The Issue Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(m) and (t), Florida Statutes (2005)?
Findings Of Fact Stipulated Facts: Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is John B. Milton, M.D. Respondent is a licensed medical doctor in the State of Florida having been issued license ME 53961. Respondent's mailing address of record is 4702 Van Kleeck Drive, New Smyrna Beach, Florida 32169. Additional Facts: Hospital Records (Petitioner's Exhibit numbered 1) On December 31, 2005, Patient W.C. came to the Bert Fish Medical Center (Bert Fish) in New Smyrna Beach, Florida, at 1:40 a.m. He was 40 years old at the time. He was seen in the Emergency Department at Bert Fish. Triage of the patient took place at 1:43 a.m. The triage record reports that he walked in to the hospital complaining of his throat swelling and difficulty breathing. The record reflects that the patient was experiencing pain of an intensity level seven (7) in his throat. At the time his blood pressure was 153/83. His pulse rate was 88. His respirations were 20. His temperature was 98.2. His 02 sat. was 99. In the heading within the Emergency Department Triage Record, statement of "Previous Surgery/Other Medical Hx (referring to history)" it states "allergic reaction to birds with throat swelling, " According to the Emergency Department triage nursing notes Patient W.C. was first seen by Respondent at 1:55 a.m. on the aforementioned date. Respondent was serving in the capacity of emergency room physician at Bert Fish at the time. Among the nursing note entries in the Emergency Department triage record for Patient W.C. are handwritten nursing notes that state: At 2:05 Rocephin was given; at 2:20 a.m. pt. (patient) states throat closing saO2 98%; at 2:25 a.m. pt. (patient) tubed by Dr. Milton- placement checked tube pulled-(pt.) patient vent 100% O2 via ambu; at 2:31 a.m. crick. (cricothyroidotomy) by Dr. Milton tube inserted 100% 02; at 2:35 a.m. H/R 40's - atropine; at 2:37 a.m. b/p 213/90 P-87 Dr. Milton attempting crick 0249 epi 1 mg IV; at 2:41 a.m. Dr. Schreiber here; at 2:43 pt. (patient) tubed by Dr. Schreiber s/r 0 pulses and at 2:54 a.m. code called by Dr. Milton. The Bert Fish Emergency Physician Record refers to Patient W.C.'s chief complaint as "shortness of breath." It states "pt (patient) seems to have acute severe pharyngitis and difficulty breathing and mild stridor at rest." The degree of the condition is further described in the record as "moderate." An associated symptom is listed under "Pulmonary," as "cough." It is noted in this record that the patient is experiencing a "sore throat." The Emergency Physician Record under the "Social Hx (history)," notes that the Patient W.C. was a "smoker" and occasionally used "alcohol." No reference is made to the use of any other form of drugs. On the patient chart describing a physical exam performed on the patient, the categories of "alert" and "anxious" are checked. The level of distress is described as "NAD." There is a reference to "pharyngeal erythema," associated with that entry a handwritten note states "mild stridor at rest." A reference is made to "lymphadenopathy" both right and left "mild." There was no "respiratory distress" and "breath sounds nml (normal);" Again the condition "stridor" is noted while the patient is "at rest." "CVS" is noted as regular rate rhythm with "no JVD." On the same page as discussed in the preceding paragraph, within the patient record maintained by Bert Fish, under "clinical impression," Respondent notes several things in the overall experience in treating the patient. They are in turn: acute severe pharyngitis/epiglottitis; emergency cricothroidotomy cardio pulmonary arrest and ER death. These entries reflect events at the end of the case. The medication administration record at Bert Fish in relation to Patient W.C. notes administration of Decadron (a steroid) at 2 a.m.; Solu-cortef (a steroid) at 2:02 a.m.; Rocephin (an antibiotic) at 2:05 a.m.; Versed (a sedative) at 2:20 a.m. and Anectine (a paralytic agent) at 2:25 a.m. A separate set of entries is made in the Code Blue Record at Bert Fish, noting the administration of Epinephrine, and Atropine during the Code Blue response prior to Patient W.C.'s death due to his cyanotic condition (lack of oxygen). Nurse's notes on the Code Blue Record for Patient W.C. maintained by Bert Fish state: Upon me entering the room Dr. Milton was doing CPR on pt. Dr. Schreiber, Dr. Milton and the ER staff attending to pt. ER staff busy. I started scribing for them. Note pt. was in PRA throughout the code. Pt. was given 3 ep. & 3 atoprine total = (-)response. Respondent signed the Code Blue Record as physician. The ER Physician's Order Sheet, as signed by Respondent concerning Patient W.C., in a shorthand reference, describes orders for nebulized racemic Epinephrine, which is an aerosol adrenaline agent, together with the Solu-cortef, Decadron and Rocephin. In the records maintained by Bert Fish concerning Patient W.C., there is a handwritten note made by Respondent at 3:35 a.m., on December 31, 2005, following Patient W.C.'s death, which says: S/P IV steroids, Racemic epinephrine PT continued to c/o "getting worse" "can't breath." At times his respirations were gasping. .. I discussed with him fact the he may require intubation & he understood. PT placed in TRI and preparation made for intubation. PT had secure IV site, Respiratory TX in Room to assist. S/P preoxygenation 1HR> 80 PT had IV Versed and Anectine to facilitate intubation. The laryngoscope revealed a massive "beefy" appearance of the epiglottis. Attempted X 2 E 8.0 & 7.5 ET to secure an airway but Ø success. PT had attempts to ventilate E BVM? Ø air movement. PT cyanotic @ this point so a scalpel was used to attempt a crichothyroidotomy. When a ETT was passed thru the incision however attempts to ventilate were again unsuccessful. Dr. Schreiber (gen surgery) had been paged and he responded. He was able to place a ETT in the airway but by now PT had arrested. Monitor-bradycardia at this time ACLS measures were undertaken and PT given repeated doses of atropine/epinephrine/CPR-> ventilated E BVM. PT continued to have Ø response to proper ALS measurers and Resus efforts stopped @ 0254. Patient Care Explained Nurse Haas William Haas, R.N., was working at Bert Fish on the early morning that Patient W.C. was seen. Nurse Haas first saw the patient around 1:55 a.m. He hooked the patient up to a monitor and took his vital signs. None of the readings were considered by the nurse to be abnormal. Those readings were blood pressure 153/83, heart rate 88, respirations 20, temperature 98.2. and O2 sat. 99%. Patient W.C. was taken into treatment room 16 and was seen by Respondent and nurse Haas. Nurse Haas asked Respondent what Respondent thought was wrong with the patient. Orders were given by the Respondent for 8 mg. of Decadron and 100 mg. of Solu-cortef IV. The purpose of these medicines was to reduce inflammation. Both medications were steroids designed for that purpose. At that time Respondent gave an order for the antibiotic Rocephin. Respondent also wanted a racemic Epinephrine treatment. That treatment was to be provided by the respiratory therapist. When nurse Haas first saw the patient, the patient was complaining about difficulty breathing. Nurse Haas did not observe any manifestation of those difficulties. At one point the patient told nurse Haas that he, the patient, was experiencing an allergic reaction to feathers or birds. The patient told nurse Haas by way of history that it happened to him in the past. (None of this was true. He had no allergy to birds. The patient's deception was never discovered by the hospital treatment team, and they all proceeded on the basis that the patient had a bird allergy.) On the evening before arriving at the hospital, the patient explained to nurse Haas that he went to bed about 9:00 or 10:00 p.m. and woke up around 1:00 a.m. with a raspy feeling in his throat and he felt like his throat was closing up. So he came to the emergency room for care. After attending to the patient in treatment room 16, nurse Haas left the presence of the patient. He next saw the patient standing in treatment room 17 talking on the phone. This was around 2:20 a.m. The patient was again placed on a monitor to track his vital signs. Nothing about those vital signs appeared abnormal. At that time Mary Boothe, R.N., told nurse Haas that the patient was going to be intubated. Nurse Haas inquired of Respondent on the subject, and Respondent told nurse Haas that the patient wanted to be intubated and to get ready to perform the intubation. The procedure for intubation that was being utilized by Respondent is referred to as rapid sequence intubation or RSI. Nurse Haas retrieved Anectine and Versed to be administered in the intubation. The patient was told about the procedure for intubation. The patient was laid down. Nurse Haas gave the patient Versed and Anectine. The Versed was designed to, as nurse Haas describes it, "muddle the mind." The Anectine was an agent that would promote paralysis in the area where the intubation would occur. When in treatment room 17, at around 2:20 a.m., the patient said to nurse Haas that the patient felt that his throat was closing. Those remarks were made when the patient was being hooked up to the monitor to measure his vital signs. This was the second time that the patient had mentioned his throat closing. He had made similar remarks when nurse Haas first saw him in treatment room 16. Steve Igrec, R.T., participated in the intubation procedure in addition to nurse Haas, nurse Boothe and Respondent. Prior to the laryngoscope being introduced in the intubation procedure, nurse Haas did not notice any sharp decline in Patient W.C.'s vital signs. When Respondent accessed the airway for Patient W.C., nurse Haas heard Respondent say, "Oh, he's got epiglottitis," while proceeding further with the intubation. Respondent was unable to intubate and removed the ET tube. Another tube was used to try and intubate, again without success. Nurse Boothe Nurse Boothe first encountered Patient W.C. after he had undergone his racemic Epinephrine treatment. He came out of the treatment room and told her that he did not feel that the treatment had worked. Respondent came by and the nurse repeated what the patient had told her. Nurse Boothe did not notice anything about the patient that made her believe that he was having difficulty breathing. He coughed and told her, "Can you hear it?" but he was not gasping for air, nor making gestures about his chest or throat. Respondent then offered the patient the option of being admitted to the hospital and continuing treatments by steroids to address his condition or putting him on a ventilator and letting him have the treatments through the ventilator. The patient elected the latter option. The ventilator option would allow the patient to be released the next day. The patient was told by Respondent that he would "knock him out" and put the tube in and give the patient the medication that way and that the patient's release would come the next day. Nurse Boothe did not hear the Respondent make any mention to the effect of what might happen if there were difficulties in intubating the patient. The attempted intubation was made in the treatment room 17, which is also referred to as CC-1. The patient walked into the room. Once in the room nurse Boothe did not notice anything about the patient that indicated any difficulty breathing. The patient did mention that he was not feeling any better. Nurse Boothe overheard the patient talking on the telephone. On his end of the conversation he told his wife that he did not feel any better and that they were going to "knock him out" and put him on a breathing machine overnight and that he would see her the following day. Nurse Boothe noticed that as the attempted intubation proceeded, the patient began to have trouble with the intubation. The equipment that was in the room for those purposes included the laryngoscope, the intubation tube, and a stylet. Before the tube was introduced the patient was being ventilated with a bag and mask. When difficulties arose concerning the intubation, nurse Boothe left the treatment room to get a scalpel and to get what is referred to as a "cric" kit. That kit is a set-up that has been assembled to aid in providing emergency access to the trachea. The kit is not kept in treatment room 17. It was kept in another room on a respiratory cart. Nurse Boothe observed Respondent utilize the scalpel and the "cric." After the Respondent experienced difficulties in this effort, the on-call surgeon was contacted by a secretary at the hospital. The Surgeon Arrives On December 31, 2005, Dr. Schreiber was the on-call surgeon at Bert Fish. When he was paged by the hospital, he called and was told that he needed to go immediately to the emergency room because of an airway problem. He received the call at approximately 2:30 a.m. He arrived at the hospital at 2:41 a.m. Once at the hospital Dr. Schreiber, took over and performed surgery, insertion of the endotracheal tube, thereby ventilating the patient. That procedure by Dr. Schreiber was quickly performed. Mr. Igrec Mr. Igrec administered the racemic Epinephrine treatment to Patient W.C. Prior to providing the treatment Mr. Igrec visibly examined the patient to see if the patient was using assessory muscles to breathe or if he had any stridor, any wheezing or anything of that nature. He did not observe the patient using any assessory muscles to breathe. He did not notice the patient evidencing stridor, that is to say a high- pitched sound that is made when a person experiences upper airway obstruction. Mr. Igrec provided two of the treatments to Patient W.C. Before the second treatment, he visibly examined Patient W.C. and did not notice the patient having difficulty breathing. Sometime during the course of the treatment, near the end, the patient asked the question, "How long is this going to take to work?" Mr. Igrec told the patient to give it time. The patient appeared anxious. He did not appear short of breath. Mr. Igrec reported to Respondent that he had provided Patient W.C. the second treatment. Following the second treatment, Mr. Igrec suggested to Respondent the use of Decadron to aerosolize Patient W.C. The racemic Epinephrine is a short- acting drug, and Decadron is a steroid that takes longer to work. In response, the Respondent told Mr. Igrec "We may have to intubate." Mr. Igrec was called to treatment room 17 where Respondent told him that they were going to intubate Patient W.C. In preparation, an ambu-bag, mask, intubation tube, pressure cuff, stylet and strap were retrieved. The cuff was used to keep the intubation tube in place during the procedure. The stylet keeps the tube rigid. Once the patient was sedated, Mr. Igrec began to use the ambu-bag with the patient. At that time, there was no difficulty using the bag, squeezing the bag to provide air into the patient's lungs. Mr. Igrec had one hand on the mask over the patient's face and one hand on the ambu-bag. Respondent used the laryngoscope in placing the tube, trying to look while placing the tube. The tube went into the stomach and not the trachea, such that ventilation did not occur. After that, when Mr. Igrec was bagging the patient he had a lot more resistance, to the point where Respondent had to hold the mask while Mr. Igrec bagged the Patient W.C. After a second attempt to intubate the patient, Respondent attempted to establish a surgical airway. Respondent was using a scalpel and palpating the patient to try and find the crichothyroid cartilage to create the necessary incision. An incision was created. There was no success in placing an airway because the tube did not pass through the crichothyroid cartilage. Mr. Igrec understood this because the tube that he