The Issue Should discipline be imposed against Respondent's license to practice chiropractic medicine for violation of Section 456.072(1)(c), Florida Statutes (2003)?
Findings Of Fact Facts Established by Admission Effective July 1, 1997, Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Section 20.43, Florida Statutes. Petitioner is the state agency charged with regulating the practice of chiropractic medicine pursuant to Chapters 456 and 460, Florida Statutes. Respondent is and has been at all times material hereto a licensed chiropractic physician in the State of Florida, having been issued license number CH 5396 on October 14, 1986. Respondent's last known address is 9471 Baymeadows Road #108, Jacksonville, Florida 32256-0154. JHCS operated as a medical clinic offering and supplying chiropractic and medical services to patients. Respondent caused or allowed claims to be filed with Medicare and other health care benefit programs claiming reimbursement for the professional component of Magnetic Resonance Imaging tests (MRI). The report generated as a result of the outside radiologist was placed onto JHCS' letterhead to give the appearance that the radiologist was an employee of JHCS and Respondent. Respondent pled guilty to crimes that occurred in the course of Respondent's practice of chiropractic medicine (during his hours of operation). For Diagnostic Ultrasound (DU) and Nerve Conduction Velocity (NCV) billing, Respondent submitted claims for the technical portion of DU or NCV test, which is the performance of the test, even though Respondent did not contribute his professional expertise to the performance of the test. Respondent would submit claims to various health care benefit programs for the technical component of the test. Additional Facts In United States of America v. Mark Schoenborn, United States District Court, Middle District of Florida, Jacksonville Division, Case No. 3:03-cr-315-J-25MMH, Respondent pled guilty to Count 1 of the information, 18 U.S.C. §§ 1347 and 371. The nature of the offense was conspiracy to defraud a health care benefit program. The offense ended September 2002. The judgment in the criminal case held to the following effect: The defendant is sentenced as provided in pages 2 through 5 of this judgment. This sentence is imposed pursuant to the Sentencing Reform Act of 1984, as modified by United States v. Booker. At page 4 of 5 the obligation for restitution is set forth as part of the sentence. A sentence was imposed in the case on February 11, 2005, in which Respondent was placed on probation, for a term of three years. A special condition of supervision was that Respondent participate in the Home Detention Program for a period of six, assumed to be months, and that he perform 100 hours of community service. Respondent was required to pay a $10,000.00 fine and to make $400,000.00 in restitution. The payees in the restitution were: Aetna, Inc., $52,944.00; United Health Group, $38,076.00; DHHS/CMMS, Division of Accounting, $245,609.00; and Blue Cross/Blue Shield of Florida, $63,371.00. Respondent would receive credit for all payments previously made toward any criminal monetary penalties imposed on a joint and several basis with Respondent Charles Doll, United States District Court, Case No. 3:03-cr-314-J-25MMH. Respondent has referred patients for MRIs to provide information about soft tissue in relation to the formation of a disc. In particular, the information about the disc would pertain to a herniated or bulging disc. The information imparted in the MRI results assists in diagnosing a patient, according to Respondent. It is not involved with the treatment of the patient. The initial diagnosis is made without the benefit of an MRI. Respondent refers patients for NCV tests, the results of which may show nerve pressure, according to Respondent. The diagnosis will have been formulated before the referral is made usually. This special test assists in further understanding "things going on with a patient." The results of the test could further assist Respondent in rendering care. Respondent has used DU in his practice. The information provided by those tests is a showing of inflammation in an area. The results help Respondent decide what to do with a patient, as far as additional treatment, and whether there may be the need to make a referral outside his practice or some other choice. In making the referrals that have been described, Respondent believes that he is making that choice as a chiropractic physician. Expert Opinion Michael William Mathesie, D.C., is licensed to practice chiropractic medicine in Florida. He is an expert in the field of chiropractic medicine. Petitioner hired Dr. Mathesie as its consultant in the case, to express an opinion concerning Respondent's practice in view of the allegations in the Administrative Complaint. In Dr. Mathesie's opinion the practice of chiropractic medicine consists of diagnosis and treatment