Findings Of Fact The parties stipulated that s. 381.494(6)(c) 5, 6, 10, and 11, Fla. Stat. (1983) and s. 381.494(6)(d)3 and 5, Fla. Stat. (1983) either were not applicable to, or were satisfied by, Petitioner's application. The statutory criteria remaining in dispute at the final hearing are as follows: s. 381.494(6)(c) 1, 2, 3, 4, 7, 8, 9, 12, and 13; s. 381.494(6)(d) 1, 2, and 4. SUBURBAN MEDICAL CENTER, INC., the Petitioner in this case, operates an osteopathic primary care facility at the intersection of U.S. Highway 1 and Southwest 97th Avenue in South Dade County, and a satellite primary care facility in Naranja, Florida. Petitioner also has a certificate of need to operate an outpatient surgical clinic at its main facility, and is associated with International Medical Center, a health maintenance organization. Petitioner has approximately 6 physicians on its staff, and these physicians generate 1 to 3 patients per day needing acute care hospitalization with an average length of stay of about 6 to 7 days. Intervenor BAPTIST HOSPITAL OF MIAMI, INC., (BAPTIST), is a licensed and accredited 513 bed general acute care hospital located at 8900 North Kendall Drive, Miami, Florida, in subdistrict 4. Intervenor AMERICAN HOSPITAL OF MIAMI, INC., d/b/a AMERICAN HOSPITAL (AMERICAN), is a licensed and accredited 412 bed general acute care hospital located at 11750 Bird Road, Miami, Florida, also in subdistrict 4. Although both intervenors allow osteopathic physicians on their respective staffs, there is insufficient evidence to conclude that either intervenor in whole or in part constitutes an "osteopathic facility" as that term is used in Section 381.494(2), Fla. Stat. There is no evidence that any portion of either intervenor is under the management and control of osteopathic physicians so as to actively further, rather than to merely tolerate, the practice of osteopathic medicine. Both intervenors have allopathic physicians controlling admissions to staff and all important medical departments. Further, there is no evidence in this record that any other facility in District XI, with the exception of Southeastern Medical Center and Westchester Hospital, meet the definition of "osteopathic facility" contained in the statute as construed above by the Court in Gulf Coast Hospital, Inc. v. DHRS, 424 So. 2d 86 (Fla. 1st DCA 1982). Southeastern Medical Center is a 224 licensed acute care osteopathic teaching hospital located in North Miami Beach, Florida, close to the Broward County line. Westchester is a 100 licensed acute care osteopathic hospital located approximately at the intersection of Southwest 22nd Street (Coral Way) and the Palmetto Expressway in subdistrict 4, District XI, in Dade County. Pursuant to a settlement agreement with HRS, Westchester has permission to build a new, replacement 125 bed hospital for its current 100 bed facility. This permission is not pursuant to the current certificate of need law, and thus is not regulated by a certificate of need. There is no evidence in the record upon which to conclude that Westchester will exercise its permission, and therefore the existence of the permission is irrelevant to the determination of bed need for osteopathic facilities. Put another way, absent evidence that Westchester will in fact build a replacement facility, the Hearing Officer cannot conclude that it will, and will not find that Westchester will in the future provide osteopathic patients with a new 125 bed hospital. All calculations of osteopathic bed need on this record will be based upon the facts in the record, which show that Westchester now provides 100 osteopathic beds. Osteopathic medicine differs from allopathic medicine in several fundamental ways. Osteopathy is holistic, emphasizing treatment of the entire body; allopathic medicine tends to focus upon particular diseased areas of the body. Osteopathic medicine places great emphasis upon the health of the musculoskeletal system as a condition of healing, and employs techniques of manipulation of muscles and joints in the process of therapy for illness. Allopathic medicine does not. Osteopathic physicians tend to be general practitioners, since the emphasis of osteopathy is holistic. Allopathic physicians tend to specialize. Osteopathic medicine is growing in the United States. About 5 percent of all physicians in the United States are osteopaths. Of these, some 87 percent are general practitioners. Since 1970, the number of osteopathic medical schools has increased from 5 to 15 and these colleges now produce about 2000 graduates per year as compared to only 700 in 1970. Southeastern College of Osteopathic Medicine is affiliated with the Southeastern Medical Center in North Miami Beach, and in a few years will graduate 100 osteopathic physicians annually. Petitioner, SUBURBAN MEDICAL CENTER, originally sought 150 acute care beds, but amended its petition to 100 beds at the hearing. Petitioner intends to locate its proposed facility in conjunction with its primary care facility located at the intersection of U.S. 1 and Southwest 97th Avenue, commonly called Franjo Road. The facility's proposed location lies within subdistrict 4 of HRS Health Planning District XI. The primary service area for the proposed hospital extends from Southwest 152nd Street into South Dade County and the upper area of North Monroe County. The secondary service area for the proposed facility extends northward from the primary service area to Southwest 88th Street, also known as Kendall Drive, and southward to encompass the upper Keys in North Monroe County. These service areas generally encompass the northern portion of subdistrict 5 and the southern portion of subdistrict 4. Petitioner sought to demonstrate a need or a new 100 bed osteopathic hospital on the southern boundary between subdistrict 4 and 5 by projecting the need for such beds by means of a formula based upon current data. This primary evidence of need was supplemented with additional need evidence: the need for an osteopathic teaching facility, and the need to provide an osteopathic hospital that is closer to potential patients than Westchester Hospital or Southeastern Medical Center. As will be discussed more completely ahead in the conclusions of law, there is no specific rule available to calculate osteopathic hospital bed need. Moreover, pursuant to the Gulf Coast case, the need for osteopathic hospital beds must be considered separately from considerations of need for allopathic bed needs. Consequently, the rule applicable for acute care hospital beds is inappropriate for calculating need. The parties offered a variety of methods to project the future need for osteopathic hospital beds, but none of the methods presented were very satisfactory. Each of these methods will be discussed with respect to the witness who offered the method for consideration. Petitioner presented calculations of need through the testimony of Ms. Gail Buck, who was accepted as an expert in certificate of need review and health planning. Based upon data contained in the District XI health plan, 3 percent of the physicians in Dade County in 1983 were osteopathic physicians. (169 osteopaths in Dade County in 1983.) From other studies, she testified that the percentage of osteopathic physicians nationally is about 5 percent, and that these physicians have approximately 10 percent of all patients as osteopathic patients. Applying this ratio, she concluded that one could reasonably assume that 6 percent of all patients in Dade are osteopathic patients. From other studies she had read, the number of osteopathic patients hovers around 5-7 percent. One of these studies was a study done by HRS, developed by the Office of Health Planning. Ms. Buck further testified that for acute care hospital bed planning, it was normal to project need five years in the future. She then testified that by 1989, 8,792 acute care beds would be needed in District XI based upon HRS projections. Assuming that 5 percent of these beds were needed for osteopathic patients, by 1989 District XI would need to allocate 440 of these hospital beds to osteopathic patients. Ms. Buck then calculated the net osteopathic bed need by subtracting 224 beds at Southeastern Medical Center, and 100 beds at Westchester, resulting in 116 net beds need. Using a 6 percent rate, the net bed need was 204 beds using the same method. Ms. Buck further testified that the data as to the number of osteopathic patients using allopathic hospital beds does not exist, but that such patients were not accounted for in the 5 percent estimate above. Ms. Buck stated that since the majority of osteopaths are general or family practitioners and refer their hospital-bound patients to specialists, who in turn admit the patients to hospitals, it is very difficult to obtain data as to actual osteopathic patient need, and that for this reason, the 5 percent method, as well as other methodologies, lacked a firm data base. She said ". . . there's no one methodology that can be considered totally accurate." Ms. Buck chose the 5 percent method because she felt it was based upon more accurate data than other methods. Ms. Buck did not set forth any underlying data to justify the assumption that osteopathic patients constitute from 5 to 10 percent of all patients. She simply stated that these figures came from various studies. Other data in the record reveals that at least for District XI, the S to 10 percent standard of need is much too high. In 1982, District XI had 11,052 licensed acute care beds as shown by American Exhibit 1. 