Findings Of Fact Based upon the evidence presented at final hearing, the following facts are determined: Nature of Complainant's Handicap At all times material hereto, Petitioner, Charles Fenesy ("COMPLAINANT"), suffered from severe coronary heart disease (arteriosclerosis), diabetes, and excess weight. The arteriosclerosis consists of lipid deposits which obstruct and interfere with the flow of blood in all three major arteries to his heart; the diffuseness of the deposits make bypass surgery inadvisable. As a result of this disease, the COMPLAINANT began, in 1972, to experience occasional angina pectoris, which is sharp chest pain associated with activity. (Testimony of Fenesy, Hampton; P.E. 11.) The angina pectoris, however, occurred only when he was engaging in tasks involving physical activity and exertion, such as working in the yard, mowing the lawn, pulling weeds, and walking too fast; he has never experienced angina pectoris because of mental or emotional stress. During his 17 years as a computer analyst and programmer, he never experienced angina attacks in connection with his work environment; neither did his angina attacks ever interfere with his job attendance or performance or require that his work schedule be altered. Because of his heart disease, COMPLAINANT is unable to perform normal physical activity and exertion; his working activities are limited to those found in the office environment. The ability of a person inflicted with severe heart disease to capably function in a working environment is related to his temperament. The COMPLAINANT is a well-controlled, even- tempered person who has demonstrated ability to capably perform computer analyst and programmer duties and effectively cope with the stresses of an office environment. He has never experienced a heart attack. (Testimony of Fenesy; P.E. 11.) In order to control and treat his heart disease (which is incurable, without surgical bypass), and relieve angina pectoris symptoms, COMPLAINANT takes various vasodilators, including nitroglycerin and inderal; he is on a diet and takes diabinese to control his diabetes. If he suffers angina pectoris when mowing the lawn, he quickly takes the prescribed medication, the pain subsides, and he continues mowing. (Testimony of Fenesy; P.E. 11) Complainant's Application for Employment as a Program-Analyst On September 18, 1978, COMPLAINANT filed an application for employment as a program-analyst with the Respondent, GTE Data Services, Inc. ("COMPANY"). Betty Graef, Supervision of the COMPANY's CRB Source Group, had an available program-analyst position in the Customer Master File Unit; after review the COMPLAINANT's application, she concluded that he appeared to be qualified for the position and asked Nancy Fitzpatrick, the COMPANY's Personnel Representative, to arrange an employment interview. (Testimony of Fenesy, Graef, Fitzpatrick; R.E. 4.) Qualifications and Duties of the Available Program-Analyst Position. The program-analyst position which Ms. Graef had available entailed coding computer programs based on specifications prepared by a senior analyst. These programs maintained billing and address information on telephone company customers. There were approximately 22 other program-analysts in that department. The work required knowledge of assembly, also known as BAL or computer language, and typically required meeting deadlines and coping with emergency demands. Occasionally analysts were required to work long and irregular hours, due to emergencies, or in order to correct errors. The frequency of such a requirement would vary: employees who were capable and careful in their work were less likely to experience such demands. Substantial overtime work was not ordinarily required. (Testimony of Fenesy, Gradef.) During the subsequent employment interview conducted by Ms. Graef, COMPLAINANT specifically asked if the position required overtime work: she answered that, except under exceptional conditions, there would be no overtime required unless he fell behind in his work. To the extent Ms. Graef's testimony at hearing tended to describe the position as on regularly requiring excessive or extraordinary hours, it is rejected as at variance with her prior description of the position during the employment interview with COMPLAINANT, and is considered unpersuasive. (Testimony of Fenesy, Graef.) Qualification of Complainant At the time of his application, COMPLAINANT was employed by Pinellas County as an automatic mapping supervisor, at $12,000 per annum. He supervised 23 employees, and was responsible for their hiring, performance, and firing. Generally, he worked a 40-hour work week, although he occasionally worked irregular or overtime hours. During the summer of 1977, he worked 50 hours a week. (Testimony of Fenesy.) COMPLAINANT was knowledgeable and had extensive experience in the area of data processing. He had worked in that field for 17 years, and attended various technical training seminars; moreover, he had previous programming experience using BAL, the particular computer language required for the position. He also held a Bachelor of Science degree in Business Administration. By virtue of his technical knowledge and experience, COMPLAINANT was qualified to carry out the duties of the available program-analyst position in Ms. Graef's department. The only objection raised to his employment was based on his physical condition. (Testimony of Fenesy; R.E. 4.) The Company's Conditional Offers of Employment and Rejection of Complainant. On September 21, 1978, after the COMPLAINANT's employment interview with Ms. Graef and Ms. Fitzpatrick, the COMPANY offered to employ him as a program-analyst, at $16,000 per annum, conditioned upon his passing the standard pre-employment physical. After his rejection of the offer, the COMPANY made a second offer on October 6, 1978, with a salary of $18,000 per annum; this offer was also condition upon passage of the pre-employment physical. COMPLAINANT accepted this offer, and promptly gave notice to his present employer, Pinellas County, effective October 13, 1978. He was scheduled to begin work with the COMPANY on October 16, 1978. (Testimony of Fenesy, Graef, Fitzpatrick; P.E. 1,2,3) On October 10, 1978, the medical doctor ordinarily used by the COMPANY for this purpose, Edward F. Carter, M.D., gave the COMPLAINANT the standard pre- employment physical examination. On the medical questionnaire form, COMPLAINANT disclosed that he had angina pectoris, and was taking inderal for its control; and he also explained the "over exertion may cause angina pain" (R.E. 4), and gave the name of his cardiologist, John Dormois, M.D. Despite this disclosure, no diagnostic tests were administered by Dr. Carter to determine the severity of his heart disease, or the extent to which it might interfere with his performance as a program-analyst. The stated purpose of the examination, as indicated on the COMPANY form is "to determine if . . .[the applicant] meet(s) the physical standards of the position for which . . .[he is] applying." (R.E. 4.) Several days later, COMPLAINANT was notified by Ms. Fitzpatrick that he had "flunked" the physical. Dr. Carter's brief written "Physician's Report" indicated the COMPLAINANT had "angina, on medication", and "diabetes regulated and diet"; the box labeled "unemployable at this time", was checked. (Testimony of Fenesy; R.E. 4.) COMPLAINANT protested to Ms. Fitzpatrick and tried to contact the COMPANY's affirmative action officer. He also asked Dr. Dormois (his cardiologist who was familiar with the nature of his heart disease) to call Dr. Carter to discuss his condition. On October 16, 1978, Ms. Fitzpatrick told him they would try to arrange a second physical with another doctor. Due to his resignation (extended one week), the COMPLAINANT faced unemployment as of October 20, 1978, and was anxious to quickly resolve the matter. A second physical examination was thereafter scheduled for October 20, 1978, with Phillip Hampton, M.D., a practitioner of internal medicine with specialties in both diabetes and cardiology. The COMPANY's representative involved had, at that time, resolved to go along with whatever decision was made by Dr. Hampton. (Testimony of Fenesy, Fitzpatrick, Hampton). On October 20, 1978, Dr. Hampton took the COMPLAINANT's medical history, and conducted a 15-minute physical consisting of x-rays, an electrocardiogram, blood, and urine tests. COMPLAINANT explained that he had experienced angina pectoris for approximately three years, in situations of physical exertion and stress.3 Dr. Hampton was aware that COMPLAINANT was taking vasodilatory medication to alleviate angina pain, as well as diabinese to control his diabetes. The medically recognized diagnostic test to coronary diabetes. The medically recognized diagnostic test for coronary heart disease is a coronary arteriography; however, Dr. Hampton did not administer this test to COMPLAINANT. There is one objective diagnostic test to determine whether an individual suffers from angina pectoris--the stress test. It consists of placing the patient on a treadmill requiring physical exertion; the effects of exertion on blood pressure and production of pain (angina pectoris) are detected, as are changes in the patient's electrocardiogram. However, Dr. Hampton did not perform a stress test upon COMPLAINANT. (Testimony of Fenesy, Hampton.) On October 27, 1978, Dr. Hampton notified the COMPANY of the results of his examination of COMPLAINANT: "Dear Mrs. Fitzpatrick: As a result of my examination of Mr. Charles A. Fenesy on Oct. 1978, I find that he has obesity, diabetes and angina pectoris. He would be largely relieved of diabetes and angina if he would reduce his weight to under 200 lbs. which means a loss of about 70 lbs. If he does not he is not a good risk physically and in danger of a myocardial infarction." (R.E. 3.) Based on Dr. Hampton's letter, Ms. Fitzpatrick notified COMPLAINANT on October 30, 1978, that Dr. Hampton had concurred with Dr. Carter, and that he would not be hired. COMPLAINANT asked for a letter to that effect which the COMPANY never furnished. (Testimony of Fitzpatrick, Fenesy; R.E. 3.) Neither Dr. Carter nor Dr. Hampton recommended to the COMPANY that COMPLAINANT was "employable" if he took medication to control his condition. They both were aware that he was already taking such medication. (Testimony of Hampton, Fenesy; R.E. 4.) However, after COMPLAINANT warned that he would file a grievance because of his rejection, Tannia Yarborough, the COMPANY's Equal Employment Opportunity Administrator, told him that he would be considered for employment if he submitted a letter from his doctor stating that his medical problems were under control and if he would participate in a COMPANY weight reduction program; the weight reduction program requisite was later withdrawn. [The COMPANY did not have a policy to monitor the weight of its employees.] Ms. Yarborough, who was involved in the COMPANY's decisions concerning COMPLAINANT, thought angina pectoris was a cardiac disease, and not a symptom of the disease. (Tr. 213.) She also was not aware at the time of hearing that COMPLAINANT's cardiac disease was progressive--that is could be controlled but not cured. In response to Ms. Yarborough's suggestion, COMPLAINANT's cardiologist, Dr. Dormois, wrote a letter on January 18, 1979, stating that COMPLAINANT's symptoms (angina pectoris) were under control by medication, that COMPLAINANT had shown "absolutely no tendency over the last several years to have any difficulty performing his usual assigned task," and that he had "no reason to think that in the foreseeable future that this will be greatly altered." (P.E. 4.) (Testimony of Fenesy, Yarborough; P.E. 4.) Effect of Complainant's Coronary Heart Disease on His Performance as a Program-Analyst There is insufficient evidence to establish that COMPLAINANT's coronary heart disease would adversely impact or interfere with his performance as a program-analyst with the COMPANY. The two COMPANY doctors who examined him had no awareness of the particular demands of the position for which he applied; they did not even discuss with him his extensive experience in the data processing field (18 years), and whether his disease had interfered with his work in an office environment. (Testimony of Fenesy, Hampton.) The actions of the two doctors supports an inference