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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs ARNALDO CARMOUZE, P.A., 06-002094PL (2006)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Jun. 15, 2006 Number: 06-002094PL Latest Update: Oct. 17, 2019

The Issue The issue in this case is whether Respondent, Arnaldo Carmouze, P.A., committed violations of Chapter 458, Florida Statutes (2001), alleged in an Administrative Complaint filed with Petitioner on February 25, 2004, in DOH Case Number 2002- 16502, as amended; and, if so, what disciplinary action should be taken against his license to practice as a physician assistant in Florida.

Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians and physician’s assistants licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Arnaldo Carmouze, P.A., is, and was at the times material to this matter, a physician's assistant licensed to practice in Florida, having been issued license number PA 9100713. Mr. Carmouze's address of record at all times relevant to this matter is 6545 Southwest 95th Avenue, Miami, Florida 33173. No evidence that Mr. Carmouze has previously been the subject of a license disciplinary proceeding was offered. Mr. Carmouze's Supervising Physician. At the times relevant Mr. Carmouze worked under the supervision of Dr. Manuel Fernandez-Gonzalez, a physician licensed to practice medicine in Florida. Dr. Fernandez-Gonzalez, who has practiced emergency medicine, holds Florida medical license number ME 17907. Dr. Fernandez-Gonzalez currently practices family medicine at 9600 Southwest 8th Street, Miami, Florida. Prior to April 2002, Dr. Fernandez-Gonzalez and Mr. Carmouze worked together in Miami, providing emergency room care and seeing patients at a nursing home. The emergency room services were provided pursuant to employment contracts that both had entered into with a company providing emergency room services at the hospital in south Florida where Dr. Fernandez- Gonzalez and Mr. Carmouze provided services. Mr. Carmouze's Assignment to Weems Memorial Hospital. The company for which Mr. Carmouze was employed also provided emergency room services for Weems Memorial Hospital (hereinafter referred to as "Weems"). Weems is located in Apalachicola, Florida, located in the Florida Panhandle, approximately 520 miles from Miami. Weems is a rural hospital, licensed under Chapter 395, Florida Statutes. It does not have 24-hour, on-site ancillary services such as X-ray, laboratory, and respiratory therapy. These services are available to the emergency room on an on-call basis after business hours. At the times relevant, Malvinder Ajit, M.D., a Florida licensed physician, was the Director of the Emergency Department at Weems. Dr. Ajit has not provided any documentation to the Department indicating that he has ever acted as supervising physician of record for Mr. Carmouze. Mr. Carmouze was assigned by the company by which he was employed to work in the emergency room at Weems in April 2002 and again in June 2002. He worked in the emergency room at Weems as a physician's assistant for part of April 2002, and part of June 2002. While at Weems, Mr. Carmouze provided emergency room medical services to more than 100 patients. While working at Weems, Dr. Fernandez-Gonzalez, who remained in Miami, continued to act as Mr. Carmouze's supervising physician. Mr. Carmouze did not notify the Department that he was practicing as a physician's assistant at Weems in April or June 2002. The evidence, however, failed to prove that Mr. Carmouze was working for, and thus "employed," by anyone different from the employer that he worked for in Miami. The only evidence on this issue proved that Mr. Carmouze continued throughout the relevant period to work for Dr. Fernandez-Gonzalez and the company that provided emergency room services at Weems. Dr. Carmouze's Treatment of Patient A.M. On June 7, 2002, Patient A.M., an 84-year-old female, was brought to the emergency room (hereinafter referred to as the "ER"), at Weems by ambulance. She arrived at approximately 23:24 hours (11:24 p.m.). A.M.'s medical history included congestive heart failure, coronary artery disease, and atrial fibrillation. She presented to Mr. Carmouze in apparent respiratory distress (respiratory rate of 36 to 40), had no measurable blood pressure, and a pulse rate of 100 to 108. While being transported to the ER from her home, A.M. was given oxygen by rebreather mask. During her transport, her oxygen saturation level improved from 68% to 91%. Mr. Carmouze assessed A.M.'s condition, obtained her medical history, ordered lab work and other tests, and ordered and initiated nebulizer treatments for her. She was alert, oriented and had a Glasgow score of 15/15, indicating she was responding to verbal and pain stimuli. Mr. Carmouze ordered nebulizer treatments with albuterol and atrovent to assist her breathing. Additionally, A.M. received 100% oxygen through a nonrebreather mask. Mr. Carmouze also determined that A.M. was "dry," meaning that her fluid volume was depleted and, therefore, she was dehydrated. As a result, her blood pressure was low. In an effort to treat this condition, Mr. Carmouze ordered an I.V. with 0.9 normal saline. He also ordered a Dopamine drip to increase A.M.'s heart rate in an effort to increase her blood pressure. Mr. Carmouze appropriately denied a request from a nurse to administer Lasix to A.M., because A.M. was "dry." Lasix is a diuretic used to decrease fluid volume. It opens the arteries and reduces fluids, thereby lowering blood pressure. Lasix was contraindicated for A.M. and contrary to the appropriate efforts initiated by Mr. Carmouze to treat A.M.'s low blood pressure. Despite Mr. Carmouze's treatment of A.M., her condition continued to deteriorate. At or near 23:50 hours (11:50 p.m.), approximately 25 minutes after A.M. had arrived at the ER, an ER nurse contacted A.M.'s primary physician by telephone and obtained an order to administer Lasix to A.M. The Lasix was administered immediately. A.M.'s oxygen saturation level was 81%, down 10 points since her arrival, when the Lasix was administered. Within half an hour, at 0:18 hours (18 minutes after midnight) on June 8, 2002, A.M.'s oxygen saturation level had dropped another 10 points, to 71%. A.M. then "crashed and coded." Mr. Carmouze initiated appropriate emergency measures when A.M. coded, including initiating Cardio Pulmonary Recitation and endotracheal intubation. A.M. was given epinephrine, atropine, and a CVP line was placed. These actions by Mr. Carmouze were appropriate. Mr. Carmouze did not attempt or order that A.M. be intubated prior to 0:18 hours when she coded. A.M.'s primary physician, Dr. Sanaullah, arrived at the ER. Shortly after she coded, Dr. Sanaullah continued the same efforts initiated by Mr. Carmouze. A.M., however, did not recover, expiring at 01:00. The "Standard of Care" for Treating A.M. Four expert witnesses testified in this matter, rendering opinions as to whether Mr. Carmouze's treatment of A.M. was consistent with "that level of care, skill, and treatment which is recognized by a reasonably prudent similar [physician assistant] as being acceptable under similar conditions and circumstances. . . " (hereinafter referred to as the "Standard of Care"). The expert witnesses who testified were Dr. Fernandez-Gonzalez, Dr. Julio Lora, Dr. Harry W. Lee, and James L. Cary, P.A. Dr. Fernandez-Gonzalez's testimony as to whether Mr. Carmouze treated A.M. within the Standard of Care is rejected for lack of credibility. Dr. Fernandez-Gonzalez's testimony has been found to lack credibility for the reasons explained by Petitioner in paragraph 25 of Petitioner's Proposed Recommended Order. That paragraph, except for the last two sentences, is hereby adopted. Additionally, Dr. Fernandez- Gonzalez's testimony is rejected because, in the undersigned's judgment, he made too much of an effort to give the answers that he appeared to conclude that Mr. Carmouze wanted him to give. The testimony of Dr. Lora on the other hand is found to be credible. Dr. Lora, testifying as an expert in cardiology and internal medicine, offered convincing explanations as to why Mr. Carmouze did not violate the Standard of Care in his overall treatment of A.M. and, in particular, in not attempting to intubate A.M. earlier than he did. Dr. Lee's testimony, while corroborating Dr. Lora's testimony, was cumulative and of little weight. A.M. was reported to be awake, alert, and oriented. She was breathing, albeit with difficulty, on her own. Therefore, it was appropriate for Mr. Carmouze to attempt the other measures to assist her breathing he instituted. Mr. Cary's testimony, while credible, was not convincing, especially given Dr. Lora's expert opinions. Mr. Cary's testimony was taken during a discovery deposition by Respondent and, as a result, the benefit of his testimony to Petitioner's case was limited. The evidence failed to prove that Mr. Carmouze violated the standard of care: In his treatment of A.M.; By failing "to contact his supervising physician, the ED director, and/or Patient A.M.'s primary physician for assistance in treating Patient A.M."; By failing "to identify a treatment plan for Patient A.M."; and By failing "to consult his supervising physician prior to ordering Demerol, a controlled substance, for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M." Mr. Carmouze's Treatment Plan and Medical Records for Patient A.M. Mr. Carmouze, as the Department has conceded in Petitioner's Proposed Recommended Order, paragraph 13, page 20, did identify a treatment plan for Patient A.M. Having found that Mr. Carmouze did not err when he did not initiate intubation of A.M. earlier than he did, the evidence failed to prove that "he failed to maintain medical records that justified the course of treatment in that he failed to record a reason for not intubating sooner in an attempt to address Patient A.M.'s respiratory distress." There is no indication in Mr. Carmouze's medical records for A.M. that Mr. Carmouze attempted to contact Dr. Ajit or Dr. Fernandez-Gonzalez. The medical records do indicate, however, that A.M.'s primary physician, Dr. Sanaullah, was "notified and arrived for code." While the evidence did not prove who notified Dr. Sanaullah, Petitioner failed to prove that Mr. Carmouze was not responsible for Dr. Sanaullah's notification. Mr. Carmouze failed to identify himself by name or professional title in A.M.'s medical records. He also failed to include Dr. Fernandez-Gonzalez's name and title in A.M.'s medical records. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on A.M.'s medical records. While the quality of Mr. Carmouze's medical records for A.M. was correctly characterized as "minimally acceptable" by Mr. Cary, the evidence failed to prove clearly and convincingly that those medical records were not adequate. This finding is based upon the lack of an unequivocal opinion from Mr. Cary concerning the adequacy of the medical records and a comparison of Mr. Cary's opinions with those of Dr. Lee in support of Mr. Carmouze's medical records for Patient A.M. Mr. Cary, on the one hand, made the following negative comments about Mr. Carmouze's medical records for A.M: "[T]he record isn't really clear on what did happen because he did not write down any times on intervention of what he did." Petitioner's Exhibit numbered 1, page 14; "[W]hen you look at this face sheet here you don't get a picture of what happened and at what time, there's no real times there, no progression of the treatment." Petitioner's Exhibit numbered 1, page 67. Mr. Cary stated that there was no time noted in Patient A.M.'s history/physical section, and that a portion of that section was illegible. Petitioner's Exhibit numbered 1, page 21 and 25. On the other hand, Mr. Cary stated that "[the medical record for A.M.] is minimally acceptable, it just doesn't give a good clear picture of the sequence of events." Petitioner's Exhibit numbered 1, page 68. Mr. Cary also stated the following when asked if he thought Mr. Carmouze maintained medical records that justified the course of his treatment regarding Patient A.M.: "There were medical records that were there, I think they could have been more complete and more detailed . . . ." These statements, taking into account the fact that Mr. Cary was able to read almost all of Mr. Carmouze's medical record pertaining to A.M. on direct examination by counsel for Mr. Carmouze, reduces the effectiveness of his other opinions. Finally, it is noted that all of Mr. Carmouze's experts, along with Mr. Cary, were able to read Mr. Carmouze's notes, other than a word or two. Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Patient C.M. On April 23, 2002, Patient C.M., a 20-year-old male presented to Mr. Carmouze at Weems' ER. C.M. complained of a server headache. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient J.S. On April 24, 2002, Patient J.S., a 37-year-old female presented to Mr. Carmouze at Weems' ER. J.S. complained of a burn. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient B.M. On April 24, 2002, Patient B.M., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. B.M. complained of a headache of two-days' duration. In pertinent part, Mr. Carmouze ordered 25 milligrams of Demerol administered to B.M. at the ER. Mr. Carmouze noted in the medical record for B.M. a diagnosis of scabies/headache cluster, severe. This is the only diagnosis made at Weems' ER for B.M. Patient R.M. On April 24, 2002, Patient R.M., a 73-year-old male, presented to Mr. Carmouze at Weems' ER. R.M. complained of abdominal pain and constipation of several days’ duration. In patient part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to R.M. at the ER. Mr. Carmouze noted in the medical record for R.M. a diagnosis of abdominal pain, impaction. This is the only diagnosis made at Weems' ER for R.M. Patient M.F. On April 25, 2002, Patient M.F., a 34-year-old female, presented to Mr. Carmouze at Weems' ER. M.F. complained of left-flank pain. In relevant part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to M.F. at the ER. Mr. Carmouze noted in the medical record for M.F. a diagnosis of left-flank pain, left nephrolithiasis. Patient G.C. On June 7, 2002, Patient G.C., a 20-year-old male, presented to Mr. Carmouze at Weems' ER. G.C. complained of right-flank pain. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Patient G.B. On June 7, 2002, Patient G.B., an 83-year-old female, presented to Mr. Carmouze at Weems' ER. G.B. complained of wrist, knee, and leg pain, secondary to a fall. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Mr. Carmouze noted in the medical record for G.B. a diagnosis of chest contusion, leg edema, and right Colles' fracture. This is the only diagnosis made at Weems' ER for G.B. Patient K.S. On June 8, 2002, Patient K.S., an 18-year-old female, presented to Mr. Carmouze at Weems' ER. K.S. complained of lower back pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.S. a diagnosis of intractable back pain, trauma to spine. This is the only diagnosis made at Weems' ER for K.S. Patient C.W. On June 8, 2002, Patient C.W., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. C.W. complained of headache and dizziness. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for C.W. a diagnosis of headache and anemia. This is the only diagnosis made at Weems' ER for C.W. Patient M.A.C. On June 9, 2002, Patient M.A.C., a 49-year-old female, presented to Mr. Carmouze at Weems' ER. M.A.C. complained of pain in the lower right abdomen and back. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for M.A.C. a diagnosis of diabetes mellitus and abdominal pain. This is the only diagnosis made at Weems' ER for M.A.C. Patient R.S. On June 9, 2002, Patient R.S., a 34-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of shoulder pain. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for R.S. a diagnosis of right shoulder tendon tear. This is the only diagnosis made at Weems' ER for R.S. Patient K.M. On June 11, 2002, Patient K.M., a 52-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of wrist pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.M. a diagnosis of a Colles' fracture. This is the only diagnosis made at Weems' ER for K.S. Facts Common to Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Mr. Carmouze did not note in his medical records for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. (hereinafter referred to jointly as the "Pain Patients "), that he had consulted with Dr. Fernandez- Gonzalez or Dr. Ajit prior to ordering Demerol for the Pain Patients. Demerol is a controlled substance. Dr. Fernandez-Gonzalez' testimony regarding alleged consultations he had with Mr. Carmouze concerning the Pain Patients and other patients seen by Mr. Carmouze while at Weems is rejected as lacking credibility for the reasons explained, supra. Mr. Carmouze also failed to note in the medical records for the Pain Patients his name and professional title. His name was stamped on the Emergency Room Record he completed for Patients M.A.C., G.M., and R.S. His name was also written into the space under "Time/Initials" on the Emergency Room Record for Patients M.A.C., C.W., R.M., and J.S. None of these records, however, included his title of "physician assistant." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the Pain Patients. Mr. Carmouze failed to ensure that the signature of Dr. Fernandez-Gonzalez or Dr. Ajit was included in the medical records of the Pain Patients. The Other "106 Patients". While at Weems ER, Mr. Carmouze provided medical services, in addition to A.M. and Pain Patients, to 106 other patients at issue in this case (hereinafter referred to as the "106 Patients"). Petitioner's Exhibit numbered 4 is a composite exhibit of medical records for the 106 Patients. There are approximately two patients for whom more than one medical record has been included in Petitioner's Exhibit numbered 4. The foregoing findings relate to the 108 medical records for the 106 Patients. Mr. Carmouze failed to note in most of the medical records for the 106 Patients his name and professional title. Of the approximately 108 records, Mr. Carmouze's name does not appear in any fashion on 48 of them. The rest either include his name (but not title) either stamped on the record or written into the box titled "Time/Initials." On two of the medical records both Mr. Carmouze's name and "P.A." have been written into the box titled "Time/Initials." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the 106 Patients. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on the medical records of the 106 Patients.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that, Arnaldo Carmouze, P.A., has violated Subsections 458.331(1)(m) and (v), Florida Statutes, as described in this Recommended Order; issuing a reprimand; placing Mr. Carmouze's license on probation for one year; requiring that he pay an administrative fine of $5,000.00; requiring that he perform five hours of CME in a subject(s) determined appropriate by the Board; and suspending his license for six months (with the suspension stayed provided he complies with probation). DONE AND ENTERED this 13th day of December, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 13th day of December, 2006. COPIES FURNISHED: Irving Levine Matthew Casey Assistants General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Julie Gallagher, Esquire Greenberg Taurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Larry McPherson, Executive Director Board of 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 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. M. Rony François, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Florida Laws (8) 120.569120.57120.6820.43456.072456.079458.331458.347
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AGENCY FOR HEALTH CARE ADMINISTRATION vs GULF COAST MEDICAL CENTER LEE MEMORIAL HEALTH SYSTEM, 09-005363 (2009)
Division of Administrative Hearings, Florida Filed:Fort Myers, Florida Oct. 01, 2009 Number: 09-005363 Latest Update: Jul. 01, 2010