324 of these beds, or 2.9 percent, were osteopathic acute care beds. If these beds had been running at 100 percent occupancy, then the data would be at least consistent with Ms. Buck's opinion that the "need" is from 5 to 6 percent of all acute care beds, though this would not necessarily be total proof of the point. But in 1982, these osteopathic beds were on the average only 60 percent occupied, thus indicating that "need" for osteopathic beds in 1982 in the District was only 60 percent of 2.9 percent of all acute care beds, or only 1.7 percent of all acute care beds. The difference between a real figure of 1.7 percent and the 5 to 10 percent range is so great that the conclusion has to be drawn that the 5 to 10 percent figure is inappropriate in this case for District XI. While Petitioner's need calculation is unreasonably high, the calculations presented by Respondent and Intervenor, AMERICAN HOSPITAL, suffered from unreliability that would tend to underestimate need. Daniel J. Sullivan was presented as an expert in health planning by AMERICAN HOSPITAL, and was accepted as such. He testified with respect to projections of need, and his testimony formed the basis for introduction into evidence of American Exhibit 1. Need was first calculated using the rule for acute care hospitals, rule 10-5.11(23), F.A.C. As will be discussed ahead in the conclusions of law, this evidence may be relevant to the issue of the financial feasibility of the proposed project, since an osteopathic hospital must compete for many of the same ill patients as are served by allopathic hospitals; but in accordance with the decision in the Gulf Coast case, the rule cannot be used to project osteopathic need because it impermissibly assumes that allopathic beds will be adequate for osteopathic patients. Mr. Sullivan criticized the 5 percent methodology presented by Ms. Buck as being overstated. In 1982, the number of patient days in osteopathic hospitals in Florida was 3.6 percent of all the patient days in all hospitals in Florida, and was 2.67 percent in Dade and Monroe Counties. From this he reasoned that 5 percent was too high as a representation of osteopathic patient needs. His reasoning, however, fails to account for the number of patient days of patients in allopathic hospitals admitted to those hospitals by osteopaths who would have been admitted to an osteopathic facility had one been available. Calculation of future osteopathic need based upon osteopathic hospital availability is inherently faulty because it equates supply of facilities with demand of patients. Three additional methods of projecting acute care osteopathic hospital bed needs were presented by Mr. Sullivan. The first was to project need based upon a projection of the number of patient days that would be generated by the supply of osteopathic physicians in the District. There are 184 currently licensed osteopathic physicians in District XI as shown by the records of the, Florida Board of osteopathic Medical Examiners. Mr. Sullivan then selected the number of osteopathic patient days per osteopathic physician in Florida in 1983 as a basis for determining need. The data came from HRS, and simply reflects patient use of osteopathic hospitals. The method used by HRS to count osteopathic physicians in this data was not explained. The data results in 510 patient days per osteopathic physician which, when multiplied by the number of currently licensed osteopaths in District XI, results in a projection of 93,840 patient days. This number divided by 365 results in 257 beds needed at 100 percent capacity, and 321 beds needed at 80 percent capacity. Since 324 beds already exist, there is no need using this method. The above method of calculating need is inadequate for two reasons: it fails to account for osteopathic patients in allopathic hospitals and other patients who might want to be treated in an osteopathic hospital but cannot due to lack of facilities, and it fails to consider the number of additional osteopathic physicians who might be attracted to South Dade County if an adequate osteopathic hospital existed there. Parenthetically, Mr. Sullivan noted that most of the osteopaths in District XI have offices close to Southeastern Medical Center, and concluded from this zip code analysis that there was no need for an osteopathic hospital in South Dade County. The conclusion is untenable. From other testimony it is clear that all physicians tend to locate their offices near hospitals (just as lawyers tend to locate their offices near the courthouse.) More important, however, there was credible testimony of prior and lingering discriminatory practices against osteopathic physicians who try to practice at allopathic hospitals. A minority profession, under such circumstances, would be expected to locate offices close to a friendly, home osteopathic hospital, and not in areas lacking such a facility. Health planning methods that look for osteopaths in areas lacking osteopathic hospitals put the cart before the horse. The next need methodology proposed by Mr. Sullivan multiplied the rate of osteopathic patient days per 1,000 of population (based upon osteopathic hospital patient days in 1983 in seven districts) times the District XI projected population in 1989. This method resulted in a net projected osteopathic bed need of 20 beds. Again, the methodology is faulty in that it is based upon the status quo, the current availability of osteopathic hospitals, and fails to account for osteopathic patient needs which the existing stock of osteopathic hospitals may or may not be able to serve. The final methodology offered by Mr. Sullivan was first to compute the 1982 osteopathic hospital patient days for Dade County as a ratio of population in 1982, and then to extrapolate the expected number of osteopathic hospital patient days in 1989 for the 1989 projected population. This method projects a surplus of 52 osteopathic hospitals beds in Dade County by 1989. Again, the problem with the methodology is that it is based upon the status quo, and would be substantially inaccurate as a projection of need if current need is unmet by existing osteopathic hospitals. Respondent, HRS, proposed several methods to calculate need through the testimony of Walter Eugene Nelson, administrator of the Office of Community Medical Facilities at HRS, who was accepted as an expert in health care planning and certificate of need review in Florida. Mr. Nelson first mentioned the 5 percent method which was relied upon by the Petitioner, as described above. Mr. Nelson did not attempt to support this methodology, even though it had been proposed by HRS as a rule, and the record contains no other evidence from HRS to prove that the 5 percent method is reasonable or that it should determine need in this case. The second method proposed was to estimate the number of osteopaths in Dade County in five years and then to project the number of patient days chat would be generated by this number based upon current use rates for the two osteopathic hospitals in Dade County. This method projects a surplus of 86 osteopathic beds by 1989. This projection is mathematically incorrect. The surplus projected is actually 22. (The error is in the calculation of patient days per osteopath in 1984, Respondent Exhibit 1, which is 439.5 not 353.6, since 59,766 is divided by 136, resulting in 439.5.) Other than this error, the method has more fundamental flaws. First, though it reasonably projects that the 1984 census of osteopaths (136) will grow to a larger number in 1989, it accounts only for growth expected from graduates of Southeastern Medical College. Surely the climate of south Dade County will attract osteopaths from other colleges and other areas of the country, particularly if south Dade County were to have ample osteopathic hospitals. Second, as discussed above, the method fails to count the number of patients in allopathic hospitals who might prefer an osteopathic hospital if additional facilities were available. In summary, all of the methods of projecting need discussed above have major problems. But the primary evidence of lack of need in this case is a result not of the relatively unsatisfactory methods of predicting the future that have been offered, but the lack of need shown by the recent past use rates at the two osteopathic hospitals in the District. There are two osteopathic hospitals in District XI discussed above. The occupancy rates at these two osteopathic facilities have been significantly lower than capacity in recent years, and have been very similar to the use rates of allopathic hospitals: OCCUPANCY RATE 1981 1982 All district XI Hospitals 67.4 percent 66.6 percent Westchester Hospital 67.8 percent 65.8 percent Southeastern Medical Center 61.3 percent 58.4 percent This is strong evidence that District XI has had an excess of osteopathic beds in recent years. Moreover, the need for the existing osteopathic beds in 1984 has decreased. In the first six months of 1984, the use rate at Westchester dropped to 46.7 percent and the rate at Southeastern Medical Center dropped to 52.5 percent. The cause of these lower use rates have been causes that apply equally to osteopathic and allopathic hospitals, thus leading to the conclusion that the lack of need shown by the above data will probably persist for several years into the future. All acute care hospitals have lost patients due to growth of alternatives to in-patient care, such as nursing homes, rehabilitation centers, outpatient surgical centers, and the like. Additionally, medicare policy changes have reduced the length of stay at all acute care hospitals. There is no compelling evidence on this record that osteopathic hospitals will not suffer from diminished need from these market forces in the same way that allopathic hospitals have suffered. The Petitioner presented some evidence that the lower use rate at Westchester was due not to lack of osteopathic patient demand and need, but rather to poor quality of care at that facility. But the evidence was insufficient to dispel the conclusion that an additional major cause was simple lack of need. Dr. Jules Gary Minkes testified with respect to the adequacy of Westchester Hospital for osteopathic patients. He said that there have been emergencies where Westchester was too far away to take the patient in the ambulance, and the patient had to be taken to a closer allopathic hospital. He did not testify as to how frequently this had occurred. Further, he testified that the bulk of the area to be his proposed osteopathic hospital was outside the service area of Westchester. Both of these problems, however, are ones that naturally flow from the fact that osteopathic physicians and patients constitute such a small percentage of all patients and physicians. Even if 10 percent of the acute care beds in District XI were osteopathic beds, these beds would be located at only a few hospitals at great distances from many of the osteopathic patients. Dr. Minkes further testified in a general way that at some time in the middle 1970's, Westchester ". . . did not develop and did not meet the needs of the osteopathic physicians and did not keep up. And there was not a sufficiently integrated cohesive development." In the next sentence he implied that Westchester did not keep its staff, but did not testify to that fact. Finally, Dr. Minkes testified that physicians that practice at Westchester had made requests to upgrade equipment and take a "more aggressive competitive attitude," but that this had not occurred at Westchester. On cross examination Dr. Minkes again acknowledged that he had "problems gaining access of my patients in our service area to go to Westchester," but he did not state further what those problems were. Perhaps the strongest evidence of the inadequacy of health care at Westchester came from Dr. Ira Hershman, an osteopathic physician who has practiced in Dade County since 1960. Dr. Hershman's testimony, however, is