The Issue The issue is whether Respondent is guilty of deviating from the applicable standard of care, in violation of Section 458.331(1)(t), Florida Statutes, and failing to keep adequate medical records, in violation of Section 458.331(1)(m), Florida Statutes. If so, an additional issue is what penalty the Board of Medicine should impose.
Findings Of Fact At all material times, Respondent has been a licensed physician, holding license number ME 0066606. Respondent has been board certified in plastic surgery since 1983 and is also board certified in hand surgery. Respondent has previously practiced in Kentucky. He relocated to Florida in 1994 to join a former physician colleague, Dr. Bolt, who had developed cancer and later died in early 1995. Respondent joined the Center for Cosmetic Surgery (Center), which Dr. Bolt had sold to two persons, including Jeff Davis. The record does not disclose whether Mr. Davis is a physician, but Respondent described him and the other principal/owner as felons. The Center held out Respondent as the medical director. This representation was obviously with Respondent’s knowledge and at least tacit consent. After Dr. Bolt’s death, Respondent recruited three more physicians for the Center, but none of them was board certified in plastic surgery. Mr. Davis served as the patient coordinator at the Center. The position of patient coordinator had significant marketing responsibilities. Typically, a prospective patient would contact the Center and schedule a free consultation. At the appointed time, the prospective patient would visit the Center and speak with a physician, such as Respondent. No physical examination would take place. During the discussion, the physician would make notes on a Physician’s Report, which the prospective patient would take to Mr. Davis, whose job was to sell the surgery. Using incentives such as free nose jobs, Mr. Davis was responsible for pricing surgical procedures and scheduling surgery, once the prospective patient agreed to have a Center physician perform the agreed-upon surgery. Mr. Davis was also responsible for collecting money from patients in payment for their surgery. Typically, one of Respondent’s patients would schedule surgery two to three months from the date of making the appointment. Before surgery, Respondent would see the patient before surgery for a physical examination and preoperative testing. Respondent determined what preoperative testing was necessary on a patient-by-patient basis. Following this visit, Respondent would dictate the findings from the physical examination and the treatment plan. A transcribing service was responsible for transcribing the dictation and filing it in the patient’s chart. In May or June of 1996, Respondent provided notice to the principals of the Center that he would be terminating his employment. He terminated his employment on November 1, 1996. After his departure, Respondent learned that Center employees had misinformed his patients as to Respondent’s nonavailability due to illness or surgery. It is unclear whether this situation existed before Respondent’s announced departure. Tensions developed between Respondent and the principals of the Center. Respondent determined that he could lawfully contact those patients still needing care, so he sent those patients an announcement that he was associating himself with the American Institute of Plastic Surgery. Litigation between Respondent and the Center principals followed, including a legal action by Respondent to obtain patient records. The litigation over the records concluded with the agreement by the Center to provide records as needed, but they have provided Respondent with incomplete records. A. S. first contacted the Center in June 1995 after seeing an advertisement on television. She chose the Center and two other facilities for plastic surgery that she was considering. At the time, A. S. was 48 years old. Wanting to improve her appearance, A. S. wanted a face lift and work on her lower eyelids. She had had her lower eyelids done in 1978 or 1979 and had had a “mini-lift” in 1984. A. S. met Respondent during her first visit to the Center. A. S. and Respondent spoke for 15-20 minutes. Respondent asked her what procedures she wanted done, and she said that she wanted a face lift and work on her lower eyelids. He showed her a copy of his resume and marked a picture of a face, as they discussed procedures. A. S. did not fill out any forms or questionnaires. Respondent did not explain much concerning the procedures that A. S. was contemplating. He mentioned that she would have a thin line, which would not be noticeable, under her eyes and told how long the stitches would remain in place. He did not discuss the possibility of scarring or other risks associated with the surgery. Following her visit with Respondent, A. S. saw Mr. Davis. They discussed costs and financing. Mr. Davis gave her an estimate of the cost of the surgery that she was considering. A. S. had already checked another plastic surgery center and, later on the same day that she visited the Center, she visited the third, and last, plastic surgery facility that she was considering. The next day, Mr. Davis called A. S. and asked if she had made a decision. Mr. Davis said that Respondent had told him that Respondent wanted to do A. S.’s nose, evidently for aesthetic reasons. Mr. Davis offered the nose work at no additional charge. Although Respondent had not offered to do A. S.’s nose for free or for a charge, he was aware that Mr. Davis would offer free additional work of this kind as an incentive to the patient to select the Center for the work that she was already considering. A. S. talked the matter over with her daughter. A. S. decided to have the surgery at the Center. She then informed Mr. Davis of her decision. Three to five days later, A. S. visited the Center to discuss payments with Mr. Davis because she did not have all of the money necessary for the surgery. During this visit, Mr. Davis suggested a brow lift. He said that Respondent was good at this procedure and would be working in this area anyway. At the end of this visit, a nurse gave A. S. some paperwork prohibiting her from smoking for two weeks before the surgery due to the anticipated bleeding. A. S. had smoked one pack of cigarettes a day since she had been a teenager. A. S. discussed the effect of smoking on the surgery with the nurse, but not with Respondent. As directed, she stopped smoking and never resumed smoking again. A. S. next visited the Center on June 26, 1995, for the surgery. No one performed a physical examination of A. S. On this date, Respondent performed a browlift, rhinoplasty, and facelift. After A. S. awoke from the general anesthesia, she did not receive any instructions from Respondent or staff regarding the care of her bandages, which extended across a large part of her face and top of her head. She was scheduled to return to the Center two days later. A. S.’s daughter drove her home. Once they got there, she noticed that her mother’s face seemed grey. A. S. told her to call Respondent. The daughter informed his answering service of her mother’s condition. She then waited one-half hour for Respondent or his staff to contact her. After hearing nothing, the daughter called the answering service again and waited another half-hour. After a third call and another half-hour wait, Respondent called A. S. and told her to cut the bandage under her neck. By cutting the bandages, A. S. revealed an open cut on her neck. When she returned for her followup visit two days later, A. S. asked Respondent about the cut, which extended along the right side of the neck below the ear. Respondent assured her that it would close up, which it did. When Respondent expressed concerns about her eyes and a dent in her nose, Respondent assured her that they would discuss these matters after the swelling went down. About one week later, Respondent returned to the Center for a second followup visit. During the second followup visit, Respondent removed the stitches. Now that some of the swelling had gone down, A. S. discovered that Respondent had not performed the surgery on her lower eyes. A. S. could not recall Respondent’s explanation for not performing this surgery. A. S. complained to Respondent that, since the surgery, her right eye had become smaller than her left eye, the right eyebrow had become lower than the left eyebrow, and the right side of her face from the eye down had become looser. Also, she complained about the extensive marks, scarring, loose skin, redness, and a dent under her chin; the dent in her nose and a misshapen right nostril; a swollen bump on her left cheek; a big chunk of skin gone from her hairline; and a gully on the left side of her face. Respondent assured her that he would fix these problems with revisions to the eyes and nose and the area under the neck. He did not offer any revisions to hair line, whose appearance worsened as the swelling reduced. Respondent later performed some relatively minor revisions to the right side of A. S.’s face at no cost to A. S. He reset the remaining revisions for a date in mid-December, 1995. Despite A. S.’s persistence at trying to obtain the additional revisions, Respondent failed to perform them. Repeatedly, Center employees canceled scheduled surgery dates, claiming that Respondent was ill or busy with unscheduled surgery. They rescheduled the December surgery to a date in mid- February, 1996. When she reported on this date, a Center employee took her to Mr. Davis, who informed her that the Center had lost money on her surgery and would not perform revision surgery until she paid additional money. They rescheduled her surgery for a date in late March. When A. S. reported on the date for her surgery in March, Mr. Davis told her that they would not do the revision surgery until she paid another $300. A. S. charged this sum on her credit card, so they would do the surgery. Mr. Davis told her that Respondent was too busy, and he rescheduled the surgery for April 8. On April 8, when A. S. reported for surgery, a Center employee sedated A. S., but, after A. S. waited a couple of hours, another Center employee informing her that the surgery could not take place either because Respondent was not coming into work that day or he was in emergency surgery. When A. S. called from home later that day to reschedule the surgery, a Center employee told her that Respondent was in surgery. The employee advised A. S. to call the Center each morning to see if Respondent had any cancellations. A. S. did as advised, but the Center was never able to accommodate her. Subsequently, A. S. sent Respondent two or three letters and left telephone messages for him to contact her on at least ten occasions. Realizing that Respondent and the Center would not perform the revision surgery, A. S. went to another plastic surgery facility in 1998 for work on her right nostril and under her neck. A surgeon repaired the nostril, but, due to financial constraints, could not do all of the work required to repair the damage under A. S.’s neck, which would require about $4000 in surgery. In the meantime, Respondent sent A. S. a card announcing the relocation of his practice to the American Institute for Cosmetic Surgery. A. S. wrote Respondent a letter at his new address, but Respondent never responded. A. S. never sued Respondent. All she wanted was that he perform the revisions that she could not afford to purchase elsewhere so as to reduce or, if possible, eliminate the deformities that Respondent caused surgically. Respondent violated the applicable standard of care in several ways. First, preoperatively, his evaluation of A. S. was scanty. He did not take an ample history, and he did not adequately evaluate her medical status. He did not prepare a surgical plan with a description of all risks and a discussion of these details with the patient. Perhaps most importantly, Respondent never performed a physical examination of A. S. before surgery. Respondent violated the applicable standard of care operatively. The results in this case are so substandard in number and degree as to preclude assigning the outcomes to bad luck, as opposed to a hurried, careless surgery. Respondent violated the applicable standard of care postoperatively. He did not adequately the many problems that he caused. Perhaps most obviously, he failed to adequately treat the open wound in the neck, and he failed to form a plan to address the many revisions necessitated by his careless surgery. The Board of Medicine has previously disciplined Respondent for, among other things, his deviation from the applicable standard of care in treating three plastic surgery patients whose surgery he performed in 1995-96 and 1998.