The Issue The issues in this case are set forth in 11 separate counts within the four consolidated cases: Case No. 09-5360 Count I--Whether Respondent failed to properly monitor and care for a patient in restraints. Count II--Whether Respondent failed to ensure the physician's plan of care for patient was implemented. Case No. 09-5363 Count I--Whether Respondent failed to properly implement the physician's plan of care for patient. Case No. 09-5364 Count I--Whether Respondent failed to ensure a patients' right to privacy. Count II--Whether Respondent failed to ensure that food was served in the prescribed safe temperature zone. Count III--Whether Respondent failed to ensure that only authorized personnel had access to locked areas where medications were stored. Count IV--Whether Respondent failed to perform proper nursing assessments of a patient. Count V--Dismissed. Count VI--Whether Respondent failed to maintain patient care equipment in a safe operating condition. Case No. 09-5365 Count I--Whether Respondent failed to triage a patient with stroke-like symptoms in a timely fashion. Count II--Whether Respondent's nursing staff failed to assess and intervene for patients or ensure implementation of the physician's plan of care.

Findings Of Fact Petitioner is the state agency responsible for, inter alia, monitoring health care facilities in the state to ensure compliance with all governing statutes, rules and regulations. It is the responsibility of AHCA to regularly inspect facilities upon unannounced visits. Often AHCA will inspect facilities for the purpose of licensure renewal, certification, or in conjunction with federal surveys. AHCA will also inspect facilities on the basis of complaints filed by members of the general public. Respondent, Gulf Coast Medical Center ("Gulf Coast" or "GCH") is a hospital within the Lee Memorial Health System. South West Florida Regional Medical Center ("SWF") was another hospital within the Lee Memorial Health System. SWF closed in March 2009, when it was consolidated with Gulf Coast. On October 15, 2008, the Agency conducted a complaint investigation at SWF; a follow-up complaint investigation was done on November 13, 2008. SWF filed and implemented a plan of correction for the issues raised in each of the investigations. The November investigation resulted in an Administrative Complaint containing two counts. On December 16, 2008, AHCA performed another complaint investigation at Gulf Coast. Gulf Coast filed and implemented a plan of correction for the issues raised in the investigation. The investigation resulted in an Administrative Complaint containing one count. On January 5 through 9, 2009, AHCA conducted a routine licensure survey at Gulf Coast. The hospital filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing six counts (although Count V was dismissed during the course of the final hearing). On February 18, 2009, AHCA did its follow-up survey to the previous licensure survey. Gulf Coast filed and implemented a plan of correction for the issues raised in the survey. The survey resulted in an Administrative Complaint containing two counts. Case 09-5360 The complaint investigation at SWF on November 13, 2008, was conducted under the supervision of Charlene Fisher. Count I in this case addresses findings by the Agency concerning a patient who was placed in restraints at the hospital on August 28, 2008. The patient, A.D., came into the hospital emergency department under the Baker Act seeking medical clearance to a facility. The patient presented at approximately 4:00 p.m., with back pain. He had a history of drug abuse, so there was concern by the hospital regarding the use of narcotics or certain other medications to treat the patient. The patient engaged in some scuffling with police. A physician signed and dated a four-point restraint (one on each limb) order, resulting in the patient being physically restrained. The restraint was deemed a medical/surgical restraint, rather than a behavioral restraint. AHCA had concerns about the restraint, specifically whether there was a notation for Q 15 (or every 15 minutes) monitoring of the restrained patient. However, medical/surgical restraints only require monitoring every two hours. The restraint worksheet for the patient confirms monitoring every two hours. The patient was ultimately admitted to the hospital at 9:37 p.m., and, thereafter, began complaining of left shoulder pain. The hospital responded to the patient's complaints about back pain and began treating the pain with analgesics. However, the patient continued to complain about the pain. An X-ray of the patient's shoulder was finally done the next morning. Shoulder dislocation was confirmed by the X-ray, and the hospital (four hours later) began a more substantive regimen of treatment for pain. Surgery occurred the following morning, and the shoulder problem was resolved. It is clear the patient had a shoulder injury, but it is unclear as to when that injury became more painful than the back injury with which the patient had initially presented. The evidence is unclear whether or when the shoulder injury became obvious to hospital staff. During its course of treating this patient, the hospital provided Motrin, Tylenol, Morphine, Percocet and other medications to treat the patient's pain. Count II in this case also involved a restrained patient, M.D., who had presented to the emergency department under the Baker Act. The patient was released from handcuffs upon arrival at the hospital. After subsequently fighting with a deputy, this patient was also placed in a medical/surgical restraint pursuant to a physician's order. The doctor signed and dated, but did not put a time on, the restraint order. A time is important because there are monitoring requirements for patients in restraints. However, the time of 0050 (12:50 a.m.) appears on the patient's chart and is the approximate time the restraints were initiated. The proper procedure is to monitor a restrained patient every two hours. This patient, however, was removed from his restraints prior to the end of the first two-hour period. Thus, there are no records of monitoring for the patient (nor would any be necessary). The evidence presented by AHCA was insufficient to establish definitively whether the hospital nursing staff failed to properly respond to the aforementioned patients' needs. It is clear the patients could have received more care, but there is not enough evidence to prove the care provided was inadequate. Case No. 09-5363 On December 16, 2008, AHCA conducted a complaint investigation at SWF. The Agency had received a complaint that the hospital did not properly implement a physician's plan of care. Count I in this complaint addresses alleged errors relating to two of four patients reviewed by the surveyors. Both of the patients came to the hospital from a nursing home. One patient, I.A., had presented to the emergency department complaining of chest pains. The medication list sent to the hospital by the nursing home for I.A. actually belonged to someone other than I.A. I.A.'s name was not on the medication list. The drugs listed on the patient chart were different than the drugs I.A. had been taking at the skilled nursing facility from which she came. The skilled nursing facility actually sent I.A.'s roommate's medication list. The erroneous medications were then ordered by the admitting physician and administered to the patient. The hospital is supposed to review the medication list it receives and then enter the medications into the hospital system. The person reviewing the medication list does not necessarily have to be a nurse, and there is no evidence that the person making the error in this case was a nurse or was some other employee. It is clear, however, that the person reviewing the medication list did not properly ascertain that the list belonged to patient I.A. The other patient from the nursing home had been admitted for surgery at SWF. Again, the nursing home from whence she came sent a medication list that was incorrect. The medications on the incorrect list were entered into the system by a SWF employee. The erroneous medications were ultimately ordered by the attending physician for the patient, but there is no evidence the patient was ever administered those medications. Neither of the residents was harmed by the incorrect medications as far as could be determined. Case 09-5364 From January 5 through 8, 2009, AHCA conducted a licensure survey at Gulf Coast and SWF in conjunction with a federal certification survey. Count I of the complaint resulting from this survey addressed the right of privacy for two residents. In one instance, a patient was observed in her bed with her breasts exposed to plain view. In the other instance, a patient's personal records were found in a "public" place, i.e., hanging on the rail of a hallway in the hospital. AHCA's surveyor, Nancy Furdell, saw a female patient who was apparently asleep lying in her bed. The patient's breasts were exposed as she slept. Furdell observed this fact at approximately 1:15 p.m., on January 7, 2009. Furdell did not see a Posey vest on the patient. She did not know if anyone else saw the exposed breasts. Furdell continued with her survey duties, and at approximately 5:00 p.m., notified a staff member as to what she had seen. Furdell did not attempt to cover the patient or wake the patient to tell her to cover up. The female patient with exposed breasts was in the intensive care unit (ICU) of the hospital. Visiting hours in ICU at that time were 10:00 to 10:30 a.m., and again from 2:00 till 2:30 p.m. Thus, at the time Furdell was present, no outside visitors would have been in the ICU. ICU patients are checked on by nursing staff every half-hour to an hour, depending on their needs. This particular patient would be visited more frequently due to her medical condition. On the day in question, the patient was supposed to be wearing a Posey vest in an effort to stop the patient from removing her tubing. The patient had been agitated and very restless earlier, necessitating the Posey vest. Also on January 7, 2009, a surveyor observed some "papers" rolled up and stuffed inside a hand-rail in the hospital corridor. This occurred at 1:15 p.m., on the fourth floor of the south wing of the hospital. A review of the papers revealed them to be patient records for a patient on that floor. The surveyor could not state at final hearing whether there were hospital personnel in the vicinity of the handrail where she found the patient records, nor could she say how long the patient records had been in the handrail. Rather, the evidence is simply that the records were seen in the handrail and were not in anyone's possession at that moment in time. Count II of the complaint was concerned with the temperature of certain foods being prepared for distribution to patients. Foods for patients are supposed to be kept at certain required temperatures. There is a "danger zone" for foods which starts at 40 degrees Fahrenheit and ends at 141 degrees Fahrenheit. Temperature, along with time, food and environment, is an important factor in preventing contamination of food and the development of bacteria. Surveyor Mary Ruth Pinto took part in the survey. As part of her duties, she asked hospital staff to measure the temperature of foods on the serving line. She found some peaches at 44 degrees, yogurt at 50 degrees, and cranberry juice at 66 degrees Fahrenheit. According to Pinto, the hospital's refrigerator temperatures were appropriate, so it was only food out on the line that was at issue. Pinto remembers talking to the hospital dietary manager and remembers the dietary manager agreeing to destroy the aforementioned food items. The hospital policies and procedures in place on the date of the survey were consistent with the U.S. Food and Drug Administration Food Code concerning the storage, handling and serving of food. The policies acknowledge the danger zone for foods, but allow foods to stay within the danger zone for up to four hours. In the case of the peaches and yogurt, neither had been in the danger zone for very long (not more than two hours). The cranberry juice was "shelf stable," meaning that it could be stored at room temperature. The food services director for the hospital remembers the peaches and yogurt being re-chilled in a chill blaster. She does not believe any of the food was destroyed. Count III of the complaint addressed whether an unauthorized person had access to a room where medications were being stored. A state surveyor, Gary Furdell, was part of the survey team on January 5, 2009. Furdell was touring the second floor of the hospital when he noticed a locked door. Furdell asked a hospital medical technician who was standing nearby about the door. The medical technician gave Furdell the code to unlock the door. Furdell peeked inside and noticed bottles that he presumed were medications. It would be a violation for a medical technician to have access to medications, because medical technicians cannot distribute drugs. The room Furdell looked into is a "mixed use" room located behind a nursing station. A mixed use room is used to store medical supplies, including medications, as long as there is a locked cabinet in the room for that purpose. This particular mixed use room had a locked cabinet. The room is used for the preparation of medications and for other purposes. No narcotics were stored in this particular mixed use room. The room contained locked cabinets used to store other medications. The evidence presented was insufficient to determine what "medications" Furdell may have seen in the room. Count IV of the complaint concerned the nursing assessment of a patient, and whether the assessment was properly and timely performed. A patient, M.S., had been admitted to the hospital on June 18, 2008, for lung surgery. Following the surgery, Amiodarone (a very toxic drug which can cause clots and other complications) was administered to treat M.S. for heart arrhythmia. The Amiodarone was administered intravenously and M.S. developed blisters and irritation at the intravenous site. That is not an uncommon complication with Amiodarone. M.S.'s attending physician was notified about the irritation and prescribed a treatment. He also ordered a consult with an infectious disease specialist who ultimately changed M.S.'s antibiotics. Although M.S. was seen daily by her physicians, the nursing notes do not reflect the assessment and treatment of her blisters. It appears that proper care was rendered, but the care was not documented properly. Another patient was admitted to the hospital on December 15, 2008, with End Stage Renal Disease and diabetes mellitus for which she began dialysis treatment. The patient was not weighed before and after a particular dialysis treatment on January 5, 2009. However, the patient had been moved to an air mattress bed on that date for comfort. The air mattress bed did not allow for a weight to be taken as it could be on a regular bed. There is an allegation in the Administrative Complaint concerning the discontinuation of the calorie count for a patient. This issue was not discussed in AHCA's Proposed Recommended Order, nor was sufficient evidence of any wrong- doing concerning this matter presented at final hearing. During the survey, the hospital was found to be storing the medication Mannitol in blanket warmers, rather than in warmers specifically designed for the drug. The blanket warmers maintained the Mannitol at 100-to-110 degrees Fahrenheit. The manufacturer's label on the drug calls for it to be dispensed (injected) at between 86 and 98.5 degrees Fahrenheit. In order to meet this requirement, the hospital takes the drug out of the blanket warmer in time for it to cool sufficiently before it is injected. There is nothing inherently wrong with using a blanket warmer to store Mannitol. On January 5, 2009, a surveyor found two vials of Thrombin, one vial of half-percent Lidocaine and Epi, and one vial of Bacitracin in operating room No. 4. The operating room is within the secured and locked suite of surgical rooms on the second floor. Two of the vials had syringes stuck in them and one of them was spiked. Whoever had mixed the medications was not attending to them at the time the surveyor made her observation. There were two unlicensed technicians in the room preparing for the next surgery. A registered nurse anesthetist was present as well. There was no identifying patient information on the medications. The hospital's policies and procedures do not require the patient's name to be on the label of medications prepared for impending surgery. That is because the procedures for the operating room include a process for ensuring that only the correct patient can be in the designated operating room. There is a fail-safe process for ensuring that only the proper patient can receive the medications that are set out. At around 2:45 p.m. on January 5, 2009, there were patient records in the emergency department showing that several drugs had been administered to a patient. The surveyor did not see a written order signed by a physician authorizing the drugs. When the surveyor returned the next morning, the order had been signed by the physician. The hospital policy is that such orders may be carried out in the emergency department without a doctor's signature, but that a physician must sign the order before the end of their shift. AHCA cannot say whether the physician signed the order at the end of his shift or early the next day. Count V of the complaint was voluntarily dismissed by the Agency. Count VI of the complaint concerned the status of certain patient care equipment, and whether such equipment was being maintained in a safe operating condition. A patient was weighed at the hospital upon admission on December 27, 2008, and found to weigh 130 pounds using a bed scale. Six days later, on January 2, 2009, the patient's weight was recorded as 134 pounds. Two days later, in the same unit, the patient weighed 147 pounds and the next day was recorded as weighing 166 pounds. During the survey process, the patient was weighed and recorded at 123 pounds on a chair scale. The hospital does not dispute the weights which were recorded, but suggests there are many factors other than calibration of the equipment that could explain the discrepant weights. For example, the AHCA surveyor could not say whether the patient sometimes had necessary medical equipment on his bed while being weighed, whether different beds were involved, or whether any other factors existed. AHCA relies solely on the weight records of this single patient to conclude that the hospital scales were inaccurate. Case No. 09-5365 On February 18, 2009, AHCA conducted a licensure survey at Gulf Coast. Count I of the complaint from this survey concerned the timeliness of triage for a patient who presented at the hospital emergency department with stroke-like symptoms. AHCA surveyors witnessed two patients on stretchers in the ambulance entrance hallway leading to the emergency department. Each of the two patients had been brought in by a separate emergency medical service (EMS) team and was awaiting triage. One patient was taken to an emergency department room (ER room) 50 minutes after his/her arrival at the hospital. The other patient waited 45 minutes after arrival before being admitted to an ER room. Meanwhile, a third patient arrived at 2:20 p.m., and was awaiting triage 25 minutes later. During their observation, the surveyors saw several nursing staff in the desk area of the emergency department, i.e., they did not appear to be performing triage duties. The emergency department on that date was quite busy. That is not unusual during February, as census tends to rise during the winter months due to the influx of seasonal residents. A summary of the action within the emergency department from 1:00 p.m. to 3:00 p.m., on the day of the survey shows the following: Patient L.G., 74 years old with stable vital signs, was radioed in by her EMS team at 1:08; L.G. was processed into the ER at 1:21 (which is not an unreasonable time; EMS teams call in when they arrive at or near the hospital. By the time they gain access, wait their turn if multiple ambulances are present, and get the patient inside, several minutes may lapse). L.G. was stabilized and quickly reviewed by ER staff, then officially triaged at 2:04. Patient H.M., an 89-year-old male residing in a nursing home, arrived at 1:20 and was processed in at 1:59. He was triaged at 2:01, but ultimately signed out of the hospital against medical advice. Patient E.M. arrived at 2:18 and was processed at 2:25. Triage occurred one minute later. This patient presented as a stroke alert, and hospital protocol for that type patient was followed. Patient C.J. arrived at 1:08 and was processed at 2:38. Triage occurred immediately after C.J. was processed. This patient was not stroke alert, but had some stroke-like symptoms.1 C.J. had not been transported to the hospital as emergent, because the symptoms had been going on for 24 hours. Patient W.M., an auto accident victim, arrived at 1:40 and was processed at 1:49. Triage occurred within six minutes. Patient M.M., W.M.'s wife (who had been with M.M. in the automobile accident, but was placed in a separate ambulance), arrived at 2:06 and was triaged at 2:34. There is no record of when M.M. was processed. Patient L.M. came to the hospital from a nursing home. She arrived at 1:43 and was processed at 2:35. L.M. was triaged at 2:37. Patient K.M. arrived at 2:45 and was processed within three minutes. Triage occurred at 2:52. Her triage was done very quickly due to the condition in which she arrived, i.e., shortness of breath and low oxygen saturation. Patient R.S. arrived at 1:00 and was triaged at 1:15. The aforementioned patients represent the patients presenting to the emergency department by ambulance during a two-hour period on a very busy day. It is the customary procedure for ER staff to make a quick visual review (rapid triage) of patients as they come into the hospital. Those with obvious distress or life-threatening conditions are officially triaged first. Others, as long as they are stable, are allowed to wait until staff is available for them. As part of their duties, nurses necessarily have to be in the desk area (nursing station) in order to field phone calls from physicians concerning treatment of the patients who present. It is not unusual or improper for nurses to be in the nursing station while residents are waiting in the processing area. It is clear that some patients waited a much longer time for triage than others. However, without a complete record of all patients who presented that day and a complete review of each of their conditions, it is impossible to say whether the hospital was dilatory in triaging any of them. Count II of the complaint addressed the nursing staff and whether it failed to assess and intervene in the care of a patient or failed to implement a physician's plan of care for the patient. Patient D.W. was a 67-year-old female who was morbidly obese, diabetic, debilitated, had end stage renal disease, and was receiving dialysis. Upon admission, D.W. had a Stage 3 pressure ulcer to her sacrum and a Stage 4 ulcer on her left calf. A wound care protocol was initiated immediately, and a Clinitron bed was obtained for her on the day of admission. Due to the seriousness of her condition, the wound care physician declined to accept her case at first. He later ordered Panafil, and it became part of the protocol for treating the patient. The nursing documentation for D.W. was only minimally sufficient, but it does indicate that care was provided. Patient R.H. was an 83-year-old male who presented on February 10, 2009, in critical condition. R.H. was suffering from congestive heart failure, pneumonia, and respiratory failure. Due to the critical nature of his respiratory problems, R.H. was placed on a ventilator. As a ventilator patient, he did not fit the profile for obtaining wound care. Nonetheless, the hospital implemented various other measures to deal with R.H.'s pressure wounds.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Petitioner, Agency for Health Care Administration, imposing a fine in the amount of $500.00 in DOAH Case No. 09-5363 and a fine in the amount of $500.00 in DOAH Case No. 09-5364, Count VI. DONE AND ENTERED this 30th day of April, 2010, in Tallahassee, Leon County, Florida. R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of April, 2010.