of nerves, muscles, joints, and conditions of the spine and extremities. Diagnosis of a patient would consist of inspection and palpation, range of motion, orthopedic maneuvers, neurological evaluations, X-rays, CT scans, MRIs, neurological diagnostic testing, and other specialized tests, as well as blood laboratory evaluations. Treatment would consist of adjustments to the spine to correct subluxations, or other lesions of the spine causing nerve irritation or impulses or nerve transmission problems. Physical therapy modalities, nutrition, counseling and other non- pharmaceutical and non-neurological procedures are also involved. Dr. Mathesie explained the use of diagnostic testing in the practice of chiropractic medicine. If a patient has a long- standing condition of the spine or extremities, such as nerve pain shooting down the arm or numbness or tingling, a NCV test might be run, but the test may not be used on a regular basis for reasons other than the evaluation of the patient's condition. To do so would skew the diagnostic abilities of the chiropractic physician, according to Dr. Mathesie. Chiropractors are taught diagnostic testing and evaluation in chiropractic school. In his practice Dr. Mathesie bills for his services rendered to the patient in accordance with Section 460.41, Florida Statutes. Jan Allen Fralicker, D.C., was called as an expert to testify in behalf of Respondent Schoenborn. Dr. Fralicker is licensed in Florida to practice chiropractic medicine. In addressing the allegations in the Administrative Complaint directed to Respondent Schoenborn of a violation of Section 456.072(1)(c), Florida Statutes, and equally applicable to Respondent Doll, Dr. Fralicker does not believe that the allegations pertain to the practice of chiropractic medicine. Dr. Fralicker explains that the practice of chiropractic medicine in Florida is the diagnosis and treatment of human elements without the use of drugs or surgery, to include diagnostic testing. The crime to which Respondent Schoenborn pled and Dr. Doll pled, involves fraud in the criminal aspect, according to Dr. Fralicker, for receiving money for services not performed. The criminal activity did not actually involve Respondent's functioning as a chiropractor related to patients being treated. In Dr. Fralicker's opinion ordering the tests involved in the case, as Dr. Fralicker understands it, was the practice of chiropractic medicine, but defrauding a health care benefit program is not related to the practice of chiropractic medicine. Nothing about Dr. Fralicker's understanding of the criminal law matter involved a standard of care issue. Dr. Fralicker separates the criminal activity from the practice of chiropractic medicine. In summary, while ordering diagnostic tests is part of chiropractic medicine, pleading guilty to defrauding a health care program is not, in the view of Dr. Fralicker. What Respondents were engaged in was practicing chiropractic and then separately involving themselves in criminal activity to defraud, i.e. getting paid for something not being done. Dr. Fralicker is familiar, as a chiropractic physician, with submitting billing to be reimbursed for services as a chiropractic physician. He submits requests for reimbursement. The submission of requests for reimbursement is seen by Dr. Fralicker as part of the practice of chiropractic medicine. Dr. Fralicker believes that chiropractors providing a service must meet the standards of what the general population of chiropractors would do in the area where they practice, involving appropriate diagnosis and referral to another professional, if necessary, for additional treatment. He does not believe that the Respondents violated the professional standards. Neither opinion of the experts is persuasive, beyond its value in establishing the nature of the practice of chiropractic medicine in delivering care and billing for the services provided. Dr. Schoenborn Previous Disciplinary History In the case Agency for Health Care Administration, Petitioner v. Mark E. Schoenborn, D.C., Respondent, before the State of Florida, Agency for Health Care Administration, Board of Chiropractic, Case No. 9207885, and related cases, Respondent was charged in Count 1 with a violation of Section 460.413(1)(m), Florida Statutes, formerly Section 460.413(1)(n), Florida Statutes, for failing to maintain written chiropractic patient records that would justify the course of treatment of the patient. In Count II to that Administrative Complaint Respondent was charged with violating Section 460.413(1)(i), Florida Statutes, by failing to perform a statutory or legal obligation of the licensed chiropractic physician in performing, ordering, administering or procuring unnecessary diagnostic testing in violation of Section 766.111, Florida Statutes. In Count III to the Administrative Complaint Respondent was charged with a violation of Section 460.413(1)(r), Florida Statutes, formerly