation immediately after the move, VILASUSO directed his office staff to notify all patients by telephone who had an appointment within the following two weeks or who were very ill of the relocation and/or to reschedule their appointments. All other patients were notified of his new location by letter. Patient C. M. had an upcoming appointment within the two-week period. However, for some unknown reason, he was not contacted and VILASUSO did not discover this mistake until sometime after Patient's C. M.'s scheduled appointment on July 8, 1993. On or about July 6, 1993, Patient J. K. went to VILASUSO's former satellite office and found it deserted. She contacted Patient C. M. and told him what she had discovered. On July 8, 1993, Patient C. M. was unable to keep his scheduled follow-up appointment because he was unaware of VILASUSO's new location. On or about July 15, 1993, Patient J. K. discovered the location of VILASUSO's new satellite office and informed Patient C. M. On that same day, Patient J. K. went to VILASUSO's new office and requested a copy of Patient C. M.'s medical records. Believing that Patient J. K. was Patient C. M.'s confidant and that she was requesting the medical records on behalf of Patient C. M., VILASUSO released the records to her. VILASUSO released a copy of Patient C .M.'s records to Patient J. K. without written authorization from Patient C. M. Patient J. K. was neither Patient C. M.'s legal representative nor his other health care provider. On or about July 15, 1993, Patient J. K. notified Patient C. M. by telephone that she had obtained a copy of his medical records and was mailing the copy to him. Patient J. K. mailed the records, and Patient C. M. received them. On June 29, 1993, VILASUSO had only received Patient C. M.'s partial lab results, so the medical file contained only the partial lab results. On July 20, 1993, VILASUSO received the remainder of the lab results, which were normal, and mailed them to Patient C. M. At all times material hereto, VILASUSO did not place an advertisement in the newspaper notifying his patients of the effective date of his relocation and an address at which patients could obtain their records.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order: Dismissing Count One of the Amended Administrative Complaint. Finding a violation of Section 458.331(1)(g), Florida Statutes, as stated in Count Two of the Amended Administrative Complaint. Imposing a reprimand and an administrative fine of $1,500. Imposing a requirement of reading Chapters 455 and 458, Florida Statutes, and submitting an affidavit attesting to such fact. Imposing Continuing Education requirements concerning confidentiality of patient records under terms and conditions determined to be appropriate by the Board of Medicine. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of March 1995. ERROL H. POWELL 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 23rd day of March 1995
Findings Of Fact Stipulated facts The Respondent, Raul A. Tamayo, M.D., is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0051659. At all times material hereto, the Respondent worked on a part-time basis, solely as an employee, at Westchester Clinic. The Respondent was neither an owner nor a principal of Westchester Clinic, nor was he an employer of Simon Hajje. The Respondent has had no prior discipline against his license to practice medicine in the State of Florida. Facts proved at hearing From early April of 1990 until November 16 of 1990, Dr. Simon Hajje also worked as an employee of the Westchester Clinic. During the time he worked for the Westchester Clinic, Dr. Simon Hajje was not licensed as a medical doctor in the State of Florida. During the time he worked for the Westchester Clinic, Dr. Simon Hajje's job title was "medical assistant." During the period that Dr. Hajje and the Respondent were employed at the Westchester Clinic, there were also numerous other physicians who worked there on a part-time basis on many different work schedules. On November 15, 1990, a Department investigator named Ms. Georgina Jorge went to the Westchester Clinic where, using the assumed name of Megalyn Guzman, she pretended to be a patient in need of medical attention. On that day Ms. Jorge was taken to an examination room where she met Dr. Simon Hajje. Thereupon, Dr. Hajje, acting as if he were a licensed medical doctor, took a medical history from Ms. Jorge, examined Ms. Jorge, and then wrote two prescription forms which he ultimately gave to Ms. Jorge. As she was leaving the clinic, Ms. Jorge asked the receptionist for the name of the doctor and she was given a card on which the name "Dr. Hajje-Tamayo" was written. On the following day, November 16, 1990, Ms. Jorge returned to the Westchester Clinic, again using the assumed name of Megalyn Guzman, and asked