Florida Laws (4) 120.569120.57395.1055395.1065 Florida Administrative Code (3) 59A-3.208559A-3.25359A-3.276
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BOARD OF MEDICINE vs. MOHEB ISHAD GIRGIS EL-FAR, 89-001507 (1989)
Division of Administrative Hearings, Florida Number: 89-001507 Latest Update: Oct. 30, 1989

The Issue The issue for consideration was whether the Respondent's license as a physician in Florida should be disciplined because of the alleged misconduct outlined in the Administrative Complaint filed herein.

Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Moheb Ishad Girgis El-Far was licensed as a physician in Florida under license number ME 0026895, and the Board of Medicine was the state agency responsible for the licensing and monitoring of physicians in this state. At all times pertinent to the issues herein, Respondent practiced medicine with a specialty in obstetrics at his clinic located a 401 East Olympic Avenue, Punta Gorda, Florida. Patient 2, C.L., first went to see Respondent at his office in Punta Gorda in January, 1989 because she was pregnant and had heard he was delivering babies in his office. She was referred to the Respondent by the Sarasota Health Department when she indicated she wanted to have her child in a birthing center. During that first visit, the doctor and patient agreed on a treatment plan which would culminate with the baby's being delivered in his office and C.L. paid for this pursuant to their agreement. During the period of the patient's prenatal care with the Respondent, he told her her baby was due on August 30, 1987, and when labor began, she was to come to his office and bring her own sheets. On August 24, 1987, C.L. began her labor and went to Respondent's office as agreed. By the time she got there, she was about ready to deliver and a few minutes after her arrival, she did so in a birthing room with her husband present. At the time of the delivery, both Respondent's wife and Ms. L.'s boss, neither of whom played any part in the proceedings, were standing in the doorway to the birthing room. No nurse was present and C.L. cannot recall seeing any sterilization or resuscitation equipment in the room. C.L. experienced little pain during the delivery, which appeared to go smoothly. Afterwards however, Respondent told her she had sustained an inverted uterus and when Respondent attempted to remove the afterbirth, she started to hemorrhage. When this happened, Respondent gave her a shot and towels with which she was to try to stem the bleeding while he tried to correct the uterine problem. He was unsuccessful and thereafter called the paramedics who came to his office and took C.L. to St. Joseph's Hospital in Punta Gorda for treatment. Respondent did not treat her at the hospital because he had no hospital privileges. While there she required 6 units of blood and 2 units of plasma. At no time during the course of her prenatal care did Respondent advise her to go to the hospital. She fully recovered. C.L. was shown pictures of Respondent's office taken by Department investigators at some time subsequent to her delivery. With the exception of the fetal monitor which she had seen in his office, the pictures she saw bore little similarity to the condition of the office whenever she was there. Though the office was not as messy as the pictures show, she was, nonetheless concerned about its condition at the time of her delivery. The carpet was dirty and so was the aquarium. She could not do anything about it at that time, however, and it was not so bad as to cause her to feel unsafe. S.K., Patient 1, first went to the Respondent for her pregnancy care in November, 1987 on a referral from a friend. They agreed on a fee of $1600.00 for prenatal care and delivery in his office. During these initial discussions, Respondent did not discuss in detail with the patient the possibility of complications. He stated only that if there were complications, they could probably be treated in the office. S.K. went to Respondent's office about 6 times after that initial visit. During this period, on an early visit, Respondent gave her some medicine samples and a prescription for vitamins. When she asked about the cost, he said he would include the cost of the samples when he billed her insurance company. During these visits, she also saw his personal office, an examining room, and a small room where the patient's blood pressure was taken. She noted that the office was not as clean and orderly as others she had seen, and in fact, was usually in a state of disarray. On one occasion when Respondent examined her, he was wearing a wrinkled shirt with a blood spot on it. The next time she went for a visit, Respondent was wearing the same shirt. S.K. was shown pictures of Respondent's office taken by investigators and several were similar to conditions she observed there. His personal office was not well organized and there was clutter about but not as aggravated as appears in the photos. Based on her experience with other doctors, Respondent's office was far more untidy and in disarray but not necessarily nonsterile or unsafe. On February 5, 1988, S.K. went to Respondent's office because she was having pains and thought she was in labor. When she called him and explained her symptoms, he told her to come in and he examined her when she did. He gave her something to calm her and to try to stop her labor in an attempt to save her baby. He gave her a shot of demerol and put her in an examining room to lie down. She slept there for quite a while with her husband present. When she awoke she again began to have pains but Respondent would not give her any more medicine. After a while, the baby spontaneously delivered while Respondent was sleeping in another room. He was called but by the time he came in, the baby was dead. He asked S.K. if she wanted to see the fetus but she declined. After a period of recovery, she was released to return home. When this patient came into the office that day and it appeared she was going to deliver, her husband asked Respondent if he thought she should be in the hospital. Respondent replied that it was up to her because the baby, if delivered, was too premature to survive. The decision not to go to the hospital was hers. Respondent did not try to dissuade her from going. In fact, in most ways she considered Respondent's treatment of her to have been satisfactory. During the period she was in his office Respondent was in and out of the room checking on her. The only complaint she has relates to his handling of the fetus she delivered. About 2 weeks after delivery she again went to see Respondent at his office where he showed her her baby which he had preserved in a jar of formaldehyde. This was a strange and sad experience for her. Mr. K. basically confirms that testified to by his wife. While she was in labor or sleeping prior to the delivery, he wandered about the building into other parts of the clinic. He also rested in one of the examining or birthing rooms and observed the general state of cleanliness of the facility was poor. For example, the floor and rugs were spotted throughout with a dark stain and the examining table also had a dark stain on it. These stains looked to him like blood. In addition, the hallway carpets were dirty, there were bags off debris laying out, spare pieces of wood were stacked in the halls, and medical instruments were left out in the birthing and examining rooms. In his opinion, many of the pictures shown to him displayed scenes similar to what he saw when he was there with his wife. Both Dr. Borris and Dr. Marley agreed that Respondent's treatment of Ms. K. had no relationship to her miscarriage. By the same token, neither claims that his treatment of Ms. L.'s inverted uterus was inappropriate. Both agree, however, that other factors in Dr. El Far's operation of his practice as regards both patients failed to conform to generally accepted standards of care in providing obstetrical services. Specifically, he failed to have a nurse present during the delivery; he failed to have emergency equipment in the form of resuscitative and lifesaving equipment available to handle potential surgical complications which might have arisen; he had no emergency backup care available; and he had no hospital privileges in Punta Gorda, the area in which he was engaged in an obstetrical practice. Without those privileges, it was not prudent for him to undertake a delivery in the office. While the prenatal care of patient 1 was within standards, the balance of Respondent's practice was below standards because: the patient was not monitored while in the office; if the conditions as appearing in the pictures existed at the time he was seeing patients, he did not meet sanitation standards because of the general disarray.; he attempted a delivery in his office when a hospital was only 1.5 miles away, (not prudent in light of the patient's condition when there was no emergency to justify it); and his records were not complete. The standard of a reasonably prudent physician is the same regardless of the locality. Acceding to the wishes of a patient, when to do so is not in the patient's best interests, is not necessarily acceptable medical care. Mr. Cook, the Department's investigator, inspected Respondent's office on September 16, 1988, in the company of investigator Clyne, as a result of a call he received from an agent of the Florida Department of Law Enforcement who was then on the premises. When they arrived, they observed a female sitting on the couch in the waiting room changing a baby's diaper. From conversation he had with Respondent at the time, Mr. Cook inferred the lady was a patient. In addition to the previously mentioned lady and the state investigative personnel, Cook also noticed two children, who Respondent indicated were his, running freely about throughout the building. Cook examined the patient log maintained by Respondent for that day and noted that two patients were scheduled. Nonetheless, while he was there, there were no nurses, receptionists or office staff present. Though Respondent claims he did not have any patients that day, and though Cook did not see any other than the lady aforementioned, from the patient log and the fact that at least one patient was there, it is found that Respondent was engaged in at least a minimum practice and was available to see patients. Mr. Cook observed conditions in Respondent's office on the day in question that were inconsistent with a proper medical practice. Trash was not contained, food was left open, and dust and dirt were in evidence, all in the area where medical services were or would be rendered. Mr. Cook took photos and a video tape of the condition of Respondent's office. The photos were those shown to the two patients who testified herein and to Mr. K. Though he looked throughout the office, Mr. Cook could find no sterilization equipment, no general anesthesia equipment, no blood transfusion equipment, and no emergency resuscitation equipment. When asked about his sterilization capability, Respondent stated his "heater" was broken and in for repairs. When during a visit to Respondent in October, 1988, Ms. Clyne told him he needed sterilizer equipment, he indicated it had recently been purchased. On that visit, Respondent had a patient in the office. Ms. Clyne again went to Respondent's office on February 15, 1989 and observed it to be still in a state of disarray. Ms. Hampton, another Department investigator, visited with Respondent in his office on January 11, 1989 and found it to be unsatisfactory. The waiting area was cluttered, the carpet was dirty, the walls stained, and magazines were laying around. The clinic area was piled up with mail leaving no counter space. Respondent took Ms. Hampton on a tour through the office during which she observed the computer, patient records, and the typewriter to be unclean. Her examination of the halls, examining rooms, birthing rooms, and the like revealed that in one room, a sink had an unclean speculum in it and others were lying about. The paper on one examining table was soiled and when Respondent saw that, he quickly tore it off. The spread in one of the birthing rooms was soiled and the floor needed sweeping. Trash cans were not lined and needed cleaning. The covering on the baby examining table was soiled and there were bloody cotton balls on a table in the room. She, too, saw no evidence of any sterilization, anesthesia, or emergency resuscitation equipment. On this visit, Respondent indicated he was not seeing any new patients; only those former patients who were still pregnant. Respondent indicates that during the period from July 4 through September 16, 1988 he had closed up his office for an extensive vacation and was living in his office on that latter date. He does not deny that his office was in the condition as depicted in the photos when they were made but contends he has since cleaned it up and put new carpet down. During the period his office was closed, he referred his patients to other doctors and has not been actively practicing while waiting for his malpractice insurance to come through. Respondent also does not deny that the Certificate of Education form he signed and submitted to the Board was in error. He contends, however, that at the time he signed it he believed it to be a certificate of regular continuing education hours, not a certification used for approval for dispensing drugs. He also claims that at no time did he intend to defraud the Board, and when Ms. Clyne brought the error to his attention, he wrote to the Board explaining what had happened. He contends that when he affirmed the statement that he had the appropriate hours, he considered the "a" in "affirm" to be a negative prefix indicating he did not have the required hours. This contention is both ingenuous and unbelievable. It is found that Respondent well knew the meaning and effect of the certification he signed and his affixing his signature thereto was both false and with intent to mislead.