Section 460.413(1)(s), Florida Statutes, by failing to practice chiropractic at the level of skill, care, and treatment which is recognized by a reasonably prudent chiropractic physician as being acceptable under similar conditions and circumstances. In Count IV of the Administrative Complaint Respondent was charged with violating Sections 460.413(1)(b), Florida Statutes, and 460.413(1)(v), Florida Statutes, formerly 460.413(1)(w), Florida Statutes, and Florida Administrative Code Rule 61F2- 5.001(2), formerly Florida Administrative Code Rule 21D-5.0012, by engaging in false deceptive or misleading advertising. The parties entered into a settlement stipulation which was approved by final order, in relation to Case Nos. 9207885 and 9216199, 94- 05484 and 94-11080. Ultimately the stipulation that was approved in a final order entered February 13, 1996, was to the failure to maintain written chiropractic patient records that would justify a course of treatment to the patient, a violation of Section 460.413(1)(m), Florida Statutes, that had been referred to as Section 460.413(1)(n), Florida Statutes. As a consequence Respondent paid $3,000.00 in administrative costs, had to take a course on records keeping, and was required to have his patient records monitored.
Recommendation Based upon the consideration of the facts found and the conclusions of law made, it is RECOMMENDED: That a final order be entered finding a violation of Section 456.072(1)(c), Florida Statutes (2003), and revoking Respondent's license as a chiropractic physician. DONE AND ENTERED this 16th day of March, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2006. COPIES FURNISHED: Ephraim D. Livingston, Esquire William Miller, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Roy Lewis, Esquire 203 Washington Street Jacksonville, Florida 32202 Joe Baker, Jr., Executive Director Board of Chiropractic Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue This case concerns the issue of whether the Petitioner should be required to pay back premiums for chiropractic coverage under his family health insurance with the State of Florida Employees Group Health Self Insurance Plan for the period August, 1981, to December, 1982. At the formal hearing, the Petitioner testified on his own behalf and the Respondent called one witness, Ms. Barbara Power. Petitioner had marked for identification eight exhibits. Exhibits 1 through 5 and Exhibit 7 were admitted and Exhibit 6 was withdrawn. Petitioner's Exhibit No. 8 was a copy of Rule 22K-1.20, Florida Administrative Code, and it was marked for identification only. The Respondent had marked for identification 10 exhibits. Respondent offered and had admitted Respondent's Exhibit Nos. 2, 3, 7, 8, 9, and 10. Both the Petitioner and Respondent submitted proposed findings of fact and conclusions of law for consideration by the undersigned Hearing Officer. The proposed findings of fact and conclusions of law were considered by the Hearing Officer and to the extent that those proposed findings of fact and conclusions of law are inconsistent with the facts contained herein, they were considered to be not supported by the evidence or were rejected as being unnecessary to the disposition of this cause.
Findings Of Fact In April, 1978, the Petitioner, Owen Sellers, enrolled in the State of Florida Employees Group Health Self Insurance Plan (hereafter referred to as the Plan) . At the time of his enrollment, the Petitioner elected coverage for himself and his eligible dependents, including coverage for chiropractic services. Under the Plan, a portion of the premium for the health insurance coverage is paid by the state agency who employs the individual and the remaining portion is paid by the employee through payroll deduction. In approximately November, 1980, the Petitioner'S spouse also became a full time state employee entitled to the health insurance benefit. As a result of the entitlement of both family members, the state began paying the entire cost of the Plan, except for chiropractic coverage. In order to obtain chiropractic coverage, an employee in 1981 and 1982 was required to pay an additional premium for such coverage. From August, 1981, to December 1, 1982, the Petitioner and his family were covered by the Plan including chiropractic coverage. On or about November 4, 1982, the Petitioner, Owen Sellers, submitted a Change of Information form dropping chiropractic coverage. This change became effective December 1, 1982. At no time prior to this had the Petitioner requested such a change. Because of an error on the part of the employing agency, the premium for chiropractic coverage was not deducted from Mr. Sellers' pay from August, 1981, through October, 1982. The total amount of premiums due for that period for chiropractic coverage is $92.20. The error was discovered in November, 1982, and at that time, the Petitioner was notified of the underpayment. Petitioner refused to pay the $92.20 and requested an administrative hearing. During the time period August, 1981, through October, 1982, the Petitioner did not file a claim for any benefits under the chiropractic coverage. However, claims were submitted for non-chiropractic medical treatment received by the Petitioner or other members of his family.