Recommendation It is RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(m), Florida Statutes, in his treatment of A. S. and revoking his license. DONE AND ENTERED this 6th day of December, 2000, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2000. COPIES FURNISHED: Tanya Williams, Executive Director Board of Medicine Department of Health Bin C03 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health Bin A02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Kim M. Kluck Carol Gregg Senior Attorneys Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Jerry C. Lingle 1419 Northeast 16th Terrace Fort Lauderdale, Florida 33304
The Issue Whether Respondent committed the offenses set forth in the Administrative Complaint and the amendment thereto, which added an additional count, and, if so, what action should be taken.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of dentistry pursuant to Chapters 455 and 466, Florida Statutes, and Section 20.43, Florida Statutes. At all times material hereto, Respondent was a licensed dentist in the State of Florida, having been issued license number DN 0013137. Respondent has been licensed to practice dentistry since July 1992, over eight years. Prior to being licensed in Florida, Respondent was a licensed dentist in Cuba, having been licensed in 1986. Respondent has also completed a post-graduate course in oral surgery, maxillary facial surgery, and oral and facial reconstructive surgery. son. Respondent is a single parent. She has a 15-year-old In 1993, Respondent opened her first dental office. Her patients were Hispanic and were mostly private patients. In her dental practice, Respondent performed general dentistry, as well as specialty areas of dentistry, such as root canals and surgery. As a result, she did not refer her patients to dentists who practiced in the specialty areas. From 1995 to 1996, Respondent's practice significantly changed in patient base and volume. As a result of the Cuban rafter crisis in South Florida in August 1994, her patient base changed from mostly private patients and became mostly Medicaid patients, who were Cuban refugees, and the number of her Hispanic clients greatly increased. Between 1995 and 1996, most of Respondent's patients possessed common characteristics. Most of her patients were Cuban refugees, who did not speak English, were poor, had teeth in generally poor condition, which needed a substantial amount of dental work, had gum disease, and were qualified for Medicaid. During the relevant time period in the instant case, for patients over the age of 21 years, Medicaid paid for only three services: oral exams, dentures, and extractions. Medicaid did not cover services or treatments for a filling, cleaning, root canal, crown, or gum disease. Many of the Respondent's Cuban refugee patients had chronic gum disease. Respondent rendered many needed dental services that were not covered by Medicaid. Respondent was known to the Cuban refugees as a dentist who did not refuse to provide dental treatment. Many of the Cuban refugees were aware that Respondent would provide dental treatment for those who were over 21 years of age. In some instances, Respondent provided dental treatment without cost. Many Cuban refugees were referred to Respondent by a well-known Hispanic newspaper in Miami-Dade County. Respondent's practice increased dramatically. Her patient base increased from 10 to 15 patients a day to nearly 40 patients a day. Her practice experienced a substantial increase in dental treatment; hours of operation (11 to 12-hour days); the cost of treating the volume of patients; lab supplies; paper work; staff; overhead; and administrative costs. As a result of the increase in her practice, Respondent hired Augustine Gonzalez, as a dental assistant. Mr. Gonzalez was employed with Respondent for approximately six months, beginning on or around May 1995. Respondent knew Mr. Gonzalez as he had graduated from dental school with her in Cuba and they interned together in Cuba. Respondent considered Mr. Gonzalez to be a competent dentist due to his education, training, and experience even though he was not a licensed dentist in the State of Florida. Mr. Gonzalez performed dental services or treatments, which were originally designed to be under Respondent's supervision. Respondent was not always in the same room with Mr. Gonzalez when he performed the dental services or treatments. Due to the escalation in her practice, Respondent permitted Mr. Gonzalez to examine patients, drill, and install permanent fillings. In many instances, because of the escalation of her practice, Respondent was not able to check a patient after Mr. Gonzalez examined the patient and to review dental work performed by Mr. Gonzalez. In the State of Florida, Mr. Gonzalez was not qualified by training, experience, or licensure to examine patients, drill, and install permanent fillings. Mr. Gonzalez was not a licensed dentist in the State of Florida. He was not authorized in the State of Florida to examine patients or drill or install permanent fillings. Additionally, Mr. Gonzalez had not completed any course recognized by the American Dental Association which would have expanded his duties as a dental assistant. From 1995 to 1996, the following 15 Cuban refugees patients were among the refugee patients who received dental services and treatments from Respondent: M.A.A.; A.F.; A.A.; M.A.; C.G.; D.A.G.; E.A.; I.A.; M.C.A.; E.B.; R.D.; C.V.; R.B.; M.I.; and A.B.4 At the time that Respondent rendered the dental services or treatments, all of Respondent's dental records were written in Spanish. Extractions and fillings were performed on the patients without first obtaining X-rays. The minimum standard of care requires the taking of X-rays in diagnosis and treatment prior to extracting or filling teeth. The Patients' records do not reflect that X-rays were taken or contain the results of any X-rays. Respondent contends that X-rays were taken of all patients who were receiving dentures and routinely of first-time patients. The minimum standard of care requires the recording in a patient's record of X-rays being taken and the results therefrom. Respondent failed to take X-rays of the Patients. If X-rays were taken, the Patients' records would have reflected it. Respondent rendered dental services or treatments which were not recorded in the Patients' records and rendered more dental services than reflected in the records. Additionally, some services or treatments recorded as being performed were not performed. As a result, Respondent generally failed to maintain accurate patient records. For example, (1) as to Patient E.B., (a) three Spanish charts existed, with each reflecting a different number of visits and (b) one of the Spanish records reflected the filling of two teeth (Nos. 18 and 20), one other such record reflected one filling (No. 18) and sealants; (2) as to Patient D.A.G., the Spanish chart reflected nine fillings but Patient D.A.G. maintains that there were probably only two fillings; (3) as to Patient C.V., the Spanish record failed to reflect services rendered on a tooth in the patient's lower jaw; (4) as to Patient M.A., two Spanish charts existed and Respondent could not definitively state whether the recorded services were the services rendered to the patient; and (5) as to Patient A.B., the recorded entries were out of sequence and Respondent could not definitively state whether the recorded services were the services rendered. Respondent's dental records reflect that an oral exam was performed on the first visits but failed to reflect existing disease or pathology, or lack thereof, of the patients. Further, Respondent's dental records reflect the terminology "medical history" but fail to recite the Patients' medical history. Consequently, no disease or pathology, or the lack thereof, or medical history was recorded in the Patients' records. Respondent contends that her dental practice was too busy and overwhelmed to maintain complete dental records for the Cuban refugee patients. However, Respondent agrees that a busy practice does not relieve a dentist from complying with minimum standards of record keeping. Respondent instructed her office manager, Maria Otero, to handle the Medicaid billing for the dental office. Respondent directed Ms. Otero to falsify Medicaid billings and Medicaid billing records. Ms. Otero was directed by Respondent to change the dates of services rendered, as necessary, in order for the services billed to qualify for Medicaid; and to bill Medicaid for X-rays, extractions, alveoplasties, and dentures. Ms. Otero had no knowledge of which services or treatments were actually being performed and which were not. Because of this lack of knowledge, in her billing, Ms. Otero saw no relationship between the dental work actually performed and the dental work which was billed. Although dental services and treatments were rendered for each Patient, Ms. Otero billed for services or treatments rendered and services or treatments not rendered. Respondent did not review or check the billing to Medicaid. She signed the Medicaid billing requests without reading them. To prepare for the possibility an investigation, Respondent directed Ms. Otero to create dental records in English to match the false Medicaid billing. As a result, Respondent had two sets of dental records for the Patients, one in Spanish (the correct records) and one in English (the false records). Florida's Office of the Attorney General, Medicaid Fraud Control Unit (Fraud Unit) conducted an investigation of possible fraud by Respondent. During the investigation, the Fraud Unit requested the Patients' records from Respondent. Respondent provided the actual questionnaire completed by Patients and also provided the English records, instead of the Spanish records, as the authentic records. Even when the dental records were subpoenaed, the English records were provided. During the investigation by the Fraud Unit, Respondent approached Patient M.A.A. and attempted to persuade him to join in the untruths presented regarding services or treatments rendered by Respondent to the Patients. She requested Patient M.A.A. to lie about the services that had been rendered to him if he was questioned regarding the services that he had received. Respondent requested that Patient M.A.A. tell the Fraud Unit that her office had performed his extractions even though the extractions were performed in Cuba. Respondent did not admit her participation in the fraud being perpetuated until her deposition which was taken by Petitioner on July 11, 2000. As a Medicaid provider, Respondent agreed to accept payments on Medicaid's scale of fees for Medicaid patients. Respondent's charges for the same services or treatments rendered by her to her private patients were more than the reimbursement fees reflected on Medicaid's scale of fees. Respondent does not dispute that she billed for the services or treatments rendered in the Administrative Complaint filed against her by Petitioner. Furthermore, Respondent does not dispute the dollar amount that she received from Medicaid.5 For Patient M.A.A., Respondent billed for services rendered on five visits from a period of February 9, 1996, through March 12, 1996. Respondent billed Medicaid $1,175.00 and was paid $273.85 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $261.85. For