had cut down to place and to ventilate the patient could not be used because there was no hole in the trachea. Blood was pooling around the patient. Dr. Schreiber arrived and established the surgical airway. During this time, CPR was provided the patient under Code Blue conditions where the patient's heart had stopped beating. Attempts at reviving the patient were not successful. Respondent and Patient W.C. Prior to the occasion when he intubated Patient W.C., Respondent had vast experience in performing intubations. As he describes it, this is a necessary skill for an emergency room doctor, recognizing that having an unobstructed airway is vital to a patient's survival. When intubating a patient, Respondent believes that you would want to do this before they "crash," before they lose their vital signs and become unconscious. Before his attempt to intubate Patient W.C., Respondent had never had an instance in which he could not intubate the patient, a function that he had performed numerous times without the assistance of a surgeon or an anesthesiologist. By contrast, before the circumstance that was confronted in Patient W.C., Respondent had never performed a crichothyroidotomy. He had been trained to perform that procedure. On December 31, 2005, nurse Haas approached Respondent and told Respondent that he placed Patient W.C. in a treatment room, described as the ortho room, and that the patient was having trouble breathing and that he needed to be seen by Respondent. Respondent inquired of the patient about the duration of his problem. He asked the patient if he had asthma. Had this happened before? The patient told Respondent that he was having an allergic reaction to his wife's bird and that this problem that he was experiencing had occurred once years before. Respondent asked the patient if he was telling Respondent that an hour ago he was fine and that now he was not. Patient W.C. said "absolutely." When listening to the patient's lungs Respondent did not notice any wheezing. There was no fever in the patient and the patient had not been sick. Unlike the other health care providers attending the patient, Respondent observed that Patient W.C. was having trouble getting air in, the patient was having inspriatory stridor. Respondent believed that the presentation by Patient W.C. was that of someone having an allergic reaction, with some airway compromise, he refers to as laryngospasm. Respondent told nurse Haas to start an IV on the patient and get respiratory therapy to provide a racemic Epinephrine treatment. The reasons for this decision was Respondent thought the patient was having an allergic reaction. In particular, Respondent's impression at that moment was that the patient was someone having an allergic reaction to birds. Patient W.C.'s case was comparable to another case that Respondent had with a woman who had experienced an allergic reaction. In the case of the woman, the patient worsened and quickly had to be intubated. The differential diagnosis that Respondent was proceeding with was that of a patient having an allergic reaction. The orders Respondent gave concerning administration of medications were designed to alleviate an airway problem associated with an allergic reaction. Consistent with Respondent's orders, the nurse started the IV and provided medications, and the respiratory therapist came to provide the aerosol treatment. Respondent observed that Patient W.C. was sitting up in bed and did not appear to be doing anything unusual. Respondent received the report on the patient's status. Respondent went to see Patient W.C., who at that time was anxious and restless. He was having trouble getting air in and telling Respondent that he could not breathe and that his airway was closing off. Patient W.C. told Respondent that "you guys ain't helping me at all." Respondent told the patient that the treatment already provided was the normal thing that was done. Respondent got more history from the patient by asking the patient, "You were perfectly fine until an hour ago?" The response was "yes." Respondent asked the patient if he had not been sick at all. Again the response was "no." The Respondent asked the patient if he had a sore throat. The patient said a little bit. Respondent took a tongue depressor and looked in the patient's throat. It looked pretty normal. (The Emergency Physician Record indicated the patient had a sore throat.) The patient had very mild prominent lymph nodes but nothing out of the ordinary. There was still no wheezing. At that juncture, the decision was made to give Patient W.C. another aerosol treatment. In addition, the decision was made to provide antibiotics in case there was some tracheitis, pharyngitis. It was anticipated that the antibiotics would take 24 hours to have any effect. Epiglottitis was a condition at the bottom of the list on the differential diagnosis. Respondent's experience with that condition was that a patient would be sick for a period of time before the condition worsened. Nothing in Patient W.C.'s presentation led Respondent to believe that he had epiglottitis at that point. By way of history, there was no indication from the patient that he had used cocaine within 24 hours of the time of his visit to the emergency room. (Indeed subsequent toxicology studies revealed recent use of cocaine.) Had such use been reported Respondent would have acted differently in treating Patient W.C. In his second encounter with the patient on the night in question, the patient told him several times that his airway was closing off and that he believed that any second he was not going to be able to breathe. In reply, Respondent told Patient W.C. that the normal things to address his condition had been done, but there was one other thing that could be done and that would be to intubate Patient W.C. Respondent explained that it meant that they would lay the patient in a critical care room and render him unconscious and take a breathing tube and put it into his lungs and admit Patient W.C. to the hospital. This would then be followed by 24 to 48 hours of ventilatory support with use of steroids to address swelling. Patient W.C. told Respondent "let's do it quick." Respondent told a nurse to gather the standard rapid sequence medication, which in this instance involved the use of Versed and Anecitine. In the procedure room where the intubation was attempted, the procedure commenced with the patient having a good heart rate. There was a crash cart available in case there were problems. At the moment, Respondent continued to believe that the patient was experiencing an allergic reaction. Although the patient could have been experiencing epiglottitis secondary to infection, the patient did not show any signs or symptoms of that condition, indications of an on-going infection such as a fever. He was not sweating, his heart rate was not rapid. Once in the treatment room where the intubation was attempted, the patient worsened. Patient W.C. was gasping. He closed his eyes a second. The respiratory therapist Mr. Igrec experienced problems bagging the patient. Efforts by Respondent and the respiratory therapist were not succeeding in getting air into the patient. When Respondent looked in, using the laryngoscope, he noticed something that he had not encountered before. Patient W.C.'s epiglottis had the appearance of a "mushroom." It did not appear as normal anatomy. Respondent described it as a "moonscape." When Respondent looked into the patient using the laryngoscope, he describes the "picture" as looking like a scorched airway when viewing the larynx and the epiglottis. Now that he had observed the epiglottitis, Respondent decided to try and "get under it" using the ET tube. He encountered a complete blockage. Respondent then asked for a smaller tube. The smaller tube did not work. Efforts at bagging the patient were not successful. Respondent concluded that he could not intubate the patient and could not ventilate the patient in that manner, leaving him the only choice, in his perception, to deal with the obstruction by establishing a surgical airway. Respondent asked for a scalpel to perform a "cric." Respondent also told someone to call and get the surgeon and indicate that there was an airway emergency and to come immediately, as Dr. Schreiber did. Respondent took the scalpel and located the crichothyroid membrane below the crichothyroid cartilage and made an incision and air bubbled out. Respondent widened the incision, as he had been trained to do in a course dealing with trauma associated with the airway. Respondent took the ET tube that he had been using and inserted it. It went in smoothly and the treatment team was able to bag the patient. Respondent then noticed that the heart rate was dropping and that the "stats" were not coming up. Respondent then observed that the patient's neck was bigger. What had happened was that the tube had slipped out of the incision, tracking anteriorly over the trachea and the air was being introduced into the neck. Once the subcutaneous emphysema was seen in the neck, it occurred to Respondent that the tube was in the wrong place. The patient was bleeding profusely. There was an effort at reintroducing the tube but the neck had become more swollen, and the tube could not be replaced. A nursing supervisor, Tom Frith, went to the next trauma room and took one of the crichothyroidotomy kits and brought it back. Respondent was not trained to use that kit. He had seen the kits used at a demonstration. The kit was opened. Respondent took a needle from the kit and tried to find an airway but was unable to locate the airway that had been created because efforts at aspiration produced more blood. Other equipment in the kit was utilized to try to replace the endotracheal tube back in the patient, but the field would quickly fill with blood and the tube could not be placed into the membrane. When Dr. Schreiber arrived, using the skill of a surgeon, not that of an emergency room doctor, he performed an emergency tracheotomy on Patient W.C. Respondent acknowledges that persons suffering from an allergic reaction have a common presentation where they experience hives and itching. Some people have wheezing. Patient W.C. had none of these symptoms. Nonetheless, the patient appeared to Respondent to be having an allergic reaction involving the airway Respondent describes as laryngospasm. Respondent understood the patient's condition to be one in which he was able to move about and speak but he was unable to get air in. While able to compensate for that condition for awhile, that ability did not last. Respondent had never seen a patient with epiglottitis. Hypothetically, if a patient were perceived as having that condition, Respondent would consult with a surgeon or an anesthesiologist, if he had time. If confronted with classic signs of epiglottitis, Respondent would start an IV, give the patient supplemental oxygen and not attempt intubation unless the case was emergent. Given sufficient time, the patient would be taken to an operating room and an anesthesiologist could attempt intubation, failing which a surgeon would be available to address the obstruction by placing a surgical airway. This case became one of an emergency, and Respondent took the measures he deemed appropriate. Concerning notes made pertaining to treatment provided Patient W.C., that record was provided after Patient W.C. died. Given the volume of patients that were being seen in the emergency room, other patients as well as Patient W.C., five sets of records and tests were being established aside from Patient W.C. As a consequence, Respondent was doing paperwork on those patients and telling nurses what to do for Patient W.C. Only after the attempts at trying to save Patient W.C. were unsuccessful and after talking to Patient W.C.'s family did Respondent turn his attention to the medical records for Patient W.C. Expert Opinion Dr. John Murray is an emergency physician at Central Florida Regional Hospital in Sanford, Florida. He is licensed to practice in Florida and has been since 1983. He is also licensed to practice in Alabama. Dr. Murray attended medical school at the University of South Florida in Tampa, Florida. He did his residency at the University of Alabama in Tuscaloosa, Alabama. His residency was in family practice. Dr. Murray practiced in Tuscaloosa, Alabama, in emergency medicine, until four or five years ago. He then entered family practice for about three years. Following that time, he returned to practice in emergency medicine. Dr. Murray is board-certified in family practice and emergency medicine. Dr. Murray was received as an expert in emergency medicine to allow him to offer his opinion as an expert. Dr. Murray served as Petitioner's consultant in the case and was presented as its witness at hearing. To prepare himself to testify, Dr. Murray reviewed the Bert Fish hospital records relating to Patient W.C., the autopsy report, the Administrative Complaint, correspondence from Respondent's attorney, Respondent's deposition, the deposition of the nurses who treated Patient W.C. at Bert Fish, the deposition of the respiratory therapist involved with Patient W.C.'s patient care, and the toxicology report pertaining to Patient W.C. Having prepared himself Dr. Murray testified concerning Respondent's performance when measured against the expected "standard of care." In offering his opinion, Dr. Murray conformed to the expectation that Respondent's performance meet what was minimally acceptable in the standard of care. Dr. Murray does not believe that Respondent met the standard of care incumbent upon Respondent. In Dr. Murray's opinion, when a patient is seen in an emergency room the development of the differential diagnosis begins with the worse case scenario. In Patient W.C.'s case, the first consideration in the differential diagnosis should have been epiglottitis, recognizing that the main problem in the condition is inspiratory stridor, the closing of the airway or the upper airway which may cause the patient to die. Therefore, the physician should do everything possible to assure that this does not happen. Dr. Murray believes that the patient was presenting with signs and symptoms of epiglottitis when he arrived at the emergency room at Bert Fish. Dr. Murray believes that when Respondent decided to intubate Patient W.C., it should have been anticipated that there was going to be a very difficult procedure if the patient had acute epiglottitis. Sometimes the intubation fails and there is the need to provide a surgical airway. Because Respondent did not anticipate that difficulty, the intubation procedure was not properly "setup," according to Dr. Murray. That setup would envision dealing with intubation to potentially be followed by the need to provide a surgical airway. Given the possibility that the patient had epiglottitis, it was important to have the most experienced person available to perform the intubation. Dr. Murray believes that would be an anesthesiologist. Beyond that point, if the surgical airway is needed, a surgeon should be available to provide a surgical airway. Dr. Murray believes there was time to have a successful intubation, or if not, the provision of a successful airway by surgery and these arrangements were not made. Notwithstanding the patient's reported history, recognizing the symptoms present, Dr. Murray did not believe that the patient was suffering from an allergic reaction. Nothing in the medical records suggested to Dr. Murray that Patient W.C. was under the influence of cocaine when he was seen at Bert Fish. Commenting on the medical record where the term "pharyngeal erythema" was circled, Dr. Murray explained that pharyngitis is a form of infection either viral or bacterial in relation to the red or sore throat seen in the back of the throat of Patient W.C. when examined by