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Respondent enter a Final Order directing the Petitioner to pay the sum of ninety-two dollars and twenty cents ($92.20) within ninety (90) days of entry of the Final Order. In the event Petitioner fails to make timely payment, that Respondent cancel his coverage under the State of Florida Employees Group Health Self Insurance Plan DONE and ENTERED this 3rd day of August, 1983, in Tallahassee, Florida. MARVIN E. CHAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1983. COPIES FURNISHED: Mr. Owen Sellers 1874 Woodleigh Drive West Jacksonville, Florida 32211 Daniel C. Brown, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Mr. Nevin G. Smith Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301
Findings Of Fact Petitioner, Patricia A. Wotring, is an employee of the Department of Health and Rehabilitative Services. At all times relevant hereto she was enrolled as a member of the State of Florida Employees Group Health Self Insurance Plan (Plan). The State of Florida is a self-insurer. It has contracted with Blue Cross - Blue Shield to act as its administrator in processing and paying all claims by employees under the Plan. Claims are suppose to be paid-in accordance with coverage requirements, limitations and exclusions that have been adopted by the State. These requirements are set forth in the Employees Group Health Self Insurance Booklet (Booklet) which has been received in evidence as respondent's exhibit 1. Between November, 1982 and January, 1983 petitioner submitted five claims for benefits with Blue Cross - Blue Shield. The claims totaled $633, of which $620 were for mental health services provided by a Tallahassee clinical psychologist and $13 for laboratory services performed by a Tallahassee physician. Although Blue Cross - Blue Shield had been "instructed" to not pay this type of claim, the claims were nonetheless honored in early 1983 and Wotring received checks at that time for $633. Upon advice from respondent, Department of Administration, Blue Cross - Blue Shield requested reimbursement from petitioner in June, 1983 for $633. That request prompted the instant proceeding. As a basis for claiming reimbursement, Blue Cross - Blue Shield relied upon Section H of the Exclusions portion of the Booklet. That section reads as follows: No payment shall be made under the Plan for the following: H. Services, care, treatment, and supplies furnished by a person who ordinarily resides in the Insured's home or by any person or institution not otherwise defined in the Definitions section of this booklet. (Emphasis Added) It then referred to page 39 of the Booklet which defines a "physician" as follows: "Physician" shall mean the following: a doctor of medicine (M.D.), doctor of osteopathy (D.O.), doctor of surgical chiropody (D.S.C.) or doctor of podiatric medicine (D.P.M.), who is legally qualified and licensed to practice medicine and perform surgery at the time and place the service is rendered; a licensed chiropractor acting within the scope of his/her license, provided the insured receiving his/her services is covered under the chiropractic coverage option of the Plan and the proper premium has been paid; a licensed dentist who performs specific surgical procedures covered by the Plan, or who renders services due to injuries resulting from Accidents, provided such procedures or services are within the scope of the dentist's professional license; a licensed optometrist who performs procedures covered by the Plan provided such procedures are within the scope of the optometrist's professional license. A clinical psychologist is not defined within the Definitions section of the Plan. Because a clinical psychologist does not fall within the definition of a physician, and is not otherwise defined within that section, the services received by Wotring were properly excluded from coverage by the Plan. Effective October 1, 1983, the Legislature amended the law to require that services rendered by a clinical psychologist be covered by the Plan. In the event payments are made in error, the Department's policy is to instruct its Administrator (Blue Cross - Blue Shield) to request reimbursement from the insured. Petitioner acknowledged that the five claims were paid in error. However, she contended that the claims were submitted in good faith over a period of time and were honored. Accordingly, she argues it is wrong to now require her to repay those amounts.