that the COMPANY had not enunciated, in advance, the purpose of pre-employment physicals, and the standards which apply to determining the medical "employability" of a job applicant. The COMPANY accepted the simple checking of an "unemployable" box on a form by Dr. Carter, and Dr. Hampton's reinforcing conclusion that COMPLAINANT "is not a good risk physically" (R.E.3) if he does not reduce his weight; these documents form the basis of the COMPANY's rejection. Dr. Hampton's conclusions concerning COMPLAINANT's disease were admittedly based on statistical probability, not on an individual assessment of COMPLAINANT's temperament, his defense mechanisms, and his ability to perform data processing work in an office environment. In essence, they concluded that COMPLAINANT's longevity or life expectancy is not good because of the progressive nature of his disease. (Testimony of Fenesy, Hampton; P.E. 11, R.E. 3,4.) Complainant's Lost Wages and Attorney's Fees COMPLAINANT made reasonable and diligent efforts to obtain employment after his rejection by the COMPANY. For 19 weeks he was unemployed; if the COMPANY had fulfilled its offer to employ him on October 39, 1978, he would have earned $6,576.93 during that period. He eventually secured various employment positions in the data processing field, and now works again for Pinellas County. As of the date of hearing, the difference between what he earned in those positions and what he would have earned with the COMPANY (had he been hired at $18,000 per annum) is $3,379.88. (Testimony of Fenesy; P.E. 6.) COMPLAINANT claims lost of fringe benefits which he would have received if he had remained in his job with Pinellas County in 1978; alternatively, he claims loss of fringe benefits which he would have received from the COMPANY if he had been employed since October, 1978. However, the benefits accorded by the two employers, including pensions, vacation, sick leave, and insurance coverage, are markedly dissimilar. Based on the quality of the evidence submitted on this question, any conclusion concerning COMPLAINANT's actual monetary loss in fringe benefits due to the COMPANY's action would be conjecture and unreliable. (Testimony of Fenesy; P.E. 6,9.) Because of the COMPANY's rejection of his employment application, COMPLAINANT applied for and received Social Security Disability Payments from October, 1978 through March, 1979. However, since he subsequently found gainful employment in March, 1979, (i.e., he did not remain disabled for the requisite period) the Social Security Administration retroactively denied his eligibility. He may now be required to reimburse the government for the disability payment which he received. (Testimony of Fenesy; P.E. 5.) The COMPLAINANT testified that he is obligated to pay attorney's fees of $600 in connection with this proceeding. In the absence of the COMPANY contesting this amount, it is concluded that such attorney's fees are reasonable. (Testimony of Fenesy; P.E. 6.)
Conclusions Conclusions: That Respondent engaged in an unlawful employment practice by failing or refusing to hire Petitioner because of his handicap. The Respondent failed to substantiate its asserted defense--that the absence of Petitioner's particular handicap was a bona fide occupational qualification reasonably necessary for the performance of the position for which he applied. Recommendation: That the Commission prohibit the Respondent from engaging in such practice in the future, require it to pay Petitioner lost wages and attorney's fees, and offer him employment in the next available program-analyst position. Background On November 21, 1978, Petitioner, Charles Fenesy ("COMPLAINANT"), filed a complaint of discrimination with the Intervenor, Florida Commission on Human Relations ("COMMISSION"), alleging Respondent, GTE Data Services Inc. ("COMPANY"), denied him employment because of his physical handicap--heart disease. After investigation, the COMMISSION's Executive Director issued a "Determination: Cause" on October 22, 1979, concluding that there was reasonable cause to believe that the COMPANY had committed an unlawful employment practice prohibited by Section 23.167(1), Florida Statutes (1979) [formerly Section 13.261(1), Florida Statutes (1977)]. After the parties failed to conciliate, or informally resolve the dispute, COMPLAINANT filed his Petition for Relief with the COMMISSION on February 29, 1980. Thereafter, the Petition was forwarded to the Division of Administrative Hearings for assignment of a hearing officer to conduct a Section 120.57 hearing. Final hearing was then set for May 20, 1980. Subsequently, upon the COMPANY's motion, and without objection, hearing was continued and reset for July 9, 1980. Thereafter, upon COMPLAINANT's motion, and without objection, the hearing was again continued and reset for September 10, 1980. Several pleadings were filed and disposed of prior to final hearing. On April 29, 1980, the COMMISSION's Executive Director moved to intervene as a party in this proceeding, which motion was granted. By way of affirmative defense to COMPLAINANT's Petition for Relief, the COMPANY asserted, among other things, that the Petition was untimely in that the COMMISSION had failed to comply with its own rules, Section 9D-9.05(3), Florida Administrative Code. Specifically, the COMPANY asserted that the above rule requires the service of a "Notice of Failure of Conciliation" 30 days after service of the "Determination: Cause". Records show that the COMMISSION denied the COMPANY's petition for reconsideration of the "Determination: Cause" on December 5, 1979; but the Notice of Failure of Conciliation was not issued until February 21, 180. On May 12, 1980, the COMMISSION moved to dismiss the COMPANY's affirmative defense. The COMPANY responded to the COMMISSION's motions, and moved for summary judgment. By order dated June 30, 1980, the COMMISSION's motion to dismiss the COMPANY's affirmative defense was granted on the grounds that (1) Rule 9D-9.05 does not specify the time period which a Notice of Failure of Conciliation must be issued, (2) COMPLAINANT's Petition for Relief was filed within the requisite time period from the issuance of the Notice, and (3) the COMPANY's actions contributed to the delay in issuance of the Notice. Also, the COMPANY's motion for summary judgment was denied on the ground that the conduct of the parties during settlement negotiations was not germane to the issues to be decided at final hearing. On June 18, 1980, the COMPANY moved to compel COMPLAINANT to answer interrogatories, which motion was granted on July 1, 1980. At final hearing, COMPLAINANT testified in his own behalf and offered Petitioner's Exhibit1 Nos. 3 through 7, each of which was received.2 The COMMISSION presented no witnesses or documentary evidence. At the close of hearing, the parties requested and were granted the opportunity to file proposed findings of fact and conclusions of law by October 21, 1980. Proposed findings were subsequently filed; those filed by the COMMISSION and COMPLAINANT are the subject of a pending motion to strike filed by the COMPANY.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order: Finding the COMPANY engaged in an unlawful employment practice in violation of Section 23.167(1), Florida Statutes (1979), and prohibiting such practice in the future; and Providing COMPLAINANT affirmative relief from the unlawful practice by requiring the COMPANY to (a) pay him lost wages in the amount of $9, 956.81; (b) offer him the next available program-analyst position at a salary and under conditions similar to that which he would have received in October, 1978, but for the COMPANY's unlawful practice; and (c) pay him $600 for attorney's fees incurred in this case. DONE AND ENTERED this 31st day of December, 1980, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 Telephone: (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 31st day of December, 1980.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of allegations contained in a five-count Administrative Complaint. The charges against the Respondent may be summarized as follows: Count One charges the Respondent with violating Section 458.331(1)(h), Florida Statutes (1985) , by failing to perform any statutory or legal obligation placed on a licensed physician. Count Two charges the Respondent with violating Section 458.331(1)(1), Florida Statutes (1985), by making deceptive, untrue, or fraudulent representations in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. Count Three charges the Respondent with violating Section 458.331(1)(n), Florida Statutes (1985), by failing to keep written medical records justifying the course of treatment of the patient. Count Four charges the Respondent with violating Section 458.331(1)(q), Florida Statutes (1985), by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice. Count Five charges the Respondent with violating Section 458.331(1)(t), Florida Statutes (1985), by gross or repeated malpractice, or the failure to practice medicine with that level of care, skill, or treatment which is recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. The Respondent filed an answer to the Administrative Complaint. In his answer, the Respondent admits some of the factual allegations in the Administrative Complaint, but denies all allegations of wrongdoing. Following the hearing, a transcript of the proceedings at hearing was filed on September 16, 1987, and the parties were allowed fifteen days from that date within which to file proposed recommended orders. The Respondent filed a proposed recommended order on October 1, 1987, and the Petitioner filed one on October 2, 1987. Careful consideration has been given to the parties' proposed recommended orders, and specific rulings on all findings of fact proposed by the parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0004527. Respondent's last known address is 463 Emerald Road, Ocala, Florida 32672. Ionamine is a brand name for a scheduled controlled substance as defined by Chapter 893, Florida Statutes. Respondent's treatment of patients for obesity included B-12 vitamin injections. Approximately two-thirds of the Respondent's practice is devoted to the treatment of obesity. The other third of the Respondent's practice is devoted to a general practice of medicine. The Respondent graduated from Indiana University Medical School in 1945, interned in 1946, and became licensed in the State of Florida in 1951. The Respondent served for two years in the Air Force during the Korean War, and then returned to Florida where he established a practice in Miami. He practiced in Miami until 1970, at which time he moved to Ocala, where he has practiced since 1970. The Respondent is a board certified anesthesiologist and graduated at the top 10 percent of his class from Indiana University. The Respondent subscribes to and reads many medical journals and articles, including those concentrating on bariatrics. The Respondent has purchased and reviewed the American Medical Association video and study guide concerning the treatment of obesity. The Respondent also has continued his post graduate studies. When a new patient comes to the Respondent's office for treatment for obesity, the patient is first given a questionnaire to fill out. Subsequently a medical history is obtained from the patient, and the patient is given a thorough physical examination. Usually, but not always, blood and urine samples are obtained from this patient for testing, and the patient is given an EKG. If this patient appears to be in good health, the Respondent puts the patient on a weight loss program consisting of a reduction of calories, an exercise program consisting of a thirty minute walk each day, and an appetite suppressant, usually Phentermine or Diethylpropion. Phentermine and Diethylpropion are both helpful in the treatment of obesity. The Respondent also encourages each patient to take a vitamin injection on a weekly basis, regardless of whether there is any evidence of vitamin deficiency or pernicious anemia. Thereafter, the patient is instructed to return to the Respondent's office once a week, at which time an R.N. or L.P.N. checks their blood pressure, pulse, respiration, and weight. The nurse questions each patient to find out how they are reacting to the weight loss program. If everything appears to be satisfactory, the patient receives another seven-day supply of diet suppressant medication and a vitamin injection. The Respondent sees the patient every fourth visit (once a month) to determine what progress the patient is making. The Respondent routinely commences treatment of obesity patients, including the prescription of or dispensing of Phentermine or Diethylpropion, before reviewing the results of blood and urine tests. The Respondent continues obesity patients on an appetite suppressant (usually Phentermine or Diethylpropion) at the rate of seven 30 mg. pills per week as long as the patient continues to lose one percent of their body weight per week until their ideal weight is reached. In January of 1986, the Respondent saw a patient by the name of Sandy Wilson who came to his office for the treatment of obesity. The Respondent gave Ms. Wilson a thorough physical examination. The Respondent also questioned Ms. Wilson about her medical history. During the course of relating her medical history, Ms. Wilson complained of swelling of her hands and feet. The Respondent did not obtain blood or urine samples from Ms. Wilson, nor did he do an EKG on Ms. Wilson. Following his examination of Ms. Wilson, the Respondent placed her on a 1000 calorie per day diet, recommended that she exercise by walking 30 minutes each day, and dispensed to her a seven-day supply of Ionamine, which is a form of Phentermine. The Respondent also wrote a prescription for Ms. Wilson for thirty tablets of Furosemide 40 mg. Furosemide is a rather potent diuretic. The Respondent also suggested that Ms. Wilson have a vitamin injection, but she refused the injection. Ms. Wilson also refused to have blood drawn, saying she was afraid of needles. The Respondent told Ms. Wilson if she changed her mind she could have the blood drawn and the vitamin injection on her next visit. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain sufficient information to show that Ms. Wilson received a thorough physical examination. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not show that an adequate medical, social, or family history was obtained from Ms. Wilson. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not mention that Ms. Wilson had or complained of edema. The Respondent's records of Ms. Wilson's treatment during January of 1986 do not contain the results of any blood or urine tests or the results of any EKG. Ionamine and Furosemide should not be dispensed or prescribed to a patient for obesity and edema without first giving the patient a thorough physical exam, obtaining an adequate medical history, and obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG. This is in part because a patient may have the beginnings of some illness, such as diabetes or hypothyroidism, that are not detectable by a physical examination alone. The dispensing of Ionamine and the prescription of Furosemide to Ms. Wilson without first obtaining the results of laboratory analysis of blood and urine samples and obtaining an EKG is a failure to practice medicine with that level of care, skill, and treatment which is recognized by reasonably prudent similar physicians as being acceptable under similar conditions and circumstances. A physician's records must be sufficient to justify the treatment given to the patient. In particular such records should contain complete information regarding examinations, histories, and laboratory tests. Because the Respondent's records regarding Ms. Wilson did not contain complete information in this regard, the Respondent has failed to keep written medical records justifying the course of treatment of the patient. Vitamin injections do not have any direct therapeutic effect in the treatment of obesity. They do not cause weight loss, nor do they contribute to weight loss. Nevertheless, periodic vitamin injections are commonly given to patients who are being treated for obesity as a form of "behavior modification." The goal of the behavior modification is to have the patient return for follow- up treatment on a regular basis. Vitamin injections do not pose any significant risk to the patient.
Recommendation Based on all of the foregoing, it is recommended that the Board of Medicine issue a final order in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Finding the Respondent guilty of the violations charged in Counts Three, Four, and Five of the Administrative Complaint; and Imposing the following penalty on the Respondent: (1) an administrative fine in the amount of one thousand dollars ($1,000.00), and (2) placement of Respondent's license on probation for a period of two years under conditions to be prescribed by the Board. DONE and ENTERED this 4th day of February, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2031 The following are my specific rulings on all of the findings of fact proposed by the parties. As the parties are well aware, there is a large amount of conflict in the testimony in this case, especially in the expert witness testimony. To the extent that the testimony of the expert witnesses on behalf of the Petitioner (Dr. Clark and Dr. Weiss) conflicts with the testimony of the expert witnesses on behalf of the Respondent (Dr. Haimes and Dr. Asher), I have for the most part been persuaded by, and have incorporated into the findings of fact, the version set forth by the Petitioner's witnesses. Among other things, the version set forth by the Petitioner's expert witnesses more often appeared to be more logical, more reasonable and well reasoned, and more consistent with other evidence in the case. Findings proposed by the Petitioner: Paragraph 1: Accepted. Paragraph 2: Accepted in substance, with some irrelevant details deleted. Paragraph 3: Accepted in substance with some additional findings in the interest of clarity and accuracy. Paragraphs 4 and 5: Accepted. Paragraphs 6 and 7: Accepted in substance with additional clarifying details. Paragraph 8: Rejected as not fully supported by competent substantial evidence. Paragraphs 9 and 10: Accepted in substance with additional clarifying details. Paragraph 11: Accepted. Paragraph 12: Rejected as not supported by persuasive competent substantial evidence. Paragraph 13: Accepted. Paragraphs 14 and 15: Rejected as constituting argument rather than proposed findings of fact. (The failure to include argument in the findings of fact is not a comment upon the merits of the argument.) Paragraphs 16 and 17; Accepted in substance. Findings proposed by the Respondent: By way of clarification of some of the rulings which follow, it is noted that a substantial number of the findings proposed by the Respondent begin with the words "Dr. So-and-so testified" or the words "Dr. So-and-so believes." Such findings are, in most cases, nothing more than summaries of the testimony and might well have been rejected on that basis alone. However, I have chosen to direct attention to the substance of such proposals, overlooking their form, and have treated each such proposal as a proposed finding of the fact testified to or the fact believed by the witness. Accordingly, when such proposals are rejected as being contrary to the greater weight of the evidence, that is not to say that the witness did not so testify or did not so believe, but that the fact testified to or believed by the witness is contrary to the greater weight of the evidence. Paragraphs 1, 2, 3, 4, and 5: Accepted. Paragraph 6: Most of this paragraph has been accepted, but many of the statements have been made subject to additional qualifications to be fully consistent with the evidence. Some details have been omitted as not supported by competent substantial evidence. A major qualification is that the procedures described in this paragraph are performed on many, but not all, of the Respondent's patients. Paragraph 7: Rejected as subordinate and unnecessary details. It has already been found that the Respondent gives thorough physical examinations. Paragraph 8: Accepted. Paragraphs 9 and 10: Rejected as irrelevant. Paragraph 11: Accepted in substance. Paragraph 12: First sentence is accepted in substance. Second sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Paragraphs 13 and 14: Rejected as constituting subordinate and unnecessary details. Paragraph 15: Rejected as constituting subordinate and unnecessary details. Also, last clause of first sentence is not supported by competent substantial evidence. Paragraph 16: Rejected as constituting subordinate and unnecessary details. Paragraph 17: Rejected as irrelevant. Paragraphs 18, 19, 20: Rejected as irrelevant and as constituting subordinate and unnecessary details. Paragraph: 21: Rejected as subordinate and unnecessary details. Also rejected as inaccurate because there were other reasons for the opinion. Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as irrelevant. Paragraph 29: First two sentences rejected as subordinate and unnecessary details. Third sentence rejected as irrelevant because it ignores and omits the context of the statement. Paragraph 30: Rejected as unnecessary. Paragraphs 31 and 32: Accepted in substance with additional clarifying details. Paragraph 33: Rejected because an important detail of the proposal is not supported by competent substantial evidence. Paragraph 34: Rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. Paragraphs 35 and 36: Rejected as irrelevant. Paragraph 37: Rejected as contrary to the greater weight of the evidence. Paragraph 38: Rejected as subordinate and unnecessary details. Paragraph 39: Rejected as irrelevant and as subordinate and unnecessary details. Paragraph 40: Rejected as irrelevant. Paragraph 41: Rejected as subordinate and unnecessary details, because Dr. Haimes did not witness the examination and treatment of the patient. Paragraph 42: Rejected as irrelevant. Paragraph 43: Rejected because the witness's use of vitamin injection is irrelevant in light of other evidence and because the witness's opinion that vitamin injections are acceptable world wide is rejected as not persuasive. Paragraph 44: Rejected as contrary to the greater weight of the evidence. Paragraph 45: Rejected as irrelevant; the witness's beliefs notwithstanding, the greater weight of the evidence is to the contrary. Paragraph 46: Rejected as subordinate and unnecessary. Paragraph 47: First three sentences rejected as irrelevant. Last sentence rejected as contrary to the greater weight of the evidence. Paragraph 48: Rejected as contrary to the greater weight of the evidence. Paragraph 49: The first, second, and fourth sentences are rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant. Paragraph 50: Rejected as contrary to the greater weight of the evidence. Paragraph 51: First two sentences rejected as contrary to the greater weight of the evidence. Last sentence accepted in substance. Paragraph 52: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in substance. Third and fourth sentences are rejected as subordinate and unnecessary details. Paragraph 53: First sentence rejected as irrelevant. Second sentence rejected as contrary to the greater weight of the evidence. Paragraph 54: Rejected as contrary to the greater weight of the evidence. Paragraph 55: Rejected as irrelevant. Paragraph 56: First sentence is rejected as contrary to the greater weight of the evidence. The second sentence is rejected as irrelevant. Paragraph 57: Rejected as subordinate and unnecessary. Paragraph 58: Rejected as contrary to the greater weight of the evidence. Paragraph 59: Rejected as subordinate and unnecessary details. Paragraph 60: Rejected as contrary to the greater weight of the evident. Paragraph 61: Rejected as irrelevant. Paragraph 62: First two sentences rejected gas contrary to the greater weight of the evidence. Third sentence accepted in substance. Last sentence rejected as irrelevant. Paragraph 63: First sentence rejected as irrelevant. Second sentence accepted in substance. Third sentence rejected as contrary to the greater weight of the evidence. Paragraph 64: Rejected as irrelevant. Paragraph 65: Rejected because the opinions in this paragraph are contrary to the greater weight of the evidence. Paragraph 66: First and third sentences rejected as subordinate and unnecessary details. Second and fourth sentences rejected as contrary to the greater weight of the evidence. Paragraph 67: Rejected as contrary to the greater weight of the evidence. Paragraph 68: Rejected as irrelevant. Paragraphs 69 and 70: Rejected as contrary to the greater weight of the evidence. Paragraph 71: Rejected as subordinate and unnecessary details. COPIES FURNISHED: Francine C. Landau, Esquire Inman and Landau, P.A. 2252 Gulf Life Tower Jacksonville, Florida 32207 H. Edward Dean, Esquire 201 Northeast Eighth Avenue Suite 100 Ocala, Florida 32670 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issues in this case concern an administrative complaint placed by the Department of Professional Regulation against Eduardo G. Romero, M.D., Respondent in this cause for his treatment of two patients for weight control. Those patients are D.H., and S.T. who presented herself to Respondent as patient In his treatment of these patients, Respondent, at count one, is said to have violated Section 458.331(1)(t), Florida Statutes, by gross and repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Further, he is said at count two to have violated Section 458.331(1)(q), Florida Statutes, by prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including a controlled substance, other than in the course of the physician's professional practice. A third count in the administrative complaint was dismissed at the commencement of the hearing and is not to be considered. Finally, in the fourth count, Respondent is said to have violated Section 458.331(1)(n), Florida Statutes, by failing to keep written medical records justifying the course of treatment of the patient.