to see "Dr. Hajje-Tamayo." Ms. Jorge again saw Dr. Simon Hajje, whereupon she told him that she had lost one of the prescriptions. Dr. Simon Hajje thereupon wrote and delivered to Ms. Jorge another prescription to replace the allegedly lost prescription from the previous day. The prescription forms given to Ms. Jorge on November 15 and 16, 1990, were on prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top. Those prescription forms also had a manuscript signature at the bottom that appeared to read "R. Tamayo, M.D." With regard to the two prescription forms given to her on November 15, 1990, Ms. Jorge observed that the prescription forms were signed before Dr. Simon Hajje started filling them out. She was unable to make such an observation regarding the prescription form given to her on November 16, 1990. On November 16, 1990, Ms. Jorge also retrieved six other presigned blank prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top and had the manuscript signature of the Respondent at the bottom. None of the medications on the prescription forms given to Ms. Jorge by Dr. Simon Hajje were controlled substances. Dr. Hajje found the presigned prescription forms described above on a desk in one of the examination rooms at the Westchester Clinic. The Respondent never gave Dr. Hajje permission to take any of the presigned prescription forms and give them to Ms. Georgina Jorge. Dr. Hajje never told the Respondent that he was going to write prescriptions on the presigned forms and give them to Georgina Jorge. Dr. Hajje never told the Respondent that he was going to take the presigned prescription forms and write prescriptions for any patient. Dr. Hajje never said anything to the Respondent and never did anything that would cause the Respondent to expect that Dr. Hajje would write prescriptions on the presigned forms and give the prescription forms to Georgina Jorge. On November 19, 1990, Ms. Jorge interviewed the Respondent at the Respondent's private practice office located at 9473 West Flagler, Miami, Florida. Ms. Jorge had never seen the Respondent prior to the November 19, 1990, interview, nor had she spoken to him prior to the interview. During the course of the interview on November 19, 1990, Ms. Jorge showed the Respondent the prescription forms Dr. Hajje had issued to her and also showed him the other presigned blank prescription forms she had retrieved from the Westchester Clinic. Upon being told what had happened, the Respondent became very emotional and stated that he did not realize that Dr. Hajje had issued any prescriptions. The Respondent was very shocked and very surprised that Dr. Hajje had issued the prescriptions in question. The Respondent denied any knowledge of Dr. Hajje's actions in this regard and explained to Ms. Jorge that he might have left some presigned prescription forms behind at the Westchester Clinic because, as a matter of convenience and efficiency, he sometimes presigned blank prescription forms in order to save time while with his patients. In the course of this explanation, the Respondent showed Ms. Jorge a prescription pad he had in his possession that had two blank prescription forms that had been presigned by the Respondent. The presigned prescription forms the Respondent showed to Ms. Jorge on November 19, 1990, were different from the ones she saw on November 15 and 16, 1990, at the Westchester Clinic, because the ones on November 19 had printed at the top the Respondent's name and the addresses of the Respondent's private offices. On November 19, 1990, when Ms. Jorge showed the Respondent the prescription forms she had received from Dr. Hajje and the six blank presigned prescription forms she had retrieved on November 16, 1990, the Respondent examined those prescription forms and acknowledged that the signatures on all of those prescription forms appeared to be his signature. Prior to the interview on November 19, 1990, the Respondent did not realize that the act of presigning blank prescription forms was (and still is) prohibited by statute. The Respondent studied medicine in Havana, Cuba, in the early 1970's and also practiced in Cuba before coming to this country. Due to the heavy case loads that are common for physicians practicing in Cuba, it was common for such physicians to develop the habit of presigning documents such as prescription forms and having a physician's assistant fill out the prescriptions pursuant to instructions from the physician. Dr. Simon Hajje's activities on November 15 and 16, 1990, described above, led to his arrest on charges of engaging in the unlicensed practice of medicine. Those activities were also made known to the Board of Medicine when Dr. Hajje applied for a license to practice medicine in the State of Florida. Nevertheless, Dr. Hajje was licensed in due course and continues to be licensed to practice medicine in the State of Florida. The Respondent is well respected, both personally and professionally, by physicians in the medical community in which he practices. Physicians who know him well regard the Respondent as an honest and honorable individual who is an excellent and dedicated physician.