Respondent. Respondent also made reference to lymphadenopathy both right and left, swollen lymph nodes. Patient W.C. was experiencing inspiratory stridor, difficulty in getting air in to his lungs. With inspiratory stridor, swollen lymph nodes and a red and painful throat, Dr. Murray said he would be concerned about Patient W.C.'s having an infection. Dr. Murray was concerned that if Patient W.C. had a lot of inspiratory stridor that the condition might be epiglottitis. With infection and stridor, the airway can close quickly. These circumstances could make intubation of the patient difficult, if not impossible. Dr. Murray acknowledges that epiglottitis was on Respondent's differential diagnosis for Patient W.C. Respondent's orders for use of racemic Epinephrine through nebulization and the provision of steroids, Decadron and Solu-cortef were appropriate in Dr. Murray's view. Repeating the nebulization would have been appropriate in dealing with an allergic reaction which was the number one condition treated by Respondent. Dr. Murray speaks of the use of antihistamines as well. Dr. Murray opined that as long as Patient W.C. was perceived as having an allergic airway problem, the patient would be treated with updraft treatments and antihistamines, if the patient remained stable and did not appear to be "going down hill and crashing." If the patient is "crashing," stops breathing, then a response to the condition would be necessary before the patient had respiratory arrest. However, with epiglottitis most patients would have to be intubated to protect the airway. The condition would be treated as an infection with use of an antibiotics and steroids over time while being cautious about the patient having his or her airway close off. Criticism that Dr. Murray has of Respondent's care was not the basic idea that the patient was intubated to address epiglottitis. It was the expectation that intubation need not be done unless it was absolutely an emergent circumstance, i.e., the patient had stopped breathing. If there is suspected epiglottitis, the physician should not use a tongue blade that may cause spasms or a laryngoscope. The physician should not paralyze the patient. The doctor is going to be confronted potentially with the fact that there is "no hole" to put the tube, in an attempt at intubation and it becomes necessary to "do something and get an airway in." Again the arrangement that needs to be made, in Dr. Murray's opinion, is the double setup to address the intubation and possible surgical airway. Dr. Murray does not believe that Respondent had the needed equipment to address the patient's condition when he began the intubation. In particular, the necessary equipment for the second step in the double setup, that of providing a surgical airway had not been sufficiently arranged by Respondent. Only in the instances where the patient had stopped breathing and Respondent had no time to call in other physicians would it be appropriate to paralyze the patient and attempt the intubation. Dr. Murray does not believe that the patient was dying, and there was the opportunity to call in the surgeon who was available in eight minutes, to provide assistance if one anticipates difficulty. Dr. Murray described three methods of addressing the surgical airway. One is crichothyroidotomy, which was attempted here. The second method is jet insufflation used in pediatrics but also taught for use in adults. The third method is the use of a needle with a catheter. Dr. Murray explained that if using the crichothyroidotomy is a procedure that is comfortable to the physician, then there is no necessity for redundancy beyond the use of that method for providing a surgical airway. Redundancy would be the use of the kit known as Seldinger that causes a small puncture wound. This method is a new technique, an alternative to needle crichothyroidotomy and regular crichothyroidotomy. The Seldinger method is the jet insufflation. Jet insufflation is not a common procedure in adults and is used more in pediatric care. In Dr. Murray's opinion, a reasonably prudent emergency room doctor would know of the availability of that option for ventilating a patient whether the patient is an adult or a child. Dr. Murray criticizes Respondent's medical records for Patient W.C. In his review, Dr. Murray did not find an explanation why it was necessary to intubate Patient W.C. at that moment and by the method employed. The record does not justify attempting a paralytic intubation under the existing circumstances, according to Dr. Murray. Dr. Marlon Priest, witness for Respondent, graduated from the University of Alabama with a degree in chemistry. He attended the University of Alabama School of Medicine from 1974 until 1977. He completed an internal medicine residency. From 1981 through November of 2006, Dr. Priest was on the faculty of the University of Alabama, Birmingham, Alabama, and served as a professor of emergency medicine and director of critical care transport. Over the years, Dr. Priest has had extensive experience in emergency medicine in a hospital setting. He is licensed to practice medicine in Alabama. Dr. Priest was accepted as an expert and allowed to testify concerning his opinion of Respondent's care provided Patient W.C., whether Respondent met the standard of care. Dr. Priest reviewed the Administrative Complaint, the medical records from Bert Fish concerning Patient W.C., Respondent's deposition, the deposition of Thomas Beaver, M.D., and the deposition of Michael A. Evans, Ph.D. to prepare himself to testify. He found the information sufficient to prepare to offer his opinion concerning the care provided Patient W.C. When asked whether Respondent violated the standard of care for failing to consult with or gain the assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis and attempting RSI, referring to rapid sequence intubation on Patient W.C., fell below the standard of care for an emergency room physician, Dr. Priest indicated that he felt that Respondent met the applicable standards. Dr. Priest believes emergency medicine has evolved to the point where emergency room physicians are able to assess and carryout that form of intubation. In Dr. Priest's experience, on numerous occasions, he has intubated patients without consulting a surgeon or an anesthesiologist. Based upon those insights Dr. Priest does not believe that Respondent was obligated to consult a surgeon or an anesthesiologist before attempting the intubation on Patient W.C. Specific to Patient W.C.'s case, the patient presented with shortness of breath and stridor and having failed to improve following treatment to address a possible allergic reaction, the decision was made to oxygenate the patient prior to some event where the patient could not breathe. Based upon the symptoms of the patient and gravity of the situation, Dr. Priest is persuaded that it was appropriate to attempt intubation. Concerning the allegation that Respondent failed to meet the standard of care by inducing paralysis in Patient W.C., Dr. Priest indicated that RSI is the preferred method of gaining access to a patient's airway where the patient is awake and alert and who might struggle if that method was not employed in an effort to intubate the patient. In his opinion, Dr. Priest makes mention of the progression in the case from having stridor, complaining of not being able to breathe and Dr. Priest's expectation that the airway was becoming smaller over time. Dr. Priest believes that the principal diagnosis in the differential pertaining to Patient W.C., possible allergic reaction was a reasonable diagnosis based upon information in the patient records. Concerning the allegation about Respondent's medical records related to alleged failure to document symptoms in Patient W.C. that would justify paralysis and RSI, as opposed to other less risky forms of securing the airway, Dr. Priest believes that there is sufficient evidence in the medical record to justify the intubation. Related to the second allegation dealing with record keeping by Respondent alleging that Respondent failed to document Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, Dr. Priest believes that this information would have been written down by someone else on the treatment team during the course of the treatment, the attempt to intubate. Even beyond that point, Dr. Priest believes that standard protocol would call upon the respiratory therapist or the nurse to create the record or potentially someone else on the hospital staff, not the Respondent. The inaccurate report by Patient W.C. concerning his past history with bird allergies changes the priorities in the differential diagnosis, in Dr. Priest's opinion. That history meant that allergic reaction was placed at the top of the differential diagnosis, in particular with a physical examination that was consistent with the history. Dr. Priest holds this belief even in the absence of fever, sweating, or questionable vital signs in the patient. When Dr. Schreiber entered the treatment room, he noticed a group including a physician and nurses who were attending Patient W.C. They were trying to resuscitate the patient. The patient did not have an airway. The patient was cyanotic. The patient was bloated and did not have a pulse. An attempt was being made to revive the patient from arrest. A valve bag mask was being used and drugs administered that would support the patient's blood pressure. An effort at gaining a surgical airway had not succeeded. There was a surgical incision on the patient's neck. Blood was on the patient and on the floor. At the moment no attempt was being made to establish a surgical airway. Dr. Schreiber observed that the patient had a protruding tongue that was obstructing this mouth and airway. Dr. Schreiber observed that the Petitioner's upper check and abdomen were bloated. Dr. Schreiber noted that the patient evidenced crepitancy, indicating subcutaneous air in the patient's neck and chest. This would be consistent with the placement of an airway tube into the subcutaneous tissue outside the trachea and air blown into the area. Dr. Schreiber made a nick in the trachea and placed a number 8 ET tube into the trachea. Following the placement of the ET tube in the trachea, Dr. Schreiber observed air movement in the lungs. However, the patient did not regain a pulse or adequate saturation of oxygen. On January 3, 2006, Dr. Thomas Beaver, Chief Medical Examiner and pathologist, performed an autopsy on Patient W.C. As part of his Medical Examiner's report on Patient W.C., special studies had been done, and a comprehensive toxicology analysis performed by AIT Laboratories. Dr. Beaver determined the cause of death as complications of acute epiglottitis and that the manner of death was of natural causes. The complications of acute epiglottitis were explained as a status post crichothyroidotomy. Dr. Beaver also noted atherosclerotic cardiovascular disease involving coronary arteries, mild. In particular, Dr. Beaver found that the epiglottis was swollen to an extent that it obstructed the deceased's airway. The condition observed was not the result of an attempted intubation of the patient, in Dr. Beaver's opinion. The condition observed was a disease process that Dr. Beaver felt was on-going for a matter of hours or perhaps a number of days before the attempted intubation. This type of mechanical obstruction in the epiglottitis would obstruct the airway and disable the patient from breathing, according to Dr. Beaver. The condition of the epiglottitis was not perceived by Dr. Beaver to be in association with some form of allergic reaction. The exact cause was not clear. Dr. Beaver does not believe that the ingestion of cocaine, whose metabolites were in the body caused the death. Marie Herrmann, M.D., is the present Medical Examiner and pathologist in the jurisdiction where Dr. Beaver served. Dr. Herrmann had the opportunity to review Dr. Beaver's autopsy report on Patient W.C. and to examine some evidence available to Dr. Beaver in performing his examination. She too was not persuaded that cocaine was a contributing factor to Patient W.C.'s death. In offering this opinion Dr. Herrmann was aware of the toxicology report from AIT Laboratories. Dr. Herrmann agrees with Dr. Beaver's opinion concerning Patient W.C.'s cause of death. Dr. Herrmann was unable to determine within a reasonable degree of medical certainty that the efforts by Respondent to intubate Patient W.C. caused the blockage in the airway. Michael Evans, Ph.D., is the founder, president and CEO of AIT Laboratories. He is an expert in toxicology. He testified concerning the findings in his laboratory related to Patient W.C. using established protocols for examination of the samples provided his facility. Based upon his analysis, Dr. Evans believes that Patient W.C. had ingested cocaine as recent as three hours and no longer than 24 hours before his death based upon values found in the blood and urine samples provided. Bruce Goldberger, Ph.D., is an expert in forensic toxicology. He is a professor and director of toxicology at the University of Florida College of Medicine, Departments of Pathology and Psychiatry. He is familiar with the medical examiner's report prepared by Dr. Weaver and the AIT Laboratories' report on Patient W.C. Dr. Goldberger offered the opinion that Patient W.C. could have been using cocaine a day or two before his death. He defers to the medical examiner as to the cause of the patient's death. It is accepted from the findings made in the autopsy report by Dr. Beaver that Patient W.C. died from complications of acute epiglottitis, from natural causes, not as a result of Respondent's attempt to intubate the patient. Having considered the facts and the opinions of experts, clear and convincing evidence was not presented to establish the violations alleged in Count One (Section 458.331(1)(t), Florida Statutes) paragraph 27. a). and b). related to consultation with or assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis in the patient as part of RSI. Likewise, the violation alleged in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. a). relating to failure to document symptoms justifying paralysis and RSI was not proven by clear and convincing evidence. Concerning the alleged violation in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. b). involving the documentation of Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, the opinion of Dr. Priest is compelling. Based upon that opinion Respondent would not be expected to provide that documentation and maintain the record beyond that point in time. Respondent's Background Respondent received his undergraduate education from the University of Tennessee, earning a B.S. in biology. He attended medical school in Nashville, Tennessee, at Harry Medical College and worked as an emergency physician in Tennessee. He undertook a flexible internship at the University of Tennessee in Knoxville, Tennessee. In 1987 Respondent went to Jacksonville, Florida, to do a three-year residency in pediatrics, graduating from that program in 1990. During that time he worked in local emergency rooms in St. Augustine, Palatka, and Tallahassee, Florida. He took courses in Advanced Trauma Life Support and Advanced Cardiac Life Support. Since 1990 Respondent has been a full-time emergency room physician living in New Smyrna Beach, Florida. At present, Respondent works for M. Care Emergency Services in Jacksonville, Florida. Mitigation and Aggravation Respondent has no prior violations related to his license to practice medicine in Florida. Patient W.C.'s Family Patient W.C. was married to F.C. and had two young children. At his death his daughter was approximately two-and- a-half years old and his son was 14 months old. Following Patient W.C.'s death, the family has had a difficult time coping with their loss.