Patient A.F., Respondent billed for services rendered on 12 visits from a period of May 31, 1995, through July 28, 1995. Respondent billed Medicaid $819.00 and was paid $778.05 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $766.05. For Patient A.A., Respondent billed for services rendered on eight visits from a period of December 14, 1995, through February 4, 1996. Respondent billed Medicaid $1,990.00 and was paid $581.80 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $569.80. For Patient M.A., Respondent billed for services rendered on four visits from a period of June 6, 1996, through June 27, 1996. Respondent billed Medicaid $1,035.00 and was paid $267.15 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $255.15. For Patient C.G., Respondent billed for services rendered on six visits from a period of April 29, 1995, through June 7, 1995. Respondent billed Medicaid $908.00 and was paid $808.45 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $796.45. For Patient D.A.G., Respondent billed for services rendered on five visits from a period of April 27, 1995, through May 25, 1995. Respondent billed Medicaid $774.00 and was paid $697.30 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $685.30. For Patient E.A., Respondent billed for services rendered on six visits from a period of January 19, 1996, through February 20, 1996. Respondent billed Medicaid $1,410.00 and was paid $341.00 by Medicaid. Patient E.A. was under the age of 21 years, and, therefore, all services were covered by Medicaid. Had the appropriate service been billed by Respondent, the payment by Medicaid would have been $1,215.00, resulting in an underpayment by Medicaid of $874.00. For Patient I.A., Respondent billed for services rendered on four visits from a period of May 2, 1996, through May 23, 1996. Respondent billed Medicaid $835.00 and was paid $229.18 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment of $217.18. For Patient M.C.A., Respondent billed for services rendered on 11 visits from a period of June 3, 1995, through December 26, 1995. Respondent billed Medicaid $1,570.00 and was paid $1,067.70 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $1,055.70. For Patient E.B., Respondent billed for services rendered on 11 visits from a period of May 16, 1995, through July 15, 1995. Respondent billed Medicaid $908.00 and was paid $862.60 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $850.60. For Patient R.D., Respondent billed for services rendered on nine visits from a period of June 30, 1995, through August 24, 1995. Respondent billed Medicaid $1,116.00 and was paid $1,060.20 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $1,048.20. For Patient C.V., Respondent billed for services rendered on nine visits from a period of June 6, 1995, through August 4, 1995. Respondent billed Medicaid $1,121.00 and was paid $1,064.95 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $881.00, resulting in an overpayment by Medicaid of $183.95. Also, included in the services rendered and billed to and paid by Medicaid was the preparation of dentures to Patient C.V., however, no extractions were performed on Patient C.V., so he did not obtain the dentures from Respondent. For Patient R.B., Respondent billed for services rendered on eight visits from a period of March 8, 1995, through April 21, 1995. Patient R.B. also received dentures from Respondent. Respondent billed Medicaid $1,063.00 and was paid $971.85 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $500.30, resulting in an overpayment by Medicaid of $471.55. For Patient M.I., Respondent billed for services rendered on 11 visits from a period of April 1, 1995, through May 30, 1995. Respondent billed Medicaid $1,231.00 and was paid $1,169.45 by Medicaid. However, had the appropriate service been billed by Respondent, the payment by Medicaid would have been $12.00, resulting in an overpayment by Medicaid of $1,157.45. For Patient A.B., Respondent billed for services rendered on 10 visits from a period of November 2, 1995, through January 12, 1996. Respondent billed Medicaid $1,231.00 and was paid $1,169.45 by Medicaid. Also, included in the services rendered and billed to and paid by Medicaid were the preparation and delivery of dentures to Patient A.B. It could not be determined what services were actually performed for Patient A.B. and, therefore, it cannot be determined what the payment by Medicaid would have been if the appropriate services had been billed and what the overpayment, if any, is. As a result, for the 15 Patients, Respondent billed $18,467.00 to Medicaid, was paid $11,126.88 by Medicaid, and received $7,445.23 in overpayment from Medicaid. None of the 15 Patients were aware that Respondent was billing Medicaid for dental services not rendered. Medicaid pays for dentures only once. For patients who did not actually receive dentures from Respondent, but the providing of dentures was billed to Medicaid, those patients may possibly have a problem in the future in securing dentures paid for by Medicaid. As to services or treatments rendered by Mr. Gonzalez, he performed the examination and cleaning and checked fillings of Patient C.G.; performed the examination and cleaning and installed fillings of Patient D.A.G.; and performed the examination and cleaning, installed fillings, and took impressions for dentures of Patient C.V. Patients C.G., D.A.G., and C.V. were satisfied with the services that they received. The services and treatments performed by Respondent for the 15 Patients were necessary services. Petitioner does not contend that Respondent failed to practice dentistry with reasonable skill and safety. By Order of Emergency Suspension of License, filed April 17, 1998, Respondent's license to practice dentistry was suspended on an emergency basis by the Board of Dentistry. On October 15, 1999, Respondent was charged with one count of Medicaid fraud by the Statewide Prosecutor for the State of Florida in the Circuit Court of the Eleventh Judicial Circuit, in and for Dade County, Florida, Case No. 99-35476. The charge of Medicaid fraud was a result of her false Medicaid billing arising from her practice of dentistry. On June 28, 1999, Respondent entered into a plea agreement. The terms of the plea agreement included, among other things, a plea of guilty with the understanding that Respondent would request that adjudication be withheld; three-year probation with 2600 hours of community service, $100,000.00 reimbursement to the Florida Medicaid Program, pay $5,000.00 to the Office of the Attorney General, Medicaid Fraud Control Unit for costs of the investigation, and $3,500.00 to the Office of the Statewide Prosecutor for costs of prosecution; and full cooperation by Respondent with the State of Florida in its investigation. On November 9, 1999, Respondent plead guilty to the one count of Medicaid fraud. Adjudication was withheld and Respondent was placed on probation for three years with 2600 hours of community service. Furthermore, on November 9, 1999, the Court entered judgments against Respondent for $100,000.00, payable to the Agency for Health Care Administration for restitution; for $5,000.00, payable to the Office of the Attorney General, Medicaid Fraud Control Unit for investigative costs; and for $3,500.00, payable to the Office of the Statewide Prosecutor for costs of prosecution. On November 18, 1999, the terms of Respondent's probation were modified by the Court to permit Respondent to perform her community service hours in a dental facility. On January 3, 2000, Respondent's counsel and counsel for the Statewide Prosecutor entered into a stipulation amending Respondent's plea agreement. The amended stipulation was filed with the Court in Respondent's Medicaid fraud case. The amended stipulation provided in pertinent part as follows: In order to serve the public in a more appropriate manner and commensurate with her professional abilities, Dr. Nieto may fulfill her obligation providing services as a dentist or a dentist assistant in any governmental or public health facility (including a correctional facility), during the three year period, which will include the period during which she is suspended from private practice, if approved by the Department of Health, Board of Dentistry, at a rate of no less than twenty (20) hours weekly as community service. An inference is drawn, from the actions of the Statewide Prosecutor and the Court, that Respondent's conduct should not prevent her from practicing dentistry. In February 2000, Respondent was notified by the U.S. Department of Health and Human Services that, as a result of her conviction for Medicaid fraud, she was excluded from participating in the Medicare, Medicaid, and all federal health care programs for a minimum of five years. Respondent has not practiced since the emergency suspension of her license on April 17, 1998, almost three years ago. Not being able to practice has exacted a toll on Respondent's life. She experienced a state of depression and is under psychological treatment and taking medication for her depression. Her finances have suffered severely, and in addition to losing her dental practice and office, she has lost her home. Respondent has no prior disciplinary action by Petitioner. Character witnesses testified on behalf of Respondent. One such witness was Eladio Armesto who publishes the oldest Cuban-American weekly newspaper in the State of Florida and publishes a magazine which is a feature of the newspaper. Mr. Armesto referred many Cuban refugees to Respondent, advising Respondent that the potential patients could not pay her for her services. He also referred non-Medicaid eligible persons, as well as Medicaid-eligible persons, to Respondent. Respondent never refused services or treatments to any of the referrals. Mr. Armesto praised Respondent's willingness to help and the dental work provided to Cuban refugees by Respondent. Many letters in support of Respondent were also submitted. The undersigned is persuaded that Respondent's actions in falsifying the dental records and the Medicaid billing claims were not for financial gain, although one cannot dismiss that Respondent did receive monies from Medicaid, but were to assist Cuban refugees with the dental work needed by them. Respondent rendered dental services, for the 15 Patients and other patients, beyond that for which Medicaid would pay and for which the patients could pay themselves.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a final order: Finding that Marta Nieto, D.D.S., violated Subsections 466.028(1)(c), (j), (l), (m), (t), (x), (z), and (aa), Florida Statutes. Suspending Dr. Nieto's license for five years, with the time period during the emergency suspension being applied towards the five-year suspension. Placing Dr. Nieto on probation for three years under the terms and conditions deemed appropriate. Imposing an administrative fine of $24,000.00. DONE AND ENTERED this 1st day of February, 2001, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 2001.