ultimately as general and nonspecific as the testimony of Dr. Minkes. Dr. Hershman was chief of staff at Westchester a number of years ago, and in the early years osteopathic physicians tried to modernize the facility. Dr. Hershman then testified without explanation or elaboration that in recent years those efforts had "gone by the boards," and he was of the opinion that the current management at Westchester would not support expansion of osteopathic medicine in south Dade County and Monroe County. Dr. Hershman was convinced that no effort now would improve Westchester. Dr. Hershman primarily admits his patients to Westchester, however, although he used allopathic hospitals occasionally for specialities not found at Westchester. Westchester has six or seven specialists on its staff, but does not have neurology, obstetrics, or psychiatry. Dr. Hershman said that his patients often do not approve of the quality of the facility at Westchester. Westchester, in his opinion, is designed in a "very poor way" and there are many, many inconveniences in there." He stated that Westchester is "very unpleasant for the patient and their families in many ways." He felt that the management of Westchester could have made improvements, but that architecturally "in its very design, it was just not made as a real facility." Dr. Hershman testified that Westchester had problems with equipment, both in terms of modernization and quality, with equipment breaking down. He concluded that "although I can get by with my cases in there on a general primary care level, it is really not an ideal facility. And that is being kind, I suppose." Dr. Kathleen M. Tillman, an osteopathic physician specializing in internal medicine and practicing in Dade County, testified that she admits patients to both Westchester and Larkin hospitals. She stated that there was a "definite problem" for her patients due to the distance to Westchester Hospital. She said that due to the distance and travel time to Westchester, she had to "almost talk them into going" to Westchester. She said that a lot of her patients were over 65 years of age, and driving was a problem for them, that family visitation at Westchester was a problem due to the distance, and that she planned an office further south, thus increasing the distance in her work to Westchester. Other than driving distance, the only reason Dr. Tillman could think of that her patients did not want to go to Westchester was the physical facility, "the actual looks of the place more than anything, more than the actual health care." Dr. William Levin is also an osteopathic physician who practices in Dade County. He testified that he had "difficulty" admitting patients to Westchester Hospital. Dr. Levin said that his difficulty is partially caused by the physical plant at Westchester, and partially caused by the location. He felt that the physical plant was a major factor, but that rebuilding the facility would not solve the problem of patient acceptance. Dr. Levin further testified that for the past 10 years, the chief of staff at Westchester has always been an osteopathic physician. He also testified that he had been the past chairman of general medicine at Westchester, that Westchester had a department of family medicine, and that department heads at Westchester, to the best of his knowledge have always been osteopathic physicians. Dr. Nsitibe Nelson Ikpe, an osteopathic physician who practices in Dade County, is trying to expand his practice to the southern portion of Dade County. Dr. Ikpe is currently using Westchester Hospital. Dr. Ikpe has not in the last few years had any problem admitting patients to Westchester. Dr. Ikpe conceded that it could "take up to 30 minutes" for a patient to drive from north Monroe County to Westchester, but he did not say it would take more than 30 minutes, and did not testify that this driving time was a problem for him. Dr. Ikpe did not provide any other evidence as to the adequacy of Westchester. Finally, Dr. Arnold Melnick, Dean of the Southeastern College of Osteopathic Medicine, was offered the opportunity to express an opinion as to the adequacy of Westchester Hospital, and his testimony leads the Hearing Officer to conclude that he found no fault with Westchester, at least as a training facility. Dr. Melnick testified that if the American Osteopathic Association (AOA) approved a hospital, he would have no hesitation to recommend it to his students. He then testified that Westchester was AOA approved for internships. Finally, when asked to express an opinion as to the need for a new osteopathic hospital, assuming Westchester was no longer adequate, Dr. Melnick testified: "Since Westchester is accredited as a training institution by the American Osteopathic Association, I couldn't comment because it contradicts what you're stating." None of the osteopathic physicians who expressed general dissatisfactions with Westchester supported their conclusions with concrete examples of inadequacies. While the foregoing is evidence that there are problems at Westchester for the physicians who testified, these problems were not proven with sufficient specificity and have not been shown to be such for this Hearing Officer to conclude that Westchester is so inadequate that it should be replaced by the hospital proposed by Petitioner. Nor is the evidence sufficient for the Hearing Officer to conclude that the low use rate at Westchester is due solely to inadequate health care at Westchester. As stated above, the record evidence indicates that the use rate at Westchester is quite similar to the use rates at allopathic hospitals in the District, which is consistent with the conclusion that the lower use rate at Westchester is caused by the same diminished need. Further, the use rate at Westchester is quite similar to the use rate at Southeastern Medical Center. On this record, there is no indication that Southeastern Medical Center is other than an adequate health care facility. The similarity in use rates, therefore, leads one to the conclusion that the use rate at Westchester is driven primarily by the same force that drives the use rate at Southeastern: lack of need or demand by osteopathic patients. Petitioner also argued need for its proposed hospital because of plans to make the new osteopathic hospital a teaching hospital serving the needs of osteopathic students, interns, and residencies. Dr. Melnick, Dean of the Southeastern College of Osteopathic Medicine, testified with respect to the need for teaching hospitals for these purposes. The Southeastern College of Osteopathic Medicine has been in existence only a few years, and has yet to graduate its first class. The first class will be 40 students, but the fourth graduating class, and in every year thereafter, will be 100 students. In order to be certified as an osteopathic physician, a graduate of a college of osteopathy must serve an internship in an osteopathic hospital approved by the American Osteopathic Association. In District XI, Southeastern College of Osteopathic Medicine currently places about 16 of its interns in internships at the Southeastern Medical Center. Westchester is approved by the AOA for from 2 to 5 interns, and currently has one. Dr. Minkes testified that the proposed new hospital would strive to be approved by the AOA and provide at least 5 osteopathic internship slots, and possibly more based upon outpatient and emergency room use. Thus, if there were other compelling evidence of need to fill the beds of the proposed 100 bed osteopathic hospital, the above evidence would be some additional evidence of need. By itself, however, the need to provide 5 internships is not sufficient justification for the project, particularly since the internship crisis facing Southeastern College would be ameliorated only in a small way by the availability of 5 intern positions at the proposed hospital. Dr. Melnick testified that in a few years in Florida there would be a shortage of as many as 500 osteopathic internships. Petitioner further sought to establish a need for its proposed hospital by presenting evidence that Westchester does not have obstetric beds, and the proposed hospital would devote 10 percent of its beds (10 beds) to obstetrics. First, it should be noted that whether or not existing allopathic hospitals provide obstetric services, or whether any such allopathic services are currently running at capacity, is not relevant to this case since allopathic obstetric beds are not an adequate equivalent to osteopathic obstetric beds. Nonetheless, other than the fact that Westchester has no obstetric beds, there is no evidence in the record of the magnitude of need for such beds. Moreover, the proposed hospital will devote only 10 percent of its beds to obstetrics. Even assuming a need have been proved, this is not a sufficient reason to grant a certificate of need for all 100 beds. As further justification for need, Petitioner presented evidence that osteopaths had been discriminated against in the years before this decade, and that the growth of the profession has thus been retarded by these practices. Petitioner argued that the numbers of osteopathic physicians in District XI was not reflective of actual patient need, and that a new osteopathic hospital would attract more osteopathic physicians. Though not extensive, the evidence of discrimination by allopathic hospitals and physicians through the 1970's was shown by the record. Moreover, there is good reasons in the record to believe that osteopathic physicians will cluster around an osteopathic hospital. Osteopaths currently locate their offices near Southeastern and Westchester. Despite the general truth of the above two principles, however, on the record of this case the operation of these principles does not compel the conclusion that a new osteopathic hospital is needed. If indeed there were continued serious discrimination against osteopaths and their patients, one would expect that the use rates at Westchester and Southeastern would be higher. The relatively low use rates at Westchester and Southeastern lead one to the conclusion that the magnet effect of those hospitals has already pulled all available and interested osteopathic physicians to District XI, and has attracted all those osteopathic physicians who have been discriminated against. And still, presuming the full operation of both principles, both existing osteopathic hospitals run at about 50 percent capacity. In sum, prior discrimination and the potential of attracting new osteopaths to a new hospital, even if probably true, do not ultimately show a need for a third osteopathic hospital in District XI. Dr. Melnick testified that about 80 percent of his students at Southeastern College of Osteopathic medicine came from