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license to practice medicine in Florida be suspended for two years and that he thereafter be placed on probation for an additional period of three years under such terms and conditions as are imposed by the Board of Medicine. RECOMMENDED this 30th day of October, 1989, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 30th day of October, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-1507 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings Fact submitted by the parties to this case. For the Petitioner: 1.- 3. Accepted and incorporated herein. Accepted and incorporated herein. Rejected in so far as it editorializes on the condition of the clinic. While below standard, there was no evidence of health hazard to patients. 6.-8. Accepted and incorporated herein. 9. & 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein Accepted and incorporated herein. Accepted. & 18. Accepted and incorporated herein. 19. Accepted. For the Respondent: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of expert testimony. Rejected as contra to the weight of the evidence. Accepted in so far as it finds that Respondent's performance of medical procedures was within standard. Rejected as to the finding that overall care and practice was within standards. Accepted. COPIES FURNISHED: Larry G. McPherson, Jr., Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 David K. Oaks, Esquire The Professional Center 201 West Marion Avenue Suite 205, Box 3288 Punta Gorda, Florida 33950 Kenneth E. Easley General Counsel DPR 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Board of Medicine DPRB 1940 North Monroe Street Tallahassee, Florida 32399-0792

Florida Laws (3) 120.57455.2275458.331
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs MARK N. SCHEINBERG, 10-010047PL (2010)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Nov. 03, 2010 Number: 10-010047PL Latest Update: Aug. 30, 2011

The Issue The issues in this case are whether Respondent, a physician specializing in obstetrics and gynecology, committed medical malpractice in delivering a baby and/or failed to maintain medical records justifying the course of the mother's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.

Findings Of Fact At all times relevant to this case, Respondent Mark N. Scheinberg, M.D., was licensed to practice medicine in the state of Florida. He is board-certified in obstetrics and gynecology. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Scheinberg. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Scheinberg committed two such offenses——namely, medical malpractice and failure to keep records justifying the course of treatment——in connection with the vacuum-assisted vaginal delivery of an infant born to Patient L.G. on February 2, 2005, at West Boca Medical Center. The crux of this case (though not the sole issue) is whether, as the Department contends, the standard of care required Dr. Scheinberg to perform a Caesarean section ("C- section") on L.G. due to the passage of time, instead of allowing her to continue to labor for approximately 13 hours and, ultimately, deliver vaginally. The events giving rise to this dispute began on February 1, 2005, at around 11:00 a.m., when L.G., whose pregnancy was at term, checked into the hospital after having experienced ruptured membranes. At 12:30 p.m. that day, L.G. signed a form bearing the title "Authorization for Medical and/or Surgical Treatment," which manifested her consent to a vaginal delivery or C-section together with, among other things, "such additional operations or procedures as [her physicians might] deem necessary." Immediately above L.G.'s signature on the form is an affirmation: "The above procedures, with their attendant risks, benefits and possible complications and alternatives, have been explained to me " The evidence is not clear as to when, exactly, Dr. Scheinberg first saw L.G., but that fact is unimportant. The medical records reflect that at 8:30 p.m. on February 1, 2005, Dr. Scheinberg gave a telephone order to initiate an IV push of the antibiotic Ampicillin; therefore, he had taken charge of L.G.'s care by that time. The nurses' notes indicate that at 10:00 p.m., L.G.'s cervix had dilated to "rim" or approximately nine centimeters—— meaning that the dilation was complete, or nearly so. At this time, and throughout the duration of L.G.'s labor, an external fetal heart monitor was in place to detect and record the baby's heartbeats and the mother's uterine contractions. An intrauterine pressure catheter ("IUPC")——a device that precisely measures the force of uterine contractions——was not inserted into L.G.'s uterus at any time during this event. The Department argues (although it did not allege in the Complaint) that, at some point during L.G.'s labor, the standard of care required Dr. Scheinberg either to place an IUPC or perform a C-section. Pet. Prop. Rec. Order at 10, ¶36. The Department's expert witness, Dr. John Busowski, testified unequivocally and unconditionally, however, that the standard of care does not require the use of an IUPC. T. 36. The undersigned credits this evidence and finds that Dr. Scheinberg's nonuse of an IUPC did not breach the standard of care. Dr. Scheinberg conducted a physical at around 2:00 a.m. on February 2, 2005, which included taking L.G.'s complete history and performing a vaginal examination. L.G.'s cervix remained dilated to approximately nine centimeters, and her labor had not substantially progressed for about four hours. Dr. Scheinberg noted in L.G.'s chart that the baby was in the posterior position at 2:00 a.m. The Department argues, based on Dr. Busowski's testimony, that as of 2:00 a.m., the standard of care required [Dr. Scheinberg to] choose one of the following options: (1) watch the patient for a few more hours to allow for progress; (2) place an IUPC to determine the adequacy of Patient L.G.'s contractions; (3) start Pitocin without the placement of an IUPC; or (4) perform a C- section. Pet. Prop. Rec. Order at 9-10, ¶ 32. The Department contends that Dr. Scheinberg breached the standard of care by choosing "simply to watch the patient for approximately 10 more hours"—— which was tantamount to "choosing to do nothing." Id. at 10, ¶¶ 33-34. In fact, Dr. Scheinberg chose to watch the patient, which was, according to Dr. Busowski, within the standard of care. Obviously, at 2:00 in the morning on February 2, 2005, Dr. Scheinberg did not choose to wait for 10 more hours, because at that point he (unlike the parties to this litigation) did not know what was about to happen. The nurses' notes reflect that L.G. was under close observation throughout the early morning hours, and that Dr. Scheinberg was following the situation. At 4:30 a.m., L.G. was set up to push and at 4:45 a.m. was pushing well. At 6:15 a.m., the notes indicate that Dr. Scheinberg was aware of the mother's attempts to push. At 6:45 a.m., he reviewed the strips from the fetal heart monitor. At 7:45 a.m., he was present and aware of L.G.'s status. From 7:00 a.m. until 8:00 a.m., no contractions were identifiable on the external monitor. At 8:00 a.m., however, L.G. was comfortable and pushing well. She stopped pushing at 8:30 a.m., but remained comfortable. Dr. Scheinberg then ordered the administration of Pitocin, a medicine which is used to strengthen contractions and hasten delivery. Although the Department faults Dr. Scheinberg for giving L.G. Pitocin at this relatively late stage of her labor, Dr. Busowski (the Department's expert witness) admitted being unable to say "that Dr. Scheinberg should have started Pitocin earlier " T. 72. The Department therefore has no clear evidential basis for second-guessing Dr. Scheinberg's professional judgment in this particular, and neither does the undersigned. At 9:10 a.m., L.G. resumed pushing. The baby's fetal heart tones (heartbeats) were stable. L.G. continued pushing, with her family present, until around 11:00 a.m., at which time Dr. Scheinberg discussed the situation with the patient and her family. Dr. Scheinberg explained to L.G. or her husband the risks of, and alternatives to, performing a vacuum-assisted vaginal delivery. Either L.G. or her husband gave verbal consent to the use of a vacuum device to assist in the delivery. Between 11:00 a.m. and 11:10 a.m., the fetal heart monitor detected some variable decelerations, meaning a decrease in heart rate that could be a sign of fetal distress. Dr. Scheinberg delivered the baby at 11:23 a.m., using a vacuum device to help pull the infant out of the birth canal. In his post-operative notes, Dr. Scheinberg wrote that his "pre-operative diagnosis" was "+3 station — prolonged second stage 2½ hrs." As a "post-operative diagnosis," Dr. Scheinberg recorded, "same + tight cord." He reported the following "findings": "tight cord cut on perineum[;] mec[onium] aspirated on perineum."

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Scheinberg not guilty of the charges set forth in the Complaint. DONE AND ENTERED this 20th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of June, 2011.

Florida Laws (7) 120.569120.57120.60120.68456.073458.331766.102
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BOARD OF NURSING vs DELORES GROCHOWSKI, 91-001775 (1991)
Division of Administrative Hearings, Florida Filed:Fort Lauderdale, Florida Mar. 21, 1991 Number: 91-001775 Latest Update: Apr. 01, 1992

Findings Of Fact At all times material hereto, Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0867041. At all times material hereto, Respondent was employed by American Nursing Service, Fort Lauderdale, Florida, and was assigned to work at Broward General Medical Center, Fort Lauderdale, Florida. On July 30-31, 1989, Respondent worked both the 3:00 p.m. to 11:00 p.m. and the 11:00 p.m. to 7:00 a.m. shifts at Broward General Medical Center. She was responsible for 20 patients on that double shift. An hour or two before her double shift ended, she checked the I.V. of a patient near the end of the hall. The I.V. was not running, and Respondent attempted to get it running again by re-positioning the I.V. several times. She then went to the medication room and obtained a syringe to use to flush the I.V. to get it operating again. When she returned to the patient's room, the I.V. was running and Respondent tucked the syringe inside her bra. The syringe was still packaged and unopened. She then continued with her nursing duties. At 7:00 a.m. on July 31, while Respondent was "giving report" to the oncoming nursing shift and making her entries on the charts of the patients for whom she had cared during the double shift she was just concluding, one of the other nurses noticed the syringe underneath Respondent's clothing. That other nurse immediately reported the syringe to her own head nurse who immediately reported the syringe to the staffing coordinator. The head nurse and the staffing coordinator went to where Respondent was still completing the nurse's notes on the charts of the patients and took her into an office where they confronted her regarding the syringe. They implied that she had a drug problem and offered their assistance. Respondent denied having a drug problem and offered to be tested. They refused her offer to test her for the presence of drugs. Instead, they sent her off the hospital premises although she had not yet completed making her entries on the patient's charts. Hospital personnel then went through Respondent's patients' charts and found some "errors." A month later an investigator for the Department of Professional Regulation requested that Respondent submit to a drug test on one day's notice. She complied with that request. She asked the investigator to go with her to Broward General Medical Center so that she could complete the charts on the patients that she had not been permitted to complete before being sent away from the hospital. Her request was denied. At some subsequent time, the Department of Professional Regulation requested that Respondent submit to a psychological evaluation. She did so at her own expense and provided the Department with the results of that evaluation. Respondent has had no prior or subsequent administrative complaints filed against her.