Findings Of Fact Respondent at all times pertinent to the administrative complaint was licensed as a physician by the State of Florida and continues to hold that license at present. In 1985 Respondent discontinued his family medicine practice and started a practice for treating patients for obesity and weight control. He purchased the obesity and weight control practice from a Dr. Scheininger. The obesity and weight control practice was conducted in the area of Jacksonville, Duval County, Florida. As a part of this practice, on occasion, Respondent would treat persons for minimal weight loss who could not be perceived as typical of the patients that he saw in his practice, nor can they be said to have been overweight and certainly not obese. In the conduct of his weight control practice, Respondent had one other person in his employ. That person was Diane Lee Smith, medical assistant. Ms. Smith's duties involved answering the telephone, writing certain basic information on patient's charts, laboratory testing, and the conduct of EKGs, and helping Respondent in his consultations. She also would take blood pressure readings from patients, pulse rates, take their weight and height and certain measurements of the patients' arms, waists, hips and upper thighs. Respondent in his practice would discuss the nature of his diet program, and do a physical examination to include checking pulse, monitoring heart rate and observing the fundi. If the patient upon those basic clinical observations seemed to need a more complete examination, he would order blood tests, urinalysis, and an EKG. In dealing with the patients, he had these patients provide certain information concerning health history, dietary habits and any exercise regimen that the patients participated in. Respondent did not take on the treatment of patients who had significant past medical histories. Respondent would speak to his patients individually and in a group concerning his weight control program. In these conversations he spoke to them about dietary habits, exercise habits and on occasion, would employ medication as a means of assisting in weight control. One of the drugs of choice by the Respondent in his treatment was Phendimetrazine. This is an anorexic that can be, used for a short duration as an appetite suppressant. It has a potential for abuse, but only in the instance when it is over- prescribed does it present the risk of addiction. The patients who used Phendimetrazine could gain a tolerance to it, thereby needing increasing dosages to profit from the pharmacologic effect. That phenomenon develops less quickly than with amphetamines. D.H., who had been a patient of Dr. Scheininger and had received diet pills from him to treat her weight condition, by a means which is not clear in the record, was contacted about further treatment for her weight condition. The lack of clarity concerns the matter of whether the contact was through Dr. Scheininger or Respondent's offices. Nonetheless, she arranged with the Respondent's office for an appointment to address her desire to lose a minimal amount of weight. This appointment was at the instigation of the Department of Professional Regulation, who upon complaint of the activities of Respondent, utilized D.H. as a means of investigation. The appointment took place on February 26, 1986. Her explanation of her reason for being at Respondent's office, as given to Respondent, was to the effect that she felt she needed to employ the assistance of a physician to lose some weight for cosmetic purposes. Certain entries made by Respondent and his assistant, Ms. Smith, concerning the February 26, 1986 visit and a subsequent visit on April 9, 1986, may be found in the Joint Exhibit No. 1 admitted into evidence. It also includes information provided by D.H. in the form of a medical information questionnaire. It includes dietary information as well. In the course of the initial visit of February 26, 1986, Respondent discussed D.H.'s dietary and exercise habits and suggested approaches about diet. D.H. is a woman of five foot two and a half inches tall, whose birthdate is August 18, 1947. At the time of her visit, her weight was somewhere in the range of 117 to 122 pounds. The doctor's office scale showed her to be 122 pounds. Any one of these weights were within the Metropolitan Life Insurance Company tables of what is considered to be normal weight for a woman of this height. On February 26, 1986, in the course of the visit Respondent checked the heart rate and examined the fundi and made records of these observations. No entry was in the record concerning blood pressure. Having considered the testimony it is found that the blood pressure was taken but no medical record was made of that blood pressure reading. No tests were ordered such as EKG, blood sugar, cardiac testing, blood count, urinalysis, liver and kidney studies, nor was the patient given a complete physical examination. These things were not done because Respondent was persuaded that the patient was a person who enjoyed good health and to undertake these steps would be extravagant and unnecessary. In discussion with the patient D.H. the impression was given to the Respondent that the patient had not succeeded in trying to control her weight to her satisfaction by exercise and diet. As a consequence, Respondent decided to prescribe Phendimetrazine. On February 26, 1986, D.H. was given a prescription of 35 mg. tablets, 60 in amount. The exact details of the explanation of the use of this medication by D.H. and its possible side affects is somewhat sketchy. However, enough is known to conclude that the Respondent made some explanation. He did not make a written entry in the medical records of the patient to the effect that he had explained how to use this medication and the possible complications in its use. Neither did he make those entries following his prescribing of Phendimetrazine, 105 mgs., 30 tablets, as a part of the April 9, 1986 visit by D.H. On the April 9, 1986 visit, basically the same procedures were followed in terms of weight which was shown on the chart as 117 pounds, heart rate and on this occasion, blood pressure was recorded. There is a note that the patient D.H. runs three to six miles three times a week. Respondent charged D.H. $50 for each visit. The medication which she obtained was turned over to the Department of Professional Regulation. As part of the Department of Professional Regulation's investigation of the Respondent, it utilized the services of S.T., who presented herself to the Respondent as patient B.B. S.T. is a Jacksonville deputy sheriff. Her visit with the Respondent occurred on April 21, 1986, and followed the basic sequence related to the prior patient D.H. A copy of certain information pertaining to the patient S.T. as kept by the Respondent may be found at Joint Exhibit No. 2, admitted into evidence. It reflects that this patient is five foot five inches tall, and at the time of the visit weight 128-1/2 pounds, which again is within the Metropolitan Life Insurance Company tables of appropriate weight for a woman of that height. Certain measurements were made of her waist, hips, arm and upper thigh, her blood pressure was taken, heart rate and fundi. Information was given by her concerning her health condition and dietary habits. Respondent, through his office, provided dietary information to this patient as with patient D.H. Patient B.B. was a patient who enjoyed good health and who was there to seek the assistance of the Respondent for purpose of losing a few pounds so that her clothes would fit her better, according to her explanation. No evaluative actions were taken other than those items presented in the aforementioned exhibit. As with D.H., Respondent was convinced that no further testing was needed for a patient who, by his clinical observation, appeared healthy. Phendimetrazine was prescribed for this patient in the amount of 105 mgs., 30 tablets. The explanation of the use of this medication was as is described before with the patient D.H. Respondent charged S.T. $50 for the visit. As with D.H., Respondent discussed dietary practices and the need for exercise with S.T. at length. S.T.'s comment to the Respondent was that she had not been able to lose the weight that she desired by her attempts at diet and exercise. In response, Phendimetrazine was prescribed to aid in this attempt. The Phendimetrazine for the two patients was not only prescribed by Respondent, it was dispensed by him. In addition to Respondent's testimony about the propriety of his treatment of the two patients, several other physicians, who are licensed in Florida offered their opinions. Dr. Stanley Weiss, who is a Board Certified Bariatric Physician testified for the Petitioner. Dr. Samuel J. Alford, Jr. and Dr. Kenneth Lasseter offered testimony for the Respondent. Dr. Weiss indicated that he does not consider the need for cosmetic weight loss to be a medical problem per se. In addition, he stated that he would not have taken on the treatment of D.H. and S.T. who did not have medical problems. Dr. Weiss in a significant portion of his practice treats patients who clearly suffer from problems of obesity. Consequently, when he gives the opinion that in every case of weight control a battery of tests involving EKG, blood sugar, cardiac testing, blood count, urinalysis, liver and kidney studies and a complete physical should be pursued, he is referring to a class of patients different from the patients in this case, by the history of Dr. Weiss' practice. In essence, Dr. Weiss is stating that it was inappropriate for the Respondent to take on the patients and treat them when the patients did not need medical attention and at the same time is stating that a series of tests should have been employed which are common to the treatment of the truly obese patient. This runs contrary to the opinion of the Respondent and of Drs. Alford and Lasseter who do not feel that the tests were in order for persons who by clinical observation, seem to be healthy. The opinion of the Respondent and Drs. Alford and Lasseter concerning the necessity of testing is the more appropriate choice on this occasion and it was not a violation of community standards or failure to practice medicine with reasonable care for the Respondent to fail to conduct the tests that have been alluded to in the rendition of facts. Dr. Weiss believes it was violative of community standards and failure to practice medicine at an acceptable level for Respondent to prescribe Phendimetrazine for the two patients in the instances set out in these facts. The use of Phendimetrazine, according to Dr. Weiss, for these patients who were not obese, is a failure to appropriately prescribe medication. His opinion is accepted. Respondent and Drs. Alford and Lasseter believe that the use of Phendimetrazine for the two patients was appropriate. Their opinion is not