Florida, and estimated that "a good number" would practice in Florida. Dr. Melnick did not provide any data as to the number that might practice in Dade County. Eugene Nelson based his estimates of the number of osteopathic physicians who might stay in Dade County after graduating from Southeastern College of Osteopathic Medicine upon actual experience at the University of Miami College of Medicine, and as such his testimony is based upon better evidence and is accepted over the estimate of Dr. Melnick. Eugene Nelson mentioned one other methodology for calculating bed need, a methodology which assumes that each osteopathic physician will generate 660 patient days per year. This methodology was used in OMHI-UHSI vs. DHRS, 5 FALR 2294A, the "Wellington" case, and is based upon the use rate at one osteopathic facility in Palm Beach County. It therefore was based upon a sample of data relevant only to that case, a sample size too small to provide a basis for extrapolation to this case. As will be discussed ahead in the conclusions of law, since osteopathic bed need constitutes at most only 10 percent of all acute care hospital beds, the 30 minute driving standard for urban areas is of little use in this case to determine osteopathic hospital bed need. Many osteopathic patients will always be at some distance from the few osteopathic hospitals if, at best, only 1 out of 10 hospitals is an osteopathic hospital. Nonetheless, for the record, additional findings will be made with respect to the evidence of driving distances to the two osteopathic hospitals, Westchester and Southeastern. Southeastern Medical Center is located in the northeastern portion of Dade County and, of the hospitals considered at the hearing, is the furtherest hospital from residents living in subdistricts 4 and 5. Southeastern Medical Center is currently over 30 minutes driving time from all the persons residing in subdistricts 4 and 5, and will continue to be beyond 30 minutes driving time in 1988. Westchester Hospital is closer to residents in subdistricts 4 and 5. It is located approximately at the intersection of Coral Way and the Palmetto Expressway about 9 miles north northeast of the proposed new osteopathic hospital. Westchester is located in a dense urban area, and consequently the 30 minute driving distance surrounding the hospital consists of a smaller area. In 1984, about 30 to 35 percent of the population in subdistrict 4 resided more than 30 minutes driving time from Westchester, and 100 percent of the population of subdistrict 5. In 1988, about 40 to 45 percent of the population is subdistrict 4 is expected to reside beyond 30 minutes driving time of Westchester, and 100 percent of subdistrict 5. Baptist Hospital presented travel time evidence that showed 30 minute distances from locations on major roadways to four allopathic hospitals and Westchester Hospital, all located in the south Dade County area. The data provided did not show the percentage of population within 30 minutes driving time of Westchester Hospital. Moreover, the driving distances tend to overstate the accessibility of the hospitals considered. The data does not account for driving time from residential areas to major roadways, but rather, begins (or ends) at points still on major roadways. The driving data presented by Petitioner, however, tends to understate the area of accessibility to Westchester Hospital and Southeastern Medical Center. Petitioner's travel times include time to park at the hospital and walk to the entrance. This is an entirely reasonable approach, at least with respect to parking time as discussed above. Rule 10-5.11(23)(i)1, F.A.C., is concerned with "beds" being "accessible within an automobile travel time." A bed is not accessible until one is there, and parking can take a few minutes. However, it is also reasonable for HRS to construe its own rule, for the sake of simplicity, as not counting these periods of travel, and therefore it is the obligation of the Hearing Officer to follow the interpretation of the agency of its own rule, if reasonable. The record does not reflect how much time, on the average, Petitioner's expert added to the driving time for parking and walking, but the amount should not have been more than a few minutes. Petitioner's travel may have also been understated because Petitioner's expert assumed that travel by night would be 10 percent slower. The testimony of intervenor's expert, that night driving should be the same or faster, is accepted as more correct. Petitioner's expert further assumed that driving times in the future would be 10 percent slower. Intervenor's expert presented a contrary view, arguing that it was impossible to predict future traffic demand and traffic improvements but on this point Petitioner's expert's view of the future traffic in south Dade County is accepted as being more accurate. Since none of the allopathic hospitals represented in any of the travel studies was shown to be an "osteopathic facility" as discussed above, the travel times to these hospitals for this case was irrelevant. If one were to rely upon the acute care bed rule to project need for osteopathic patients, District XI by 1989 shows a significant maldistribution of beds. Subdistrict 4 will have a net surplus of 1012 beds, while subdistrict 5, the extreme southern portion of Dade County and Monroe County, will have a net need for 533 beds. This is some evidence that were this proposed project to be located in subdistrict 5 it would serve the unmet needs of that district. However, this is not an appropriate conclusion to draw for several reasons. First, the overbedded situation in subdistrict 4 is so extreme that the better policy would be to require patients in subdistrict 5 to travel to hospitals in subdistrict 4, at least until the extreme circumstance in subdistrict 4 is improved. The distances from south Dade County are not that much greater, and the distances from the keys would remain troublesome for any new hospital located in the northern part of subdistrict 5. Moreover, the bulk of the population of subdistrict 5 lives in the northern section immediately adjacent to subdistrict 4. More importantly, however, if the acute care bed rule is inappropriate for projecting osteopathic bed need, it remains inappropriate whether it shows or does not show a need. The financial feasibility of the proposed project depends primarily upon whether the new hospital will attract and keep an adequate number of patients Petitioner projected that its hospital would be 44 percent occupied in the first month of operation, 65 percent at the end of the first year, and 75 percent at the end of the second year. These projections were not substantiated by Petitioner, and the evidence would indicate that they are overly optimistic. First, the other two osteopathic hospitals are having trouble attracting enough patients to fill 50 percent of their beds, thus suggesting that the new facility will rely upon a pool of patients that is inadequate to fill two facilities. Second, the record does not contain adequate evidence as to the numbers of osteopathic patients currently treated in allopathic hospitals who would want to switch to the new osteopathic facility. What little evidence there is on that point tends to show that the new osteopathic hospital cannot expect to gain large numbers of osteopathic patients from allopathic hospitals. In 1983, BAPTIST had 18,167 patient admissions. Ernest Nott, Chief Executive Officer at BAPTIST, testified that in the same year, osteopaths admitted only 240 of these patients, or 1.3 percent of all 1983 admissions. (Petitioner submits as a proposed finding that osteopathic physicians admitted 42 patients to AMERICAN HOSPITAL in 1984, and that osteopaths admitted 121 patients during 1984 to BAPTIST HOSPITAL, citing Petitioner's exhibits 12 and 13 as containing that evidence. This proposed finding is rejected because those figures are not contained in those exhibits.) Thus, if the data from BAPTIST is typical, there are very few osteopathic patients in allopathic hospitals available to the new hospital as a future source of income. Finally, the projection that the new osteopathic hospital will be 75 percent occupied by the second year of operation is suspect given the fact that established subdistrict 4 hospitals in two consecutive years (1981 and 1982) operated at only a 63.2 percent occupancy level. Since the most basic element of financial feasibility, projected patient days, has not been shown on this record, there is no need in this Recommended Order to consider the subsidiary points as to financial feasibility raised by the parties. Thus, no findings have been made with regard to the reasonableness of financing proposals, projected costs and expenses, projected revenues, or the reasonableness of the space study. Westchester is also in subdistrict 4, the same subdistrict as the proposed hospital, and therefore the fiscal impact upon Westchester would very likely be quite negative. As discussed above, the osteopathic physicians who testified in this case would probably discontinue using Westchester, thus lowering its use rate even below the current 47 percent. The magnitude and precise effect of the impact cannot be ascertained on this record, but a significant negative impact is certain. The impact of the proposed new osteopathic hospital upon the two intervenors would not be substantial, and would not be a cogent reason to deny this application. Both of these hospitals have continued to be profitable despite lower occupancy levels. In 1982, American had only a 51.4 percent occupancy level, but it ended up with $153.48 excess of patient charges per day over operating expenses per day, which was an excess of 22 percent over the average charge per patient day. Similarly, Baptist was occupied at the level of 66.7 percent in 1982, and it had $93.25 excess of patient charges per day over operating expenses for 1982, a margin of 20 percent. Either hospital could lose a number of patients to the proposed new hospital and not suffer major financial damage. Moreover, if it is true that fewer than 2 percent of the patients at these hospitals are osteopathic patients, even the loss of all of these patients would not cause major economic damage to either intervenor. The acute care bed need rule, section 10-5.11(23), F.A.C., contains a health care planning standard for general medical and surgical beds: new beds should be authorized when existing beds reach 80 percent of their capacity. (This standard is contained in the formula district bed allocation in subpart (f)3a of the rule.) While the formula used in this rule (which treats osteopathic beds to be adequate alternatives to allopathic beds, and vice versa) is inappropriate as a means