Recommendation Based upon the findings of facts found and the conclusions, RECOMMENDED: That a final order be entered, which dismisses the Administrative Complaint, as amended. DONE AND ENTERED this 14th day of April, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 14th day of April, 2008.
The Issue The issue in this case is whether Respondent was overpaid Medicaid funds for services provided to his patients, and, if so, whether the alleged overpayment was properly calculated.
Findings Of Fact AHCA is the state agency responsible for, inter alia, administering the Medicaid program in the State of Florida. The Bureau, a division of AHCA located in Tallahassee, Florida, is responsible for monitoring payments to Medicaid providers, and, when necessary, collecting return of any overpayments made to the providers. Medicaid providers enter into a contract with AHCA agreeing to bill patients no more than the usual and customary charges for services provided. Charges are established, in part, in accordance with procedure codes from the Current Procedural Terminology (CPT) guidelines. The CPT codes describe the kind of office visit which occurs during treatment to individual patients. A monetary charge is then assigned to the CPT code so that Medicaid will know how much to pay for the visit in question. The provider submits its claim for payments each month to AHCA, setting forth the number of visits within each CPT procedure code. The Bureau then determines the amount of Medicaid payment earned by the provider pursuant to the claimed services. The payment is then made by AHCA to the provider. The Bureau periodically performs audits of the claims submitted by providers. If a discrepancy or overpayment is discovered during the audit process, the Bureau notifies the provider by way of a demand letter. The Bureau then requests records and documents from the provider concerning the patients and charges in question. Upon review of the provider's records, the Bureau issues a Preliminary Audit Report setting forth its findings. The provider may agree (and repay the overpayment amount) or challenge the audit findings. In the present case, Respondent challenged the audit findings. As a result of that challenge, AHCA requested and Respondent provided additional documentation concerning Respondent's provision of services to certain patients. The Bureau then issued a Final Audit Report, again stating the amount of the overpayment and imposing a fine. The overpayment amount in this case is $82,836.07 and a fine of $3,000 was imposed. The overpayment discovered by AHCA relates to 40 individual patients who Respondent treated during the period January 1, 2002, through August 31, 2006. Each will be more fully discussed below. For some of the patients, there was only one charge in dispute; for others there are numerous charges. There are a small number of CPT procedure codes relevant to Respondent's patients at issue in this proceeding. A discussion of them is necessary to the analysis of the individual cases. Definitions and descriptions of the various codes are found in the Evaluation and Management Services Guidelines manual issued by the American Medical Association (AMA). The codes at issue are: 99201--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A problem focused history; a problem focused examination; and Straightforward medical decision making. Usually, the presenting problems are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient and/or family. 99202--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: An expanded problem focused history; An expanded problem focused examination; and Straightforward medical decision making. Usually, the presenting problems are of low to moderate severity. Physicians typically spend 20 minutes face-to-face with the patient and/or family. 99203--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A detailed history; A detailed examination; and Medical decision making of low complexity. Usually the presenting problems are of moderate severity. Physicians usually spend 30 minutes face-to-face with the patient and/or family. 99204--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of moderate complexity. Usually the presenting problems are of moderate to high severity. Physicians typically spend 45 minutes face-to-face with the patient and/or family. 99205--Office or other outpatient visit for the evaluation and management of a new patient, which requires these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Usually, the presenting problems are of moderate to high severity. Physicians typically spend 60 minutes face-to-face with the patient and/or family. 99211--Office or other outpatient visit for the evaluation and management of an established patient that may not require the presence of a physician. Usually, the presenting problem(s) are minimal. Typically, 5 minutes are spent performing or supervising these services. 99212--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A problem focused history; A problem focused examination; and Straightforward medical decision making. Usually the presenting problem(s) are self limited or minor. Physicians typically spend 10 minutes face-to-face with the patient or family. 99213--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: An expanded problem focused history; An expanded problem focused examination; and Medical decision making of low complexity. Usually, the presenting problem(s) are of low to moderate severity. Physicians typically spend 15 minutes face-to-face with the patient and/or family. 99214--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A detailed history; A detailed examination; and Medical decision making of moderate complexity. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 25 minutes face-to-face with the patient and/or family. 99215--Office or other outpatient visit for the evaluation and management of an established patient, which requires at least two of these three key components: A comprehensive history; A comprehensive examination; and Medical decision making of high complexity. Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family. 99382--Initial comprehensive preventive medicine evaluation and management . . . for a child age 1 through 4 years. 99384--An initial comprehensive preventive medicine evaluation and management . . . of a new patient, aged 12 through 17 years. 99385--An initial comprehensive preventive medicine evaluation and management . . . of a new patient, aged 18 to 39 years. 99392--A periodic comprehensive preventive medicine evaluation and management . . . for a child age 1 to 4 years. 99393--A periodic comprehensive preventive medicine evaluation and management . . . of a child age 5 through 11 years. 99395--A periodic comprehensive preventive medicine evaluation and management . . . of an existing patient, aged 18 through 39 years. 99396--A periodic comprehensive preventive medicine evaluation and management . . . of an existing patient, aged 40 through 64 years. W9881--A checkup and screening for a child.4 The exact correlation between the CPT procedure codes and specific dollar amounts was not provided at final hearing, but there was a dollar amount assigned (by AHCA) to each of the services provided by Respondent to his patients. The Medicaid Fee Schedules (of which official recognition were taken) do provide a maximum fee for each code, but there was no testimony as to how each fee was assigned in this case, i.e., whether it was the maximum fee or not. AHCA used the services of a hired consultant (Dr. Sloan) to review Respondent's patient records concerning the assignment of CPT procedure codes for services rendered. Dr. Sloan is an experienced physician with a family practice in Chipley, Florida (a city in the Florida panhandle). Dr. Sloan had never, prior to the instant action, performed a review of another physician's records for the purpose of ascertaining the proper procedure code. This was his first foray into this process. Dr. Sloan reviewed Respondent's patient records and determined that all 40 patient records at issue had at least one erroneous procedure code, resulting in the reduction of allowable charges for those procedures. After Dr. Sloan's review was completed, another medical professional (Greg Riley, a registered nurse) reviewed the charts and made some adjustments to the monetary charges. Riley had reviewed the records initially just to make sure the records were complete. His subsequent review, after Dr. Sloan, was to determine the correct charges based on Dr. Sloan's adjustments of the procedure codes. For the purposes of reviewing the following paragraph, the patients were each assigned a number (1 through 40) and will be referenced by their assigned number herein with a parenthetical number, e.g., (1) (2) (3), etc. Some patients had more than one visit at issue. For those patients, the visit will be referred to by a written number, e.g., One, Two, Three, etc. A review of each patient and each office visit will be discussed in the following Findings of Fact. The original code and monetary charge will be stated, followed by Dr. Sloan's revised code and Riley's reduction in monetary charge. A statement of Respondent's position concerning the charge will come next, followed by a conclusion as to the proper charge based on all the evidence presented. The evidence at final hearing as to each resident was presented by way of three groups of documentation. First, there is an AHCA form listing all claims in the Medicaid sample, showing the CPT code for each patient and each patient visit. Second, there is the Respondent's office chart from each patient visit. Third, there is a written response from Respondent's former counsel as to each patient visit. This evidence, along with the testimony of witnesses, shows: One: Coded 99205 with a charge of $85.41--Dr. Sloan reduced the code to 99203, due to lack of a comprehensive history; charge was reduced to $48.68. Respondent showed that, according to annotations in the chart, the patient presented with multiple problems and a comprehensive examination was conducted. 99205 is supported. Two: Coded 99214 for $39.46--claim denied in full, as visit was a follow up only; no face-to-face time with doctor. Respondent's records show he did meet with patient, but did not exercise complex medical decision-making. The evidence supports a reduction to 99211, with the appropriate charge for that code. One: Coded 99205 for $85.41--reduced to 99202 due to lack of documentation. Respondent did not prove entitlement to a higher code. 99202 is appropriate. Two: Coded 99215 for $58.28--reduced to 99212 for $21.84, because visit was not deemed "extensive" by Dr. Sloan. Respondent did not prove elements of 99215. 99212 is appropriate. Three: Coded 99395 for $51.85--denied in full due to lack of documentation and no management issues during the visit. Respondent's records indicate comprehensive exam, and he testified to long face-to- face visit with resident. 99395 is supported. One: Coded 99204 for $66.74--reduced to 99203 for $48.37, because the examination was deficient. Respondent's records show that comprehensive examination done, history taken, and moderate complexity medical decisions made. 99204 is supported. Two: Coded 99215 for $58.94--reduced to 99213 for $26.47, due to lack of complex history or exam. The records show some level of medical decision-making that could support a higher code. 99214 would be appropriate. One: Coded 99204 for $66.74--reduced to 99203 for $48.37, due to lack of complex history. Respondent did not prove otherwise. 99203 is appropriate. Three: Coded 99214 for $39.51--reduced to 99213 for $26.61 for lack of documentation. Respondent did not prove otherwise. 99212 is appropriate. Four: Coded 99213 for $24.47--reduced to 99212 for $21.84 (a difference of $2.63) for lack of complexity. Respondent did not prove otherwise. 99212 is appropriate. One: Coded 99204 for $68.74--reduced to 99203 for $48.66, due to lack of complexity. Respondent explained his notations in the patient chart and proved the complex nature of the patient's medical problems. 99204 is supported. Four: Coded 99214 for $39.64--reduced to 99212 for $21.84, because the examination lacked detail. Respondent's records and testimony established that a detailed examination was performed. 99214 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $32.44, because of lack of complexity, i.e., upper respiratory infection. Respondent did not prove that a higher code was justified. 99202 is appropriate. One: Coded 99205 for $6.74--denied in full, because the exam lacked a review of services (ROS) component. Respondent's records showed otherwise. 99205 is supported. Three: Coded 99214 for $39.49--reduced to 99212 for $21.84 due to lack of exam and/or exam was "problem focused."5 Respondent indicated patient had undergone complete physical three days prior. Visit at issue was for a specific problem. 99212 is appropriate. Four: Coded 99213 for $24.47--reduced to 99212 for $21.84, because no exam shown; visit was problem focused. Respondent's records indicate only a brief visit. 99212 is appropriate. Five: Coded 99213 for $24.4--reduced to 99211 for $12.48, due to visit being solely to refill medication. Respondent states, erroneously, that the 99211 code means that only a nurse saw the patient. In actuality, the code says that the physician does not have to see the patient, but may do so. 99211 is appropriate. Six: Coded 99214 for $39.49--reduced to 99212 for $21.84, because the visit was only problem focused. The examination performed by Respondent appears to be just that, for an oral problem. 99212 is appropriate. Seven: Coded 99213 for $24.47--denied in full, because of absence of history taken and examination record. Doctor appeared to only provide results of prior test. Respondent did not prove otherwise. Denial is appropriate. One: Coded 99204 for $68.74--denied in full by Dr. Sloan, but upgraded to 99203 for $50.64, by the RN. No comprehensive history or exam was proven by Respondent. 