Findings Of Fact The Respondent Jorge Suarez-Menendez, M.D., is a licensed medical physician having been issued license number ME 0030879. His last known business address is 1300 Coral Way, Miami, Florida 33145. Gladys Maher was admitted to American Hospital via the emergency room on May 13, 1982, complaining of abdominal pain, nausea and vomiting. The admitting physician, Dr. Amorin also noted that laboratory results revealed problems with the patient's gall bladder and the Respondent was consulted when the surgeon detected abdominal wall defects which included hernias and diastasis of the rectus muscle. A repair of the diastasis of the rectus muscle is performed utilizing an abdominal lipectomy since such a procedure is a necessary by-product of the gall bladder surgery and repairs of the hernias and diastasis when a single incisional technique is used. Although a lipectomy was performed on the patient by the Respondent, it was not billed to the insurance company, Midland Mutual. However, the Respondent did not attempt to hide the fact that a lipectomy was performed since it was clearly described in the Respondent's operative report. The laboratory report also indicated that a lipectomy was performed. An addendum to the operative report was dictated in April, 1983, by the Respondent to clarify that a lipectomy was performed on the patient when it was brought to his attention that the term "lipectomy" was mistakenly not typed on the operative report. The patient, who had undergone prior abdominal surgery in Cuba, had four hernias repaired by the Respondent. All of the hernias were in the same general location as the original surgery which is represented by a scar running from the patient's navel to the pubic region. The bill submitted by the Respondent could be considered duplicative if the diastasis of the rectus muscle was in the same spot as the umbilical and incisional hernias. The testimony presented by the parties concerning the location of the diastasis of the rectus muscle and whether this repair should have been considered a separate procedure from the repair of the incisional, umbilical and ventral hernias, was conflicting and inconclusive. The Petitioner established that the Respondent's itemized charges for the surgery performed on this patient were significantly higher than the fees charged by other, more qualified and experienced plastic surgeons in the Dade County area. However, the appropriateness of the Respondent's charges and whether such fees should be paid are a matter between the Respondent and the patient's insurer since the Department clearly lacks the authority to regulate fees charged by physicians regardless of the unconscionable nature of such charges. In its Proposed Recommended Order, the Department conceded that no substantial evidence of fraud exists in the Respondent's treatment of Jose Menendez, although the fees charged by the Respondent were characterized as excessive. The Hearing Officer concurs in the Petitioner's assessment of the evidence concerning the Respondent's treatment of Jose Menendez since Respondent's charge of $2,000.00 to remove glass fragments from this patient's eye was grossly excessive. The counts of the Administrative Complaint relating to Gladys Maher arose as a result of a referral to the Department by a representative of the insurance carrier who had been hired to screen patient claims. At the hearing, counsel for the Respondent introduced a memorandum from the insurance carrier, Respondent's Exhibit 1, regarding the Respondent's claim for Mrs. Maher's surgery in which a disparaging comment was made regarding the Respondent's ethnic background. This document was introduced to demonstrate that the Respondent's claim could have bean scrutinized differently from other physician's because of his Hispanic heritage. The inference which surrounds the memorandum is disturbing and it is urged that the Department ensure that in the future complaints regarding a physician are initiated on the basis of the physician's alleged wrongful acts rather than his national origin.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Medical Examiners enter a final order dismissing the Administrative Complaint filed against the Respondent Jose Suarez-Menendez. DONE and ENTERED this 16th day of August, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2000 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of August, 1984. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Edward A. Carhart, Esquire 717 Ponce de Leon Boulevard, Suite 331 Coral Gables, Florida 33134 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case are whether Respondent, a physician specializing in obstetrics and gynecology, committed medical malpractice in delivering a baby and/or failed to maintain medical records justifying the course of the mother's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Mark N. Scheinberg, M.D., was licensed to practice medicine in the state of Florida. He is board-certified in obstetrics and gynecology. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Scheinberg. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Scheinberg committed two such offenses——namely, medical malpractice and failure to keep records justifying the course of treatment——in connection with the vacuum-assisted vaginal delivery of an infant born to Patient L.G. on February 2, 2005, at West Boca Medical Center. The crux of this case (though not the sole issue) is whether, as the Department contends, the standard of care required Dr. Scheinberg to perform a Caesarean section ("C- section") on L.G. due to the passage of time, instead of allowing her to continue to labor for approximately 13 hours and, ultimately, deliver vaginally. The events giving rise to this dispute began on February 1, 2005, at around 11:00 a.m., when L.G., whose pregnancy was at term, checked into the hospital after having experienced ruptured membranes. At 12:30 p.m. that day, L.G. signed a form bearing the title "Authorization for Medical and/or Surgical Treatment," which manifested her consent to a vaginal delivery or C-section together with, among other things, "such additional operations or procedures as [her physicians might] deem necessary." Immediately above L.G.'s signature on the form is an affirmation: "The above procedures, with their attendant risks, benefits and possible complications and alternatives, have been explained to me " The evidence is not clear as to when, exactly, Dr. Scheinberg first saw L.G., but that fact is unimportant. The medical records reflect that at 8:30 p.m. on February 1, 2005, Dr. Scheinberg gave a telephone order to initiate an IV push of the antibiotic Ampicillin; therefore, he had taken charge of L.G.'s care by that time. The nurses' notes indicate that at 10:00 p.m., L.G.'s cervix had dilated to "rim" or approximately nine centimeters—— meaning that the dilation was complete, or nearly so. At this time, and throughout the duration of L.G.'s labor, an external fetal heart monitor was in place to detect and record the baby's heartbeats and the mother's uterine contractions. An intrauterine pressure catheter ("IUPC")——a device that precisely measures the force of uterine contractions——was not inserted into L.G.'s uterus at any time during this event. The Department argues (although it did not allege in the Complaint) that, at some point during L.G.'s labor, the standard of care required Dr. Scheinberg either to place an IUPC or perform a C-section. Pet. Prop. Rec. Order at 10, ¶36. The Department's expert witness, Dr. John Busowski, testified unequivocally and unconditionally, however, that the standard of care does not require the use of an IUPC. T. 36. The undersigned credits this evidence and finds that Dr. Scheinberg's nonuse of an IUPC did not breach the standard of care. Dr. Scheinberg conducted a physical at around 2:00 a.m. on February 2, 2005, which included taking L.G.'s complete history and performing a vaginal examination. L.G.'s cervix remained dilated to approximately nine centimeters, and her labor had not substantially progressed for about four hours. Dr. Scheinberg noted in L.G.'s chart that the baby was in the posterior position at 2:00 a.m. The Department argues, based on Dr. Busowski's testimony, that as of 2:00 a.m., the standard of care required [Dr. Scheinberg to] choose one of the following options: (1) watch the patient for a few more hours to allow for progress; (2) place an IUPC to determine the adequacy of Patient L.G.'s contractions; (3) start Pitocin without the placement of an IUPC; or (4) perform a C- section. Pet. Prop. Rec. Order at 9-10, ¶ 32. The Department contends that Dr. Scheinberg breached the standard of care by choosing "simply to watch the patient for approximately 10 more hours"—— which was tantamount to "choosing to do nothing." Id. at 10, ¶¶ 33-34. In fact, Dr. Scheinberg chose to watch the patient, which was, according to Dr. Busowski, within the standard of care. Obviously, at 2:00 in the morning on February 2, 2005, Dr. Scheinberg did not choose to wait for 10 more hours, because at that point he (unlike the parties to this litigation) did not know what was about to happen. The nurses' notes reflect that L.G. was under close observation throughout the early morning hours, and that Dr. Scheinberg was following the situation. At 4:30 a.m., L.G. was set up to push and at 4:45 a.m. was pushing well. At 6:15 a.m., the notes indicate that Dr. Scheinberg was aware of the mother's attempts to push. At 6:45 a.m., he reviewed the strips from the fetal heart monitor. At 7:45 a.m., he was present and aware of L.G.'s status. From 7:00 a.m. until 8:00 a.m., no contractions were identifiable on the external monitor. At 8:00 a.m., however, L.G. was comfortable and pushing well. She stopped pushing at 8:30 a.m., but remained comfortable. Dr. Scheinberg then ordered the administration of Pitocin, a medicine which is used to strengthen contractions and hasten delivery. Although the Department faults Dr. Scheinberg for giving L.G. Pitocin at this relatively late stage of her labor, Dr. Busowski (the Department's expert witness) admitted being unable to say "that Dr. Scheinberg should have started Pitocin earlier " T. 72. The Department therefore has no clear evidential basis for second-guessing Dr. Scheinberg's professional judgment in this particular, and neither does the undersigned. At 9:10 a.m., L.G. resumed pushing. The baby's fetal heart tones (heartbeats) were stable. L.G. continued pushing, with her family present, until around 11:00 a.m., at which time Dr. Scheinberg discussed the situation with the patient and her family. Dr. Scheinberg explained to L.G. or her husband the risks of, and alternatives to, performing a vacuum-assisted vaginal delivery. Either L.G. or her husband gave verbal consent to the use of a vacuum device to assist in the delivery. Between 11:00 a.m. and 11:10 a.m., the fetal heart monitor detected some variable decelerations, meaning a decrease in heart rate that could be a sign of fetal distress. Dr. Scheinberg delivered the baby at 11:23 a.m., using a vacuum device to help pull the infant out of the birth canal. In his post-operative notes, Dr. Scheinberg wrote that his "pre-operative diagnosis" was "+3 station — prolonged second stage 2½ hrs." As a "post-operative diagnosis," Dr. Scheinberg recorded, "same + tight cord." He reported the following "findings": "tight cord cut on perineum[;] mec[onium] aspirated on perineum."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Scheinberg not guilty of the charges set forth in the Complaint. DONE AND ENTERED this 20th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 20th day of June, 2011.