to project osteopathic bed need, the 80 percent planning standard is useful to measure osteopathic bed need based upon utilization of existing osteopathic facilities. The 80 percent standard has applicability to any acute care hospital since it addresses basic efficiencies in operation, and unlike the 30 minute driving standard, is not inapplicable to an osteopathic facility due to some factor unique to the osteopathic circumstance. Further, the 80 percent threshold was supported by other evidence in the record as a suitable standard for measurement of bed need in this case. First, the 80 percent standard is also used by The Health Council of South Florida, Inc., which is the local health planning agency responsible for the health plan for District XI. The 80 percent standard was used in the District XI health plan adopted in July 1983. Second, the 80 percent standard is a standard that is a generally accepted standard for acute care hospitals contained in national medical planning guidelines. All of the parties proposed a number of findings concerning the availability of allopathic hospital services in District XI, and in subdistricts 4 and 5 in particular. Since, as discussed above, no party proved that any allopathic hospital had any portion thereof which was in fact so dedicated to osteopathy that it could be called an "osteopathic facility" as defined by the Gulf Coast decision, supra, evidence as to the nature of existing or future allopathic hospital services was deemed to be irrelevant to this case. Likewise, evidence that osteopathic physicians are admitted to the staff of allopathic hospitals, or admit patients to allopathic hospitals, was also deemed to be irrelevant to this case because the evidence did not show that such osteopathic patients to have been treated in "osteopathic facilities" within such allopathic hospitals. The fact that some osteopaths may prefer to practice in an allopathic hospital was found to be true, and it was recognized that not all of the osteopathic patients currently served by allopathic hospitals would necessarily be served by the proposed osteopathic hospital. However, the A magnitude of this diminution of osteopathic patient need was not presented in the record, and was not necessary to the ultimate conclusion that no need was shown. There were a number of other findings of fact proposed by the parties in this case which are not mentioned in the above findings. No separate finding will be made as to these since they were subordinate to the findings made above, were unnecessary in view of findings made above, were cumulative, or were irrelevant. In summary, there may be a need for additional osteopathic hospital facilities in District XI, but that need was not shown in this case. First, the low utilization of the existing osteopathic hospitals was not adequately explained. And second, there was no reliable data as to the numbers of osteopathic patients who would prefer treatment in an osteopathic hospital but have been diverted to an allopathic hospital due to lack of existing osteopathic facilities.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of the Petitioner in this case for a certificate of need to establish and operate a 100 bed osteopathic teaching hospital in subdistrict 4, District XI, in Dade County, Florida, be DENIED. DONE and ENTERED this 15th day of February, 1985, in Tallahassee, Florida. WILLIAM C. SHERRILL, JR. 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 15th day of February, 1985. COPIES FURNISHED: F. Philip Blank, Esquire Susan A. Maher, Law Clerk F. Philip Blank, P.A. 241 East Virginia Street Tallahassee, Florida 32301 John F. Gilroy, Esquire Culpepper, Turner & Mannheimer 318 North Calhoun Street Tallahassee, Florida 32301 Kyle R. Saxon, Esquire Paige & Catlin 169 East Flagler Street Suite 816 Miami, Florida 33131 Ivan Wood, Esquire Steven T. Mindlin, Esquire Wood, Lucksinger & Epstein 1501 Venera Avenue, Suite 200 Miami, Florida 31146 Mr. David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Respondent, Leon L. Shore, was at all times material hereto a licensed osteopathic physician in the State of Florida, having been issued license number OS 0001600. On or about December 19, 1985, respondent presented to Harvey Sogoloff a pharmacist licensed in the State of Florida, a prescription to be filled. The subject prescription was written by respondent, and prescribed Percodan for himself. Mr. Sogaloff duly filled the subject prescription. Percodan, whose active ingredient is Oxicodone Hydrochloride, a salt of oxicode, is a Schedule II narcotic drug, as defined by Section 893.03(2)(a), Florida Statutes (1985). At the time of the prescription was written, respondent maintained his primary place of practice at 4801 South University Drive, Davie, Florida. During the first week of September, 1986, respondent closed his practice at that location without notice to petitioner, and did not thereafter practice for several months. In January, 1987, respondent resumed his practice at a new location, without notice to petitioner. Respondent asserts, however, that 2-3 weeks after commencing such practice, he instructed one of the medical directors at the center to notify petitioner of his new address. There was no proof that such notice was given, but following the commencement of this case, respondent did notify the petitioner of his new address, and no untoward consequences were shown to have resulted from such delay.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered placing respondent on probation for a period of one (1) year subject to such conditions as the board may specify, and imposing an administrative fine against respondent in the sum of $1,000. DONE AND ORDERED this 21st day of January, 1988, at Tallahassee, Florida. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of January, 1988. APPENDIX Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 2. & 8. Addressed in paragraphs 4 and 5. & 4. Addressed in paragraphs 2 and 3. 5-7 & 9. Rejected as not a finding of fact, or subordinate. Respondent's proposed findings of fact are addressed as follows: Not necessary to result reached. Not necessary to result reached. 3-9 & 12. Rejected as not a finding of fact, subordinate, or contrary to the result reached. 10 & 11. Addressed in paragraphs 4 and 5. COPIES FURNISHED: David G. Vinikoor, Esquire DAVID G. VINIKOOR, P.A. 420 S. E. Twelfth Street Fort Lauderdale, Florida 33316 Derk A. Young, Esquire 320 Southeast 9th Street Fort Lauderdale, Florida 33316 Mr. Rod Presnell Executive Director Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent, Alexandra Konowal, D.O., violated Subsections 459.015(1)(x) and (o), Florida Statutes, and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed osteopathic physician in the State of Florida, having been issued license number OS 7169. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.42, Florida Statutes. On July 20, 1998, Respondent first saw Patient B. M., a 75-year-old female, at Eye Health of Fort Myers, for a complaint of poor vision and cataracts. Respondent scheduled cataract surgery for July 30, 1998, at an outpatient surgery center. On Thursday, July 30, 1998, at approximately 10:30 a.m., Respondent performed the surgery, removing the lens of Patient B. M.‘s left eye and replacing it with an implant. Patient B. M. was discharged from the surgery center at 11:17 a.m., with instructions to go to Eye Health of Fort Myers for follow-up examination that afternoon. On Saturday, August 1, 1998, Patient B. M. telephoned Eye Health early in the morning complaining of inability to see from the left eye and severe pain in the left eye. At about 9:00 a.m., August 1, 1998, Patient B. M. was examined at Eye Health of Fort Myers by James Campbell, an optometrist with Eye Health. Dr. Campbell found residual cortex in the left eye, with corneal edema, but observed no pus in the eye. Dr. Campbell changed the antibiotic eye drops for the patient. At approximately 10:00 a.m., on August 1, 1998, Dr. Campbell had a telephone conference with Respondent and Dr. Franz to discuss the symptoms of Patient B. M. At approximately 4:45 p.m., on August 1, 1998, Patient B. M. again called Eye Health complaining of unbearable pain. Dr. Campbell, in turn, called Respondent at approximately 5:00 p.m. to advise her of Patient B. M.’s complaints. During the 5:00 p.m. telephone call from Dr. Campbell to Respondent, Dr. Campbell discussed the possible diagnosis of endophthalmitis. At 5:36 p.m., August 1, 1998, Respondent spoke with Patient B. M. on the telephone for nine minutes. During the 5:36 p.m. telephone call, Patient B. M. reported shooting pains in her eye and that her vision was bad. During the 5:36 p.m. telephone call, Respondent advised Patient B. M. that she needed to be evaluated. When Patient B. M. said she could not come in, Respondent advised of the possible risks including damage to the optic nerve from excessive pressure and infection. Respondent suggested going to the emergency room and offered to provide transportation, but Patient B. M. refused. During the 5:36 p.m. telephone call, Respondent recommended that Patient B. M. take Percocet that the Patient already had for the pain; Respondent would call in a prescription for erythromycin ointment and told the patient to call back if the eye didn’t improve. Following the 5:36 p.m. telephone call, Respondent did phone in a prescription for erythromycin to a Walgreens Pharmacy near Patient B. M.'s residence. It appears the patient did not pick up this prescription. The "standard of care" expert witness offered by Petitioner found it "difficult to answer" a hypothetical question directed to the "standard of care" of Respondent's care of Patient B. M., incorporating all relevant facts set forth hereinabove in these Findings of Facts and, essentially, failed to render an opinion incorporating all relevant facts; therefore, Petitioner has failed to prove by clear and convincing evidence that Respondent failed to practice osteopathic medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar osteopathic physician as being acceptable under similar conditions and circumstances as alleged in this matter. Respondent prepared an office note dated August 1, 1998, 7:30 p.m., as a record of Respondent’s telephone call to Patient B. M. This note was, in fact, prepared on the morning of August 3, 1998. The note reads in its entirety: 8/1/98 7:30 PM Spoke with patient. States having pain in left eye. Recommended artificial tears for shooting pain, and continue using Ocuflox and Pred Forte. Patient states she has been taking Percocet every four hours with no relief, but she takes Percocet regularly for neuropathy. Told to use two every four hours and call if no improvement. While the August 