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect: Dismissing the violations charged in Counts Two and Three of the Administrative Complaint on the grounds that the evidence is insufficient to prove the violations charged in those two counts; Concluding that the Respondent is guilty of having, on at least one occasion, violated Section 458.331(1)(aa), Florida Statutes (1990), as charged in Count One of the Administrative Complaint; and Imposing an administrative penalty consisting solely of a written reprimand. DONE AND ENTERED this 15th day of December, 1993, 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1993. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 7: Accepted in substance, with a number of details corrected or clarified to conform to the evidence. Paragraph 8: Rejected as not supported by persuasive competent substantial evidence. (There is evidence that the Respondent presigned "some" prescription forms, but there is no clear evidence that he did so on "numerous occasions" and there is no clear evidence that he was doing so throughout a two-year period from November 1988 to November 1990.) Paragraph 9: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent intended for anyone other than himself to issue the prescription forms he presigned.) Paragraph 10: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent authorized Dr. Simon Hajje to issue prescriptions, that he delegated the issuance of prescriptions to Dr. Hajje, or that he even knew Dr. Hajje was issuing prescriptions.) Findings submitted by Respondent: Paragraph 1: Accepted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary historical or background details. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21: Accepted in substance, with a number of details corrected or clarified to conform to the evidence. Paragraph 22: Rejected as subordinate and unnecessary details. Paragraph 23: First sentence accepted in substance to the effect that the Respondent was very surprised and in a state of shock when he learned that Dr. Simon Hajje had issued prescriptions presigned by the Respondent. The remainder of this paragraph is rejected as consisting of subordinate and unnecessary details and legal arguments. Paragraph 24: Accepted in substance. Paragraph 25: Accepted in substance, but with a large number of unnecessary details omitted. Paragraph 26: Rejected as constituting legal argument rather than proposed findings of fact. Paragraphs 27, 28, and 29: Accepted in substance. Paragraph 30: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 31: Accepted in substance. Paragraph 32: Accepted in substance, with exception of last sentence. Last sentence is rejected as legal argument. Paragraphs 33, 34, 35, and 36: Rejected as consisting of a combination of subordinate and unnecessary details and arguments about the sufficiency of the evidence. Paragraphs 37, 38, 39, 40, 41, 42, 43, and 44: Accepted in substance, with a number of details corrected or clarified to conform to the evidence, and with other details simplified to the bare essentials. COPIES FURNISHED: Francesca Plendl, Esquire Senior Attorney Department of Business and Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Steven R. Ballinger, Esquire, and Morton J. Morris, Esquire 2500 Hollywood Boulevard Suite 212 Hollywood, Florida 33020 Dorothy Faircloth, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against her, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician, having been issued license number ME 0020714 by the State of Florida. By Final Order entered September 5, 1986, the Board of Medical Examiners, now known as the Board of Medicine, revoked the license to practice medicine of Celestino De La Heria Ledesma (hereinafter "De La Heria"). The revocation of De La Heria's license was predicated, in part, on findings that De La Heria was not competent to perform plastic surgery. Specifically, the Board's Final Order reflects that De La Heria treated a patient with "cupped" ears by suturing that patient's ears to the patient's head. At all times material hereto, Respondent practiced medicine at her office located at 1995 East Fourth Avenue, Hialeah, Florida. Respondent purchased the building in 1982. Respondent had her office, consisting of two examining rooms, an office and a bathroom, on one side of the building. At the front entrance to Respondent's office, was a waiting room for patients. Until about 1987, Respondent lived in the other half of the building that housed her office. That