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty and dismissing the Second Amended Administrative Complaint with prejudice. RECOMMENDED this 18th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1775 Respondent's proposed findings of fact numbered 1-3, 6, and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed finding of fact numbered 5 has been rejected as being subordinate. COPIES FURNISHED: Jack McRay, General Counsel Department of CProfessional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation/Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Roberta Fenner, Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christopher Knox, Esquire 4801 S. University Drive, #302 W. Box 291207 Davie, Florida 33329-1207

Florida Laws (3) 120.57120.68464.018
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs NEELAM TANEJA UPPAL, M.D., 13-000595PL (2013)
Division of Administrative Hearings, Florida Filed:Lauderdale Lakes, Florida Feb. 18, 2013 Number: 13-000595PL Latest Update: Jan. 09, 2015

The Issue Whether Respondent violated sections 458.331(1)(m), (q), and (t), Florida Statutes (2007-2011), and, if so, what discipline should be imposed.

Findings Of Fact The Parties DOH is the state agency charged with regulating the practice of licensed physicians pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. DOH is pursuing sanctions against Respondent based on her provision of medical care to patients A.M., C.B., and P.A. At all times relevant to this case, Respondent was licensed as a medical doctor within the State of Florida, having been issued license number ME 59800. Respondent is board certified by the American Board of Internal Medicine with a specialty in Infectious Disease. Respondent received her medical degree from Christian Medical College in India in 1984. Her medical career, according to her curriculum vitae, includes the following places of employment: 1996 Bay Area Primary Care 1997 American Family and Geriatrics 1998 Faculty appointment at University of South Florida – voluntary 2/99-11/99 Veteran’s Administration (Medical Officer on Duty) 1993-present Private Practice Respondent’s June 30, 2014, deposition testimony was that she is currently working as a medical provider at Fort Tryon Rehab and Nursing Home in New York, and prior to that she was working at a walk-in clinic in Queens, New York. Respondent testified that she currently resides in Pinellas Park, Florida. In 2008, Respondent’s Florida practice, Bay Area Infectious Disease (BAID), was located at 5840 Park Boulevard, Pinellas Park, Florida, and most recently at 1527 South Missouri Avenue, Clearwater, Florida. Each practice location is now closed. Respondent later testified that she had a practice located at 6251 Park Boulevard, Pinellas Park, Florida, which is also closed. Jamie Carrizosa, M.D. (Dr. Carrizosa) is a board- certified internal medicine and infectious disease physician who testified as an expert for DOH. Prior to his retirement in July 2011, Dr. Carrizosa had an active medical practice including hospital privileges. He is currently an Associate Professor of Medicine at the University of Central Florida, teaching first and second year students in the areas of microbiology and immunology. While in private practice, he treated patients with suspected skin infections, MRSA skin infections, candidiasis and other types of skin diseases. Issa Ephtimios, M.D. (Dr. Ephtimios) is a board- certified physician in internal medicine, infectious diseases and infection control who testified as an expert for Respondent. He is an attending physician at Sacred Heart Hospital, West Florida Hospital, Baptist Hospital, and Select Specialty Hospital in Pensacola, Florida. DOH Case No. 2009-13497 (DOAH Case No. 13-0595PL) On October 8, 2008, A.M. presented to Respondent with complaints of fatigue, headaches, and moodiness, according to a History and Physical Medi-Forms document. A BAID contract for services and an authorization for BAID to disclose protected health information (PHI) were executed on October 8. Within the records there was a diagram that contained pictures of a front and back body diagram and the handwritten words: “fatigue cold sweats fevers headaches.” Neither A.M.’s name nor the date appeared on the diagram, yet Respondent identified the diagram as belonging to A.M. and showing A.M.’s small lesions. On October 9, A.M. executed a Bay Area Infectious Disease and Infusion, PLC, “CONSENT FOR TREATMENT” form. Respondent’s progress notes are generally listed in the S.O.A.P. format.16/ The following appeared on one of A.M.’s October 9th Progress Notes: S: Complaint: MRSA,17/ headecha [sic], she like [sic] to talk W Dr. Pimple on but [sic] 3 rounds Zyvox, [illegible] c/o lethargic, gain wt, fatigue, headaches Pale, feets [sic] not Percocet –[illegible].” O: Exam: Ht 5.6” Wt 172 Age 16 M/F BMI T BP 118/64 P 65 R PO2 99_ Gluc A: General Appearance: WNL/18 HEENT: WNL Neck: WNL Chest: WNL Breast: WNL Heart: WNL Lungs: WNL Abdomen: WNL Genitalia: WNL Skin: WNL + multiple abcees [sic] Spine: WNL Extremities: WNL [All the “WNL” were typed capital letters.] DIAGNOSIS: Skin Abcess- Buttock, leg MRSA – Community Acquired P: PLAN: Vancomycin 1 gr daily [illegible] A second Progress Note for A.M., also dated October 9, contains the same information in the “S” and “O” portions, but at the “A” portion, it has no notations other than the pre-printed “WNL” at the “Skin” section, and it does not contain a “Diagnosis.” Respondent admitted that there were times when she would “complete records later on.” Respondent’s progress notes for A.M. from October 10 through October 16 were in a slightly different SOAP format. A.M.’s October 10 Progress Note reflects the following: S: Complaint: Vanco reaction O: Examination: BP P T R HT WT PO2 Glucose General Appearance; Awake alert,orientedx3 Head: Normocephalic atraurmatic EENT: PERLA, EOMI,Sclera-non-icteric, conjunctiva-pink Neck: Supple, no JVD. No Lymph nodes Heart: S1 S2 normal, murmurs Lungs: clear Abdomen: Soft, no masses, no tenderness, BS+, no hepatomegaly, no splenomegaly Left Lymph-inguinal: WNL Right Lymph-inguinal: WNL Extremities: No clubbing, cyanosis, edema Neurological: Motor-5/5, sensory-5/5, Deep tendon reflexes 2+ Cranial nerves Intact Skin: no rashes + circled Abscess Muskuloskeletal: WNL CLINICAL ASSESSMENT: MRSA, Skin Abcess CVIO PLAN: Zyvox A.M.’s progress notes between October 11 and 31, 2008, reflect various subjective complaints regarding her skin conditions. The physical examinations for each day do not contain consistent information regarding A.M.’s blood pressure, her height, weight, respirations, PO2, and glucose. On two days the “skin” section reflected “no rashes,” yet the clinical assessment reported “Skin Abces – improvely” [sic] or just “skin abcess.” On three progress notes (October 17, 18 and 20, 2008), there is a hand-written notation at the “Heart” section which indicates that A.M. might have a heart murmur, yet in the diagnosis section there is no mention of a heart issue or endocarditis.19/ All other progress notes regarding the “heart” contain the pre-printed “WNL.” A.M.’s IV/IM procedure notes beginning on October 10 and continuing through October 31, each reflect “heart murmur” in the diagnosis section along with “MRSA Skin abcess.” Respondent testified that she felt justified in using IV Vancomycin because A.M. was “doing the heart murmur.” However, Respondent’s initial plan included Vancomycin before any heart murmur was detected or assessed. Vancomycin is a prescription medication used to treat staphylococcal infections, and is usually utilized for more serious infections such as endocarditis. Zyvox is a prescription medication that comes in either an IV or oral form used to treat infections. Respondent claimed that there were missing medical records for A.M. However, with respect to patient A.M., Respondent claimed a progress note (part of the history and physical exam) from October 8 was the only medical record that was missing. Respondent then asserted that A.M. brought in her primary doctor’s referral which reflected A.M.’s treatment, including the medication prescribed; yet those medical records are not present. Respondent further testified that she “usually” puts prior treatment provider records in her patient’s file. Respondent maintained that she kept a lot of A.M.’s medical records on a computer that was bought in January 2001. However, that computer crashed in October 2011. A computer crash is plausible; however, the DOH subpoena was properly issued and served on Respondent on January 28, 2010, more than nine months before the alleged computer crash. Respondent then claimed that she “did not have access to that computer, which later crashed,” followed by her claim that “that practice was closed and when they came here, we only had the old, whatever, paper records.” Respondent’s position on these records was disingenuous at best. Respondent claimed that A.M. was seen and her medical records were at a different location (6251 Park Boulevard) than where the subpoena was served (5840 Park Boulevard).20/ Respondent then claimed the records that were moved from one facility to another facility could not be located. Respondent alluded to a potential police report regarding an alleged theft of medical records and other office items; however, nothing substantiated that, and Respondent’s testimony about possible criminal activity is not credible. Respondent admitted that some of A.M.’s medical records, specifically progress notes, were pre-printed, and that she wrote on some of the progress notes. In the progress notes dated October 10, 11, 13 through 18, 20 through 25, and 27 through 30, the handwriting appears to be the same, except for the change in each date. Further, Respondent confirmed A.M.’s 18 pages of progress notes of Vancomycin administration, yet distanced herself from them by saying “sometimes the charts were completed later on, so it’s possibility that it -- that it -- you know, it’s progress notes for the IV administration, but – um . . . the dates are written by nurses, so I don’t -- I don’t know.” Respondent’s inability or unwillingness to identify who may have written on A.M.’s progress notes and her avoidance in answering direct questions or claiming she did not recall the patient (and then discussing the patient) greatly diminished her credibility. Respondent claimed that there were “some verbal changes” she gave that were in a “set of nursing records,” which were not present. Any “changes” or directions given by Respondent should have been contained within her medical records for the care of A.M. Respondent maintained that her diagnosis of A.M. was based on Respondent’s total clinical picture of A.M., including A.M.’s “symptoms, her presentation, her lesions, her course -- she’d had repeated courses of oral antibiotics, and was getting recurrence.” Yet, Respondent also claimed A.M. “came in with these culture results from the primary, and that’s how the staff . . . it states MRSA, because it was already documented MRSA.” Standard of Care Respondent was required to practice medicine in her care of A.M. with “that level of care, skill, and treatment which is recognized in general law related to health care licensure.” Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of A.M. violated the standard of care for the following reasons. A reasonably prudent health care provider suspecting a patient has MRSA would observe the abrasion(s), culture the abrasion (MRSA), send the culture out for laboratory confirmation, prescribe oral antibiotics, and if the MRSA does not respond to the oral antibiotics, prescribe and administer IV antibiotics. Dr. Carrizosa noted that Respondent did not provide a description of A.M.’s abscesses, did not indicate that A.M.’s abscesses were drained, incised, cleaned or bandaged, or that Respondent provided any patient education to A.M. Although labs were ordered, there was no request for a bacterial culture or for an antimicrobial susceptibility test to be completed. Dr. Carrizosa expressed concern that young people can eliminate antibiotics within six to eight hours and there is a need for monitoring their medications to ensure they maintain a therapeutic level. Dr. Carrizosa opined that Respondent did not meet the standard of care in her treatment of A.M. The evidence clearly and convincingly establishes that Respondent violated the standard of care applicable to an infectious disease practitioner. Respondent presented the deposition testimony of Dr. Ephtimios. Dr. Ephtimios reviewed the same records as Dr. Carrizosa. Dr. Ephtimios admitted he had several lengthy conversations with Respondent during which time she provided additional information to Dr. Ephtimios that was not in A.M.’s written records regarding “the rationale for using the Vancomycin.” Respondent shared additional information with Dr. Ephtimios yet failed to recall or remember the patient during her own deposition testimony. Dr. Ephtimios’ opinion is not credible. Respondent’s deposition behavior lessens her credibility. Medical Records Medical records are maintained for a number of reasons. Primarily, medical records are necessary for the planning of patient care; for continuity of treatment; and to document the course of the patient’s medical evaluation, treatment, and progression through treatment. Further, medical records should document any communications between health care providers, and they serve as a basis for health care providers to be paid by either the patient or another party. See, rule 64B8-9.003. The medical records of A.M.’s contact with Respondent’s office between October 8, 2008, and October 31, 2008, do not meet Florida’s standards for medical records. A.M.’s records do not describe the abscesses, do not indicate if any of the abscesses were drained, incised, or cultured. Respondent failed to provide any assessment of a staph infection or provide any laboratory support for the use of the medication administered. Respondent did not document A.M.’s possible heart murmur, and failed to provide a diagnostic basis for endocarditis. Further portions of the medical record are illegible. There is no clear indication that Respondent provided A.M. with any education on her condition. Inappropriate Drug Therapy Respondent authorized the administration of Vancomycin and/or Zyvox to a 16-year-old female without adequately monitoring A.M.’s condition, or documenting the need for such use. Respondent’s failure to document the need for Vancomycin through appropriate or adequate testing was not in the best interest of A.M. DOH Case No. 2011-06111 (DOAH Case No. 14-0514PL) On February 28, 2011, patient C.B., a 42-year-old female, presented to Respondent with complaints of food allergy issues, and gastrointestinal problems, gas, bloating, and other stomach issues.21/ When she presented to Respondent in February 2011, C.B. did not have any concerns about candida or thrush.22/ Respondent prescribed a Medrol Pak (a steroid) and directed C.B. to have lab tests for the candida antibody and an immune system panel. One week later, C.B. again presented to Respondent. C.B. did not have any of the symptoms for a chronic yeast infection such as vaginal itching or thrush. Respondent advised C.B. that she had a chronic yeast infection and her immune system required treatment. However, Respondent did not prescribe any medication to C.B. at that time. On March 14, 2011, C.B. returned to Respondent’s office and received Immunoglobulin23/ via an intravenous (IV) line. On March 22, 24 and 25, 2011, C.B. received IV Ambisome.24/ Thereafter, C.B. developed a rash on her arm where the IV had been placed and a papule on her stomach. C.B. declined further IV treatments because she did not think the medication was working. On March 29, Respondent prescribed VFEND25/ to C.B. On March 30 and 31 and April 1, 2011, C.B. was a “no show” at Respondent’s office. Yet each of C.B.’s progress notes contained information regarding C.B.’s general appearance. Respondent testified that those progress notes are preprinted forms and would be adjusted upon a patient’s examination. On April 4, 2011, Respondent’s progress note for C.B. reflects “Discuss with patient in detail, patient complains of one papule, advised patient about candidiasis, GI tract not responding to azoles. Complains of diarrhea, abdominal symptoms, wants IV meds.” C.B.’s progress note dated April 5, 2011, reflects under the “S: COMPLAINT: No show - Refused to get PICC line out. Patient walked out yesterday. Patient was told to wait for dressing change. Patient states to receptionist she will come today.” Respondent elected to document on April 5, something that happened on April 4, despite the fact that the progress note for April 4 reflected a discussion with C.B. On April 11, 2011, C.B. presented a request for her medical records to Respondent’s staff. C.B. received copies of her medical records and provided them to DOH. Respondent testified as to C.B.’s 2011 presentation and Respondent’s course of treatment, including what medications were prescribed. Respondent confirmed that an undated “History and Physical” (H&P) for C.B. was C.B.’s “initial history and physical” created from a template. This H&P purports to reflect that C.B. was “discharged [from Respondent’s practice] for misbehavior . . . was in jail. . . [and] begging [for Respondent] to help her.” This H&P also contained Respondent’s physical examination of C.B., which was recorded on a “Progress Note” of the same date. Differences in the two records of the same date exist. C.B. testified that she has never been in jail and that she had not been discharged from Respondent’s practice. C.B. is found to be a credible witness. Respondent’s testimony is not credible. Respondent averred that she discussed C.B.’s vaginal itching with C.B. during the March 7, 2011, office visit, yet Respondent did not prescribe any medications for C.B. C.B.’s first IV immunoglobulin was administered on March 14, a week later. Respondent claims she discussed her care and treatment with C.B. on Wednesday, March 23, 2011. C.B. did not see Respondent on March 23, as C.B. went to Respondent’s office located on Park Boulevard in Pinellas Park and that location was closed. C.B. found out that Respondent was working at an address in Clearwater. C.B. did not have adequate time to get to that Clearwater location before it closed for the day. Thus, C.B. missed the appointment on that day. C.B.’s candid and succinct testimony is credible. Respondent testfied that certain medical records for C.B. were missing: anything that was documented electronic or anything -- any reports or any old records, old reports, it doesn’t contain anything. And she came in for the treatment of a disease that’s been existing since 2006, so a lot of workup that’s done in the prior years for -- which is the relevant basis of the treatment at this point is not there. Respondent was not clear which medical records were missing. C.B. had not been a patient of Respondent for approximately two years. Respondent’s reliance or purported reliance on C.B.’s “old records, old reports” without adequate confirmation of C.B.’s current health issues via appropriate work-ups, laboratory studies and tests falls below the reasonably prudent similar health care provider standard. Standard of Care Respondent was required to meet the same standard of care as outlined in paragraph 25 above. Dr. Carrizosa’s testimony was clear, concise, and credible. He did not appear to have any prejudice against Respondent as a person, but was concerned about how she was practicing medicine. Based on the credited opinions of Dr. Carrizosa, Respondent’s treatment and care of C.B. violated the standard of care for the following reasons. Respondent failed to practice in such a manner as to determine within a reasonable degree of medical certainty that C.B. had systemic candida as was diagnosed by Respondent. Further, the laboratory results were not positive for an antimicrobial sensitivity culture taken from C.B. Additionally, C.B.’s complete blood count (CBC) and the differential count, which included neutrophils and lymphocytes, were normal. The administration of Ambisome, the most expensive of all the drugs available, was not warranted as C.B. did not have systemic candidiasis. Further, the immunoglobulin treatment was inappropriate as there was no evidence that C.B. had an immune dysfunction. Medical Records Dr. Ephtimios also provided an opinion on behalf of Respondent. Dr. Ephtimios had a discussion with Respondent regarding the care and treatment provided to C.B. outside the medical records provided. Dr. Ephtimios admitted that he does not use a Medrol Pak in his practice; he does not feel comfortable practicing immunology (and would have referred C.B. out to an immunologist.) Dr. Ephtimios would not have ordered the laboratory tests that Respondent ordered; his understanding of what candidiasis means may differ from Respondent’s, and he speculated on what he thought Respondent “meant” in several instances. Dr. Ephtimios provided a somewhat exhaustive approach to the various forms of candidiasis; however, he qualified each approach. Each physician practices medicine using their own skill set and different methods of providing clinical assessments and treatment. However, Dr. Ephtimios provided various qualifiers to his opinion which rendered it less credible. The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. The medical record of C.B.’s contact with Respondent’s office during this time does not meet Florida’s standards for medical records. C.B.’s records do not reflect an appropriate evaluation, as they fail to analyze C.B.’s main complaints, they fail to analyze the previous evaluations of C.B., and her physical exams were incomplete. DOH Case No. 2011-17799 (DOAH Case No. 14-0515PL) According to Respondent, patient P.A., a 38-year-old female, was “an ongoing patient [of hers] for over ten years.” Respondent saw P.A. between February 2008 and December 2011. Respondent provided medical records to DOH regarding P.A. However, Respondent admitted she did not provide all P.A.’s medical records because “a lot of records were missing,” and Respondent knew “at one point when they were very old records in the 6251 office some of them were also shredded.” Respondent further claimed in response to additional questioning about her shredding statement, [B]ecause the statute says, you know, after three years, so I’m not sure if the -- because I know some of the records were shredded by one of the secretaries. * * * The one [statute] which says once a practice is closed retain records for three years. Respondent identified one of P.A.’s progress notes (dated January 26, 2011) as “our procedure note,” but when asked “What was going on here according to these notes,” Respondent answered: “It’s hard to say. It’s not my handwriting.” Respondent could read the handwriting, but had “no clue” who wrote the progress note. Further, Respondent was unable to state if P.A. was administered either the gentamicin 40 milligrams or the clindamycin 600 milligrams as listed on the progress note. Medical Records The basis for creating, maintaining and retaining medical records is expressed in paragraph 25 above. In this instance, the testimony of Respondent clearly and convincingly proves Respondent violated section 458.331(1)(m) and rule 64B8-9.003. No evidence was presented that Respondent has been previously disciplined.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order finding that Respondent, Neelam Uppal, M.D., violated section 458.331(1)(m), (q) and (t), Florida Statutes; suspending her license for six months followed by two years probation with terms and conditions to be set by the Board of Medicine; imposing an administrative fine of $10,000.00; requiring the successful completion of a course or courses to make, keep and maintain medical records; requiring a course in professional responsibility and ethics, and such other educational courses as the Board of Medicine may require; and assessing costs as provided by law. DONE AND ENTERED this 17th day of September, 2014, in Tallahassee, Leon County, Florida. S LYNNE A. QUIMBY-PENNOCK 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 17th day of September,2014.