accepted. The fact that the two patients indicated that they had not achieved success by diet and exercise does not alter the impression of the facts and deference being paid to Dr. Weiss on the issue of the use of Phendimetrazine. It was not inappropriate for Respondent to consult with the patients D.H. and S.T. about their perceived problems. It was inappropriate to prescribe Phendimetrazine to gain a cosmetic result in an instance where there was no medical reason to utilize that legend drug. This fact is as supported by remarks of Dr. Weiss. Dr. Weiss is critical of the Respondent's medical records, in that they do not note that Respondent explained the possible side effects of the use of Phendimetrazine, and as they are lacking in an explanation of the ongoing or continuing care and in the absence of the aforementioned tests that Dr. Weiss would have conducted on the patients. That latter circumstance is not so much a failure to keep records as an allegation of failure to practice. If the tests were not done, it is to be expected that no record would have been made of the tests. Moreover, the tests were not indicated. Respondent and Drs. Alford and Lasseter do not find Respondent's recordkeeping to be inadequate. Having considered the issue of the need to record side effects or to put more information in the record concerning ongoing and continuing care, it suffices that some explanation of side effects was made and it is not necessary to make a written indication that the explanation was given to the patients. The general nature of the care and treatment of the patients is known by reference to the records. The only failure of recordkeeping which is significant is the failure to have recorded the blood pressure reading on D.H. in her visit of February 26, 1986. This constitutes a failure to keep a written medical record of an examination result.
Recommendation Based upon the findings of fact and conclusions of law reached, it is RECOMMENDED: That a Final Order be entered which dismisses Count III, and finds the Respondent guilty of violations as alleged in Counts I, II and IV, for which, in keeping width disciplinary guidelines, his license shall be suspended for a period of 30 days and he shall be directed to attend at least 21 continuing medical education course credits concerning appropriate drug prescribing unrelated to requirements for license renewal. DONE and ENTERED this 18th day of August, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-5055 The following discussion is given concerning the proposed facts of the parties: Petitioner' s Facts Subordinate to facts found. Accepted with the exception that reference to the necessity of conducting various tests is contrary to facts found. Not necessary to the resolution of the dispute. Subordinate to facts found. Contrary to facts found. Subordinate to facts found. Respondent' s Facts 1.-16. Subordinate to facts found. 17,18. Are not accepted to the extent of indicating that D.H. only went there for purposes of diet pills and presented herself as only wanting diet pills is contrary to facts found, otherwise they are acceptable. 19.-21. Subordinate to facts found. Constitutes the reasoning which Respondent would have trier of fact employ to arrive at facts and is not fact finding, with exception of reference to the fact that there is no notation in the chart that D.H.'s blood pressure was taken on February 26, 1986. Same response as prior paragraph. 24,25 Subordinate to facts found. 26. Unacceptable. 27.-41. Subordinate to facts found. 42. Not necessary in its first sentence and the second sentence is contrary to facts found. 43.-46. Constitute a discussion of the testimony and not fact finding. The overall conclusions of these physicians has been reported in the fact finding in the Recommended Order. 47. Further discussion of the opinion of the witness, Dr. Weiss, and is not fact finding. The balance of that paragraph deals with the claim that the Respondent instructed the patients to return in one week which is not accepted. Nor is the conjecture of what the patient S.T. intended to do on her visit to the Respondent. Finally, the remarks attributable to Dr. Alford are again the discussion of the testimony and not fact finding. 48,49. Subordinate to facts found. COPIES FURNISHED: Joseph Harrison, Esquire Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Harold M. Braxton, Esquire 9100 south Dadeland Boulevard One Datran Center, Suite, 406 Miami, Florida 33156-7815 Kenneth D. Easley, Esquire Department of Professional Regulation 1940 North Monroe Tallahassee, Florida 32399-0792 Dorothy Faircloth, Executive Director Florida Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0735
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 22, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See Section 455.225, Florida Statutes. The Board of Medicine is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See Section 458.331(2), Florida Statutes. Dr. Pliskow is, and was at the times material to this proceeding, a physician licensed to practice medicine in Florida, having been issued license number ME 0054211, and he is Board-certified in Obstetrics, Gynecology, and Forensic Medicine. At the times material to this proceeding, Dr. Pliskow practiced obstetrics and gynecology with three other physicians, Dr. Ackerman, Dr. Herbst, and Dr. Aqua, under the name "Advanced Women's Healthcare." In 1996, Dr. Pliskow, Dr. Ackerman, and Dr. Herbst established the Comprehensive Weight Loss & Nutrition Center ("Center") as a separate corporation. Kimberly Payne, an A.R.N.P., was the administrative director of the Center, and, in addition to administrative duties, her job responsibilities included supervision of the nursing staff working in the Center, direct patient care, and staff training. The four physicians practicing at Advanced Women's Healthcare were the designated supervising physicians for staff of the Center. Bariatrics is the subspecialty dealing with the medical treatment of obesity, and the four physicians supervising the Center, as well as Nurse Payne, were members of the American Society of Bariatric Physicians. As members of this organization, the physicians and Nurse Payne received two monthly journals, a biweekly newsletter, a monthly magazine, and faxes and e-mails containing updates on standard-of-care issues, medication changes, updates from the Federal Drug Administration, and suggested treatment changes and recommendations. The organization also provided educational programs and training opportunities for its members. In accordance with the recommendations of the American Society of Bariatric Physicians, the Center's weight loss program included a behavior modification program; a diet providing between 1200 and 1400 kilocalories per day; and an exercise program designed for each of its patients. In addition, if the patient was an appropriate candidate, the Center prescribed anorectic medications, including the combination of the drugs Phentermine and Fenfluramine commonly known as "Phen/Fen." Weight Loss Protocol At the times material to this proceeding, A.R.N.P.s were allowed under Florida law to practice independently under the general supervision of a physician who was accessible to them if they needed a consultation or evaluation of a patient. See Sections 464.003(3)(c) and 464.012(3), Florida Statutes (1995); Rule 64B8-35.002, Florida Administrative Code. Among other things, A.R.N.P.s were allowed to perform physical examinations of patients, to take medical histories, to initiate treatment programs, to prescribe certain types of drugs, and to evaluate patients for signs and symptoms of side effects associated with medications. A.R.N.P.s could not, however, prescribe drugs that were classified as controlled substances. Nurse Payne, and another A.R.N.P. subsequently hired to work at the Center, practiced under the general supervision of Dr. Pliskow, Dr. Ackerman, Dr. Herbst, and Dr. Aqua and in accordance with a protocol setting forth the respective duties of the A.R.N.P.s and of the physicians in the various areas of practice at Advanced Women's Healthcare. The protocol was filed with the appropriate state agency. Section Four of the protocol dealt with weight loss. Pursuant to the general guidelines, the A.R.N.P.s working at the Center were "responsible for the assessment and management of overweight individuals in a comprehensive weight reduction program including nutritional counseling, exercise management, and use of anorectic medications when appropriate." Patient selection criteria were as follows: Any individual who is over their ideal body weight may participate in the nutrition and exercise portions of the program. In order to qualify to participate in the medication portion of the program, the individual must meet the following criteria: Between the ages of 18 and 65 (any person between the ages of 61 and 65 must have medical clearance from their PCP [primary care physician]). Minimum of 20% over ideal body weight. No present history of heart disease, uncontrolled hypertension, cardiac arrhythmia, glaucoma, uncontrolled diabetes, hyperthyroidism, psychotic illness, drug or alcohol abuse, pregnancy, breastfeeding, or impending surgery requiring general anesthesia. Any deviation from these criteria requires collaboration with physician. The following was the General Condition of the weight loss protocol: The A.R.N.P. should consult with the physician on all patients exhibiting abnormal findings which might affect their weight loss management and refer for physician evaluation as needed. Patient C.B. Patient C.B. learned of the Center's weight loss program from her daughter, who had participated in the program and taken weight loss medication. C.B. had an initial consultation at the Center on October 23, 1996. At the time, as recorded on the Center's Weight Reduction Intake Form, C.B. was 62 years of age, her weight was 165 pounds, her height was five feet and four inches, she had a medium frame, her blood pressure was 138/82, and her pulse was 72 beats per minute. The intake form also included her body measurements as of October 23, 1996. As part of the initial consultation, C.B. completed the Center's Weight Reduction Program Questionnaire, in which she stated that she considered her ideal weight to be 135 pounds, that her biggest obstacle to losing weight was staying on a diet, and that she was interested in using medication in her weight loss program. C.B. indicated that she had no limitations on exercise and played tennis regularly. She disclosed her current medications, and she indicated that she did not then, nor had she ever, had the following conditions: heart disease, irregular heartbeat, high blood pressure, glaucoma, diabetes, psychotic illness, or alcohol or drug abuse. Nurse Payne reviewed the Weight Reduction Program Questionnaire with C.B. and completed the intake form. She noted on the intake form that C.B.'s ideal weight was between 120 and 135 pounds, that her weight goal was 135 pounds, and that her body mass index ("BMI") was 28.1 Nurse Payne reviewed with C.B. the information C.B. provided on the questionnaire, including her medical history, current medications, and drug allergies, and Nurse Payne noted on the intake form that C.B. reported arthritis as her only significant medical history. Nurse Payne and C.B. discussed the 1200-calorie exchange diet that was part of the program, and Nurse Payne developed an exercise plan for C.B. that included walking in the pool twice each week and incorporated C.B.'s usual routine of playing tennis three times each week. Nurse Payne noted on the intake form that Dr. Ira Fine was C.B.'s primary care physician. Nurse Payne also discussed medication options with C.B., including the benefits and risks of medications. The intake form included a printed section on medications, in which the first entry was "Pondimin2 20 mg. po bid and Phentermine 37.5 mg. po qd" and the second entry was "Other." Nurse Payne indicated on the intake form that C.B. would be started on "Phen/Fen pending medical clearance [by] Dr. Fine & EKG." Nurse Payne also advised C.B. that she would need to obtain medical clearance from Dr. Fine before medication would be prescribed. During the initial consultation on October 23, 1996, Nurse Payne provided C.B. with a Consent for Diet Program form and discussed with C.B. in detail the