portion of the building consisted of three rooms of moderate size, an office, and two bathrooms. There was an additional exterior door, which opened onto Fourth Avenue, in what was initially the residential side of Respondent's office building. Respondent has known De La Heria since about 1951, when they met as students at the University of Havana, in Cuba. Respondent was subsequently the physician for De La Heria's former wife and his daughters. Additionally, De La Heria's family had visited Respondent in her home. Prior to October 1, 1987, Dr. Carlos Garrido, a practicing physician in the Miami area, De La Heria, and a mutual friend of theirs, approached Respondent to discuss renting from her the space in which she lived in order to open a plastic surgery clinic. One meeting occurred among those four individuals. No formal arrangement resulted from that meeting. Subsequent to that meeting, Respondent and De La Heria had discussions about De La Heria renting the space from Respondent to open a plastic surgery clinic. Respondent knew that De La Heria either was having problems with his medical license or no longer had a license to practice medicine. She told De La Heria that he would have to obtain someone's medical license in order to operate the plastic surgery clinic and in order to lease space for a medical office from her. De La Heria produced a copy of the medical license of Dr. Garrido. Respondent moved out of the space in which she was living. On October 1, 1987, Respondent entered into a business lease agreement, not with De La Heria and not with Garrido but with De La Heria's son, in which Respondent leased the space in which she had previously resided to De La Heria's son for the sum of $600 per month. The premises being leased were to be used to establish a plastic surgery clinic, although the lease itself referred to the premises being used as a medical clinic. No evidence was offered to show that De La Heria's son was a licensed physician. De La Heria was not a party to the lease agreement, and Garrido was not a party to the lease agreement. Although Garrido never practiced medicine at that location, an occupational license for the leased premises was obtained in Garrido's name, the electrical service was established in Garrido's name, and telephone service was obtained in De La Heria's name. The copy of Garrido's medical license was hung in De La Heria's office, and a sign was placed on De La Heria's desk indicating that he was a doctor. Only Respondent's name appeared on the outside of the building. After October 1, 1987, De La Heria began to practice medicine in the portion of the premises leased to De La Heria's son by Respondent. Respondent knew that De La Heria was practicing medicine although Respondent knew at the time that De La Heria was either having problems with his medical licensure or no longer had medical licensure. Respondent specifically questioned De La Heria about his licensure problems when the two passed in the waiting room area that they shared. On a prior occasion, Respondent discussed De La Heria's licensure problems with his ex-wife. On one occasion subsequent to October 1, 1987, Garrido stopped by Respondent's office building to visit and made a comment to Respondent about De La Heria's lack of licensure. By Respondent's own admission, she knew something was not proper when De La Heria had the lease placed in his son's name. After October 1, 1987, Respondent's office hours were Monday, Wednesday, and Friday, from 2:00 p.m. until 7:00 p.m. De La Heria's office was open in the mornings, Monday through Friday. Although Respondent's office hours were in the afternoon, on occasion she would come to the office in the morning. When she did, she would enter through the waiting room which she shared with De La Heria. When she did, she saw patients sitting in the waiting room waiting for De La Heria. On those occasions, when she saw De La Heria in the office, he was wearing surgical scrubs. After October 1, 1987, Orfelina Guerra, Respondent's employee who performed receptionist/secretarial duties for Respondent in the afternoons, requested Respondent's permission to work for De La Heria in the mornings, answering the telephones. Respondent gave her permission. After October 1, 1987, only De La Heria practiced medicine in the leased portion of Respondent's building. Respondent knew that no other physician was practicing medicine in the leased portion of her building. Respondent knew that De La Heria was treating patients in the leased portion of her building. In early 1988, the Department of Professional Regulation was advised that De La Heria was practicing medicine at 1995 East Fourth Avenue, in Hialeah, Florida, while De La Heria's license was in a revoked status. Georgina Jorge, an investigator with the Department assigned