Florida Laws (16) 120.569120.57120.6820.43381.0261440.13456.013456.057456.061456.072456.073456.079456.50458.331627.736766.102 Florida Administrative Code (1) 28-106.217
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HENRY M. RUBINSTEIN, D. C. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 98-002772 (1998)
Division of Administrative Hearings, Florida Filed:Miami, Florida Jun. 16, 1998 Number: 98-002772 Latest Update: Aug. 20, 2001

The Issue The issue for determination is whether Petitioner is liable for overpayment of Medicaid claims for the period from 9/1/94 through 9/30/96, as stated in Respondent's Final Agency Audit Report dated May 5, 1998.

Findings Of Fact At all times material hereto, the Agency for Health Care Administration (Respondent) was the state agency charged with administration of the Medicaid program in the State of Florida pursuant to Section 409.907, Florida Statutes. At all times material hereto, Henry M. Rubinstein, D.C., (Petitioner) was a licensed chiropractor in the State of Florida and was providing chiropractic services to Medicaid recipients. Petitioner provided the services pursuant to a contract with Respondent under the Medicaid provider number 0503517-00. His Medicaid patients for years have included children and multi-handicapped children. Petitioner has published in peer review journals and is a board certified chiropractor. Dennis L. Jones, D.C., is a licensed chiropractor in the State of Florida. 1/ He was involved in the creation of Florida's Medicaid program and monitors the Florida Chiropractic Medicaid Program. Dr. Jones also serves as a Medicaid chiropractic consultant, including the issuance of prior authorizations for treatment. Prior authorizations are required for a chiropractor to provide and bill for visits by Medicaid recipients in excess of the set limited number. The maximum number of visits allowed per year prior to July 1, 1994, was 12, and after July 1, 1994, was 24. After July 1, 1994, prior authorization was required for visits beyond 24 for Medicaid recipients under the age of Prior authorization was granted for requests that demonstrated medical necessity. Dr. Jones denied many of Petitioner's requests for prior authorization. He denied the requests on the basis that the treatments were extending for periods of up to two years without detailed explanation of medical necessity to substantiate such extended periods of care. Dr. Jones observed that Petitioner's requests for such extended care routinely lacked substantiation and documentation for such extended care, such as x-rays, orthopedic and neurological findings, and subjective/objective descriptions. However, Dr. Jones granted some of Petitioner's requests for prior authorization to exceed the maximum number of visits. Dr. Jones had concerns as to the sufficiency of the documentation of Petitioner's requests for prior authorizations. As a result, when such requests were granted, Dr. Jones noted on the request forms that supplemental medical necessity needed to be documented more completely in the future. In 1996, Dr. Jones related his concerns about Petitioner in a letter to Respondent and included with the letter prior authorizations for primarily special needs children covering the years 1994 through 1996. Twenty-nine prior authorizations were included, with 25 of them for special needs children. His concerns related primarily to Petitioner's Medicaid patients who were special needs children and for whom Dr. Jones had reviewed only prior authorizations submitted by Petitioner. Further, in his letter, Dr. Jones requested an investigation into possible patient brokering, a criminal act. However, a request from a complainant for an investigation into a particular area of alleged violation does not prevent Respondent from identifying and investigating other areas of possible violation revealed by the documents provided. Dr. Jones' letter was referred to one of Respondent's employees, Judith M. Jensen. At that time, Ms. Jensen was also in the process of reviewing another complaint lodged against Petitioner by Dr. Jones, regarding prior authorizations for children, but covering a different time period--from 1993 through 1995. Ms. Jensen was, and is, employed by Respondent as a Human Services Program Specialist. Her duties include monitoring Medicaid claims and investigating Medicaid complaints and aberrant billings for Respondent's Medicaid Program Integrity Office. In investigating all billing irregularities or specific complaints, a review is typically made of the Medicaid provider's medical records. Substantiation of Medicaid claims that are submitted and paid is by adequate and proper medical record documentation. An audit, based upon a billing irregularity or complaint, is usually begun with the selection of a provider or a group of providers. Next, a sample of the chosen provider's Medicaid claims is chosen for a particular time period, which is the audit period. An analyst for Respondent then requests from the provider the medical records for the Medicaid recipients sampled for the audit period. The medical records are provided to and analyzed by a medical peer reviewer. If the medical peer reviewer recommends denial of payment for any of the claims, resulting in overpayment, Respondent forwards a preliminary audit letter to the Medicaid provider, describing the audit findings and requesting any supplemental medical records. A review of any submitted supplemental medical records is conducted, and the audit findings are adjusted in accordance with the results of the review. If an overpayment continues to be indicated after the review, Respondent forwards a final audit letter to the Medicaid provider. Respondent has a limited number of analysts and medical peer reviewers. Due to such constraints on Respondent, sampling is utilized due to its reliability, cost-effectiveness, and commonly accepted method for review of high volumes of Medicaid claims. Ms. Jensen initiated Respondent's review of Petitioner's Medicaid claims. She began the audit by requesting an ad hoc computer report on Petitioner's billing history for all Medicaid recipients under the age of 21 for the time period from 9/1/94 through 9/30/96. Ms. Jensen's request concentrated only on Medicaid recipients under the age of 21 because Dr. Jones alerted Respondent primarily to prior authorizations for children. Ms. Jensen received the ad hoc computer report, which was a detail of all of Petitioner's Medicaid billings for Medicaid recipients under the age of 21 for the period from 9/1/94 through 9/30/96. The report provided that for the time period indicated, Petitioner billed and was paid for 4,499 claims for 85 recipients, for a total amount of $71,731.30. Having received this information, Ms. Jensen requested a computer-generated selection of a random sample of 20 recipients from the total population of the 85 recipients. Twenty recipients were randomly selected from the total population of the 85 recipients, which showed, among other things, claims totaling 1,307 and payment for the claims totaling $20,710.69. Afterwards, Ms. Jensen requested Petitioner to provide all the medical records for the 20 sampled recipients for the time period from 9/1/94 through 9/30/96. Petitioner complied with Ms. Jensen's request. Having received the medical records, Ms. Jensen engaged a peer review consultant, Dr. Ronald J. Hoffman, D.C., to evaluate the records submitted by Petitioner. She provided the medical records to Dr. Hoffman.. 2/ He was provided with the medical records of only 10 Medicaid recipients on two separate occasions, instead of all 20 at the same time. The Medicaid recipients' medical records were not "sanitized" when they were submitted to Dr. Hoffman, meaning that the names of the Medicaid recipients and provider, Petitioner, were not redacted. Dr. Hoffman, as a peer reviewer, rarely reviews files which have been sanitized. The failure to sanitize the medical records found to be of no consequence to Dr. Hoffman's determinations. Dr. Hoffman is a licensed chiropractor in the State of Florida and has been practicing for over 30 years. His practice includes patients who are pediatric and multi-handicapped, but these patients comprise a very small number of his patients. He performs chiropractic Medicaid utilization review for Respondent and is a Medicaid provider. He has performed chiropractic utilization review for more than 15 years. For the Medicaid program, Dr. Hoffman has been a consultant since 1997, but Petitioner's review was the first peer review performed by Dr. Hoffman for the Medicaid program. When Dr. Hoffman performs peer reviews for Respondent, he relies upon State statutes and Respondent's guidelines, specifically, The Chiropractic Coverage and Limitation Handbook, and his years of experience Dr. Hoffman is knowledgeable about what a medical record should contain in order for the medical record to demonstrate medical necessity for Medicaid reimbursement purposes. The medical record should contain the complete medical history; an examination showing the condition of the patient and why the patient is being treated; symptoms; standardized testing, including orthopedic and neurological tests; treatment notes; a treatment program; objective findings; special procedures; and an evaluation of the patient's progress. 3/ Petitioner agrees that, according to the Medicaid provider reimbursement handbook, the following are requirements for medical records: patient history; chief complaint for each visit; diagnostic tests and results; diagnosis; treatment plan, including prescriptions; medications, supplies, scheduling frequency for follow-up or other services; progress reports, treatment rendered; original signatures and dates; dates of service; and referrals to others. Dr. Hoffman was aware from review of the medical records provided by Petitioner that the Medicaid recipients were special needs children. However, he was unaware of Florida's special needs statutes (Subsections 409.803(1)(c) and 409.9126(1)(b), and Section 409.9121, Florida Statutes), which address, among other things, health care needs for special needs children, and he did not use the statutes in his determination. The failure to use the special needs statutes had little or no effect on Dr. Hoffman's review. The undersigned is persuaded and a finding of fact is made that Dr. Hoffman's failure to use the special needs statutes in his review did not invalidate his determinations. Dr. Hoffman was tendered and is accepted as an expert in chiropractic medicine. He is also found to be an appropriate peer reviewer for Petitioner's situation. Dr. Hoffman's testimony is found to be credible. After having reviewed the medical records, regarding the 20 randomly sampled Medicaid recipients, pursuant to Respondent's Medicaid peer review, Dr. Hoffman produced two reports of his findings. 4/ During his review, Dr. Hoffman considered all of the Medicaid recipients' visits, including those that had been granted prior authorization. Patient 1 was recipient K.K., with a date of birth of 5/18/86. 5/ Dr. Hoffman's opinion was that Patient 1's medical records did not support a finding of medical necessity. The medical records failed to support justification for Patient 1's 198 visits from 11/10/94 through 9/10/96. X-rays contained in the medical records were of such poor quality that they were of no diagnostic value; however, the x-rays were not a factor in the determination of medical necessity. Petitioner's medical notes were practically the same for each visit, with Petitioner noting practically the same comment(s); and there was no recorded orthopedic or neurological testing and no standard chiropractic evaluation forms justifying the number of treatments billed. Patient 1's medical records failed to demonstrate medical necessity for the visits. For Patient 1, 198 claims were paid in the amount of $3,081.30. Prior authorizations granted totaled $2,964. 6/ Patient 2 was recipient N.M., with a date of birth of 8/11/83. Dr. Hoffman's opinion was that Patient 2's medical records lacked documentation demonstrating that the treatments were a medical necessity for Medicaid reimbursement purposes for the 175 visits from 7/12/94 through 6/27/96. The medical records contained no standard medical notes or examination forms and no orthopedic, neurological or chiropractic examination forms to justify treatments; and were redundant and repetitive. X-rays contained in the medical records were of such poor quality that they were of no diagnostic value; but, the x-rays have no impact on the determination of medical necessity. Patient 2's medical records failed to demonstrate medical necessity for the visits. For Patient 2, 175 claims were paid in the amount of $2,726.50. Prior authorizations granted totaled $2,964. Patient 3 was recipient D.A., with a date of birth of 4/6/89. Dr. Hoffman's opinion was that Patient 3's medical records lacked justification for the 173 visits from 8/23/94 through 7/30/96. The medical records contained no standard procedures performed by an acceptable chiropractic physician licensed in the State of Florida. The medical records also indicated that a medical radiologist, Dr. Robert S. Elias, M.D., read the recipient's x-rays for the purpose of a medical diagnosis of treatment and that Dr. Elias' diagnosis directly conflicted with Petitioner's diagnosis; however, the x-rays were not a factor in the determination of medical necessity. Patient 3's medical records failed to demonstrate medical necessity for the visits. For Patient 3, 173 claims were paid in the amount of $2,693.70. Prior authorizations granted totaled $2,604. Patient 6 was recipient T.W., with a date of birth of 2/5/90. Dr. Hoffman's opinion was that Patient 6's medical records lacked justification for the 160 visits from 1/3/95 through 9/3/96. The medical records contained no standardized chiropractic notes, no specified diagnosis, and no routine re- examinations. Furthermore, the medical records failed to show why Petitioner was treating Patient 6. X-rays contained in the medical records were not of diagnostic quality and were, therefore, of no diagnostic value; however, the x-rays had no impact on the determination of medical necessity. Patient 6's medical records failed to demonstrate medical necessity for the visits. For Patient 6, 160 claims were paid in the amount of $2,502.20. Prior authorizations granted totaled $1,882.90. Patient 24 was recipient G.H., with a date of birth of 7/20/95. Dr. Hoffman's opinion was that Patient 24's medical records failed to justify the approximately 73 visits. The medical records contained no standardized chiropractic notes, no objective findings, and no standardized testing, including range of motion, muscle spasms, and orthopedic or neurological tests. For many of the visits, the only documentation contained in the medical records consisted of the same notation or statement: "Patient doing well." Patient 24's medical records failed to demonstrate medical necessity for the visits. For Patient 24, 72 claims were paid in the amount of $1,158.09. The medical records do reflect that any prior authorizations were granted. Patient 25 was recipient O.M., with a date of birth of 4/25/83. Dr. Hoffman's opinion was that Patient 25's medical records failed to justify the 87 visits. The medical records contained no standardized chiropractic notes, no justification of diagnosis, and no standard medical tests. The notes that were recorded were quite sparse and repetitive and typically recorded as "Doing well." Patient 25's medical records failed to demonstrate medical necessity for the visits. For Patient 25, 71 claims were paid in the amount of $1,131.69. Prior authorizations granted totaled $753.60. Patient 27 was recipient C.F., with a date of birth of 2/12/84. Dr. Hoffman's opinion was that Patient 27's medical records failed to justify the 67 visits from 10/11/95 through 3/25/96. The medical records contained no standardized chiropractic notes, no standardized examination forms, and no documentation of Patient 27's progress. Patient 27's medical records failed to demonstrate medical necessity for the visits. For Patient 27, 67 claims were paid in the amount of $1,079.59. The medical records do reflect that any prior authorizations were granted. Patient 28 was recipient K.H., with a date of birth of 8/22/94. Dr. Hoffman's opinion was that Patient 28's medical records failed to justify the 69 visits. The medical records contained no standardized chiropractic notes and no standardized testing, and showed no specific treatment provided based upon the requirements of the Medicaid laws. Patient 28's medical records failed to demonstrate medical necessity for the visits. For Patient 28, 66 claims