The Issue The issues in this case are whether Respondent violated sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and 460.413(1)(r), Florida Statutes (2006),1/ and Florida Administrative Code Rule 64B2-17.0065, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. Dr. Christian was at all times material to the violations alleged in the Administrative Complaint a licensed chiropractic physician in the State of Florida, having been issued license number 5756 on or about February 4, 1998. At all times material to the violations alleged in the Administrative Complaint, Dr. Christian, Dr. Davidson, and Dr. Kalin were employees of Comprehensive Physician Services, Incorporated (CPS). Dr. Christian was the sole stockholder of CPS. On April 17, 2006, M.M. was involved in an automobile accident when the car, in which she was a front-seat passenger, hit a tree on the passenger side. The window next to M.M. shattered and M.M. received lacerations to the right temple area of her head. M.M. was transferred by ambulance to the emergency room at Northside Hospital. While in the emergency room, a CT scan was performed on M.M.'s head. The CT evaluation was normal. The lacerations were sutured, and M.M. was discharged from the emergency room. On or about April 26, 2006, M.M. presented to CPS for treatment of injuries due to the automobile accident on April 17, 2006. M.M., who was a minor at the time, was accompanied by her mother to CPS. M.M.'s complaints were headaches; neck pain and stiffness; mid-back pain and stiffness; lower back pain and stiffness; difficulty sleeping due to pain; and difficulty with concentration. She indicated that, on a scale of one to ten, with ten being the most, the stiffness in her neck and middle back was a five. On examination, Dr. Christian found that M.M. had cervical and thoracic tenderness. In his initial report, Dr. Christian noted the hyperabduction tests were positive, and there was "left side reduced pulse/paresthesia due thoracic outlet compression consistent with compression from seat belt trauma." However, the test results contained in the medical records show that there are negative findings on the hyperabduction tests. When questioned about the discrepancy, Dr. Christian testified that the positive findings were a result of the grip/pinch test that he performed. He indicated that he made a mistake in his initial report and that the report should have stated right side reduced pulse. He could not explain how the grip/pinch test would lead him to conclude that there was a reduced pulse because M.M.'s pulse would not be measured during a grip/pinch test nor could he explain how he could learn from a grip/pinch test that there was paresthesia. Later, he testified that the difference in the results was not due to the grip/pinch test, but was a result of a second hyperabduction test that he performed prior to the grip/pinch test. Dr. Christian's testimony is not credited. Dr. Christian's practice is to have an assistant come into the examination room during the testing. As he performs the test, he tells the assistant the results of the test, and the assistant will record the test results. The medical records do not show a second hyperabduction test being recorded by an assistant. Therefore, the examination results are contrary to the results stated in the initial report for April 26, 2006. In his examination records of April 26, 2006, Dr. Christian noted that there was "R [circled] Visual Acuity Diff." M.M.'s mother was present during the examination and observed Dr. Christian testing M.M.'s vision on April 26, 2006. Dr. Christian testified that he first tested M.M.'s vision on May 24, 2011. His testimony is not credited. Dr. Christian's practice is to put findings of the previous chiropractic examination on the report of the examination that he is currently conducting so that a comparison could be made. The examination report of April 26, 2006, and May 24, 2006, are the same with the exception of notations on the May 24, 2006, report of 5/23 near the present complaints section and the section where areas of muscle spasms on the spine are noted. In his follow-up report dated May 24, 2006, Dr. Christian wrote: "Certainly today I see evidence of her continuing to have some alterations of visual acuity . . .". Dr. Christian testified that he had incorrectly included the term "continuing" in this statement. Dr. Christian's testimony is not credited. His statement that the alterations of visual acuity were continuing comports with M.M.'s mother's testimony that the first visual testing was done on April 26, 2006, and the examination report of April 26, 2006. Based on the examination reports for April 26, 2006, and May 24, 2006, there is no indication of what tests Dr. Christian used to test M.M.'s vision nor is there any indication of the exact nature of the problem with the right eye. Dr. Christian's initial report does not mention the visual acuity difference. His follow-up report of May 24, 2006, does not indicate the difference that M.M. is experiencing with her right eye. In his examination records of June 14, 2006, and July 25, 2006, Dr. Christian notes: " R [circled] side vision distance diff." In his final report of July 25, 2006, Dr. Christian noted as a current symptom, "[r]ight sided visual alteration with peripheral." He listed as a diagnostic impression: "Concussion with residual affecting peripheral visual field on the right, persistent." However, contrary to his final report, Dr. Christian testified at final hearing that M.M.'s problem with her peripheral vision had improved. On April 26, 2006, Dr. Christian's treatment plan included the following treatment for M.M. three times a week for four weeks: intersegmental traction, hot pack, and neuromuscular release for the full spine; inferential, alternating cervical to dorsal and dorsal to lumbar; full spine massage; and full spine aqua treatment. The therapist assistant was to determine which treatment modalities and areas to treat at each treatment session. Dr. Christian signed each of the daily treatment notes. On April 26, 2006, Dr. Christian referred M.M. to Dr. Kalin. According to Dr. Christian, Dr. Kalin had experience in emergency rooms treating patients who had sustained trauma. Dr. Christian wanted Dr. Kalin to look at the two lacerations that M.M. had sustained. However, there were no outward signs of infection of the lacerations, and the lacerations had healed. Dr. Christian also wanted to determine if there was any post concussion symptoms. Dr. Kalin evaluated M.M. on May 1, 2006. His initial diagnosis was that she had a "cervical musculoskeletal ligamentous strain" and a "[s]ubacute lumbosacral musculoskeletal ligamentous strain." His examination did not reveal any abnormality with M.M.'s vision. He did find that the lacerations may leave permanent scarring. In his interim report dated May 24, 2006, Dr. Christian stated: "Dr. Kalin was not able to mention the fact that she [M.M.] struck her head or had laceration and dizziness with nausea and vomiting following the impact." This statement is contrary to what Dr. Kalin stated in his report. Dr. Christian further noted in his report that he would follow- up with Dr. Kalin to see if Dr. Kalin had an addendum as to whether there is additional follow-up for post-concussion symptomology. In his report of May 1, 2006, Dr. Kalin did not make any findings of a concussion or post-concussion syndrome. On May 25, 2006, a staff member of CPS sent the following request to Dr. Kalin: Dr. Kalin, Dr. Christian asked if you could please make an addendum [sic] to your report on [M.M.] for her concussion-post concussion syndrome. Thanks! Kimberly Dr. Kalin replied: "pt had no symptoms of headache or memory/concentration when I saw her." No mention was made in Dr. Christian's interim report dated May 25, 2006, that Dr. Kalin did not find any evidence of post-concussion syndrome. On May 1, 2006, Dr. Christian wrote a prescription for hydrotherapy for M.M. for three times a week for four weeks. M.M. received treatment at CPS on May 1, 2006. M.M. indicated to the therapist that on a scale of one to ten that she rated her low back pain