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner repay respondent $613 for payments previously received in error that are not covered by the Plan. It is further RECOMMENDED that in view of the size of the amount owed, petitioner be allowed to repay that amount on an installment basis over a six-month period, if she so chooses. It is further RECOMMENDED that she not be required to repay $20 to respondent if all deductibles for the appropriate calendar year have been met. DONE and ENTERED this 18th day of November, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1983. COPIES FURNISHED: Patricia A. Wotring 1833 Mayfair Road Tallahassee, Florida 32303 Daniel C. Brown, Esquire 435 Carlton Building Tallahassee, Florida 32301 Nevin G. Smith, Secretary Department of Administration Room 435, Carlton Building Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner is entitled to have her bills paid for medical services rendered to her by Tallahassee Memorial Regional Medical Center, on January 12, 1997, through January 16, 1997, by the State of Florida, Group Health Self Insurance Plan.
Findings Of Fact The Petitioner was insured under the State of Florida Employees' Group Health Self Insurance Plan (Plan) at the time of her treatment which is in question and payment therefore was denied by the Respondent. Claims were processed at the time of the Petitioner's treatment by Unisys Corporation. The Division of State Group Insurance (DSGI) administers health coverage benefits for the Plan. The processing of the payment of claims by Unisys Corporation and now by Blue Cross/Blue Shield is based on the number of employees enrolled in the Plan. Neither Unisys or Blue Cross/Blue Shield have an economic interest in whether the claim is paid. Prior to midnight on January 12, 1997, the Petitioner went to Tallahassee Memorial Regional Medical Center (Hospital) and was seen in the hospital's emergency room (ER). The Petitioner gave statements regarding her complaint and her prior activities to several doctors and nurses at the hospital. Page 71 of Joint Exhibit 1 is the Psychiatric Center Psychiatric Emergency Response Preliminary (PERP) Assessment Form filled out on January 12, 1997, at 2250 hours. Of particular note on this form is the statement by the Petitioner of an overdose of thirty 500-milligram Tylenol PM eleven hours previously. See Presenting Problems Section, aforementioned form. The form states that the Petitioner was very cooperative, was clean and neat, and was appropriately attired. Her facial expression was sad, but her posture, gait, and motor activity were unremarkable. She had logical associations. Her language was normal. Under stream of mental activity, her productivity was marked spontaneous. At the time of the review by the PERP nurse, the nurse could not conclude that the Petitioner was suicidal. The conclusion of the medical staff was summed up in the note that suicidal ideations could not be ruled out. Page 16 of Joint Exhibit 1 is the report of the admitting physician, Dr. Broadway, who stated as follows at 0100 hours (1:00 a.m.) on January 13, 1997, (abbreviations and symbols have been written out for clarity): Twenty-seven year old white, female presents to emergency room twenty-three hours after ingesting thirty tablets of Tylenol PM. Patient had an argument with her boyfriend and started drinking wine. She began taking Tylenol tablets one after another until she had taken a whole bottle. Patient awoke with nausea and vomiting, didn't feel well and thought she should be checked. She denies any thoughts of suicide. Patient history: Bi-Polar Disorder, suicide attempt at age fifteen by shooting herself in the soft tissue of neck. Medications: Lithium, 600 milligrams daily followed [monitored] by doctor. Generally awake and alert and no apparent distress, Cooperative. Physical exam without focal findings - essentially normal. Anatomy/Physiology Tylenol OD not accidental. Will start Mucomyst protocol [treatment for Tylenol overdose]. Get PREP and Psych consults. Bi-Polar - continue regular dose of Lithium. On page 13 of Joint Exhibit 1, the patient's history and report of physical examination made by a physician whose name is illegible and at an unknown time prior to 0200 hours (2:00 a.m.) on January 13, 1997, states as follows in pertinent part (the abbreviations and symbols have been written out for clarity): Personal History: Twenty-seven year old White, Female presents approximately twenty-four hours after taking thirty Tylenol. She called her Psychologist, who told her to come to the emergency room, about which time she felt "funny." She denies protracted nausea and vomiting, loss of consciousness, or change in bowel or urine. She is a manic-depressive, presently treated with Lithium, who denies suicidal intentions. Medical History: Gun shot suicide attempt in neck at age fifteen; facial lacerations as small child. Family History: Non-Contributory Social History alcohol abuse. Medication: Lithium 600 milligrams daily. Allergies: No known drug allergies Page 14, of Joint Exhibit 1, appears to be a continuation of the preceding note made on January 13, 1997, at 0200 hours (2:00 a.m.). This charting records the results of a physical examination of the Petitioner and the results of laboratory values of blood work performed on the Petitioner. At the time of her first test, the level of acetaminophen level in the Petitioner's blood was 11.1 grams per liter; however, the time the blood was drawn is not noted. The note concludes that the diagnosis and prognosis are: 1. Tylenol overdose - treat four times with Mucomyst 7.6 gram load, then 3.8 gram x 4 x 17. Monitor LFT and acetaminophen level. 