99203 is appropriate. One: Coded 99384 for $71.54--reduced to 99213 for $32.56 due to insufficient documentation. Respondent showed that the patient came in for a school checkup. 99384 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because the visit was only problem focused. But Respondent showed that although patient showed with only one problem (toothache), other problems were identified during the visit. 99204 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $32.71, because visit was only problem focused, i.e., skin irritation. Respondent showed that patient was also in a high risk pregnancy and additional services were provided. 99204 is supported. Two: Coded 99395 for $71.54--denied in full by Dr. Sloan for failure to do more than an abdominal exam and take vital signs. Respondent did show that an annual evaluation was done, but the records do not appear to indicate a full examination. 99212 would be warranted. One: Coded 99214 for $41.51--reduced to 99213 for $32.56, because the visit was problem focused. Respondent did spend some time with patient, but did not show elements of higher code. 99213 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because visit was problem focused for an ingrown toenail. Respondent showed that the patient actually had multiple issues and Respondent did a fairly comprehensive history and examination. 99204 is supported. (14) One: Coded 99204 for $68.74--reduced to $32.71, because visit was problem focused for an upper respiratory infection. Respondent showed that a comprehensive history and examination were done in order to more adequately address the new patient's needs. 99204 is supported. Two: Coded 99395 for $68.84; denied in full, because of full examination done just one week prior. Respondent showed that the annual evaluation done on this date had a different focus than the prior visit and was justified and necessary. 99395 is supported. One: Coded 99215 for $58.29--reduced to 99212 for $21.84, because the visit was only to refill a prescription. A one-item exam plus vitals was performed. Respondent did not establish need for higher code. 99212 is appropriate. Two: Coded 99214 for $39.46--reduced to 99213 for $26.61, because the visit was only to address dermatitis. Respondent showed the existence of multiple problems and extensive time spent with patient. 99214 is supported. Three: Coded 99214 for $41.46--reduced to 99212 for $21.84, because visit was problem focused for an insect bite. Respondent did not prove higher code was needed. 99212 is appropriate. Four: Coded 99214 for $39.46--reduced to 99213 for $23.61, because visit was problem focused for vaginitis. Respondent did not prove otherwise. 99213 is appropriate. Five: Coded 99396 for $53.72--initially denied in full by Dr. Sloan, then reduced to 99211 by the RN. Respondent showed that a legitimate annual evaluation of patient was done. 99396 is supported. Six: Coded 99215 for $60.29--reduced to 99213 for $26.61, because Dr. Sloan deemed the examination inadequate; Respondent failed to do a ROS. Respondent showed that he spent a lot of time with the patient, but not that there was any degree of medical decision-making at a high complexity level involved. 99214 would be appropriate. Seven: Coded 99214 for $41.46--reduced to 99213 for $26.21, because visit was for an expanded problem- focused reason (ear infection). Respondent did not prove otherwise. 99213 is appropriate. One: Coded 99215 for $58.88--reduced to 99212 for $21.84, due to lack of examination documentation and that visit was problem focused. Respondent showed that additional issues were presented and discussed. 99215 is supported. Four: Coded 99214 for $41.49--reduced to 99212 for $21.84 for same reasons as prior visit. Respondent did not provide evidence of further issues. 99212 is appropriate. One: Coded 99214 for $41.51--reduced to 99213 for $27.67, due to lack of examination details. Respondent could not support higher code. 99213 is appropriate. One: Coded 99204 for $66.73--reduced to 99203 for $48.25, due to inadequate ROS and low complexity of the patient. Respondent could not support higher code. 99203 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $34.01, because visit was for an expanded problem focus reason with straightforward medical decision- making. Respondent did not establish reason for higher code. 99202 is appropriate. One: Coded 99204 for $66.74--reduced to 99202 for $32.37, because it was a problem focused visit for an upper respiratory infection (URI). Respondent found patient to be in a high risk pregnancy and examination escalated due to that fact. 99204 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $37.37, because visit was problem focused for URI. Respondent did not support higher code. 99202 is appropriate. One: Claim was allowed. Two: Coded 99214 for $41.51--reduced to 99213 for $32.56, because the visit was problem-focused for a URI. Respondent could not prove higher code was necessary. 99213 is appropriate. Three: Coded 99213 for $26.47--reduced to 99212 for $26.45 (two cent difference). Respondent acquiesced. 99212 is appropriate. Four: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem-focused for an allergic reaction. Respondent noted that patient had allergic rhinitis and perhaps pneumonia. 99214 is supported. Five: Coded 99213 for $26.47--reduced to 99212 for $26.45 (two cent difference). Respondent acquiesced. 99212 is appropriate. Six: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for URI. Respondent did not prove need for higher code. 99213 is appropriate. Eight: Coded 99393 for $71.54--denied in full, due to fact that prior visit should have covered examination. Respondent showed that the annual evaluation or physical focused on different aspects of patient's wellbeing than regular office visits. 99393 is supported. Ten: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for gastrointestinal problem. Respondent did not sufficiently justify the higher code. 99213 is appropriate. Twelve: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Thirteen: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Fourteen: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Sixteen: Coded 99214 for $41.51--reduced to 99213 for $27.67, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. One: Coded 99205 for $85.11--reduced to 99203 for $48.69, because of lack of documentation. The evidence and documentation presented by Respondent was sufficient to validate higher code. 99205 is supported. Two: Coded 99214 for $41.51--reduced to 99212 for $26.45, because visit was problem focused. Respondent did not support a higher code. 99212 is appropriate. Three: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. One: Claim was allowed. One: Coded 99205 for $87.41--reduced to 99202 for $34.01, due to inadequate documentation. Respondent showed sufficient documentation to warrant code. 99205 is supported. Three: Coded 99215 for $60.95--reduced to 99213 for $27.67, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Four: Coded 99212 for $21.84--reduced to 99211 for $12.97, because visit was for a lab draw only. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99214 for $41.51--reduced to 99212 for $27.71, because visit was problem focused. Respondent failed to show all elements of higher code. 99212 is appropriate. Six: Coded 99214 for $41.51--reduced to 99213 for $27.67, because visit was problem focused. Respondent failed to show all elements of higher code. 99213 is appropriate. One: Coded 99214 for $41.49--reduced to 99213 for $32.56, because visit was problem focused. Respondent showed that patient had several complex problems. 99214 is supported. One: Coded 99204 for $68.74--reduced to 99202 for $33.66, because visit was problem focused for a URI. Respondent did not prove otherwise. 99202 is appropriate. One: Coded 99214 for $41.51--reduced to 99212 for $26.45, because no examination done on a problem focused visit. Respondent showed that more extensive examination was done, that patient had disappeared for two years and doctor needed to catch up on their history, and diagnoses were complex. 99214 is supported. Two: Coded W9881 for $68.74--reduced to 99211 for $12.48, because visit was for minor checkup. Respondent showed that visit was a legitimate checkup for the child. W9881 is supported. Three: Coded 99212 for $21.84--reduced to 99211 for $12.97, because visit was just for refills and vital signs taken. Respondent did not show otherwise. 99211 is appropriate. Four: 99214 for $41.51--reduced to 99213 for $32.56, because visit was only for expanded problem focus. Respondent did not prove elements of higher code. 99213 is appropriate. One: Coded 99204 for $68.74--reduced to 99202 for $33.74, because visit was problem focused. Respondent showed the patient had multiple problems that required treatment. 99204 is supported. Three: Coded 99214 for $41.51--reduced to 99213 for $32.56, because visit was problem focused for URI. Respondent showed the elements of the higher code. 99214 is supported. Four: Coded 99392 for $71.54--reduced to 99212 for $26.45, because it was deemed a simple office visit. Respondent proved that the visit was indeed an annual evaluation. 99392 is supported. Five: Coded 99214 for $41.51--reduced to 69210 (a procedure code having to do with cerumen impaction removal, i.e., removing wax from the patient's ear) for $25.31. Respondent proved the difficulty of that procedure for a child and that by doing so he saved the family a much higher medical charge had they gone to a specialist. 99214 is supported. One: Claim was allowed. One: Coded 99204 for $66.74--reduced to 99202 for $33.66, because visit was problem focused for a depressive disorder. Respondent did not prove otherwise. 99202 is appropriate. One: Coded 99215 for $60.35--denied, in full, because of lack of evidence that face-to-face examination occurred. Respondent showed sufficient evidence that such an examination did occur. 99215 is supported. One: Coded 99382 for $71.54--initially denied, in full, but then reduced to 99202 for $34.01 by the RN. Respondent showed that a full screening for a new patient was done. 99382 is supported. One: Coded 99204 for $66.74--reduced to 99202 for $33.74, because visit was problem focused for hypertension. Respondent indicated he spent considerable time with the patient, but did not meet the requirements for a higher code. 99202 is appropriate. Two and Three: The dates and designations for these two visits are confused in the record. One visit is coded 99396 for $55.16, the other is 99215 for $58.35. The first was allowed, the second denied. Respondent did not prove the elements of the two higher codes. 99396 is appropriate. 99215 is denied. Four: Coded 99212 for $19.84--reduced to 99211 for $12.48, because the visit was simply a blood pressure check. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused, and there was no examination. Respondent did not prove otherwise. 99212 is appropriate. Six: Coded 99396 for $54.75--denied, in full, because of lack of documentation. Respondent showed the existence of a legitimate annual exam. 99396 is supported. Seven: Coded 99214 for $39.46--reduced to 99213 for $26.61, because visit was an expanded problem focused relating to hypertension. Respondent did not prove otherwise. 99213 is appropriate. Eight: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused with only vitals taken. Respondent showed the visit was more extensive than that, but not to the level of 99214. 99213 would be supported. One: Coded 99204 for $66.74--reduced to 99202 for $32.37, because visit was problem focused. Respondent showed that patient had many special needs and additional services were required. 99204 is supported. Two: Coded 99214 for $39.51--amount was adjusted to $34.75, due to fact that wrong code was used. Respondent provided sufficient evidence to support his code. 99214 is supported. Four: Coded 99214 for $39.51--denied, in full, because lack of documentation and belief that visit was simply a pre-op visit. Respondent did not support the higher procedure code, but did support a code of 99202. Six: Coded 99214 for $41.49--reduced to 99213 for $26.61, because visit was problem focused to remove foreign object from patient's ear. Respondent satisfied elements of the higher procedure code. 99214 is supported. Seven: Coded 99212 for $19.84--denied, in full, because of lack of documentation. Respondent's testimony and documents show that services were performed. 99212 is supported. Nine: Coded 99213 for $24.47--denied, in full, because visit seemed to be only an interpretation on a test. Respondent did not prove otherwise. Claim is denied. Ten: Coded 99214 for $41.46--reduced to 99213 for $26.61, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Eleven: Coded 99395 for $51.83--denied in full, because the issues had been covered during the patient's prior visit. Respondent showed that the visit was an annual periodic visit and was legitimate. 99395 is supported. Twelve: Coded 99213 for $24.47--denied, in full, because of lack of documentation and visit was only for lab work. Respondent did not prove otherwise. Claim is denied. One: Coded W9881 for $68.74--reduced to 99212 for $26.45, because visit was only a skin evaluation. Respondent showed that the patient was brought in by a state agency for a physical. W9881 is supported. One: Coded 99204 for $66.74--reduced to 99201 for $31.20, because visit was problem focused on obesity. Respondent spent time with the patient, but did not prove the elements of the higher code. 99202 would be appropriate. Two: Coded 99212 for $19.84--denied, in full, because there is no evidence of a visit. Respondent did not prove otherwise. The claim is denied. Three: Coded 99396 for $54.75--denied, in full, because of lack of medical necessity. Respondent did not prove otherwise. Claim is denied. Four: Coded 99214 for $39.46--reduced to 99211 for $12.48, because no exam was conducted. Respondent did not prove otherwise. 