information in the consent form. The consent form contained descriptions of both Phentermine and Fenfluramine, together with the contraindications to their use, and Nurse Payne provided C.B. with an excerpt from the Physician's Desk Reference for Phentermine and the packet insert for Pondimin.3 C.B. signed the consent form on October 23, 1996. A blood specimen was drawn from C.B. on October 23, 1996, and Nurse Payne scheduled C.B. for an EKG on October 26, 1996. Nurse Payne telephoned Dr. Fine's office on October 25, 1996, and spoke with "Betty" about medical clearance for C.B. to participate in the weight loss program; she specifically told Dr. Fine's office the program would include the use of Phen/Fen. Nurse Payne was later advised by Dr. Fine's office that Dr. Fine had medically cleared C.B. to participate in the Center's weight loss program.4 Once medical clearance was obtained for a patient and the results of the blood work and EKG were received, the standard procedure at the Center was for the A.R.N.P. to present the patient's chart to one of the supervising physicians.5 The physician would review the test results and the patient's medical history and determine whether it was appropriate to prescribe medications for the patient. If so, the physician wrote the prescriptions, which were then given to the patient. Neither Dr. Pliskow nor Nurse Payne can recall specifically that this procedure was followed in C.B.'s case, but there is nothing in the record to indicate a deviation from this procedure with respect to C.B. C.B. was cleared for participation in the weight loss program and for the use of Phen/Fen based the results of her blood work and her EKG and on the criteria set out in the weight loss protocol: Her primary care physician had given medical clearance; her weight was 20 percent above her ideal body weight; and she had reported no present history of the conditions identified in paragraph II.B.3 of the protocol. Her blood pressure and pulse were normal. The results of her EKG showed no significant abnormality, and there was nothing in the results of the blood work done on October 23, 1996, that would prevent C.B. from participating in the weight loss program or from taking Phen/Fen. C.B.'s initial prescriptions for Phen/Fen were written on October 28, 1996 and, as noted in her chart, were for Pondimin in the dosage of "20 mg. [milligrams] po [orally] bid [twice daily]" and for Phentermine in the dosage of "37.5 mg. [milligrams] po [orally] qd [daily]."6 The medications and dosage prescribed for C.B. remained the same throughout the time she participated in the Center's weight loss program, and no further notations regarding dosage was included in her chart. C.B. initially visited the Center each week; in late November 1996, the frequency of her visits was decreased to once every two weeks, and then, in early February 1997, to once every four weeks. At each visit, a member of the nursing staff at the Center would note C.B.'s blood pressure, pulse, and weight on the progress forms in her chart, together with the amount of weight lost since her last visit. The chart also contained the notes of Nurse Payne or the other A.R.N.P. working at the Center reporting on C.B.'s success in staying on the diet and exercise plans; noting that her medication was "P/F"; and summarizing C.B.'s general progress, anything unusual she reported, and the plan she would follow until the next visit. C.B. also completed at each visit a Follow-Up Questionnaire in which she was asked to report whether, since her last visit, she had experienced chest pain, shortness of breath, dizziness, light-headedness, visual problems, palpitations, abdominal pain, bowel changes, fatigue, difficulty sleeping, depression, irritability, difficulty concentrating, memory loss, tremors, or increased appetite. The Center's standard procedure was for the A.R.N.P. meeting with the patient to discuss the answers in the questionnaire with the patient and to question the patient regarding any problems he or she might be having with the program. Once the A.R.N.P. had examined the patient and completed the patient's progress report, the A.R.N.P. would take the chart to the supervising physician, who would review the chart and write the prescriptions for Phen/Fen. None of the prescriptions for Phen/Fen dispensed at the Center were pre-signed. Patients in the weight loss program received new prescriptions for Phen/Fen at each visit to the Center. Because Phentermine and Fenfluramine are controlled substances, there could be no refills on a prescription, so the prescriptions were written for a sufficient number of pills to last until the patient's next visit to the Center. Although the prescriptions were written and signed by one of the supervising physicians, the physicians did not sign the patient's chart. After the supervising physician wrote the prescriptions, the A.R.N.P. would take the prescriptions to the patient, who could have them filled at the pharmacy in the offices of Advanced Women's Healthcare or at a pharmacy elsewhere. There is nothing in the record to indicate that this practice was not followed with respect to the prescriptions issued to C.B.7 On November 4, 1996, her first visit after beginning the program, C.B. reported one episode of light-headedness. Otherwise, C.B. reported none of the symptoms identified in the questionnaire and reported no problems with the program. Had C.B. reported experiencing anything abnormal, Nurse Payne would have called in one of the physicians supervising the Center for a consultation. C.B. participated in the Center's weight loss program through April 7, 1997, which was the date of her last visit. C.B. lost weight on the Center's program at a slow but steady rate, usually between one and four pounds between visits, until, on April 7, 1997, she weighed 141 pounds. C.B.'s treatment with Phen/Fen ended before May 1997, when the Florida Board of Medicine published stricter limitations on the use of these medications.8 Although Dr. Pliskow was not present in the office on October 28, 1996, when C.B.'s first prescriptions for Phen/Fen were written, he was present in the office during four of C.B.'s ten visits to the Center. Because at least one other physician was also present in the office during these four visits, Dr. Pliskow may or may not have reviewed C.B.'s chart and written her prescriptions.9 Summary The evidence presented by the Department is not sufficient to support a finding that Dr. Pliskow practiced medicine below the level of care considered acceptable by a reasonably prudent physician under similar circumstances or to support a finding that Dr. Pliskow failed to document in C.B.'s medical records justification for the course of her treatment in the weight loss program and the dosage of the medications prescribed for her. The evidence is not sufficient to establish clearly and convincingly that the prevailing standard of care required the physician supervising the Center's A.R.N.P.s personally to perform a physical examination of C.B. prior to her being cleared for receiving medication as part of her weight loss program or personally to obtain C.B.'s medical history. Rather, it was appropriate for Nurse Payne and the other A.R.N.P. working at the Center to perform physical examinations and to take medical histories of persons seeking to participate in the Center's weight loss program. In addition, the evidence is not sufficient to establish clearly and convincingly that it was inconsistent with the prevailing standard of care for the Center's supervising physicians to rely on C.B.'s primary care physician to provide medical clearance for her to participate in the weight loss program. Dr. Fine was familiar with C.B.'s overall medical condition as a result of his examination of her on September 12, 1996, and he was, therefore, competent to assess the overall risks of her participation in a weight loss program incorporating the use of anorectic medications. Furthermore, the evidence fails to establish that it was inconsistent with the prevailing standard of care to rely on the verbal medical clearance conveyed to Nurse Payne through Dr. Fine's office; rather, the persuasive evidence suggests that it was the normal practice for clearance to be given in this manner.10 And, significantly, Dr. Fine's medical clearance was not the only basis for C.B.'s clearance to take anorectic medications: C.B.'s vital signs were recorded on the intake form by the Center's nursing staff, and Nurse Payne compiled C.B.'s medical history from C.B.'s answers to questions on the Weight Loss Program Questionnaire and from discussions with C.B; an EKG and extensive blood work were ordered for C.B., and a physician reviewed C.B.'s chart and the results of these tests before writing C.B. prescriptions for anorectic medications.11 The evidence is not sufficient to establish that the physicians practicing at Advanced Women's Healthcare failed to provide the appropriate level of supervision to the A.R.N.P.s who worked in the Center. A.R.N.P.s are independent practitioners, and they are subject only to the general supervision of a physician. The evidence failed to establish that the prevailing standard of care for physicians supervising A.R.N.P.s required anything more than that the physician be available for consultation. At least one physician was available in the Advanced Women's Healthcare offices at all times for consultation and/or patient evaluation if an A.R.N.P. working at the Center determined that a patient was experiencing any complications or if a patient reported any unusual symptoms. The evidence is not sufficient to establish clearly and convincingly that the type and scope of information collected during C.B.'s regular visits to the Center and the on-going care provided to C.B. were not appropriate under the prevailing standard of care for monitoring patients on weight loss programs such as C.B.'s. The prescriptions for C.B.'s weight loss medications were written by a physician at each of C.B.'s visits, but only after the physician reviewed her chart, which included the A.R.N.P.'s progress notes and C.B.'s answers on the Follow-Up Questionnaires she completed at each visit, to determine whether it was appropriate to continue C.B. on anorectic medications.12 The evidence also fails to establish that the prevailing standard of care required a supervising physician to sign a chart prepared by an A.R.N.P. to indicate that it had been reviewed.13 The evidence is not sufficient to establish that C.B. was not an appropriate candidate for a weight loss program using Phen/Fen under the prevailing standard of care in 1996 and early 1997.14 Adequate justification for the treatment of C.B. with anorectic medications was included in C.B.'s medical records: She was considered obese by 1996 standards because her weight of 165 pounds was more than 20 percent higher than her ideal body weight of 120-to-135 pounds and because her BMI was 28 and she wanted to lose weight. In addition, nothing in the medical history C.B. provided to Nurse Payne or in her tests results indicated that she would be an inappropriate candidate for anorectic medications, and she reported no complications during her follow-up visits.15 The evidence is not sufficient to establish clearly and convincingly that the dosages of Phen/Fen prescribed for C.B. were inappropriate or excessive under the prevailing standard of care in 1996 and early 1997. Rather, the dosages prescribed for C.B. were in the lower range of dosages recommended at the time by the American Society of Bariatric Physicians and in the medical literature in general for the use of Phentermine and Fenfluramine in combination.16 The dosage of both medications was printed on the intake form completed during C.B.'s initial visit to the Center, and the dosages did not change during the time C.B. participated in the Center's weight loss program; in accordance with normal practice, no further notations were made regarding dosages in C.B.'s chart. New prescriptions were written each time C.B. visited the Center, and no refills were permitted, which is also in accordance with the standard practice in dispensing controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing in its entirety the Administrative Complaint against Steven Pliskow, M.D. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 30th day of April, 2002.