2. Bi-Polar Disorder - continue Lithium four times PERP consulted. Page 15, of Joint Exhibit 1, are the notes of the Psychiatric Consult performed by Dr. Sebastian on January 13, 1997, at an unknown hour. His notes read as follows (abbreviations and symbols have been written out for clarity): Cate Stoecklin, twenty-seven year old, White Female, who took overdose of (?) [Dr. Sebastian uses the question symbol mark in the note prior to the number of pills.] thirty Tylenol because her boyfriend left her. Patient says she has been feeling panicky. She came to emergency room about twenty-four hours after taking the Tylenol. Personal History: Suicidal attempt, manic depressive illness. Family history of suicide (grandfather). Observations: Alert, reportedly nervous, answers relevantly, denies suicidal thoughts/plans, evasive [note that the copy cuts off portions of the right margin and the note may be "not evasive"]. Diagnosis: Mental depressive illness, symptoms of depression. Recommendation: Transfer to Tallahassee Memorial Psychiatric. CHAST received or reviewed signed by Dr. Sebastian The first entry in the progress notes signed by Dr. Ward is on January 14, 1997, at 0900 hours. Dr. Ward's notes at that time read as follows (abbreviations and symbols are written out for clarity when understandable): Subjective: Patient wants to see Dr. Kagin, her Psychologist. He is coming this morning to see the patient with me; she had nausea while taking Mucomyst last evening. Observation: AF/vital signs stable no SI/HI today. Cardiovascular PRRØ M lungs CTA (B) abdomen soft, mild tenderness diffusely right upper quadrant ND, liver not enlarged, no guarding or rebound Anatomy/Physiology Acetaminophen overdose - patient to complete seventeen dose course of Mucomyst to finish Thursday; SGOT and PT continued to rise, VAK given to counteract rising PT; acetaminophen levels falling; continue to monitor patient. Bi-Polar Disorder, continue Lithium; level B is circled today. H/O suicide attempt age fifteen with gun- patient Baker Act Code 52, now although she claims this acetaminophen overdose was not suicide attempt; Dr. Sebastian recommends transfer to in-patient psychiatric facility when medically stable. Will see patient with Dr. Kagin this morning, signed Dr. Ward. The family practice faculty note of January 14, 1997, following Dr. Ward's notes indicates agreement with the care, indicates the patient prefers eating vegetables, and requests a dietitian interview the Petitioner. A family practice note by Dr. Ward for January 15, 1997, at 0745 hours, reads as follows (abbreviations and symbols are written out for clarity): Subjective: Patient without complaint of cough dysnia; has emesis [vomiting] with mucomyst sometimes. Objective: temperature 101 1/2. Vital signs stable. PE: unchanged, lungs clear Anatomy/Physiology: Acetaminophen overdose. Continue Mucomyst - finishes seventeenth dose tonight; continue to monitor LFT's. Baker Act Code 52- transferred to Tallahassee Memorial Psychiatric Center in morning per Dr. Sebastian. Bi-Polar Disorder - continue Lithium. Fever - twenty-four hours no symptoms of infection monitor closely. Dr. Ward's family practice note of January 16, 1997, at 0740 hours reads as follows (abbreviations and symbols are written out for clarity): Subjective: Patient without complaint of nausea and vomiting, abdominal pain, or yellow skin. Objective: Temperature 101 PE unchanged, Anatomy/Physiology: acetaminophen overdose, Mucomyst completed; check LFT's today and perhaps transfer to Tallahassee Memorial Psychiatric Center is patient stable medically; Patient still Baker Act Code 52. Bi-Polar Disorder: Continue Lithium Fever, resolving; PDB two hours probably due to acute hepaticdic damage. The physicians' orders of January 13, 1997, at 1130 hours state: Please change chart to Drs. Ward/Eastum. Transfer to private room. Arrange twenty-four hour sitter. Cannot rule out suicidal ideations. Begin Colace, 100 milligrams two times daily. The physician's order by Dr. Ward of January 13, 1997, at 1145 hours state: Please consult psychiatric emergency response preliminary assessment (in patient consult) Baker Act Code 52 patient The nursing notes and doctor's notes regarding the patient's history are inconsistent regarding when the Petitioner took the medication. It was initially reported as having