99211 is appropriate. Five: Coded 99212 for $19.84--denied, in full, because the visit was for a lab draw only. Respondent did not prove otherwise. 99211 is appropriate. Six: Coded 99214 for $39.46--reduced to 99211 for $12.48, because visit was only for lab work review. Respondent proved that more services were provided. 99214 is supported. Seven: Coded 99212 for $19.84--denied, in full, because of absence of face-to-face meeting. Respondent showed documentation that such a meeting occurred. 99212 is supported. Eight: Coded 99213 for $24.47--denied, in full, because no face-to-face meeting occurred. Respondent did not prove otherwise. Claim is denied. One: Coded 99204 for $68.74--reduced to 99202 for $32.71, because visit was problem focused for HIV patient. Respondent did not prove otherwise. 99202 is appropriate. Two: Coded 99385 for $49.83--denied, in full, because of lack of medical necessity. Respondent showed need for annual medical evaluation. 99385 is supported. Three: Coded 99214 for $39.46--reduced to 99213 for $26.61, because visit was problem focused. Respondent did not prove otherwise. 99213 is appropriate. Four: Coded 99214 for $39.46--reduced to 99212 for $21.84, because visit was problem focused. Respondent showed that more than a simple visit occurred. 99213 would be appropriate. Dr. Sloan, although undeniably a qualified family medicine practitioner in his own right, operates his business in a geographic area far removed from Respondent. Dr. Sloan's office is located in Chipley. Respondent's office is in central Florida, in Winter Haven. No evidence was presented to indicate how the diversity of those two areas would affect Dr. Sloan's ability to accurately address Respondent's coding. Thus, it is presumed for purposes of this proceeding that Dr. Sloan was competent to perform the review of records. Nonetheless, Respondent is uniquely positioned to evaluate the patients who came to his office. Respondent is the only witness who testified at final hearing who knows exactly what kind of treatment each such patient received. His descriptions of the office visits and interpretation of the patient charts are, therefore, given great weight. Further, Respondent's testimony was very credible as to his description of his patients and their various ailments. The assignment of charges to each code was not discussed sufficiently at final hearing for the undersigned to make any specific findings as to the proper Medicaid charges for the revised codes. That is the purview of AHCA. The fee schedule introduced into evidence contains only the maximum fee for each CPT code; it does not provide guidance in setting a fee less than the maximum. No evidence was presented to refute Respondent's description of his services to the 40 patients at issue; nor did Dr. Sloan address Respondent's explanation and interpretation of the patient charts. The Agency used the technique of "cluster sampling" to determine the amount of overpayment to Respondent. This technique, which has been upheld in Agency for Health Care Administration v. Custom Mobility, 995 So. 2d 984 (Fla. 1st DCA 2008), rev. den., Custom Mobility, Inc. v. Agency for Health Care Administration (Fla. Feb. 2, 2009), was correctly applied in the instant case. It was the cluster sampling of Respondent's 40 patients that resulted in the calculation of overpayment by AHCA.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, setting forth the following: That each CPT code substantiated by Respondent, Hamid Bagloo, M.D., be deemed proper and that the amount paid for those office visits be allowed; That the codes validated by Respondent pursuant to his testimony at final hearing in this matter be assigned a monetary charge consistent with the Medicaid Fee Schedule; That the sum total of AHCA's overpayment to Respondent be reduced in an amount commensurate with the findings herein; and That the fine imposed against Respondent be stricken. DONE AND ENTERED this 10th day of September, 2009, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of September, 2009.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 26th day of June, 2006.
The Issue The issues in this case are whether Petitioner committed the alleged violations and, if so, should her paramedic license be revoked.
Findings Of Fact At all times relevant to this proceeding, Petitioner was employed as a paramedic by the City of Gulfport and worked as a paramedic for the Gulfport Fire Department. In this capacity, Petitioner worked under the auspices of the medical director for Pinellas County Emergency Medical Services (Pinellas County EMS). Petitioner was a paramedic from 1997 until March 2003. Prior to that time, from 1991 until 1997, she worked as an emergency medical technician (EMT). On February 20, 2003, Petitioner, along with Lt. Brian Campbell and Firefighter/EMT Dennis Jackson, were called to respond to the scene of a shooting. Petitioner was the only paramedic on the scene and, therefore, the only person on the scene certified by the Office of the Medical Director (OMD) to provide advanced cardiac life-saving treatment. Petitioner received the call at 12:22 a.m., and arrived at the patient's side at 12:30 a.m. When Petitioner arrived at the patient's side, she observed a white male, approximately 20 years old, lying on his back in the street. His skin color was ashen, his mouth and eyes were wide open, and his pupils were fixed and dilated. Upon physical examination, Petitioner could not detect a pulse and observed two small holes in the patient's trunk. At that point, Petitioner did not know whether the two holes represented two separate entry wounds or one entry and one exit wound. Petitioner observed a trail of blood, at least a block long, leading to the patient, but there was not a lot of blood around the patient. Petitioner attached an electrocardiogram (ECG) monitor to the patient to monitor the electrical activity of his heart. When Petitioner first turned on the ECG monitor, she observed four ticks of electrical activity within a 14-second span. Petitioner testified that based on her observation and physical examination of the patient, she believed that the electrical activity exhibited on the ECG monitor was not pulseless electrical activity (PEA), but rather "artifact" caused by her manipulation of the patient. Petitioner further testified that, thereupon, she stopped touching the patient and observed that the ECG read-out went mostly flat, showing only occasional ticks. Petitioner testified that these occasional ticks, as observed on the ECG monitor, indicated to her that the patient was in asystole. Shortly thereafter, Petitioner declared the patient dead. After Petitioner declared the patient dead, she prepared a Patient Care Report (Report or Patient Care Report) while still on the scene. In the Report, Petitioner wrote that she found a white male laying on the ground with an apparent small entrance wound in his upper chest and a possible small exit wound near his back rib. She further noted that the patient's temperature was normal, that his eyes were fixed and dilated, that he was not breathing (apneic), and that he had no discernible pulse. Petitioner also noted in the Report that the patient was in asystole within one minute after the ECG pads were attached, but she failed to note the initial four ticks she observed, which may have represented PEA. In the Report, Petitioner noted that at 12:30 p.m., the patient was hooked up to the monitor; at 12:31 p.m., he was asystolic; and at 12:32, she confirmed the patient dead. Upon completing the Report at the fire station, Petitioner attached to the Report the last of several ECG strips she had intermittently printed while at the patient's side. The ECG printout that Petitioner attached to the Report depicted a classic "flat line" indicative of asystole or no electrical activity. Petitioner discarded each of the ECG strips that contained some indicia of electrical activity. A Patient Care Report is a legal document that Petitioner is required to complete by law. By signing the Report, Petitioner acknowledged that the information contained in the Report was true and accurate. Later, on the morning of February 20, 2003, when the employees' shifts at the fire station were changing, Petitioner and Toni Lanahan (Lanahan), a firefighter/paramedic coming on duty, talked about the shooting incident. That such conversation occurred is undisputed. However, there was conflicting testimony as to what Petitioner told Lanahan during that conversation. According to Lanahan, Petitioner told her that when she (Petitioner) arrived at the scene, the patient looked dead but she hooked him up to the ECG monitor, that he had a rhythm but she did not work him, and that she turned off the monitor. Petitioner testified that she did not tell Lanahan that the patient had a heart rhythm, but only that the patient "was dead" and that she did not work him.1 About two hours after her conversation with Petitioner, Lanahan retrieved stored ECG code summary data of the patient described above.2 When Lanahan reviewed the ECG code summary, she saw that the patient had a presenting ECG rhythm showing approximately 40 beats per minute of PEA with gradually slowing PEA for the entire seven minutes depicted in intervals on the ECG summary. Based on her review of the ECG record of the gunshot wound patient, Lanahan believed that in this situation, the OMD protocols mandated that immediate resuscitative treatment be administered. Lanahan then reported these concerns to her emergency medical services (EMS) Coordinator, Lt. Marenkovic, who in turn, reported the incident to Gulfport Fire Chief Brian Brooks. Chief Brooks notified the OMD of the possible violations of its protocols by Petitioner. The OMD initiated an investigation, which included reviewing the written statements of Petitioner, Lt. Campbell, and EMT Jackson; the ECG code summary for the incident; Petitioner's Report; and the transcripts of the sworn interviews of Petitioner, Lt. Campbell, and EMT Jackson taken by the Gulfport Fire Department. After reviewing the above-referenced documents, Dr. Laurie Romig (Dr. Romig), the medical director of the Pinellas County EMS, decided to revoke Petitioner's certification. This decision was based on Dr. Romig's determination of the following: (1) Petitioner violated numerous protocols in the Medical Operations Manual, both administrative and direct patient care protocols; and (2) Petitioner attempted to make the situation appear differently from what it turned out to be, and that, apparently, she did that on purpose. Specifically, Dr. Romig charged Petitioner with violating Pinellas County Emergency Medical Services Protocol 2.3, Sections 5 and 6, and Protocol 10.8 and the following Pinellas County Emergency Medical Services Rules and Regulations: Sections XIII-3-b, related to falsification or inappropriate alteration of emergency medical services records; XIII-3-e, related to theft or dishonesty in performance of duty; XIII-3-i, related to demonstrated ability, failure or refusal to adhere to established protocols and standards as established by the authority; and XIII-3-k, related to just cause, including unbecoming behavior or unprofessional conduct reflecting a poor system image. The Pinellas County emergency protocols are written requirements that paramedics must follow when administering emergency treatment to patients. The protocols are published in a document entitled Pinellas County Medical Operations Manual, which is approved by the medical director and distributed to all Pinellas County EMS paramedics. Petitioner received a copy of the most recent medical operations manual in January 2003. EMS Protocol 5.10 prescribes treatment for patients presenting with PEA. As defined in Protocol 5.10, PEA is "any semi-organized electrical activity that can be seen on a monitor screen although the patient lacks a palpable, radial, brachial, or carotid pulse." When PEA is present in a patient, Protocol 5.10 mandates that immediate life-saving treatment be implemented. The patient initially had electrical activity. Nonetheless, Petitioner did not follow Protocol 5.10. According to Petitioner's testimony, she believed that the patient was asystolic and, thus, the protocol related to PEA was inapplicable to the shooting victim. Petitioner's belief was not supported by the ECG report. Protocol 5.4 delineates the procedures to be followed in the treatment of asystole. In the book utilized for Pinellas County EMS paramedic training, "asystole" is defined as a cardiac arrest rhythm associated with no discernible electrical activity on the ECG ("flat line"). Significantly, Protocol 5.4 and Protocol 5.10, discussed in paragraph 21, require that resuscitative efforts be started immediately and that such resuscitative efforts and treatment be terminated by the paramedic only "after 10 minutes of continuous asystolic arrest with appropriate interventions." Even if Petitioner's assertion that the patient was asystolic is accepted, she failed to provide the required resuscitative efforts and/or treatments prescribed by Protocol 5.4. Petitioner did not prematurely terminate resuscitative efforts, she never implemented them. Protocol 5.15 prescribes the treatment and transport considerations for "patients with cardiac arrest secondary to trauma, regardless of presenting cardiac rhythm." The protocol provides that such patients should be transported to the closest hospital emergency facility. Contrary to the requirements in Protocol 5.15, the patient was not transported to a hospital emergency facility. Protocol 2.3 requires paramedics, when possible, to contact and consult with On-line Medical Control (OLMC) in any case in "which a deviation from protocol has been made intentional or otherwise." The OLMC is a system which allows paramedics to contact the OMD and consult with a medical doctor