The Issue Whether a commercial motor vehicle owned by Respondent exceeded the posted weight when it crossed a "low limit" bridge in rural Brevard County, Florida on June 3, 1992, in violation of Section 316.545, Florida Statutes. Whether extenuating circumstances justifies the reduction or elimination of the proposed penalty for the alleged violation.
Findings Of Fact The Florida Department of Transportation (DOT) is the state agency charged with the duty to administer and enforce the provisions of Chapter 316, Florida Statutes, which regulates the weight and load of commercial motor vehicles on the state highway system. State Road 520, in Brevard County, Florida, is a part of the state highway system, and title to the right-of-way for said highway is held in the name of the State. A bridge which crosses over the St. Johns River on State Road 520 (SR520) in Brevard County, Florida, had a weight limit of 80,000 pounds for motor vehicles until October 20, 1991. On that date, the maximum weight for vehicles was reduced to a limit of 56,000 pounds. On May 26, 1992, the weight limit was again reduced, and the Department posted a new weight limit for the bridge of 30,000 pounds. On June 3, 1992, a commercial motor vehicle owned by Respondent was traveling northbound on Interstate 95 (I-95). The vehicle exited I-95, proceeded westbound on SR 520, and crossed the bridge. After the vehicle crossed the bridge, it was stopped by a Department Transportation Officer, and taken to a nearby pit scale. The weight of the vehicle was accurately determined to be 56,140 ponds. The Transportation Officer then imposed a fine of $1,307.00 on the vehicle, based on 5 cents per pound above the posted weight limit of 30,000 pounds. The penalty was paid by M & M Truck Service, and the vehicle was permitted to proceed. M & M Truck Service sought a refund of the penalty from the Commercial Motor Carrier Review Board. The Board authorized a 50 percent refund under its policy providing for a 50 percent refund when vehicles exceed a posted weight limit within 30 days of the date of a posted weight reduction. The following standard weight limit signs, each showing a 30,000 pound weight limit, had been posted by the Department on SR 520, from I-95 to SR 528, on May 26, 1992: Facing Eastbound on SR 520 (in Brevard County): Just east of I-95: "Weight Limit Last Exit" Just west of I-95: "Weight Limit" (no distance to bridge stated) 2 miles east of the bridge and just east of SR 524: "Weight Limit 2 Miles" Just east of the bride: "Weight Limit" Facing Westbound on SR 520 (in Orange County): Just west of SR 528: "Weight Limit 9 Miles" 4.2 miles west of bridge: "Weight Limit Restriction Ahead" (no distance to bridge state) 4 miles west of bridge: "Weight Limit 4 Miles" Just west of SR 532: "Weight Limit Last Exit" 2 miles west of the bridge: "Weight Limit 2 Miles" Just west of the bridge on the St. Johns River: "Weight Limit" The above signs meet current MUTCD standards. MUTCD refers to the Federal Highway Administration Manual on Uniform Traffic Control Devices, 1988 Edition, which has been incorporated by reference into Florida Administrative Code Rule 14-15.010. SR 520 was under construction at the time the vehicle crossed the bridge, and the driver did not observe the signs posted by the Department.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that a penalty correctly assessed to M & M Truck Service, Inc., under the provisions of Section 316.545, Florida Statutes, and that no refund of the reduced penalty of $653.00 should be made. DONE and ENTERED this 8th day of June, 1993, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1993. APPENDIX Petitioner's proposed findings of fact: Accepted in substance by stipulation. Respondent's proposed findings of fact: Consisted of argument directed to the stipulated facts and need not be specifically ruled upon. COPIES FURNISHED: Paul Sexton, Esquire Assistant General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Gary E. Moses, President M & M Truck Service, Inc. 313 Shadow Oak Drive Casselberry, Florida 32707 Ben G. Watts, Secretary Attn: Michelle Arsenault #58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue DOAH Case No. 02-0949: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1299: Whether Respondent committed the violation alleged in the Administrative Complaint dated February 19, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Harbour Health operates a licensed nursing home at 23013 Westchester Boulevard, Port Charlotte, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 22 through 25, 2001, AHCA conducted an annual licensure and certification survey of Harbour Health, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged several deficiencies during the survey, only one of which is at issue in these proceedings. At issue is a deficiency identified as Tag F325 (violation of 42 C.F.R. Section 483.25(i)(1), relating to maintenance of acceptable parameters of nutritional status). The deficiency alleged in the survey was classified as Class II under the Florida classification system for nursing homes. A Class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. The deficiency alleged in the survey was cited at a federal scope and severity rating of G, meaning that the deficiency was isolated and caused actual harm that is not immediate jeopardy. Based on the alleged Class II deficiency in Tag F325, AHCA imposed a conditional license on Harbour Health, effective October 25, 2001. The license expiration date was August 31, 2002. The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible. . . . This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Harbour Health allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 5, or "R-5": Based on observations, record review and staff interviews, the facility failed to maintain acceptable parameters of nutritional status and did not use all possible interventions, to prevent an unplanned, severe weight loss (7.8 percent in a two month period) for 1 (Resident 5) of 20 active sampled residents. The findings include: During her lunch on 10/22/01 at approximately 12:20 P.M., Resident 5 was observed clinching her teeth together making it difficult to get food into her mouth. Resident 5 was observed on 10/23/01 at 12:30 P.M., taking a limited amount of thickened liquids from her nosey cup, and clinching her teeth together making feeding her more difficult. Resident 5 was observed 5:25 P.M. until 5:55 P.M. on 10/23/01, taking small sips from the nosey cup and clinching her teeth together making it very difficult for the Certified Nursing Assistant (CNA) to feed her 25 percent of her meal. These observations were made in the assisted dining room on A-Wing. Record review of Resident 5's chart, documents 5/1/01 she weighed 127 pounds. On 7/2/01 and again on 7/16/01, her weight was documented 117 pounds. This is a severe weight loss of 7.8 percent in a two month period. Review of the resident's care plan dated 7/18/01, revealed the resident's nutrition problem was "Res. is on a puree diet with thickened liquids-- is continuing to lose weight-- is terminal-- weight is down 6 pounds for the month-- on weekly weight-- consumes 25-50 percent of her meals-- small portions at lunch-- super cereal on breakfast tray and Carnation Instant Breakfast on other trays. Resident can be combative during meals-- resists any attempt to assist her with eating-- is very difficult to feed." Approaches to address the problem included consult with Registered Dietician as needed and to monitor labs. Further review of the care plan included the problem: "Resident is on psychotropic meds for dementia with psychosis as evidenced by . . . increased agitation and resisting care." Review of the resident's physician orders reveal the resident began receiving Risperdal in July 2001 for the diagnosis of psychosis. The record also revealed that the resident was given a terminal status in January 2001. During an interview at 5:20 P.M. on 10/23/01, regarding Resident 5's evening meal being delivered after the other 3 residents at her table, the Certified Nursing Assistant stated, "She don't eat nothing anyway." Interview with CDM (Certified Dietary Manager) and Consulting Dietician on 10/23/01 at approximately 4:45 P.M., regarding resident's severe weight loss and limited nutritional intake, revealed that the Consulting Dietician stated she was unaware of this resident. The CDM stated the resident clinches her teeth, refuses food, and they have tried everything else. She stated that the resident was terminal and that the family did not want a tube feeding placed. The resident was put on thickened liquids by a speech therapist in 1998 for dysphagia, but there had been no speech therapy follow-up. They confirmed that no psychiatric consult was ordered since the care plan was developed, despite continued behaviors during feeding. An interview was conducted with the CDM joined by the DON regarding Resident 5's weight loss and possible interventions on 10/24/01 at 3:05 P.M. It was identified that no routine snacks were ordered, no psychiatric follow-up nor speech therapy follow-up, nor medication adjustments had been done during May 2001 through July 2001. The CDM stated that the facility only acknowledges a 5 percent weight loss at an interval of 1 month, and 10 percent at a 6 month interval as significant, but would not look at a 7.5 percent because it would not trigger on the Minimum Data Set. On 10/24/01 at 3:55 P.M., during an interview with the Unit Manager regarding Resident 5, she stated there was no psychiatric or mental health evaluation ordered, it was only on her care plan. Diane Ashworth was the survey team member who recorded the observation of R-5. Ms. Ashworth based her findings on her observations of R-5, a review of the resident's medical records, and interviews with Harbour Health staff. R-5 was a 92-year-old female who had resided at Harbour Health since 1998. She suffered from dementia with psychosis, in particular end-stage Alzheimer's disease. Her worsening condition caused her physician to request a neurological consultation in January 2001. The consulting