to the matter, went to Respondent's office building. On the exterior of the building, she observed Respondent's name along with two telephone numbers. She then attempted to telephone De La Heria at one of those telephone numbers and was advised that he was not available at that particular moment. She next contacted Maria Zerquera, a police officer with the State Attorney's Office, and requested that Officer Zerquera go to De La Heria's office in an "undercover" capacity in order to determine whether De La Heria was practicing medicine without a license. Zerquera telephoned Respondent's office to arrange an appointment with De La Heria. Orfelina Guerra answered the telephone and advised the caller to call back using a different telephone number. When Zerquera did so, Orfelina Guerra answered that telephone and gave Zerquera an appointment to see De La Heria on February 19, 1988, at 10:30 a.m. When Zerquera arrived for her appointment, there were patients waiting in the waiting room. A short time thereafter, De La Heria came into the waiting room, introduced himself to Zerquera as "Dr. De La Heria" and took her into the inner office area. During the course of this appointment, De La Heria represented to Zerquera that he could remove a scar on Zerquera's right eye and could "fix" Zerquera's neck. He offered to do the right eye immediately free of charge and suggested that Zerquera return later to have the work performed on her neck for which he was going to charge "a couple of thousand dollars". Officer Zerquera was taken by De La Heria into an operating room, which appeared to be fully equipped for surgery. In the operating room, Zerquera saw gauze with blood on it from an eye operation De La Heria had just performed on another woman. When Officer Zerquera identified herself to De La Heria, the other investigators waiting outside entered De La Heria's office. While there, they found in De La Heria's office four blank prescriptions which had previously been signed by the Respondent. De La Heria directed Orfelina Guerra to contact Respondent who then came to the office. Respondent admitted that the four prescriptions had been signed by her in blank. She stated that she had left about six or seven presigned blank prescriptions because she was going on vacation and some of her patients might need medication on an emergency basis. Only four of the "six or seven presigned blank prescriptions were found. Only licensed physicians are authorized by law to issue prescriptions. The individual who makes the judgment as to what medication is necessary, based upon seeing the patient and gathering data, is practicing medicine. Even in instances where patients come in with an established diagnosis, medical evaluation is necessary to determine whether the person continues to require the same medication. Each time a prescription is given, a medical judgment is made. Delegating the prescribing activity to unlicensed individuals can result in harm to the patient. The practice of plastic surgery is the practice of medicine. The prescription of plastic surgery for a human deformity is the practice of medicine.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED THAT a Final Order be entered finding Respondent guilty of the allegations contained within the Amended Administrative Complaint filed against her and permanently revoking Respondent's license to practice medicine in the State of Florida. DONE and ENTERED this 22nd day of August, 1989, 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 22nd day of August, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-6469 Petitioner's proposed findings of fact numbered 1-9 and 12-26 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 10 has been rejected as not being supported by the evidence in this cause. Petitioner's proposed finding of fact numbered 11 has been rejected as being unnecessary for resolution of the issues in this cause. Petitioner's proposed finding of fact numbered 27 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel or a conclusion of law. COPIES FURNISHED: Dorothy Faircloth Executive Director, Board of Medicine Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Kenneth D. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Stephanie A. Daniel, Chief Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ana D. Hernandez, M. D. 1995 East 4th Avenue Hialeah, FL 33010