1, 1998, office note records a great deal of relevant information, Respondent's testimony revealed it does not reflect Patient B. M.'s refusal to come in for evaluation, Respondent's warnings regarding the risks of not being evaluated, an offer of transportation to an emergency room, or a prescription order for Erythromycin. Petitioner's expert witness testified on deposition that, "I'm not sure what the standard of care is" for charting weekend telephone calls. When he receives a telephone call at home from a patient, he makes notes on "a scrap of paper" and later records the note in the patient's record. Respondent testified that she now keeps a book at home in which she records every conversation when patients call her at home; she then brings the book to her office for reference in recording the entire conversation in the patient's record. However, she does not believe that anyone in her practice does it the way she now does. There is no standard procedure in the practice of osteopathic medicine for memorializing conversations in the patient's record between a physician and patient which occur outside the office or hospital setting. On August 3, 1998, Patient B. M. returned to Respondent’s office complaining of no vision and sharp pain. Respondent’s examination revealed Patient B. M.’s left eye to be swollen and with hypopyon (internal pus). Respondent diagnosed endophthalmitis and immediately referred Patient B. M. to a retinal specialist. On August 3, 1998, Patient B. M. was seen by the retinal specialist who found near total hypopyon, so that neither the iris nor any posterior detail could be visualized. Ultrasound showed dense mobile vitreal opacities, primarily anteriorly. The specialist recommended a vitrectomy with injection of antibiotics, and discussed at length the possibility of loss of vision, loss of the eye and uncertainty of any visual benefit. He performed the surgery for Patient B. M. the night of August 3, 1998. Endophthalmitis is a recognized complication of cataract surgery that occurs in less than one percent of patients, but does not presumptively indicate a departure from the standard of care. The standard of care required Respondent see Patient B. M. and treat her for endophthalmitis on August 1, 1998, or to warn Patient B. M. on August 1, 1998, of the serious consequences of endophthalmitis if Patient B. M. did not have an examination. The evidence revealed that Respondent warned Patient B. M. of the serious consequences of her failure to go to the clinic or an emergency room for treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED, that the Department of Health, Board of Osteopathy, enter a final order finding that Respondent, Alexandra Konowal, D.O., is not guilty of violating Subsections 459.015(1)(x) and (o), Florida Statutes, and dismissing the Administrative Complaint filed in this matter. DONE AND ENTERED this 18th day of December, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 18th day of December, 2001. COPIES FURNISHED: Bruce A. Campbell, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 39A Tallahassee, Florida 32399-0450 Bruce M. Stanley, Jr., Esquire Henderson, Franklin, Starnes & Holt 1715 Monroe Street Post Office Box 280 Fort Myers, Florida 33902-0280 William H. Buckhalt, Executive Director Board of Osteopathic Medicine Department of Health 4052 Bald Cypress Way, Bin C06 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue presented for decision herein is whether or not Respondent has engaged in conduct, more particularly set forth in the Administrative Complaint filed herein, signed April 10, 1986, violative of Chapter 459, Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Respondent, Donald J. Weiss, D.O., during times material herein, was licensed as an osteopathic physician in Florida and has been issued license number OS 0003459. The investigative report of Petitioner's investigator Mel Waxman, medical records and a consultant's report of Dr. Ralph Birzon, D.O., were received into evidence without objection except for certain unspecified prescriptions (by Respondent). During the time period 1980 through 1985, Respondent admitted to having treated patients R.N., H.M. and C.B. or C.P. Respondent admitted to the treatment of the above- referred patients with specific dates relating to prescriptions of Schedule II drugs for patients R.N. and H.M. (Request for Admissions dated June 2, 1986). A review of the medical records for patients R.N., H.M. and C.B. or C.P. reveals that Respondent failed to maintain appropriate medical records justifying his course of medical treatment for such patients. As example, during the period January 1984 and June 19, 1985, Respondent prescribed 1,970 4 mg. Dilaudid and 380 Seconal 100 mg. capsules for patient R.N. Also, during the same time period, Respondent prescribed 2,665 4 mg. tablets of Dilaudid for patient H.M. (Responses to Request for Admissions dated June 2, 1986). Respondent failed to take adequate physical exams, laboratory reports or other medical histories to justify the quantity of controlled substances prescribed for patients R.N and H.M. In his treatment of patient R.N., H.M. and C.B., each patient was addicted to the medication Dilaudid and Seconal, both Schedule II controlled substances as defined in Sections 893.03(2)(a) and (c), Florida Statutes. Respondent's treatment of patients R.N., H.M. and C.B. by prescribing Dilaudid, Seconal and Valium (also a Schedule II controlled substance) was not in their best interest as addicts. Based upon a review of the medical records for patients R.N., H.M. and C.B. or C.P., Respondent's prescriptions for Dilaudid, Seconal and Valium were excessive, inappropriate and unacceptable for an osteopathic physician. Respondent's treatment for patients R.N., H.M and C.B. or C.P. fell below the level of care, skill and treatment as recognized by a reasonable prudent similar osteopathic physician as being acceptable under similar conditions and circumstances. (Testimony of Ralph Birzon, D.O., TR 41-46). An examination of the Physician's Desk Reference (PDR) reveals that Respondent, by prescribing Dilaudid and Seconal to patients R.N. and H.M. was inappropriate, and when taken together, exacerbated those patient's medical problems. Additionally, a review of the PDR indicates that Dilaudid cannot be safely prescribed for long periods of time. A long period of time is, based on the reference, a period in excess of three months. Respondent admits that he made a mistake in his treatment of the above-referred patients by prescribing Schedule II controlled substances. Respondent considered that he was "duped" and offered that this was his first contact with drug addicts. Respondent prays that his license not be revoked or suspended and offered to accept any lesser ordered penalty.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED THAT: Respondent's license be suspended for a period of six (6) months; Following the period of suspension, Respondent be placed on probation for a similar period of six (6) months; During the probationary period, Respondent be required to successfully complete eighty (80) hours of continuing education related to the physician and proper substance abuse prescribing procedures. RECOMMENDED this 18th day of December, 1986, in Tallahassee, Florida. JAMES E. BRADWELL 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 December, 1986. COPIES FURNISHED: Preston T. Everett, Jr., Esquire Fred Roche, Secretary Department of Professional Department of Professional Regulation Regulation 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32301 Tallahassee, Florida 32301 Donald J. Weiss, D.O. Wings Benton, Esquire 145 River North Circle General Counsel Atlanta, Georgia 30328 Department of Professional Regulation Rod Presnell, Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue is whether the osteopathic medical license of James E. Mhoon, D.O., (Mhoon) should be revoked or otherwise penalized based on the acts alleged in the Amended Administrative Complaint.
Findings Of Fact James E. Mhoon, D.O., is a licensed osteopathic physician in the State of Florida, having been issued license number 050001142. He practices at 1502 Roberts Drive, Jacksonville Beach, Florida, and has practiced in Florida since 1958. Between January 25, 1982, and June 19, 1985, Mhoon treated Mrs. Vernon (Vee) Howard for osteoarthritis, degenerative disc disease, and osteoporosis. Throughout this time period, Mhoon prescribed a Schedule II narcotic, Nembutal, to Mrs. Howard. Specifically, between January 1, 1984, and March 7, 1985, Mhoon prescribed 800 Nembutal to the patient. Mrs. Howard first saw Mhoon on January 25, 1982, at age 63. Mhoon hospitalized her and referred her to a neurologist. She was already taking Nembutal prescribed by another doctor, although Mhoon's records do not indicate who that doctor was. According to Mhoon, she was seen by a neurologist, referred to University Hospital to a neurosurgeon, and ultimately had disc surgery in March, 1982; however, Mhoon's records do not contain any documentation of these events. Nembutal, according to the Physician's Desk Reference (PDR), is a hypnotic agent and is appropriate for short-term treatment of insomnia. Mhoon explained that he used Nembutal in this patient because it was an extremely strong sedative hypnotic which also potentiates the narcotic analgesic medication he gave her (Percodan). He prescribed it because Mrs. Howard had constant severe pain and was unable to sleep. He believed that this was the only choice for this patient because he could use these drugs to relieve her pain and allow for sleep while risking addiction or he could allow Mrs. Howard to die. No other viable surgical or medical alternatives existed. Dr. Lloyd Gladding acknowledged that Nembutal was useful in conjunction with Schedule II analgesics in the long- term management of severe pain. According to Gladding it would be useful if other alternatives were not available. Duane L. Bork, M.D., also agreed that the use of Nembutal with this patient was appropriate considering her chronic problems with severe pain. Mhoon's medical records on Mrs. Howard do contain multiple references to her chronic pain and associated sleep disturbance. They also contain numerous references to Mrs. Howard's severe alcoholism, including one hospitalization for an overdose of Percodan and alcohol. In these respects, the medical records are adequate to justify the course of treatment. Mhoon treated a patient, Roy Landrum, from March, 1971, until June, 1985, for hypotension and anxiety as well as other injuries and illnesses. Throughout this time Mhoon prescribed Seconal, a Schedule II drug. While Mhoon prescribed Seconal throughout the time he saw Landrum, specifically between January 