and low back stiffness as a four and her neck stiffness as a five. The therapist noted that there was cervical and lumbar tenderness. M.M.'s treatment on May 1, 2006, consisted of hot therapy and hydrotherapy to the cervical, thoracic, lumbar, and sacral areas, and intersegmental traction to the cervical, thoracic, and lumbar areas. X-rays of M.M.'s cervical and lumbar spine were ordered. The radiologist who read the X-rays had the impression that M.M. had a cervical muscle spasm and a lumbar muscle spasm. On May 4, 2006, M.M. received treatment at CPS. She rated her neck stiffness and low back stiffness as a three. There was no notation of any tenderness by the therapist. M.M. received the following treatment in the thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, and hydrotherapy. On May 4, 2006, ultrasound studies were performed on M.M. by Charles W. Hirt, M.D. (Dr. Hirt). Dr. Hirt's impression was that there were findings that showed evidence of a left- sided thoracic outlet syndrome. On May 9, 2006, M.M. returned to CPS for treatment. She rated her neck stiffness and lower back stiffness as a two. The therapist noted that there was tenderness in the cervical and lumbar areas. M.M. was given hot therapy, intersegmental traction, and trigger point therapy in her cervical, thoracic, and lumbar areas. She received myofascial release, massage, and hydrotherapy in her cervical, thoracic, lumbar, and sacral areas. On May 16, 2006, M.M. was treated at CPS. She rated her neck stiffness as a one and her low back stiffness as a two. The therapist noted tenderness in the lumbar area. The treatment to M.M.'s cervical, thoracic, lumbar, and sacral areas included intersegmental traction, trigger point therapy, myofascial release, and massage. She was given interferential treatment to her lumbar and sacral areas and hot therapy to her cervical, thoracic, and lumbar areas. On May 18, 2006, M.M. presented for treatment at CPS. She rated her neck and low back stiffness as a one. The therapist did not note any tenderness. M.M. received the following treatment in her cervical, thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, trigger point therapy, myofascial release, and massage. On May 23, 2006, M.M. went to CPS for treatment. She rated her lower back stiffness as zero. The therapist noted tenderness in the cervical, thoracic, and lumbar areas. M.M. was given a massage and myofascial release in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment and trigger point therapy in her lumbar and sacral areas and hot therapy and intersegmental traction in her thoracic, lumbar, and sacral areas. On May 24, 2006, Dr. Christian did a follow-up examination of M.M. M.M. rated the neck and lower back stiffness as zero. Dr. Christian noted in his follow-up report that all the symptoms that he had noted in his initial report of April 26, 2006, had improved. His follow-up report stated: "Cerebellar function tests, as far as assessed are abnormal with a positive Rhomberg test for possible concussion." His follow- up report also stated: "Certainly today, I see evidence of her continuing to have some alterations of visual acuity and a positive Rhomberg, which would be consistent with post concussion syndrome." On May 25, 2006, M.M. returned to CPS for further treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical and lumbar areas. M.M. was treated with myofascial release and massage in her cervical, thoracic, lumbar, and sacral areas. She received trigger point therapy in her lumbar and sacral areas and inferential treatment in her thoracic area. She also received intersegmental traction in her thoracic, lumbar, and sacral areas. M.M. received treatment at CPS on May 30, 2006. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. Hydrotherapy, hot therapy, and intersegmental traction were provided to M.M. in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment in her lumbar and sacral areas. On June 13, 2006, M.M. again returned to CPS for treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical, thoracic, and lumbar areas. M.M. received intersegmental traction, myofascial release, and massage in her cervical, thoracic, lumbar, and sacral areas. M.M. was given hot therapy in her thoracic, lumbar, and sacral areas. She received trigger point therapy in her cervical and thoracic areas. On June 14, 2006, M.M. presented at CPS for a follow- up visit with Dr. Christian. She rated her neck and low back stiffness as zero. He reduced her treatment to one per week for the next four to five weeks. In his examination record of June 14, 2006, Dr. Christian noted: " R [circled] side vision distance diff." On June 20, 2006, M.M. returned to CPS for treatment. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. M.M. was given hot therapy and intersegmental traction for her thoracic, lumbar, and sacral areas. She was given hydrotherapy for her cervical, thoracic, lumbar, and sacral areas. On June 22, 2006, ultrasound studies were done on M.M. by Dr. Hirt. His impression was that she likely had thoracic outlet syndrome on the left side. On May 24, 2006, Dr. Christian referred M.M. to Dr. Davidson for a second opinion for post concussion. Dr. Davidson examined M.M. on June 27, 2006. In his report dated June 27, 2006, Dr. Davidson concluded that she had had a mild concussion, a cervical strain, and a lumbosacral strain. He recommended that her soft tissue therapy be discontinued. Dr. Davidson did not find any abnormalities in M.M.'s vision. On July 25, 2006, M.M. was examined by Dr. Christian. M.M. rated her neck and low back stiffness as zero. Dr. Christian noted the following in his final report dated July 25, 2006. If the patient's symptoms of altered visual field persist and evaluation by an ophthalmologist or a neuro-ophthalmologist may be appropriate. If she begins to have any difficulty with sleep, mood swings, feelings of dizziness or persistent headaches a neuro-psychiatric evaluation for continued post concussion deficits may be appropriate. Dr. Christian discharged M.M. on July 25, 2006, and M.M. was to return for treatment on an as needed basis. Dr. Christian's initial report dated April 26, 2006; interim report dated May 24, 2006; follow-up report dated June 14, 2006; and final report dated July 25, 2006, were dictated by Dr. Christian. The reports were being mailed to someone or some entity based on the note at the end of each report, which stated: "DICTATED BUT NOT PROOFREAD TO AVOID DELAY IN MAILING." At the closing of each report, Dr. Christian stated: "If I can be of further assistance in this regard, please do not hesitate to contact me." It is not clear to whom the reports were directed, but it is clear that the reports were meant to convey the examination, evaluation, and treatment of M.M. to the reader of the report. These reports did not accurately report the examination results of M.M. in at least two instances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065; finding that Dr. Christian did not violate sections 460.413(1)(n) and 460.413(1)(r); imposing an administrative fine of $2,500; placing Dr. Christian on probation for one year; and requiring Dr. Christian to attend a continuing education course on record-keeping. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