been taken eleven hours prior to admission. In some instances, the record reflects that the medication was taken twenty-four hours prior to admission. When she took the medication is critical to the Rumack-Matthew Nomogram analysis. See Paragraph 21, below. The Petitioner's blood was drawn sometime after her admission and prior to the time the results of the blood test were recorded in the notes at 1400 hours, on January 13, 1997. The test reveal Petitioner had an acetaminophen level of 11.1. As part of the protocol, the Petitioner's liver function continued to be monitored over her stay in the hospital. The review of these liver functions reveals that the Petitioner suffered from acetaminophen toxicity upon presenting at the ER. Treatment was required. Petitioner was admitted and treated at Tallahassee Memorial Hospital for an acetaminophen overdose. This treatment consisted of the Mucomyst protocol which called for the administration of Mucomyst over a two-to three-day period. The expert called by the Respondent testified regarding his examination of the liver function tests of the Petitioner. His opinion was based upon the information obtained in the lab reports, commonly accepted facts concerning acetaminophen toxicity, and his professional experience. Paramount to the expert's testimony regarding how much Tylenol Petitioner took was Petitioner's acetaminophen level of 11.1 at admission. The expert found, using the Rumack-Matthew Nomogram, that the acetaminophen level of 11.1 on admission supported the taking of a large number of Tylenol PM Twenty-four hours prior to presenting. An acetaminophen level of 11.1 does not work out as toxic in a twelve hour scenario on the Nomogram. The cautions for the use of the Rumack-Matthew Nomogram with regard to acetaminophen poisoning includes the following caution: The graph should be used only in relation to a single acute ingestion and blood value taken within 24 hours. The time coordinates refer to the time of ingestion. Serum levels drawn before four hours may not represent peak levels. The testimony of the state expert is discounted because it was based upon the evidence of the Rumack-Matthew Nomogram and the Petitioner's lab values upon admission. The use of the Rumack-Matthew monogram is limited to a single acute dose and blood levels taken within twenty-four hours. The blood work, at best, was taken right at twenty-four hours from the alleged single ingestion or, perhaps twelve hours prior to admission, if one uses the eleven-hour statement taken down by the PERP nurse. However, a blood level of acetaminophen of 11.1, eleven hours after ingestion would not indicate a toxic dose. In sum, the twenty-four hour period is based upon the Petitioner's history which is not precise, and further no one knows when the blood sample was drawn. The course of the pathology of acetaminophen toxicity based upon a single ingestion of a toxic dose is as follows: Stage One (day one 0-24 hours): Anorexia, diaphoresis, lethargy, malaise, nausea and vomiting palor. Stage Two (day two 24-48 hours): Stage One symptoms disappear; hepaticdic necrosis begins; abdominal pain and tenderness occur, enlarged liver, elevated AST, ALT, bilirubin, and PT. Stage Three (days three-four 48-96 hours): Stage One symptoms reappear; hepaticdic necrosis peaks with jaundice, encephalopathy, acute renal failure, bleeding, and hypoglycemia. Stage Four (after day four 96 hours +): A resolution of symptoms and hepatic dysfunction. The patient either dies or gets better in stage four. Had Petitioner taken a massive dose twenty-four hours prior to presenting, she would have developed physical symptoms on January 13, 1997, and her blood and liver values would have been normal on admission. Petitioner had acetaminophen blood level of 11.1 on admission, as stated above. The acetaminophen level of 11.1 is not per se toxic unless it is the residual reading after a prior massive dose as determined by reference to the Nomogram. The only scenario which explains acetaminophen toxicity upon presenting with the late on-set of observed physical symptoms and the Petitioner's acetaminophen blood levels on admission is the history given by Petitioner. The facts do not support a single massive dose, but a slower, although excessive, dosage rate. However, this latter scenario, in the absence of other supporting evidence, cannot be concluded to show an intent to harm oneself. There is no such credible evidence. The patient notes are inconsistent. The deposition of Dr. Melanie Ward, at page 9, reflects that the only physical symptom of acetaminophen overdose which she observed was tenderness in the right upper quadrant in the area of her liver. This was at 0900 hours on January 14, 1997, fifty-seven hours after the supposed overdose. On page 11 of Dr. Ward's deposition, she states that she could not say 100% whether the Petitioner really intended to hurt herself; however, they had to take the