30, 1984, and June 5, 1985, he prescribed and the patient received 5450 milligrams of Seconal or approximately 500 milligrams per day (10 50 mg. capsules per day). Seconal has the side effects of confusion, disorientation, and drowsiness, and is addictive. According to the PDR, the recommended dosage of Seconal is between 50 and 100 milligrams daily for short periods. According to Mhoon's testimony, he first saw Landrum in 1971 at age Landrum had been receiving Seconal for 38 years from another doctor for treatment anxiety. Mhoon claims he counselled with Landrum in an attempt to get Landrum to give up the drug and seek detoxification. Landrum refused to abandon Seconal because he believed it worked well for his anxiety. Mhoon claims he allowed Landrum to have 10 capsules daily because Landrum's wife died unexpectedly. None of this information is in Mhoon's medical records on Landrum. Landrum's wife died in July, 1984; however, Mhoon prescribed 5450 mg. of Seconal between January, 1984, and June 5, 1985, six months before and one year after Landrum's wife died. Accordingly, little weight is given to Mhoon's explanation for this prescribing of massive amounts of Seconal. Mhoon did appropriately monitor Landrum for side effects and organ damage from the massive doses of Seconal. According to Thomas A. Michelsen, D.O., allowing Landrum to have 10 capsules of Seconal daily is excessive even allowing for some variance from the PDR. Seconal is recommended for treatment of insomnia for a 2-3 week period. It is not recommended for anxiety, and lower scheduled drugs, such as Restoril, Dalmane, and Halcion, are appropriate and recommended. Dr. Michelsen reviewed Mhoon's records and opined that the records are inadequate and fail to justify the course of treatment. Lloyd D. Gladding, D.O., stated that Seconal was inappropriate because better medication was available for treatment of anxiety. Dr. Bork testified that Seconal was the drug of choice for treatment of anxiety for most of the 38 years before Landrum came to Mhoon. It was replaced by the benzodiazepines such as Valium and Librium, however it is still listed in Rakel's Textbook of Family Practice as an anti-anxiety drug and it is still appropriate in some cases. Bork believes Mhoon's treatment of Landrum was appropriate, however he bases his opinion on the medical records and detailed discussions with Mhoon. Harry Curtis Benson, M.D., saw Landrum twice in 1986 and reviewed Mhoon's records and discussed the matter with Mhoon and Landrum. Because Landrum had done very well on the Seconal and because he refused to change, Benson thought Mhoon's prescribing was appropriate, even considering the large amounts for 1984 and 1985. The opinions of Dr. Bork and Dr. Benson are credited because their opinions are based on more than a simple review of the PDR and Mhoon's records. Accordingly, it is found that Mhoon's prescribing to Landrum was not excessive or inappropriate. It is, however, found that Mhoon's medical records fail to justify the course of treatment. Mhoon also treated three patients for narcolepsy. Narcolepsy is a disorder which is treated with a range of central nervous system stimulants. These drugs are subject to abuse. Narcolepsy is primarily diagnosed by a detailed patient history and clinical observation of the patient. Mhoon treated Kathryn Tackett from September, 1981, until July, 1985, for, among other things, narcolepsy. There is no indication in the medical records of her first visit with Mhoon that she had symptoms of narcolepsy. According to Mhoon, Tackett told him that she had suffered from narcolepsy and that her previous physician prescribed Ritalin and Fastin. She also advised that she had been treated for narcolepsy by a neurologist in Jacksonville, Dr. McCullough. Mhoon's medical records do not contain any medical records from these other physicians confirming the diagnosis of narcolepsy. Mhoon claims that he did a thorough workup and took a detailed patient history on Tackett. Mhoon's medical records do not contain any notations of patient history regarding symptoms of narcolepsy or of physical examination findings or clinical observation which relate to narcolepsy findings. Mhoon prescribed Ritalin and Fastin for Tackett throughout the four years he saw her. Ritalin is a commonly used drug for narcolepsy. Fastin is a sympathomimeticamine and is chemically and pharmacologically related to Ritalin and the amphetamines, but is a weaker central nervous system stimulant. The PDR recommends Fastin as an anorectic drug to be used for weight reduction in abuse patients. The PDR recommends a dosage of one capsule per day. Mhoon continued to give Fastin to Tackett because it was sufficient stimulation to control her narcolepsy at times and was a less dangerous drug than Ritalin and the amphetamines. Dr. Michelsen disapproved of the use of Fastin simply because it was not in the PDR for treatment of narcolepsy. Michelsen did not understand the relationship between Fastin and the amphetamines. Dr. Gladding initially disagreed with the use of Fastin because it was not listed as a drug indicated for use in narcolepsy. He did finally agree that Fastin was a weaker stimulant than the indicated drugs. Dr. Bork agreed that Fastin is a central nervous system stimulant that is considerably safer than the amphetamines. Bork found Mhoon's treatment and prescribing to Tackett to be appropriate. Dr. Bork's opinion is accepted in this regard and it is found that the use of Fastin was appropriate for narcolepsy. Dr. Bork also testified that Mhoon's records were adequate to justify the course of treatment. However, when questioned further, he was unable to reference the records to support his opinion. Both Dr. Michelsen and Dr. Gladding found the medical records to be inadequate to justify the course of treatment given by Mhoon to Tackett. A review of the medical records supports these opinions. It is found that Mhoon's records regarding Tackett contain inadequate documentation to support a finding of narcolepsy or to support the course of treatment. Mhoon treated Mildred Lockwood for narcolepsy from May, 1974, until June, 1985. Mhoon testified that he took a long detailed history from the patients regarding her narcolepsy. Mhoon's medical records do not reflect such a patient history. Mhoon also claims that the patient had been treated by Dr. Faris for narcolepsy and that he called Dr. Faris and confirmed the diagnosis. Again, Mhoon's medical records do not mention Dr. Faris or any contact with him. The medical records reflect only that the patient said she had narcolepsy. Subsequently, in 1987, Mhoon sent Lockwood to a neurologist who, according to Mhoon, agreed with his diagnosis and treatment of Lockwood. Dr. Bork also concurred with the diagnosis and treatment of Lockwood. A review of the medical records shows that the records are inadequate to justify the course of treatment given to Lockwood because they contain no detailed patient history, no clinical observations, and no confirming opinions. Mhoon treated Glen Burke for narcolepsy from October, 1974, until June, 1985. In Burke's case, Mhoon had a neurological consultation report from a Paul W. Jones, M.D., from February 2, 1971, which contained a detailed patient history, a record of an EEG, and a diagnosis of narcolepsy. The medical records of Dr. Jones, which reflect his treatment of Burke for narcolepsy from February, 1971, until September 6, 1974, show a history of successful treatment with Benzedrine and Dexedrine. Mhoon treated Burke with Benzedrine and Dexedrine. He also followed Burke on a regular basis and adjusted his medication as necessary. Dr. Bork opined that the treatment and records of Mhoon for Burke are appropriate and adequate. In 1986, Mhoon referred Burke to a neurologist, Dr. R. L. Hudgins. Dr. Hudgins examined Burke and determined that Mhoon's diagnosis, treatment and medications for Burke are correct and appropriate. It is found that Mhoon's diagnosis and treatment of Burke are appropriate and that the medical records justify the course of treatment.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Osteopathic Medical Examiners, enter a Final Order and therein: Find the Respondent, James E. Mhoon, D.O., guilty of violating Section 459.015(1)(n), Florida Statutes (1985), now Section 459.015(1)(p), Florida Statutes (Supp. 1986), as charged in Count II of the Amended Administrative Complaint, as it relates to patients Landrum, Lockwood and Tackett. Dismiss all other charges contained in the Amended Administrative Complaint. Order the Respondent to attend continuing education courses to improve his record keeping and documentation. Reprimand Respondent for these violations. Impose a fine of $1,000.00. Case No. 86-1710 DONE AND ENTERED this 2nd day of March, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-1710 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation, Board of Medical Examiners Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 & 2 (1); 3 & 4 (2); 8 (29); 9 (30); 10 (29); 11 (8); 12 (8); 13 (9 & 10); 15 (11 & 14); 16 (34); 19 & 20 (20); 21 (21); 22 (23); and 24 (28) Proposed findings of fact 5, 6, and 7 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 17 is unsupported by the competent, substantial evidence. Proposed finding of fact 18 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, James E. Mhoon, D.O. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 4 (2 & 4); 6 (5); 7 (6); 8 (7); 13 (14); 14 (14); 16 (16); 17 (16); 18 (17); 22 (34); 23 (37); 24 (21); 25 (25); 30 (32); and 32 (32) 2. Proposed findings of fact 5, 10, 11, 12, 15, 19, 20, 21, 26, 27, 28, 29, and 33 are subordinate to the facts actually found in the Recommended Order. Proposed findings of fact 1, 2, and 3 set forth in the Procedural Matters section of this Recommended Order and are not necessary as findings of fact. Proposed finding of fact 9 is rejected as being argumentative and conclusionary. Proposed finding of fact 31 is rejected as being unsupported by the competent, substantial evidence. The exhibit upon which it is based was not admitted in evidence. COPIES FURNISHED: Francine Landau, Esquire Inman and Landau 2252 Gulf Life Tower Jacksonville, Florida 32207 Harry L. Shorstein, Esquire 615 Blackstone Building Jacksonville, Florida 32202 Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William O'Neil, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Rod Presnell Executive Director Board of Osteopathic Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