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Board of Medicine, has been the state agency responsible for the licensing of physicians and the regulation of the medical profession in Florida. Respondent was a licensed physician in Florida under license number ME 0039846. On September 23, 1988, Respondent saw Patient #1, a 55 year old female, who presented with a primary complaint of chronic pain in the neck and low back resulting from an automobile accident. The patient history taken by the Respondent revealed a head injury, a back injury and a whiplash injury, all within the previous five years. The patient also had a history of unstable blood pressure, especially in times of stress, and a history of alcohol abuse which had been in remission for the past two years. Respondent examined the patient and found she was suffering from depression but evidenced no suicidal ideations or indications of psychosis. Respondent diagnosed a major depressive reaction and myofacial syndrome of the neck and low back. Dr. Morales treated this patient from September 23, 1988 to February 1, 1990, prescribing various antidepressants and anti-anxiety medications including Limbitrol, Prozac, Valium, Halcion and Tranxene for her. He also prescribed various opiates including Percodan and Percocet. Respondent claims he made a copy of each prescription he wrote for the patient medical records of each patient so that he could keep track of the number of pills he prescribed for that patient. He claims that the quantity of a prescribed medication was kept in a separate area of the patient's chart and not with the clinical notes. Though Respondent claims this procedure was a common office practice and done consistently in every patient's chart, the evidence indicates otherwise. His method of recording medication in the clinical record was inconsistent. At some places in the record he would indicate the exact number of a specific pill prescribed. At other places in the record, he would not. Examples of this practice, as seen from the medical records of Patient #1 available, shows the following entries: October 20, 1988, Rx for Valium for patient #1 but no indication of the amount prescribed is found in the records. March 2, 1989, Rx for Percodan QID (4 times a day), but no indication in records of the amount prescribed. July 8, 1989 Rx for Percodan - 60 tabs. August 2, 1989 Respondent notes to continue with Percoset, but no notation in records as to amount. September 7, 1989 Rx for Percocet but records do not reflect amount prescribed. November 15, 1989 Rx for 60 Percocet. December 6, 1989 Rx for 30 Percocet pills. While Patient #1 was under Respondent's care, she was admitted to the hospital twice. On September 18, 1989 she was admitted to Largo Medical Center for narcotics addiction and was discharged on September 28, 1989. On September 18, 1989, while the patient was in the hospital, Dr. Farullah, a staff physician, called Respondent to discuss the patient with him. This conversation, including the Respondent's name, is itemized in the hospital records for this patient. It is appropriate practice protocol upon the admission of a patient to the hospital for the admitting physician to notify the patient's attending physician about the patient's diagnoses and condition. It would appear this was done here by Dr. Farullah. Nonetheless, Respondent claims he did not know the patient was hospitalized, contending he did not recall the conversation, and noting that the information regarding hospitalization might not have been included in it. Respondent claims he never heard of Dr. Farulla until a subsequent visit from the patient in his office on October 24, 1989. After the patient's discharge from the hospital, she came to Respondent's office for a 30 minute visit on October 4, 1989. Though this visit occurred only 6 days after her discharge from the hospital, Respondent claims the subject of her hospitalization was not discussed. Two days later, on October 6, 1989, the patient returned to Respondent's office for another 30 minute visit and again, the subject of her hospitalization did not come up. This patient was readmitted to the hospital on October 10, 1989 with a diagnosis of, among other things, drug dependency. She was discharged on October 20, 1989, but, again, Respondent claims he did not know of her hospitalization. He saw her on October 24, 1989 for another 30 minute visit during which, he claims, the subject of her hospitalization did not come up. This appears to be a conflict with his previous testimony , noted in Paragraph 8, supra, wherein he stated he never heard of Dr. Farullah until he met with the patient in his office on October 24, 1989. On April 10, 1990, in the course of filing a disability claim with the Department of Health and Rehabilitative Services, (DHRS), the patient signed a medical release form. Thereafter, HRS requested the patient's records from the Respondent, but they were not forthcoming. A second request was transmitted to the Respondent who replied that the records requested had been copied but not dispatched because no release form accompanied the request. Respondent indicated that upon receipt of the release form, the records would be forwarded, and on June 4, 1990, they were, in