Findings Of Fact Based upon the evidence adduced at hearing, the parties' prehearing stipulation, and the record as a whole, the following Findings of Fact are made: Respondent is now, and has been for approximately the past 15 years, a physician licensed to practice medicine in the State of Florida. He specializes in internal medicine and cardiology and is board certified in these specialities. He currently is the Chief of Cardiology and head of the Coronary Care Unit at North Ridge Hospital and has staff privileges at approximately five other hospitals in the Broward County area. At all times material to the instant case, Health Imaging, Inc., (Health) was in the business of providing ultrasound imaging services in the State of Florida at the request of physicians, hospitals and members of the community at large. The tests performed by Health were non-invasive studies that involved no health risks. They included echocardiograms, carotid ultrasounds and other studies of the heart and vascular system done with ultrasound equipment. Unlicensed technicians operated the equipment and administered the tests. Florida-licensed physicians interpreted the test results. In August of 1987, Warren Green and his wife, the owners of Health, contacted Respondent and asked him if he would be interested in contracting with Health to provide such interpretive and diagnostic services. After looking into the matter and satisfying himself that Health's equipment was of good quality and that its technicians were well qualified, Respondent entered into a written agreement (Agreement) with Health, the body of which provided as follows: This agreement made and entered into this 18 day of August 1987 by and between Health Imaging, having its principal business address at 6278 North Federal Highway, Suite 372, Ft. Lauderdale, Florida, hereinafter referred to as "HEALTH" and Jorge Flores, M.D., having his principal business address at 5700 N. Federal Highway, Ft. Lauderdale, Florida, hereinafter referred to as "DOCTOR" is made with reference to the following: WHEREAS, HEALTH is engaged in business throughout the Florida area providing ultrasound and vascular services to hospitals, physician offices and the community. DOCTOR is engaged in the business of providing medical services to his patients and patients of other doctors and hospitals in the Ft. Lauderdale, Florida area. Health desires to contract from DOCTOR for certain diagnostic interpretation services for its own patients and patients of other doctors and hospitals in the Florida area. NOW THEREFORE, HEALTH AND DOCTOR AGREE AS FOLLOWS: Equipment. HEALTH agrees to provide all necessary equipment and supplies to perform the services according to the schedule set forth on Exhibit A, attached hereto. Personnel. Health shall provide qualified technologists to operate the equipment for the services set forth on Schedule A, attached hereto. Solicitation of Employees. DOCTOR shall not during the term of this agreement nor a period of One (1) year after its termination, solicit for employment or employ, whether as employee or independent contractor, any person who is or has been employed by HEALTH during the term of this agreement without the prior written consent of HEALTH. Physician Interpretation Personnel. DOCTOR agrees to provide necessary qualified physicians for interpretations. Payment. For and in consideration of the services and promises contained herein by DOCTOR, HEALTH agrees to pay DOCTOR in accordance with the fee schedule set forth on Schedule A, attached hereto. All fees are to be paid in advance or at time of interpretation. Default. In the event of the default of any payment this contract may be terminated by DOCTOR. Term, Termination. The term of this agreement is for one (1) year. After Thirty (30) days either party may terminate this agreement, without cause, by giving Thirty (30) days written notice provided that in no event may HEALTH terminate this agreement unless all monies owing to DOCTOR under the terms hereof are paid in full. Compliance with Law. Both parties agree to comply with all municipal, state and federal laws and regulations. Governing Law. This agreement shall be construed under the laws of the State of Florida. Independent Contractor. DOCTOR is performing the service and duties required hereunder as an independent contractor and not as an employee, agent, partner, or joint venturer with HEALTH. Entire Agreement. This instrument shall be deemed to contain the entire agreement between HEALTH and DOCTOR and supercedes [sic] any prior or existing agreements, understandings, arrangements, terms, conditions, negotiations, or representations, oral or written, made by either party concerning or affecting the subject matter hereof. No modification of this agreement may be made except in writing, signed by HEALTH and DOCTOR. Schedule A, which was referenced in and appended to the Agreement, read as follows: INTERPRETATION FEE SCHEDULE Community, Corporate, Club and Association Screening Program Fee Schedule. EXAM: Echocardiography only FEE: One thousand dollars (1,000.00) per month for 400 studies in any thirty (30) day period. Five dollars ($5.00) per study for all studies exceeding four Hundred (400) studies in any given thirty (30) day period. Community, Corporate, Club and Association Screening Program Fee Schedule. EXAMS: (Any combination of the following) Carotid Ultrasound with Doppler and Periorbital Doppler Echocardiography Upper and Lower Extremity Doppler Study FEE: Three thousand dollars ($3,000.00) per month for any combination of the above studies, not to exceed 1,500 studies in any thirty (30) day period. Any combination of the above studies will be at a rate of Five Dollars ($5.00) per study in any given thirty (30) day period. Hospital and Physician offices fee Schedule: (Any studies performed in a hospital or Physician office, ordered by a physician) EXAMS Carotid ultrasound with doppler $65.00 Echocardiography $65.00 Abdominal ultrasound $65.00 Holter monitoring $65.00 Peripheral arterial examination $35.00 Peripheral venous examination $35.00 The Agreement and Schedule A were drafted by the Greens without the assistance of an attorney. Respondent furnished Health with interpretive and diagnostic services under the Agreement for approximately 18 months. He provided Health with no other services. Respondent was compensated $1,000 per month the first four months and $3,000 per month the remaining 14 months for his services. Most of the individuals whose test results Respondent interpreted during his 18-month association with Health were self-referred. The remainder of the test takers were referred by physicians. None had any prior professional relationship with Respondent. 1/ Respondent prepared a signed, written report of his findings for each test taker. 2/ He sent the report, along with the materials that he had reviewed in making his findings, to Health, which in turn provided the report to the test taker or to the referring physician, if there was one. 3/ Respondent did not consider the test takers to be his patients. He therefore did not keep copies of the reports he had prepared and sent to Health or the test materials upon which these reports had been based. 4/ The Greens had assured Respondent at the outset, however, that they would maintain these records and make them available to Respondent upon his request should he need them for some reason. The Greens were true to their word. Whenever Respondent asked to see a copy of a report or test materials, 5/ the Greens complied with his request. The Greens still have in their possession copies of the reports Respondent had prepared and transmitted, as well as the related test materials. While Respondent was aware that Health advertised to generate business, he was not asked to assist in any way, either as a consultant or otherwise, in the preparation or placement of any of Health's advertisements. Indeed, the first time he saw one of these advertisements was approximately five or six months after he began his association with Health. The advertisement was in a local newspaper that he happened to be reading. Some months later he saw another advertisement in the same newspaper. He found the contents of this particular advertisement to be "totally unacceptable." He therefore telephoned the Greens and complained about the advertisement. The Greens responded to Respondent's complaint by discontinuing the advertisement. A short time thereafter, upon the suggestion of a Department investigator who warned Respondent "to stay away from these people," Respondent severed his relationship with Health. He did so, not because he believed that he had done anything wrong, but because the Department, through its investigator, had expressed its concerns regarding the matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order dismissing the Amended Administrative Complaint in its entirety. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 15th day of January, 1993. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1993.