regarding a situation in the field. Petitioner clearly deviated from Protocols 5.4 and/or 5.10, by failing to initiate and implement the resuscitation procedures required by both protocols, and Protocol 5.15, by failing to have the patient transported to a hospital emergency facility, yet she never contacted the OLMC as mandated by Protocol 2.3. Petitioner acknowledged that she did not follow either Protocols 5.4 or 5.10, both of which required immediate resuscitative efforts. Petitioner testified that instead, she followed Protocol 10.8, which provides an exception to the protocols that require initiation of resuscitative efforts. Petitioner contends that Protocol 10.8 provided the basis for her withholding resuscitation from the patient. Protocol 10.8 requires that cardiopulmonary cerebral resuscitation (CPCR) be initiated "in all cases when the patient is found in cardiopulmonary arrest unless one of the exclusion or special situation criteria applies." The exclusion criteria provides that CPCR may be withheld if the patient has, "in conjunction with apnea, pulselessness and asystole on the ECG," an "obviously unsurvivable trauma." If CPCR is withheld, Protocol 10.8 requires that exclusion criteria be fully documented and described. Protocol 10.8 does not define "obviously unsurvivable trauma." However, according to Dr. Romig, the term connotes catastrophic injuries observable by an untrained eye. Dr. Romig, an expert in emergency medicine and traumatic cardiac arrest, testified that nothing about this patient, based on her review of the records and documents, indicated that the patient had suffered an "obviously unsurvivable trauma." Also, Lt. Campbell, an EMT certified for 12 years, who was at the scene, testified that although the patient "looked dead," he could not say that the patient suffered an "obviously unsurvivable trauma" because the patient showed only a small bullet wound to the chest and a "little bit" of blood on his (the patient's) clothing. The weight of the evidence showed that the patient had not suffered an obviously unsurvivable trauma. However, even accepting Petitioner's testimony that she believed that the patient had suffered an obviously unsurvivable trauma, she failed to comply with Protocol 10.8. If Petitioner, in fact, relied on Protocol 10.8 in deciding to not administer CPCR, she was required to document and describe the exclusionary criteria, which was the basis of her decision to withhold CPCR. Petitioner failed to provide any such documentation and, thus, violated Protocol 10.8. In addition to violating the above-noted protocols, Petitioner was dishonest in the performance of her duties as a paramedic and also falsified EMS records. The ECG summary showed that despite the patient's having electrical cardiac activity of at least 40 beats, Petitioner turned off the ECG machine and pronounced the patient dead. After pronouncing the patient dead, she then turned the ECG machine on again, and intermittently printed activity on four separate occasions until reaching a reading showing no electrical cardiac activity. By engaging in this conduct, Petitioner was dishonest in the performance of her duties. Paramedics are required to truthfully and accurately complete the Patient Care Records of patients for whom they provide emergency medical services. Here, the ECG summary showed PEA of over 40 beats per minute initially and diminished electrical activity for over eight minutes total, six minutes of which were after Petitioner had already pronounced the patient dead. Petitioner initially saw a rhythm of four beats or ticks in a 14-second period, which was a beat rate of 40 and showed on the ECG strip as 42. Although the initial reading of approximately 40 beats and PEA was clearly visible during the entire nearly eight minutes depicted on the six-second intervals shown on the ECG code summary, this was omitted from Petitioner's Report. Petitioner omitted from the patient's Record the ECG readings that showed electrical activity. Instead, Petitioner reported that at the time she declared the patient dead, he was in "asystole" when, in fact, the ECG summary showed PEA. Moreover, Petitioner documented the Report with an asystole ECG strip reflecting a "flat line" reading printed some six or seven minutes after the reported time of death.3 Petitioner admitted during her sworn statement and at this proceeding that she deliberately did not attach to the Report any part of the ECG strip that reflected the interim electrical activity. Petitioner testified that the ECG strips showing interim electrical activity could raise doubts about the propriety of the treatment she gave this patient in a future criminal trial or other investigation.4 The medical director is required by law to ensure that Pinellas County EMS personnel provide quality care and are not a danger to the safety of the county's citizens, residents, or visitors. Here, Petitioner violated the protocols related to the standard of care for patients and completion of reports and rules and regulations related to dishonesty in the performance of duties and to falsification of records. These infractions are a possible threat to public health and safety of residents of and visitors to Pinellas County. As such, they constitute just cause to conditionally revoke Petitioner's Pinellas County Paramedic Certificate. The conditional revocation allows Petitioner to reapply for a paramedic certificate in two years. Such recertification may include a one-year probationary period, with monitoring by the medical director to include a review of all trauma-run reports. Petitioner's Pinellas County Emergency Medical Technician Certification was not revoked and she retains that certification.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent enter a final order finding Petitioner guilty of the violations alleged in the Notice of Revocation dated March 28, 2003, and upholding revocation of Petitioner's Pinellas County Paramedic Certificate. DONE AND ENTERED this 1st day of October, 2003, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of October, 2003.
The Issue The issue to be determined is whether Respondent, Umesh Madhav Mhatre, M.D. ("Dr. Mhatre" or "Respondent"), has violated section 458.331(1)(t), Florida Statutes (2007), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of the practice of medicine pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. Respondent is a licensed physician within the State of Florida, having been issued license number ME 27561 on September 13, 1976. He has never been the subject of disciplinary proceedings prior to this case. Respondent's address of record is 165 S.W. Vision Glen, Lake City, Florida 32025. Respondent is board-certified in adult psychiatry and child and adolescent psychiatry. Respondent practices in Lake City, Florida, and is the only full-time psychiatrist practicing there. He has served on the Board of Directors for the Lake City Medical Center, as chief of staff twice, as well as serving as the president of the Columbia County Medical Society. Dr. Mhatre was an instructor at the University of Florida from 1979 to 1980, followed by service as an adjunct clinical professor for University of Florida for the next 20 years. He is a consultant to the State of Florida, Division of Vocational Rehabilitation within the Department of Education, and has been a court-appointed psychiatrist for the Third, Fifth, Seventh and Eighth Judicial Circuits. Dr. Mhatre accepts all types of insurance, including Medicaid. He continues to treat patients after their insurance is depleted. From approximately March of 1999 through approximately May of 2008, Respondent treated patient S.C. S.C. was a patient experiencing moderate to severe mental illness. By history, she suffered from a psychotic disorder, most likely schizophrenia; post-traumatic stress disorder ("PTSD"), with significant personality dysfunction related to the trauma; obsessive-compulsive disorder ("OCD"); traits associated with a personality disorder; and history of alcohol abuse. S.C. had a history of sexual abuse by both her mother and her mother's psychiatrist, and physical abuse from her former husband and her son. Prior to her treatment with Respondent, she had experienced over 50 hospitalizations in a 10-year period. When she presented to Respondent, S.C. was experiencing auditory hallucinations and self-injurious behavior, such as cutting herself. Auditory hallucinations are the misperception that someone is hearing voices that are not really there. Self- injurious behavior is the conscious intent to hurt one's self but without the intent to die. Beginning in the spring of 2004, Respondent prescribed the psychotropic drug Geodon for S.C. Geodon is an anti-psychotic drug that is believed to block dopamine receptors, and impacts several different receptors in the nervous system. S.C. responded very positively to Geodon, and her auditory hallucinations and cutting behavior subsided while treated with the drug. During the time that Dr. Mhatre was treating S.C., he was also a speaker for Pfizer Pharmaceuticals, giving lectures on the benefits of Geodon. He had given those lectures since approximately 2001. The lectures were presentations to a small number of other mental health providers in an informal setting. Dr. Mhatre was paid for his presentations. Beginning at the end of 2005 through approximately March 20, 2008, S.C. participated in some of the seminars with Respondent, providing her experience with the use of Geodon compared to other psychotropic drugs that had been prescribed for her over the years. S.C. participated in six seminars with Respondent during this period of time. By contrast, according to Respondent's payment ledger submitted as Respondent's Exhibit 3, Respondent participated in approximately 31 presentations. There were times that S.C. told Dr. Mhatre that she could not attend a seminar because of a scheduling conflict, and from his view, her inability to appear did not cause any problems. Dr. Mhatre agreed to speak for Pfizer in part because, as the only full-time psychiatrist in Lake City, it gave him the opportunity to interact with other physicians in his field. It also gave him the opportunity to see the data provided by the pharmaceutical companies to the Food and Drug Administration. S.C. did not testify in this proceeding. According to Respondent, S.C. was a Medicaid patient and, after taking Geodon for approximately a year with great success, she had expressed concern that Medicaid might remove the drug from its formulary and stop paying for the Geodon. Respondent suggested that she speak to a Pfizer representative who was visiting his office, because Pfizer had some programs that assisted patients who could not afford their medications. Dr. Mhatre testified that as a result of S.C.'s discussions with representatives from Pfizer, they suggested that she participate in the lectures regarding Geodon, and she agreed to do so. Dr. Mhatre's explanation is unrebutted.1/ S.C. was reimbursed by Mhatre for travel expenses, but no other payments were made to her. Dr. Mhatre's compensation as a speaker was not affected by S.C.'s participation or lack thereof. He continued to speak for Pfizer until 2011, approximately three years after his treatment of S.C. ended. The presentations took time away from his office practice, so the compensation he received from Pfizer has been replaced by seeing more patients. There has been little difference in his income as a result of no longer speaking for the company. Dr. Mhatre discussed with S.C. the potential risks and benefits of appearing in the presentations. He felt participation could possibly raise her self-esteem and give her a feeling of self-control. Telling her story would give S.C. an opportunity to help other patients. On the other hand, he warned her that she could encounter some physicians who were not supportive and could be confrontational. Dr. Mhatre stated that, in the event such an issue arose, he would intercede for her. However, there is no indication that such a negative encounter ever occurred. With respect to those presentations where S.C. participated, generally, Dr. Mhatre would begin a program with a standard presentation regarding Geodon, and would show some slides related to the drug and its use with serious mental illness, such as bipolar disorder or schizophrenia. Then, S.C. would be given an opportunity to discuss her experiences in terms of her mental health history, to a degree; her poor response to other medications; and her robust response to Geodon. S.C.'s participation in the presentation lasted approximately ten minutes. Her identity was not revealed and details regarding her mental health history were very limited. S.C.'s last two visits with Dr. Mhatre were February 11, 2008, and May 12, 2008. At the February 11, 2008, visit, Dr. Mhatre's notes reflect that S.C.'s prescription for Prozac made her sleepy, stating in his objective assessment, Patient apparently continues to have some obsessive behavior in spite of 40 mg Prozac has not changed any rather she has become increasingly more tired and thus prefers to go back to 20 and deal with her obsession by doing more physical exercise. Dr. Mhatre noted that her treatment response was "adequate for psychosis, not for OCD." Her mental status is described as "shows moderately anxious with some impulsion to clean but no psychosis not suicidal has no urge to hurt herself." The treatment plan indicates that her Geodon will remain at 80 mg 2 tablets daily, and her Prozac would be decreased to 20 mg a day, with S.C. returning in three months. S.C. participated in her last Geodon presentation on approximately March 20, 2008. Her last visit with Dr. Mhatre was May 12, 2008. Her reported subjective assessment was that "I am doing alright." Dr. Mhatre's objective assessment states: The patient continues to do very well. She has not had any relapse of her hallucination. Neither has she had any