Findings Of Fact Respondent, Eugene W. Williams, II, is an osteopathic physician licensed in Florida, and was so licensed at all times relevant to this proceeding. His address is 4394 Palm Beach Boulevard, Fort Myers, Florida 33905. On June 21, 1979, Sue Riley presented herself to Respondent for treatment of a fractured left distal radius. Respondent ordered arm elevation and ice bag treatment to reduce the swelling. The next day, he set the arm in a cast and performed a closed reduction. The injured arm was initially x-rayed at the hospital emergency room on June 21, 1979, and was not x-rayed again until July 5, 1979, when Respondent noted that the fracture was not closed. He then referred the patient to an orthopedic specialist. The testimony of Petitioner's expert witness indicated that a second X ray should have been taken after casting rather than two weeks later to insure that the fracture was, in fact, closed. Without such an X ray, Respondent could not be certain that the fracture was closed initially or that it had not reopened. Respondent's testimony and that of two other experienced physicians established that it is not uncommon to omit the X ray immediately after casting. In their view, no X ray is needed for ten days to two weeks provided the fracture appears to have been closed and properly aligned. Respondent's testimony established that all indications were favorable following casting and that he did not believe an X ray was needed for ten days to two weeks.
Recommendation From the foregoing, it is RECOMMENDED that the Second Amended Administrative Complaint be dismissed. DONE and ENTERED THIS 14th day of February, 1983, in Tallahassee, Florida. R. T. CARPENTER, 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 14th day of February, 1983. COPIES FURNISHED: James B. Gillis, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 JulieAnn Ricco, Esquire 1655 Palm Beach Lakes Boulevard Suite 106, Forum III West Palm Beach, Florida 33401 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Osteopathic Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact The following Findings of Fact are based upon the testimony and documentary evidence presented at hearing, the demeanor and credibility of the witnesses, and on the entire record of this proceeding. Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to section 20.43, and chapters 456 and 459, Florida Statutes. At all times material to these proceedings, Respondent was a licensed osteopathic physician within the State of Florida, having been issued license number OS 8729. Respondent's address of record at the time of filing the Administrative Complaint was 11950 County Road 101, Suites 101, 102, and 103, The Villages, Florida 32162. Respondent's current address of record is 13767 U.S. Highway 441, Lady Lake, Florida 32159. Respondent currently holds no board certification in any specialty area, and did not complete any residency other than in emergency medicine. Respondent attended Michigan State University, College of Osteopathic Medicine. In 2002, he began full-time practice as an emergency room physician at Munroe Regional Medical Center in Ocala, Florida. He worked as an emergency room physician until he opened Exceptional Urgent Care Center (“EUCC”). At all times material to this complaint, Respondent owned and operated EUCC. Treatment Provided to Patient J.K. On March 15, 2018, J.K., along with his wife, presented to EUCC with complaints of a sore throat and fever. This was the first of two visits to the clinic. J.K. reported his medications as Amlodipine, Warfarin, Tamsulosin, and Dofetilide (unless otherwise indicated, hereinafter referred to by its trade name "Tikosyn"). J.K. was prescribed these medications by his cardiologist at the William S. Middleton Memorial Veterans Hospital (“V.A. Hospital”) in Wisconsin, his home state. Relevant to this matter, Tikosyn helps patients maintain a normal heartbeat rhythm. Tikosyn was prescribed to keep J.K.'s heart in rhythm as he had atrial fibrillation. J.K. was treated by a nurse practitioner, who ordered a chest x-ray and a flu swab. The flu swab returned negative, and the chest x-ray showed no focal pneumonia. J.K. was prescribed Tamiflu and Naproxen. J.K. elected not to fill the Tamiflu due to the “expensive cost.” Respondent was not involved in J.K.'s treatment on this date. On March 16, 2018, J.K. and his wife K.K. returned to EUCC as J.K.’s symptoms had not improved. On this visit, J.K. saw Dr. Im. Dr. Im evaluated J.K. and ordered two tests. Dr. Im ordered a Prothrombin Time International Normalized Ration ("PT INR") test to determine J.K.'s coagulation and he ordered a CT scan of the chest. The PT INR results were within the therapeutic range. The CT scan showed shattered ground- glass opacification in the posterior right lower lobe and the medial left upper lobe. The CT scan findings were interpreted as "non-specific, may represent hypoventilatory change or an infectious inflammatory process (acute or chronic).” Respondent advised J.K. and K.K. that the CT scan appeared to show the start of pneumonia, and he was going to prescribe three medications: Levaquin 750 mg, Prednisone 20 mg, and Zyrtec 10 mg. K.K. testified that she asked Respondent if the Levaquin, Prednisone, or Zyrtec were contraindicated with any of J.K.'s current prescriptions, specifically Tikosyn. K.K recalls that Respondent replied that he was not familiar with Dofetilide (Tikosyn), and advised them to check with the pharmacist to see if there were any contraindications. Although Respondent initially advised J.K. and K.K. that he was not familiar with Tikosyn, Respondent testified that he advised J.K. and K.K. of the possible interactions between Levaquin and Tikosyn and told her that the interaction was very rare. He testified that he advised J.K. and K.K. that the pharmacist is a safety net, and the pharmacist would call him to discuss the prescriptions if he missed anything. K.K. credibly testified that Respondent did not counsel J.K. or K.K. on any risks regarding the medications Dr. Im prescribed or provide them with any alternatives during the visit on March 16, 2018. J.K. and K.K. left EUCC and went to Publix to fill the prescriptions. K.K. asked the pharmacist if any medications would interfere with any of J.K.'s prescribed medications. Upon advice of the pharmacist that Levaquin was contraindicated with Tikosyn, K.K. declined to fill the prescription for Levaquin. On behalf of J.K., K.K. then called EUCC and asked for a different antibiotic that would not interact with Tikosyn. However, she was instructed to contact J.K.'s cardiologist. K.K. then contacted the cardiology staff of the V.A. Hospital in Wisconsin, who instructed K.K. to follow the advice of the pharmacist and (tell J.K.) not to take the Levaquin. K.K. called EUCC a second time to confirm whether J.K. had an infection and she was told that J.K. did not have an infection. Respondent recalls that he had a personal conversation with K.K. during a courtesy telephone call placed the next day (March 17, 2018). Respondent testified that during that call, he explained Levaquin was the drug of choice, other medications would not cover J.K.'s pneumonia, the potential interactions were very rare, and J.K. needed to take the Levaquin. By his own admission and his medical records, Respondent did not provide J.K. or K.K. with any specific alternative antibiotics and insisted that J.K. needed to take the Levaquin. K.K. disputes that Dr. Im spoke with her or J.K. at any point after the March 16, 2018, visit. She clearly recalled that she spoke with a woman each time she spoke with staff at Dr. Im’s office. Overall, J.K. and K.K. clearly and convincingly testified that Respondent never advised them of the risks of using Levaquin with Tikosyn or provided any alternatives to the Levaquin. Expert Testimony Petitioner offered the testimony of Dr. Anthony Davis, who testified as an expert. Dr. Davis has been licensed as an osteopathic physician in Florida since 1995. Dr. Davis attended Kirksville College of Osteopathic Medicine and completed an internship in family practice. He has been board certified in family medicine by the American Board of Osteopathic Family Physicians since 2001, and board certified in emergency medicine by the American Association of Physician Specialists since July 2003. He is also affiliated with professional organizations including the American College of Family Practice and Florida Osteopathic Medical Association. Dr. Davis was accepted as an expert in emergency and family medicine. Dr. Davis relied upon his work experience, his training, and his review of the medical records for J.K. to render his opinion regarding the standard of care related to treating J.K. The standard of care requires an osteopathic physician treating a patient similar to J.K. to: (1) provide and document their justification for why Levaquin was the appropriate drug of choice; (2) note the patient’s acknowledgment that there are interactions with Tikosyn; (3) ensure the patient understands the risks and benefits of combining Tikosyn and Levaquin; (4) explain to the patient that there are limited alternatives to Levaquin; and (5) provide the reason for prescribing a potentially dangerous drug. Levaquin is a medication that comes with a black box warning that requires physicians to counsel patients on the risks associated. When a drug is designated as contraindicated and has a category X for interaction, the standard of care requires that the physician clearly explains to the patient why they are using the drug and defend how it is going to be safe. Tr., p. 70. Dr. Davis opined there were multiple treatment options available for J.K., such as supportive care or an antibiotic with a lower risk of interaction with J.K.'s existing medication. Moreover, Dr. Davis testified that there were safer alternatives to Levaquin that would effectively treat pneumonia, such as doxycycline, if J.K. actually had pneumonia and an antibiotic was necessary. Respondent provided literature from the Infectious Diseases Society of America related to community-acquired pneumonia in an attempt to prove that X-Ray or other imaging techniques are required for the diagnosis of pneumonia and to support his claim that Levaquin was the drug of choice for J.K. However, Dr. Davis credibly pointed out that the article, published in 2007, is no longer accurate.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Osteopathic Medicine enter a Final Order as follows: Finding that John Joseph Im, D.O., violated section 459.015(1)(x), by committing medical malpractice, as defined in section 456.50, as alleged in the Administrative Complaint; Issue a letter of concern against Respondent’s license to practice osteopathic medicine; Requiring completion of a prescribing practices course; and Imposing an administrative fine of $2,500. DONE AND ENTERED this 16th day of December, 2019, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 16th day of December, 2019.