episode seriously even though the Petitioner stated she was not intending to hurt herself. Dr. Ward explains on pages 16 and 17 of her deposition, the terms PT and PTT. PT is the Prothrombin Time and activated Partial Thromboplastin Time. The doctor explains that these are liver function tests in the general sense and that an elevated PT tends to suggest that the liver is not working as well as it should. On Page 18 of Dr. Ward's deposition, she states that the Petitioner's PT values are elevated on the first test, explaining that normal value should be no higher than 12.5 and that the first value was 14.5. The doctor indicates that it then went up to 17.3 and then started trending downward. On page 21 of her deposition, Dr. Ward indicates that the Petitioner's liver enzyme tests were elevated upon admission. On page 27 of the medical records, the SGPT shows a very significant rise. On page 74 of the transcript of Dr. Ward's testimony in the hearing, the doctor indicates that the elevated enzyme readings are consistent with the Petitioner ingesting excessive amounts of acetaminophen. However, Dr. Ward states that she cannot determine how many Tylenol would have been necessary to create the toxicity. Petitioner testified by deposition. The Petitioner had had some difficulty sleeping because of breaking up with her boyfriend, and had been taking Tylenol PM, as a sleeping aid, for several days prior to her hospitalization. She reported this at the ER and that she had exceeded the maximum recommended dosage with this medication. In the twenty-four hours preceding her hospitalization, the Petitioner reported further difficulty sleeping, and taking increasing doses of acetaminophen in order to sleep while drinking the remainder of a bottle of wine which she had in her apartment. When she awoke from sleeping around 2100 hours on January 12, 1997, she was nauseated and was vomiting. Feeling poorly, she called her psychologist fearing that she was suffering from a Lithium-induced problem; however, when the psychologist learned that the Petitioner had been taking acetaminophen in combination with alcohol, he recommended that the Petitioner seek emergency treatment. It was under these circumstances that the Petitioner presented herself for treatment at the emergency room.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Plan pay the medical bills of the Petitioner. DONE AND ENTERED this 26th day of February, 1999, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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. COPIES FURNISHED: Dr. Sara Stoecklin 1559 Christobal Drive Tallahassee, Florida 32303-5625 Joan Van Arsdall, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas D. McGurk, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
Findings Of Fact Petitioner resigned from State Government on July 23, 1987. At the time of his resignation, Petitioner was covered under the Florida State Group Health Insurance Plan. His wife, who is a diabetic, was also covered under Petitioner's insurance. Upon termination Petitioner was eligible for continuation of coverage benefits under the federal COBRA Act. However, prior to receiving any notice of his COBRA rights, Petitioner elected to continue his State Employees' Insurance for two months from July 1, 1987 and then begin coverage under his new employer's insurance plan. 2/ Petitioner made advance payment on the 2 months additional coverage. The payments carried his State Employees' health insurance through September 1, 1987 when it was terminated. DOA notified Petitioner on August 27, 1987, of his right to elect continuation of coverage under the COBRA Act. This notice complied with the notice requirements under the COBRA Act. COBRA provides continued health insurance coverage for up to (18) months, after a covered employee leaves employment. However, coverage does not continue beyond the time the employee is covered under another group health plan. COBRA simply fills the gap between two different employers group health insurance plans so that an employee's group health insurance does not lapse while the employee changes jobs. Petitioner's new employer's health coverage began around September 1, 1987. After Petitioner had begun coverage under his new insurance plan, he discovered that his wife's preexisting diabetic condition would not be covered. However, no evidence was presented that Petitioner, within 60 days of September 1, 1987 requested the Division of State Employee's Insurance to continue his insurance coverage pursuant to COBRA. Moreover, Petitioner's COBRA rights terminated when he began his coverage under his new employer's health plan.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order denying Petitioner's request for continuation of coverage under COBRA. DONE and ENTERED this 5th day of April, 1989, in Tallahassee, Florida. DIANE CLEAVINGER 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 5th day of April, 1989.