fact, sent by the Respondent. This was approximately 17 months before the burglary of Respondent's office to be discussed, infra. Respondent claims it was his policy, however, in responding to requests for information to the Social Security Administration, (disability claims are paid by Social Security), to provide only clinical notes, initial evaluation, and a medical summary update. Other records, including prescription records, are not sent. Respondent's office was burglarized on November 30, 1991 by one of his former employees. According to Respondent, all the medical records he had were taken during the break-in. Though they were ultimately returned, he claims they were incomplete when returned. However, comparison done by the Department's investigator, of the medical records of Patient #1 which were sent to HRS before the burglary with those taken from Respondent's office after the burglary, indicated they were the same, except for some duplicates. Nonetheless, Respondent claims that some of the records pertaining to Patient #1, including prescription records, were not recovered. This could explain the absence of prescription records in both sets of records, but that is not found to be the case here, however. According to the Board's expert, Dr. Boorstin, a Board Certified Psychiatrist who specializes in addiction psychiatry and opiastic medicine, the benzodiazepins prescribed for Patient #1 by the Respondent, were inappropriate because of her known alcoholism, and he failed to adequately monitor her for possible addiction or dependence. Even though her condition had been in remission for two years, Dr. Boorstin concluded it was below standard practice to prescribe those drugs to this patient. Dr. Boorstin also concluded that Respondent failed to keep adequate written medical records for this patient and did not justify the less than conservative prescription of anti-anxiety and pain medications to a known alcoholic. A physician must keep track of the drugs being used by a patient to be sure no abuse trends exist. The Respondent should have detailed with exactitude in his records the number of each specific medication. From September 30, 1988 to February 1, 1990, a period of 16 months, he prescribed various opiate-based pain killers to Patient #1, including Tylenol #3, Codeine, Percodan and Percocet. His prescription of the latter two, in Dr. Boorstin's opinion, fell below the appropriate standard of care. The patient's hospital records indicate she was suffering from drug addiction, and if, as the Department claims, Respondent knew of her hospitalizations and the reason therefor, his prescription of liberal amounts of opiate based drugs was inappropriate. The evidence shows the patient was admitted to the hospital on two occasions, both times for, among other problems, drug addiction. Less than one month after her second discharge, Respondent prescribed Percocet for this patient for pain relief at a rate of two tables every six hours. According to Dr. Boorstin, the usual adult dosage is one tablet every six hours. This is outlined in the Physician's Desk Reference, (PDR), a compendium of drugs and medications with manufacturer's recommendations for dosage. Though authoritative in nature, the PDR is not mandatory in application, and physicians often use it as a guide only, modifying strength and dosage as is felt appropriate for the circumstance. On at least one occasion, Respondent's medical records for this patient show he prescribed Percocet but not the amount prescribed. This is below standard. The same is true for the noted prescription for Percodan. Both Percodan and Percocet are Schedule II drugs. A notation in the records for a prescription for Valium also reveals no indication was given as to the amount prescribed. Again, this is below standard. Dr. Boorstin's opinion is contradicted by that of Dr. Wen-Hsien Wu, the Director of the Pain Management Center at the Schools of Dentistry and Medicine of New Jersey, the New Jersey Medical School, who testified by deposition for the Respondent. Dr. Wu claims he has prescribed medications in amounts and dosages far in excess of those prescribed by Respondent and for a much longer period of time. Wu is Board certified in anesthesiology and has published numerous articles on pain management. Dr. Wu contends there is no contraindication for the use of narcotic therapy in Patient #1's alcoholism. The use of narcotics is appropriate if the patient can return to function with careful monitoring. Here, it would appear that Patient #1 was monitored through her frequent visits to the Respondent's office. It is impossible to tell from the Respondent's patient records just how much medication he prescribed for his patient. Because of the failure to indicate the number of pills of each type Respondent was prescribing, it is impossible to form a conclusion as to whether the amount prescribed was appropriate or excessive. Notwithstanding Respondent's claim in his Proposed Findings of Fact that "...there is no indication of drug abuse in the prescribed drug area", the medical records show that on each admission of Patient #1, a diagnosis of drug addiction was made. To be sure, these records do not reflect the drug to which the addiction relates.