The Issue Whether the Respondent violated Section 458.331(1)(m), Florida Statutes, which requires a physician to keep legible medical records on Patient S.W., during the period August 20, 1992, through November 1992. Whether Respondent violated Section 458.331(1)(t), Florida Statutes, which prohibits gross or 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, where Respondent performed surgery that was not necessary and/or failed to diagnose and treat a postoperative infection that resulted in necrosis of the Patient S.W.'s turbinates.
Findings Of Fact Respondent, Robert Peter Filiberto, is and has been, at all times material hereto, a licensed physician in the State of Florida, having been issued license no. ME 0032703. Respondent maintains offices in Palm Bay and Sebastian, Florida. Respondent is board certified in otolaryngology and head/neck surgery. S.W., a 46 year-old adult female, was referred on March 25, 1991, to Respondent with complaints of "chronic bronchitis." Physical examination revealed the following: Mild polypoid changes of both vocal chords, 2+ rhinitis, with 3+ post nasal drainage. Respondent diagnosed the patient as suffering from allergic rhinitis with a post nasal drainage, which precipitated her chronic cough. S.W. returned to Respondent on August 20, 1992, having fallen and suffered a broken nose. Respondent diagnosed a comminuted (multiple) fracture and septal deformity. Respondent recommended surgical correction. On August 26, 1992, S.W. executed a Surgical Contract for a "septorhinoplasty and bilateral turbs" and also executed a Surgical Consent Form as follows: I consent to the performance of operations and procedures in addition to or different from those now contemplated, whether or not arising from presently unforeseen conditions, which Dr. Filiberto may consider necessary or advisable in the course of the operation. * * * The nature and purpose of the operation, possible alternative methods of treatment, the risks involved, the possible consequences and the possibility of complications have been fully explained to me by Dr. Filiberto or his assistant. These may include infection, loss of function, disability, scar formation, pain, bleeding, and possibility of recurrence. I acknowledge that no guarantee or assurance has been given by anyone as to the results that may be obtained. Dr. Filiberto assured me he would fix my nose and I would be happy. (Final sentence added by S.W.) On or about September 18, 1992, Respondent performed septorhinoplasty (plastic surgery of the nose and septum, the cartilage between the nostrils), with bilateral inferior turbinectomy (removal of the lower moisturizing membranes inside the nose) on S.W. at Humana Hospital - Sebastian. Respondent removed a portion of both inferior turbinates. The right inferior turbinate was manually resected (cut) with superficial electrocauterization used to control bleeding. The left inferior turbinate was fulgurated using an intramural electrocautery technique. The surgery proceeded without complication. Following the operation, the hospital pathology report confirmed Respondent's diagnosis: chronically inflamed hypertrophied nasal turbinates. Respondent's post-operative report indicates he intended to remove only the lower two-thirds of Patient S.W.'s turbinates. Respondent's performance of surgical electocautery is not mentioned in Respondent's medical records until Patient S.W.'s visit on or about November 13, 1992. Between September 21, 1992, through November 20, 1992, Respondent saw Patient S.W. for postoperative follow-up examinations. During her postoperative visits, S.W. complained of pain, a greenish discharge, and a bad smell numerous times. When the symptoms did not cease, Respondent prescribed antibiotics on October 22, 1992, approximately four weeks after surgery. After approximately three weeks on the antibiotics, the pain, discharge, and smell continued. Respondent prescribed more of the same antibiotics. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records described S.W.'s nose as clear. Between on or about September 21, 1992, through on or about November 11, 1992, Respondent's medical records indicate no postoperative infection. However, the patient had an infection that was impervious to the antibiotics that Respondent had first prescribed. When that became apparent, Respondent failed to order a culture. Patient S.W. subsequently transferred her case to another physician and underwent extensive treatment by other physicians for tissue necrosis and osteonecrosis (infectious destruction of bone), including removal of necrotic tissue and intravenous antibiotics. Patient S.W.'s subsequent treating physicians discovered that her turbinates were completely missing. S.W. now has severely limited senses of smell and taste. She suffers from chronic pain and sinus headaches. She experiences nightly discharges of thick mucous, and numbness of certain parts of her face. Expert witnesses speculated that the turbinates were missing, either because Respondent had removed them entirely, which is not standard practice and is not reflected in his medical notes, or because he allowed the infection to continue so long that necrosis destroyed whatever portion of the turbinates had not been removed. Respondent's medical records do not justify his course of treatment of Patient S.W. Respondent's medical records inadequately document Patient S.W.'s history and physical condition or amounts and frequencies of antibiotics prescribed. The records also do not justify Respondent's delay in diagnosing Patient S.W.'s developing post-operative infection. The evidence is not clear and convincing that Respondent performed inappropriate nasal surgery on Patient S.W. on September 18, 1992. A reasonably prudent similar physician would not have failed to timely diagnose and treat Patient S.W.'s developing postoperative infection.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine issue a final order that: Finds the Respondent guilty of failure to keep legible medical records that justified the course of treatment for Patient S.W. during the period August 1992 through November 1992, in violation of Section 458.33(1)(m), Florida Statutes. Finds the Respondent not guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the diagnosis and surgery performed on Patient S.W., on September 18, 1992. Finds the Respondent guilty of gross malpractice or the failure to practice medicine within that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances in regard to the treatment of the Patient S.W. for the postoperative infection that resulted in necrosis of the Patient's turbinates in the period September through November 1992, in violation of Section 458.331(1)(t), Florida Statutes. Finds that Respondent has established mitigation as to Count I, in that his current procedures for the generation of medical records are in compliance with statutory and regulatory requirements. Suspends Respondent's license to practice medicine for a period of three months, followed by a period of probation under such terms and conditions as the Board may require; and imposes an administrative fine of $5,000, plus the costs of prosecuting this complaint. DONE AND ENTERED this 26th day of February, 1999, in Tallahassee, Leon County, Florida. COPIES FURNISHED: J. Charles Ingram, Esquire DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1999. Hannah, Voght, Estes & Ingram, P.A. Post Office Box 4974 Orlando, Florida 32802-4974 John O. Williams, Esquire Maureen L. Holz, Esquire Williams & Holz, P.A. 355 North Monroe Street Tallahassee, Florida 32301 Pete Peterson, General Counsel Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703 Angela T. Hall, Agency Clerk Department of Health 2020 Capital Circle, Southeast Bin A-02 Tallahassee, Florida 32399-1703