urge to cut herself. Occasionally she has low moods but they are manageable. She is definitely not suicidal. Dr. Mhatre listed her mental status as "shows no overt psychoses, hallucination or delusion. Not suicidal or homicidal." Dr. Mhatre's treatment plan for S.C. was for her to return in three months, and to maintain her treatment as is. Dr. Mhatre did not associate with S.C. outside of the office setting and the Geodon presentations. He did not socialize with her before or after the presentations. Despite her apparent stability at the May 12, 2008, visit, on July 7, 2008, S.C. was admitted to Shands at Vista, a crisis stabilization unit. She was discharged on July 11, 2008. Her Discharge Summary includes the following: This is a 44-year-old divorced white female admitted voluntarily on a referral from her therapist, Dr. Earley, after reinitiation of cutting herself superficially on her right thigh for the last five days. The patient states that she has had a history of cutting behavior for eight years in her 30s. She was started on Geodon at that time and since then her obsession and compulsion of cutting has improved until the last six months. . . She also notes that a recent stressor in the last month has been strong encouragement by her physician toward doing speeches for the Geodon pharmaceutical company. The patient states that, however, her symptoms of obsessions and compulsions have been worsened in the last six months and she has been afraid to tell her psychiatrist. At that time, it had been close to two months since S.C. had seen Dr. Mhatre and three and a half months since she had appeared at a Geodon seminar. It is unclear how the seminars became a stressor in the last month, and S.C. was not at hearing to explain this comment in the discharge summary. During this hospitalization, Abilify and Lexapro were introduced into S.C.'s medication regimen and Geodon and Prozac were discontinued. She did not see Dr. Mhatre again, and began treatment with another psychiatrist. Dr. Mhatre's patient records for S.C. indicate on July 11, 2008, that he received a telephone call from a Dr. Earley in Gainesville who informed him that S.C. had decompensated and was admitted to Vista. His notes reported the following: Notation: I received a call from Dr. Earley in Gainesville, Florida. . . . Dr. Earley reports that while I was on vacation, S.C. had decompensated and ended up in Vista. Dr. Earley, however, was concerned that she felt because of S.C.'s discussions with me on Geodon subject to the physician and nurses group had compromised our doctor/ patient relationship and that S.C. no longer felt comfortable calling me when she was not doing well, fearful that I may get upset with her or that she may let me down. I discussed with Dr. Earley in that case we need to transfer her to another physician. Vista Pavilion has already taken the steps to set her up with another physician for further management. Also, discussed in that case the daughter who is under my care for depression may need to be seen by someone else as S.C. may find it difficult to come to the office with her. I expressed to Dr. Earley my significant surprise about S.C.'s decompensation and that in the past these talks had been a tremendous boost to her self-esteem and that she had done better than ever before. I urged Dr. Earley to explore other possibilities that may have caused decompensation. I also assured Dr. Earley that since she started having talks with me, I have repeatedly discussed with her her feelings about wanting to do these talks and there was never any pressure put on S.C. and she had voluntarily did [sic] these talks. In fact, I repeatedly assured Dr. Earley that she had felt much better now that she could educate other people who had helped her self-esteem tremendousely to the point that she had even started working at domestic violence shelter and wanted to pursue an career as a counselor and that it was my belief all along that this participation in the talks was very therapeutic for S.C. and tremendously enhanced her self-esteem. I have advised Dr. Earley that I will cancel S.C.'s next appointment and should there be any contact from S.C. with me that I will notify her. The medical records for Shands Vista indicate that S.C. began seeing Dr. Earley (whom she had seen in the past) one week before her admission to Shands Vista. Dr. Earley, who filed the complaint with the Department against Dr. Mhatre, did not testify in this proceeding. The Department contends that Respondent failed to meet the relevant standard of care by engaging in a boundary violation, which was exploitative and/or resulted in harm to S.C. In support of this contention, the Department presented the testimony of Jack Abramson, M.D. Dr. Abramson is a graduate of Laval University School of Medicine in Quebec City, Canada, and served his residency at Harvard Medical School. He has been in group practice in Miami, Florida, since 1990, and is board-certified in general psychiatry, and the subspecialties of geriatric psychiatry, addiction psychiatry and forensic psychiatry. Dr. Abramson is a diplomate of the American Board of Psychiatry and Neurology and a diplomate of the National Board of Medical Examiners and the American Board of Quality Assurance. He is also licensed in Louisiana, Texas, Iowa, Massachusetts, and Arizona. Dr. Abramson has an "eclectic" practice and sees patients as a private practitioner in South Florida. He does not accept Medicaid patients. Approximately one-third of his practice is devoted to forensic psychiatry. Dr. Abramson reviewed Dr. Mhatre's medical records for S.C. Insofar as the actual conduct of Dr. Mhatre in his office, and his notes, medical prescriptions, diagnoses and evaluations for S.C., he "found no issues." However, Dr. Abramson believed that Dr. Mhatre committed a boundary violation when he recruited S.C. to present her story in commercial presentations on behalf of a drug company. According to Dr. Abramson, the standard of care is well-accepted in the psychiatric community. When one is engaged with psychiatric patients in a doctor-patient relationship, it is inherently recognized that the relationship is one of unequals, and that the doctor holds a position of superiority and power over the patient, and therefore has a responsibility to strictly observe boundaries with respect to the relationship. When asked what constituted the actual violation or departure from the standard of care, Dr. Abramson opined that "the violation was that he got his patient to agree to present her story to commercial presentations on behalf of the drug company." However, there was no evidence presented that Dr. Mhatre persuaded S.C. to participate in the presentations. The only competent evidence presented indicates that a Pfizer representative made the suggestion to S.C. Dr. Abramson also testified that if no recruitment by Dr. Mhatre took place, and S.C. indicated that participation in the programs was something she wanted to do, then it was Dr. Mhatre's responsibility to discuss with her the possible straying outside the normal therapeutic limits and ramifications for treatment. Dr. Abramson acknowledged that there is no statute or rule specifically prohibiting the kind of conduct at issue in this case, as there is with sexual misconduct. He also acknowledged that allowing the participation of a patient in a presentation such as the one described here would not necessarily be a departure from the standard of care with respect to every patient, and in some cases, a patient could derive a benefit from participation. In his view, what makes it an issue with respect to S.C. is the extent of her illness. Because of the complexity of S.C.'s history, Dr. Abramson opined that she was an extremely fragile patient with whom boundaries must be extremely firm and concrete. Dr. Abramson also acknowledged that S.C. could experience a return of symptoms at any time whether she participated in the Geodon programs or not. He did not interview S.C. or evaluate her. Respondent presented the expert testimony of Lawrence Reccoppa, M.D. Dr. Reccoppa completed his undergraduate degree at Cornell University and his medical degree at the University of Florida. His residency was also completed at the University of Florida. He is board-certified in psychiatry and licensed to practice medicine in Florida since 1987. For the last 20 years, Dr. Reccoppa has served as a courtesy clinical professor for the University of Florida, supervising approximately two residents per year in his private practice, and works with the forensic fellows at the University who work in the prison system. 41. Dr. Reccoppa's private practice generally consists of an adult outpatient private practice, with patients of both sexes from age 16 to late in life. His patients include people with mood and/or anxiety disorders, and thought disorders or psychoses and personality disorders. He treats patients with auditory hallucinations and self-injurious behaviors. Dr. Reccoppa reviewed S.C.'s patient records from Dr. Mhatre and from Shands Vista. He saw nothing in S.C.'s medical records that indicated she did not have decision-making or informed consent capacity, and does not think that the Geodon seminars were a factor in her decompensation, stating that there can be multiple factors leading to a relapse. Dr. Reccoppa also attended one of the Geodon presentations at which S.C. appeared. The presentation that Dr. Reccoppa attended occurred in Gainesville sometime in 2007. It was attended by approximately 10 mental health professionals, including Dr. Reccoppa and several other psychiatrists, including two faculty members at the University of Florida (Dr. Carlos Muniz and Dr. Ross McElroy); a psychologist; and a mental health therapist. Dr. Reccoppa's description of the program varied very little from Dr. Mhatre's, with the exception of the order in which the presentation was structured. The differences were not material in terms of S.C.'s participation. He recalled that S.C. discussed problems she had experienced with weight gain and sedation with other medications, and her experience with Geodon. It did not appear that she was uncomfortable or forced to relive any trauma from her past during the program, and she gave no indication that she was anxious about participating in the program. To the contrary, she appeared to be comfortable in front of the approximate ten attendees. According to Dr. Reccoppa, the attendees were very accepting of her participation and told her that they were grateful that she attended and shared her experience. He recalled S.C. stating that she felt comfortable doing it and that it was a positive experience for her to be able to express some of her problems with medications and the positive experience she had had with Geodon, with the hope that she could help other providers care for their patients. Dr. Reccoppa opined that it is possible for a patient like S.C. to derive a therapeutic benefit from appearing at a program like the Geodon program, as it could provide a positive effect on the patient's self-esteem to be able to speak to an empathetic group who could provide positive feedback. Such a patient could also benefit from the idea that he or she was helping others. Dr. Reccoppa compared the presentation to grand rounds, and has attended other, similar programs, both at the University of Florida and at the Department of Corrections. He described grand rounds at the university as a situation where several faculty members attend a meeting in which a presentation is given about a disease state, a medication, or where a patient is interviewed to discuss his or her history and course of treatment. While Dr. Abramson testified that there are ethics panels through which patients would be screened for participation in a grand rounds setting, Dr. Reccoppa was not aware of such a requirement. In fact, Dr. Reccoppa stated that the complexity of S.C.'s situation made her appropriate for a grand round setting, because a simple patient does not present the same educational opportunity. Dr. Reccoppa's testimony is credited. Dr. Reccoppa did not believe that allowing S.C. to participate in the Geodon presentations was a violation of the appropriate standard of care, and did not believe that Dr. Mhatre had committed a boundary violation. He knew of no peer-reviewed or authoritative literature that would indicate that it would be departure from the standard of care for a patient to participate with his or her psychiatrist in a pharmaceutical company- sponsored program. Dr. Reccoppa opined that a boundary violation that would represent a practice below the applicable standard of care would occur when a psychiatrist becomes involved with a patient in a manner that does not encompass the doctor-patient relationship, and involves co-mingling outside of the professional setting, such as dating, socializing or investing with a patient. Dr. Mhatre did not engage in this type of behavior with S.C. After careful review of the expert testimony presented, Dr. Reccoppa's opinion is more persuasive as applied to the evidence in this case. Dr. Abramson, while a fine psychiatrist, is not a reasonably prudent similar physician practicing under similar circumstances. His practice is in a metropolitan setting and he does not see Medicaid patients. Dr. Mhatre is the only full-time psychiatrist in a much more rural area and sees all types of patients, regardless of insurance. Dr. Reccoppa had actually observed S.C. and saw her behavior during one of the presentations at issue. Given the totality of the evidence, it is found that there was no violation of the relevant standard of care with respect to Dr. Mhatre's care and treatment of patient S.C.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Medicine enter a Final Order dismissing the Administrative Complaint against Respondent. DONE AND ENTERED this 20th day of November, 2012, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2012.