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered herein finding Respondent guilty of all allegations except prescribing in inappropriate amounts. It is also recommended that Respondent be ordered to pay an administrative fine of $3,500 within 90 days of the date of the Final Order herein, be reprimanded, and within one year of the date of the Final Order herein, attend continuing medical education courses at the University of South Florida Medical School in appropriate medical record keeping and in the prescribing of abusable drugs. RECOMMENDED this 12th day of June, 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 12th day of June, 1995. APPENDIX TO RECOMMENDED ORDER 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: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. - 15. Accepted and incorporated herein. 16. - 19. Accepted and incorporated herein. & 21. Accepted as a representation by Respondent. Accepted as Respondent's position but not accepted as fact. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. Rejected as unproven. & 30. Accepted but repetitive of other evidence previously admitted. 31. & 32. Accepted and incorporated herein. - 38. Not appropriate Findings of Fact but merely recitations of the contents of records. Accepted and incorporated herein. - 42. Restatement of witness testimony. FOR THE RESPONDENT: Accepted and incorporated herein. - 5. Accepted and incorporated herein. 6. & 7. Accepted as testimony of Respondent, but not as probative of any issue. 8. - 11. Accepted and incorporated herein 12. & 13. Accepted. 14. - 16. Accepted and incorporated herein. 17. Accepted. 18. & 19. Accepted. 20. Accepted. 21. Accepted. 22. - 24. Accepted. 25. - 29. Accepted and incorporated herein. 30. & 31. Accepted. 32. Accepted. & 34. Accepted as opinions of the witness, but not as the ultimate fact. Accepted as to admissions but rejected as to Respondent not being advised. Accepted and incorporated herein. COPIES FURNISHED: Steven A, Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Suite 210 Tampa, Florida 33617 Grover C. Freeman, Esquire Freeman, Hunter & Malloy 201 E. Kennedy Boulevard Suite 1950 Tampa, Florida 33602 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration, which finds and concludes as follows: 1. The Agency issued the attached Notices of Intent to Deny Initial licensure to the Petitioner, Ultracare Imaging Services Inc. (Ex. 1) The Agency issued the attached Notice of Intent to Deny Renewal licensure to the Petitioner, X-Ray, Inc. (Ex. 2) The parties have entered into the attached Settlement Agreement. (Ex. 3) The Settlement Agreement is approved and adopted as part of this Final Order and the parties shall comply with the terms of the Settlement Agreement. 2. The Petitioners, Ultracare Imaging Services, Inc. and X-Ray, Inc., jointly and severally, are assessed, and will pay the Agency, an administrative fine of $25,000.00 in five monthly payments of $5,000.00. The initial payment is due on September 30, 2012. The remaining four payments are due on the last day of each of the four successive months. Unpaid amounts are subject to statutory interest and may be referred to collections. 3. Checks should be made payable to the “Agency for Health Care Administration,” with a reference to the ten-digit AHCA number, should be sent to: 1 Filed July 31, 2012 4:31 PM Division of Administrative Hearings Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS #14 Tallahassee, Florida 32308 4. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. — ORDERED at Tallahassee, Florida, on this 3/ day of July , 2012.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek 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 1 HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below- named persons/entities by the method designated on this ay of Je S , 2012. Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Roger Bell Health Care Clinic Unit Manager Agency for Health Care Administration (Electronic Mail) Amy W. Schrader, Esquire Gray Robinson, P.A. Post Office Box 11189 Tallahassee, Florida 32302 (U.S. Mail) Warren J. Bird Troy A. Kishbaugh, Esquire Assistant General Counsel Gray Robinson, P.A. Office of the General Counsel Post Office Box 3068 Agency for Health Care Administration Orlando, Florida 32802 (Electronic Mail) (U.S. Mail) Stuart M. Lerner Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