neurologist diagnosed her condition as terminal. R-5 was severely impaired cognitively, and was completely dependent on Harbor Health staff for all of her care. R-5 was unable to feed herself. For over three years, Harbour Health has implemented a "restorative dining" program for residents with eating problems. In the restorative dining program, the resident is taken to a quiet area and given one-to-one attention by a CNA during meals. R-5 has been in the restorative dining program since its introduction. During her entire stay at Harbour Health, R-5 was very difficult to feed. She would clench her teeth, cover her mouth and push away. At times she would take the food into her mouth, then spit it back into the face of the caregiver. R-5's medical condition made it impossible to reason with her about the importance of maintaining nutrition. The CNA assigned to R-5 as her restorative aide would spend up to two hours feeding one meal to her. The CNA would attempt to feed R-5 until her agitation and resistance made it impossible. The CNA would refrigerate the food, then wait for R-5 to calm down. Then the CNA would reheat the food and begin the process again. Because of her Alzheimer's and her difficult behavior during meals, R-5 was identified as at risk for weight loss and dehydration. Harbour Health's care plan for R-5 identified several strategies for maximizing R-5's caloric intake, and called for consultation with the facility's registered dietician when needed. R-5 was on a no-sodium-added puree diet, taking thickened liquids in place of solid food. Because she tended to consume only 25 to 50 percent of the food offered at meals, the facility offered her 3,252 calories per day at meals, well in excess of the 1,677 to 1,960 calories required to maintain her usual body weight of 120 to 123 pounds. Staff noted that R-5 appeared overwhelmed by large portions of food and began offering her smaller amounts at one time. R-5 was offered fortified cereals and potatoes, and supplements such as Health Shake and Carnation Instant Breakfast. If R-5 showed signs of accepting certain foods, such as eggs, staff would order extra portions of those foods. Snacks were offered between meals, and R-5 was given vitamin C, zinc, and multivitamins with iron to supplement her nutrition. Staff employed items such as a "Nosey Cup," a cup designed to permit its being held near the resident's face without bumping the nose, to ease the feeding process. Harbour Health's standard practice was to weigh residents once per month. If the monthly weights indicated a problem, then Harbour Health would commence weighing the resident on a weekly basis until the problem was resolved. As noted by Ms. Ashworth, R-5 weighed 127 pounds at her monthly weighing on May 1, 2001. At her next monthly weighing on June 1, 2001, R-5 weighed 123 pounds. At the following monthly weighing on July 2, 2001, R-5 weighed 117 pounds. Ms. Ashworth calculated the weight loss from May 1 to July 2, 2001 as 7.8 percent of R-5's body weight. Noting the weight loss, Harbour Health placed R-5 on weekly weights in July 2001. On July 16, 2001, her weight remained at 117 pounds. On July 23, 2001, her weight had increased to 123 pounds. On August 1, 2001, R-5's weight was 125 pounds. Thus, by early August R-5 had regained nearly all of the weight she had lost between May and July 2001. On July 6, 2001, R-5's attending physician prescribed Risperdal, an antipsychotic medication, to calm her severe agitation and constant movement. Risperdal can act as an appetite stimulant. The administration of Risperdal to R-5 coincided with her weight gain in July 2001. When the facility became aware of R-5's weight loss in July 2001, staff began offering R-5 food more often, including more snacks between meals. The attending physician removed the sodium restriction from R-5's puree diet. Aside from those steps, Harbour Health maintained the same nutritional procedures for R-5. The agency alleged that Harbour Health was deficient in not involving the consulting dietician when it became aware of R-5's weight loss. The agency further alleged that Harbour Health should have ordered a psychiatric consultation and a speech therapy consultation. Regular snacks should have been ordered, and R-5's medications should have been adjusted. Harbour Health contended that it was already doing everything possible to ensure R-5's nutritional status. The only alternative to the puree diet would be tube feeding. R-5's son, who acted as her guardian, made it clear to the facility that he would not consent to tube feeding. In May 2001, R-5 suffered from an upper respiratory infection diagnosed as bronchitis by her attending physician. On May 14, 2001, the physician ordered the antibiotic Levaquin; nebulizer treatments with Albuterol and Atrovent, both bronchodilators; and oral administration of Robitussin. All of these medications were ordered and administered for a period of one week. Harbour Health contended that R-5's respiratory infection completely explained her weight loss. The evidence does not entirely support that contention. The medical records indicate that R-5's condition was largely resolved by the latter part of May 2001. R-5 lost four pounds during the month of May 2001. The majority of R-5's weight loss occurred during the month of June 2001, after her bronchitis was treated and apparently resolved. At most, R-5's weight loss was only partially explained by her upper respiratory infection. Dr. Michael Brinson, R-5's attending physician, testified that it is expected that an end-stage Alzheimer's patient will lose weight, because at some point the resident loses the will to live. In Dr. Brinson's opinion, R-5 had reached this point, which explained her refusal to eat. He was aware of R-5's weight loss. Given R-5's clinical condition, the weight loss did not concern Dr. Brinson, who deemed it irrelevant to her care and treatment. Even Ms. Ashworth, the agency RN who performed the survey observation of R-5, agreed that weight loss can be a symptom of end-stage Alzheimer's. R-5 had been provided with a speech consultation and speech therapy in 1998. She was discharged from speech therapy in March 1998 because it was determined that nothing more could be done for her. Dr. Brinson testified that a speech therapy consultation would have been useless in July 2001. Speech therapy is called for if the resident's refusal to eat is related to a swallowing problem. R-5 had no swallowing problem. Catherine Rolin, the restorative nurse who supervised R-5's feedings, confirmed that there were no indications R-5 had difficulty swallowing, or had choked or aspirated during the time she was losing weight. Dr. Brinson opined that R-5's terminal diagnosis with end-stage Alzheimer's disease made a psychiatric consultation of no value. R-5's cognitive impairment would have rendered her unable to participate in any psychiatric examination. Dr. Brinson came to the facility at least once a week. His Advanced Registered Nurse Practitioner ("ARNP"), Vickie Swank, came to the facility several times a week. Dr. Brinson would have had to order any psychiatric or speech therapy consultation, or any laboratory work. Dr. Brinson believed that none of these was appropriate for R-5. The interdisciplinary team overseeing R-5's care included the facility's certified dietary manager. The team was aware of R-5's weight loss as of July 2, 2001, and decided that R-5's status did not trigger a need to consult the registered dietician. Deborah Blackburn, a dietician and expert in nutrition, reviewed R-5's records and concluded that there was no need to consult a registered dietician. Ms. Blackburn opined that the facility was taking all reasonable steps to maintain R- 5's caloric intake and nutritional status. She could not think of a workable approach that Harbour Health had failed to employ. Aside from the weight loss itself, R-5 suffered no skin breakdown or other negative effects. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. R-5 lost the weight then quickly gained most of it back with no dramatic changes in Harbour Health's approaches to her feeding and overall nutrition. This fact demonstrates that R-5's weight loss was caused not by Harbour Health's failure to provide adequate nutrition, but by a combination of R-5's terminal Alzheimer's disease and her upper respiratory infection. Once Harbour Health became aware of the weight loss, it reacted appropriately and successfully. The steps that the agency faulted Harbour Health for failing to take--psychiatric consultation, speech therapy consultation, dietician consultation, and medication adjustments--were demonstrated to be unnecessary in light of R-5's condition.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1299, and rescinding the notice of intent to assign conditional licensure status to Harbour Health Center in DOAH Case No. 02-0949 and reinstating the facility's standard licensure status. DONE AND ENTERED this 23rd day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 23rd day of September, 2002. COPIES FURNISHED: Ursula Eikman, Esquire Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Room 310L St. Petersburg, Florida 33701 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valinda Clark Christian, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue This case concerns an administrative complaint brought by the Petitioner against the Respondent alleging various violations of Chapter 458, Florida Statutes. Generally speaking, the Respondent is accused of prescribing controlled substances in bad faith, deception, untrue and fraudulent representations in the practice of medicine failing to keep written medical records justifying treatment gross or repeated malpractice or the failure to practice medicine with the requisite level of care, skill and treatment expected of him and with the violation of a related provision of law, premised upon the aforementioned substantive violations.
Findings Of Fact The Board accepts and adopts and incorporates herein the Findings of Fact of the Hearing Officer. There is competent substantial evidence to support the Findings of Fact.