were paid in the amount of $1,031.79. The medical records do reflect that any prior authorizations were granted. Patient 33 was recipient K.D., with a date of birth of 2/15/84. Dr. Hoffman's opinion was that Patient 33's medical records failed to justify the 73 visits. The medical records contained no standardized chiropractic notes and no standardized testing. Patient 33's medical records failed to demonstrate medical necessity for the visits. For Patient 33, 51 claims were paid in the amount of $800.70. Prior authorizations granted totaled $376.80. Patient 35 was recipient T.M., with a date of birth of 10/15/91. Dr. Hoffman's opinion was that Patient 35's medical records failed to justify the 51 visits from 2/15/95 through 6/10/96. The medical records contained no standardized chiropractic notes justifying the treatment provided. The medical records also stated that Dr. Elias read Patient 35's x- rays for the purposes of medical diagnosis of treatment and that Dr. Elias' diagnosis directly conflicted with Petitioner's diagnosis; however, the x-rays were not a factor in determining medical necessity. Patient 35's medical records failed to demonstrate medical necessity for the visits. For Patient 35, 51 claims were paid in the amount of $828.39. Prior authorizations granted totaled $753.60. Patient 39 was recipient B.T., with a date of birth of 8/8/95. Dr. Hoffman's opinion was that Patient 39's medical records failed to justify the 47 visits from 2/9/95 through 10/19/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 39's medical records failed to demonstrate medical necessity for the visits. For Patient 39, 47 claims were paid in the amount of $765.59. Prior authorizations granted totaled $753.60. Patient 40 was recipient T.H., with a date of birth of 7/11/84. Dr. Hoffman's opinion was that Patient 40's medical records failed to justify the 46 visits from 11/15/94 through 2/28/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. The medical records also indicated that Dr. Elias read the recipient's x-rays for the purposes of medical diagnosis of treatment and that Dr. Elias' diagnosis directly conflicted with Petitioner's diagnosis; however, the x-rays were not a factor in determining medical necessity. Patient 40's medical records failed to demonstrate medical necessity for the visits. For Patient 40, 46 claims were paid in the amount of $731.70. Prior authorizations granted totaled $753.60. Patient 45 was recipient T.W., with a date of birth of 9/26/90. Dr. Hoffman's opinion was that Patient 45's medical records failed to justify the 22 visits from 4/24/95 through 11/15/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 45's medical records failed to demonstrate medical necessity for the visits. For Patient 45, 26 claims were paid in the amount of $408.20. Prior authorizations granted totaled $376.80. Patient 48 was recipient S.L., with a date of birth of 1/31/91. Dr. Hoffman's opinion was that Patient 48's medical records failed to justify the 23 visits from 3/25/96 through 9/11/96. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 48's medical records failed to demonstrate medical necessity for the visits. For Patient 48, 23 claims were paid in the amount of $388.79. The medical records do reflect that any prior authorizations were granted. Patient 54 was recipient H.A., with a date of birth of 1/31/88. Dr. Hoffman's opinion was that Patient 54's medical records failed to justify the 7 visits from 9/6/95 through 10/2/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 54's medical records failed to demonstrate medical necessity for the visits. For Patient 54, 19 claims were paid in the amount of $298.30. The medical records do reflect that any prior authorizations were granted. Patient 58 was recipient T.W., with a date of birth of 11/19/81. Dr. Hoffman's opinion was that Patient 58's medical records failed to justify the 23 visits from 3/25/96 through 9/30/96. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 58's medical records failed to demonstrate medical necessity for the visits. For Patient 58, 17 claims were paid in the amount of $294.59. The medical records do reflect that any prior authorizations were granted. Patient 59 was recipient C.P., with a date of birth of 4/11/93. Dr. Hoffman's opinion was that Patient 59's medical records failed to justify the 22 visits from 4/10/96 through 10/9/96. The medical records contained no standardized chiropractic notes, no documentation of standardized testing of the spine, no documentation of standard tests, including orthopedic and neurological tests, and no medical justification for ongoing care and treatment. Patient 59's medical records failed to demonstrate medical necessity for the visits. For Patient 59, 16 claims were paid in the amount of $278.89. Prior authorizations granted totaled $376.80. Patient 64 was recipient M.L., with a date of birth of 8/20/89. Dr. Hoffman's opinion was that Patient 64's medical records failed to justify the 8 visits from 8/30/95 through 10/2/95. The medical records contained no standardized chiropractic notes, no documentation of standardized testing, and no description of Patient 64's pain or physical condition. Patient 64's medical records failed to demonstrate medical necessity for the visits. For Patient 64, 13 claims were paid in the amount of $204.10. The medical records do reflect that any prior authorizations were granted. Patient 69 was recipient A.L., with a date of birth of 1/14/92. Dr. Hoffman's opinion was that Patient 69's medical records failed to justify the 9 visits from 2/27/95 through 3/20/95. The medical records contained no standardized chiropractic notes, and the documentation contained in the records was minimal and repetitious. Patient 69's medical records failed to demonstrate medical necessity for the visits. For Patient 64, 13 claims were paid in the amount of $204.10. The medical records do reflect that any prior authorizations were granted. Patient 77 was recipient N.J., with a date of birth of 4/16/80. Dr. Hoffman's opinion was that Patient 77's medical records failed to justify the 7 visits from 3/6/95 through 3/29/95. The medical records contained no standardized chiropractic notes justifying the treatment provided. Patient 77's medical records failed to demonstrate medical necessity for the visits. For Patient 77, 7 claims were paid in the amount of $137.59. The medical records do reflect that any prior authorizations were granted. Dr. Hoffman recommended denial of all claims for the 20 sampled Medicaid recipients for the period from 9/1/94 through 9/30/96 due to Petitioner's failure to adequately document medical necessity in the recipients' medical records. For the 20 sampled Medicaid recipients for the period from 9/1/94 through 9/30/96, the total of the Medicaid payments was $20,710.69. As a result, the denial amount, the overpayment, for the 20 sampled recipients was the same, $20,710.69. The overpayment for the 20 sampled Medicaid recipients was extrapolated to the entire universe or total population of the 85 Medicaid recipients under the age of 21 for the period from 9/1/94 through 9/30/96, which resulted in a total projected overpayment of $70,518.26. The actual total amount of Medicaid payments for the 85 Medicaid recipients for the covered time period was $71,731.30. Considering the actual total payment of $71,731.30, the projected overpayment of $70,518.26 is very close to the actual total payment and is inherently reasonable. There is an expectation that, because all the claims of the 20 sampled Medicaid recipients were denied, the projected denial for all the claims in the universe of 85 recipients would be very close to the actual total payment. The difference between the projected overpayment of $70,518.26 and the actual amount paid of $71,731.30 is $1,213.04. This difference is negligible and such negligible difference reflects the inherent accuracy and reliability of the statistical methodology utilized. The maximum error range is 5 percent. The difference between the projected overpayment total and the actual payment total is also well within the maximum error range of 5 percent, or $3,587, for a 95 percent statistical confidence interval. To illustrate Respondent's statistical methodology, first, begin with sampled Medicaid recipient Patient 1. As indicated previously, the total number of actual claims for the total population of 85 Medicaid recipients, who were under the age of 21, was 4,499, and the total amount paid for the claims was $71,731.30; the data being taken from Respondent's Medicaid claims database. For Patient 1, 198 claims were audited and $3,081.30 was the total amount paid for the claims. All of the $3,081.30 was denied and determined to be an overpayment. Second, the same process was used with all 20 Medicaid recipients sampled, which produced a total of 1,307 claims, which were all denied, and produced a total of $20,710.69 in overpayment. The total sampled overpayment of $20,710.69 was divided by the total number of sampled claims (1,307) to obtain a mean overpayment per sampled claim of $15.85. The overpayment per sampled claim of $15.85 was multiplied by the number of claims in the total population (4,499) to obtain a point estimate of the total population overpayment, which was $71,291.04. Third, adjusting the point estimate of $71,291.04 for any potential statistical error, Respondent's model reduces the point estimate by 1.73 standard deviations, yielding an error- adjusted total overpayment of $70,518.26. Respondent has a level of confidence that there is 95 percent chance that actual overpayment is a minimum of $70,518.26. The point estimate of $71,291.04 is very close to the actual payment of $70,731.30 for the claims of the total population of the 85 Medicaid recipients; therefore, the overpayment of $70,518.26 is relatively conservative. Respondent's audit was conducted in conformity with Respondent's standards and conformed to Respondent's manner in conducting audits. The audit also had no known deviations or irregularities or deficiencies in the technical processes utilized, except the failure to take into account the prior authorizations granted. As to the statistical aspect of Respondent's audit, Respondent presented the testimony of a statistical expert, Dr. James T. McClave, Ph.D. 7/ Dr. McClave's testimony is considered credible. Using statistical methods in Medicaid overpayment determinations is a common and well-accepted standard of practice. Statistical modeling in Medicaid auditing scientifically and accurately determines the extent of overpayments in a population of payments from a small sample of overpayments drawn from the population of payments. Statistical modeling is capable of providing reliable estimates of the integrity, or lack thereof, of a Medicaid provider's billings, within reasonable time and resource constraints. In the statistical formula, a sample of claims is used to obtain a valid statistical estimate of the overpayment, if any, associated with the entire population of claims from which the sample of claims was drawn. A point estimate, being the best estimate the sample has to offer of the overpayment, is taken; and then a factor, allowing for the uncertainty associated with the sample, is subtracted such that there is a specified level of confidence that what is obtained is the conservative estimate of what the total population overpayment would be. The point estimate is referred to as "the lower 95 percent confidence bound," 8/ and the number obtained is a number which one "can be 95 percent confident that it is an underestimate of what the total overpayment would be" 9/ if the entire population was sampled. Respondent complied with the statistical methodology. The random selection process and the ad hoc computer report were valid and reliable. The results of the sampling and extrapolation were valid and reliable on the basis of the total population of Petitioner's Medicaid patients was pediatric patients and the results were limited to Petitioner's Medicaid patients under the age of 21. Further, the sample size of 20 Medicaid recipients from the total population of 85 was adequate. However, the results of the sampling and extrapolation are not reliable as they pertain to the failure of Respondent to take into consideration the granted prior authorizations. Respondent is compelled and should be provided an opportunity to re-apply its statistical methodology in light of granted prior authorizations not being considered. Uncertainty now exists as to what effect the granted prior authorizations would have on the outcome of the total overpayments. The denial of all of Petitioner's claims was a situation of first impression for Respondent. Prior to the instant case, Respondent had had no chiropractor's Medicaid claims go through peer review and denial recommended. By letter dated February 4, 1998, Respondent forwarded to Petitioner a Preliminary Agency Audit Report (Preliminary Audit Report). The Preliminary Audit Report informed Petitioner, among other things, that Respondent's preliminary determination was that Petitioner had received an overpayment of $70,518.26 due to the claims being determined not medically necessary, and requested, among other things, that Petitioner submit any additional information or documentation which may reduce the overpayment. The Preliminary Audit Report also informed Petitioner of the overpayment calculation and statistical formula used by Respondent. In response to the request for additional information or documentation, Petitioner forwarded to Ms. Jensen a videotape and testimonials. Ms. Jensen did not send the testimonials and videotape to Dr. Hoffman, the peer reviewer, for his review because these items (1) were determined by her to have been created prior to recording of the medical records at issue, and, therefore, did not constitute a medical record for review; and (2) were, consequently, not relevant. The undersigned is persuaded and a finding of fact is made that the testimonials and videotape were not relevant and need not have been submitted to Dr. Hoffman for his review. By letter dated May 5, 1998, Respondent forwarded to Petitioner its Final Agency Audit Report (Final Audit Report). The Final Audit Report, based upon the recommendations of Dr. Hoffman, notified Petitioner, among other things, that the final determination was that he had received an overpayment of $70,518.26, due to the Medicaid claims not being medically necessary. The Final Audit Report also notified Petitioner, among other things, of the overpayment calculation and statistical formula used by Respondent. Moreover, Petitioner was notified that his type of violation warranted termination from the Medicaid program and a $2,000 fine, but that, in lieu of termination from the Medicaid program, he could continue as a provider by paying a $5,000 fine. In a subsequent letter to Petitioner, regarding clarification of continued participation in the Medicaid program, Ms. Jensen explained that, as a requirement for continued participation in the Medicaid program, in addition to the $5,000 fine, Petitioner must comply with Medicaid policy and Florida Statutes and rules. Petitioner was placed on notice that to continue as a Medicaid provider he must abide by Medicaid billing requirements. Respondent's Final Audit Report did not contain any notice of mediation being available. Section 120.573, Florida Statutes, requires notice of whether mediation (settlement) is available in agency action that affects substantial interests. There is no dispute that Respondent's Final Audit Report affects Petitioner's substantial interests. No evidence was presented that either Petitioner inquired about mediation or that Petitioner or Respondent sought or desired mediation. Moreover, no evidence was presented that Petitioner was harmed or suffered as a result of not receiving the notice. No evidence was presented to support a finding that the basis of the audit findings involved a conspiracy. A finding of fact is made that the basis of the audit findings does not involve a conspiracy between Respondent and its employees and Dr. Jones and Dr. Hoffman and Dr. McClave or anyone else. Respondent did not initiate any disciplinary action against Petitioner's license as a chiropractor and, therefore, Subsections 455.225(1) and 455.621(1), Florida Statutes, are not applicable. No evidence was presented that any criminal action was referred or taken against Petitioner as a result of Respondent's audit. No evidence was presented that Respondent suspected Petitioner of having committed a criminal violation, that a criminal act had been committed by Petitioner, or that Respondent had determined that Petitioner had committed a criminal act.

Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order against Henry M. Rubinstein, D.C. and therein: Sustaining the failure of Dr. Rubinstein's medical records, except as to granted prior authorizations, for Medicaid recipients under the age of 21 for the period from 9/1/94 through 9/30/96, to demonstrate medical necessity. Sustaining the Final Agency Audit Report, except as indicated and consistent with this Recommended Order. Requiring Dr. Rubinstein to repay overpayments, without interest, in an amount subsequently determined in a proceeding by the Agency for Health Care Administration and within a time period under terms and conditions deemed appropriate. Imposing a fine of $5,000. DONE AND ENTERED this 11th day of April, 2000, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 2000.

Florida Laws (9) 120.569120.57120.573409.907409.9121409.9126409.913455.225812.035
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BOARD OF MEDICAL EXAMINERS vs. TARIQUE HUSSAM ABDULLAH, 84-000756 (1984)
Division of Administrative Hearings, Florida Number: 84-000756 Latest Update: Dec. 17, 1985

The Issue Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(n), Florida Statutes [failure to keep written medical records justifying the course of treatment of patients as set out in Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(cc) 1, 2, and 3, Florida Statutes [prescription of an amphetamine drug for purposes other than specifically stated in those subsections as set out in Counts 5 (Preludin), 10 (Preludin), and 12 (Ritalin) of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 453.331(1)(t), Florida Statutes [by engaging in gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances as set out in Counts 1-15 inclusive, of the administrative complaint].

Findings Of Fact Respondent, Tariq Husam Abdullah, is a licensed medical physician, practicing under license number ME 0021526. He is also known as Henry Nichols. The two are one and the same and there is no dispute over identity. Respondent appears to have been a hard worker, rising from a "bed pan hustler" at the old Fort Walton Hospital to his current level of education, licensure, and community position. Previous to Florida licensure, Respondent received his medical degree from Meharry Medical College in Nashville, Tennessee, where he also did his internship in straight medicine. Thereafter, Respondent performed three years of anatomical and experimental pathology at Washington University School of Medicine in St. Louis, Missouri, and two years in clinical pathology at the National Institute of Health and the United States Public Health Service in Bethesda, Maryland. Respondent is not board-certified, but is currently board-eligible in both pathology and laboratory medicine. At all times material hereto, Respondent engaged in medical practice in Bay County, Florida. During much of the time in question, Respondent had no assisting staff. His usual fee for each office visit of each of the patients referred to in the fifteen count administrative complaint was approximately $15- 20 maximum. They are a small portion of the approximately 1,000 patients he treated between 1978 and 1982, and in most cases his fees for office visits were $10.00 apiece. Sometimes his fees were paid and sometimes they were not paid. Medicaid and Medicare reimbursed all or a portion of many fees. In the course of his practice Respondent treated the following patients: D.B.; T.B.; Tommy B.; J.C.; L.C.; T.G. a/k/a L.C.; David G.; Dan G.; C.R.; B.W.; and J.M. Petitioner's expert-witness medical doctors were Jabe Armistead Breland and Michael W. Cohen. Dr. Breland was present at the formal hearing and had the advantage of reviewing Respondent's exhibits as well as Petitioner's exhibits in the forming of his opinions. Dr. Breland has been a licensed medical doctor in the State of Florida since September 1950. Most of that time he has practiced in the panhandle of north Florida which includes Panama City, Bay County. His office is in Marianna, Florida. He is board- certified in family medicine, licensed by the federal government to prescribe controlled substances, and was stipulated as an expert in the field of medicine. Dr. Michael W. Cohen testified by means of a deposition taken prior to formal hearing and did not have the advantage of review of Respondent's exhibits admitted in evidence at the formal hearing. He is a family physician with an M.D. from the University of Miami School of Medicine (1975), a graduate of Tallahassee Memorial Hospital Regional Medical Center Family Practice Program, and has been a board-certified family physician for six and one-half years. His practice is limited to Tallahassee and he has testified on contract for Petitioner six times previous to this case. He is accepted by the undersigned as an expert medical witness, but because of the unavailability to Dr. Cohen of Respondent's exhibits which were admitted in evidence at the formal hearing held subsequent to his deposition and because some of the materials upon which Dr. Cohen's opinions were predicated were excluded from evidence at the formal hearing, the weight and credibility of his prior deposition testimony is significantly impaired through no fault of Dr. Cohen and without any unfavorable reflection upon him. Dr. Wilson, Respondent's expert medical doctor who testified by after-filed deposition knew nothing of Respondent's records and was unaware of the precise charges against him. In the absence of appropriate predicate as to medical opinion, his testimony has been accepted only as to facts of which he had personal knowledge and as to character. It is his opinion that Respondent is the kind of person who deserves not to have his license suspended or revoked. Dr. Wilson partly financed Respondent's education. The parties by Request for Admission have established that Preludin is an amphetamine; more accurately Preludin is phenmetrazine. Ritalin is methylphenidate. Dioxan is a methylamphetamine. At all times pertinent these were Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Percodan is also a Schedule II controlled substance. Valium is a Schedule IV controlled substance. Darvon Compound and Tylenol 4 are Schedule III controlled substances. Respondent frequently talked to police, Sheriff's deputies and pharmacists in an effort to avoid his patients becoming addicted to drugs. He never was made aware from any source of any drug addiction or any arrests of any patients concerned in this action. He testified that he performed a physical examination in every case and verified all prior medications in every case, but he also conceded not verifying prior medications with previous doctors or hospitals. It is specifically found that in many instances none of these precautions appear in his records as set out infra. D. B. (Counts I; XV) It is admitted (Requests for Admission) and found that between February 19, 1979, and April 23, 1983, Respondent prescribed at least the following quantities of controlled substances to his patient, D. B.: DATE DRUG STRENGTH QUANTITY 02/19/79 Percodan Approximate 04/30/79 Darvon Compound 03/23/82 Valium 05/13/82 Tylenol #4 06/03/82 Percodan Demi 40 06/16/82 " " 18 07/10/82 " " 07/17/82 " " 36 08/14/82 " " 18 08/28/82 Percodan 08/28/82 Valium 01/15/83 Percodan 03/26/83 " 03/26/83 Valium 04/23/83 Percodan Respondent's treatment of his patient, D.B. with controlled substances was predicated upon his diagnosis of "traumatic arthritis." His records reflect, "hurting ankle, leg, and back" as the chief complaint. In no instance of prescribing scheduled drugs for this patient did Respondent maintain a record of the strength (dosage) and on only a few occasions did he record the quantity prescribed. This particular inadequacy of record-keeping seems also to have applied to additional non- scheduled drugs prescribed by Respondent for this patient. Although Dr. Breland acknowledged that many doctors only record the word "refill," good medical practice dictates that Respondent should have recorded at least the quantity and dosage at the time of the initial prescription. Normal protocol would be to also record the method of taking the medication. On this analysis, in Dr. Breland's professional medical opinion, Respondent's medical records for his patient, D.B. (Composite P-1) were inadequate and did not justify the course of treatment upon the recorded chief complaint. Dr. Cohen concurs. Further record inadequacies as noted by Dr. Breland include failure of the records to indicate which bone was fractured in relating the patient's medical history, recording only blood pressure as a vital sign, and failure to state what condition was being treated on subsequent visits. Dr. Cohen recited the same inadequacies in forming his professional medical opinion that Respondent's records do not justify the treatment received. Dr. Cohen further opined that if the patient had traumatic arthritis, the treatment prescribed was wholly inadequate due to the absence of any recorded plans for therapy. Dr. Breland, on the other hand, felt that a Percodan prescription is consistent with good medical practice for a patient who complains of traumatic arthritis and that Valium, a benzodiazepine drug which is a calmative or tranquilizer, may also be properly used for traumatic arthritis but that Valium would be contraindicated if there were associated patient nervousness and anxiety. Dr. Breland's opinion is that it would not be medical malpractice to prescribe Valium upon the basis of Respondent's records nor would it be medical malpractice based upon the continued prescribing of Percodan unless the patient became addicted. Dr. Breland's experience is that 1-3 months on Percodan would cause individuals to run the risk of addiction but knows of doctors in the Panama City locale who have prescribed Percodan in excess of three months with addiction resulting in some patients and not in others. Respondent conceded that his records for this patient should show greater detail but according to his recollection independent of the medical records, he recalled that on the first visit, he had accepted D.B.'s representation that D.B. had had prior surgery on the left ankle because the pins could be seen through that swollen ankle. Respondent's independent recollection was that D.B. did not ask for Percodan. Respondent testified that he prescribed the Percodan because "after codeine I can't think of another drug with potential for comfort." His failure to record further detail he explained as his belief that writing down prescriptions was a sufficient reference back to the original first visit diagnosis. Respondent admittedly did not record, but expressed independent recollection of also accepting D.B.'s representation of previous unsuccessful medication with codeine from a Dr. Smith and of recommending acupuncture as an alternative pain therapy but admitted he also did not record this latter instruction. The medical records themselves confirm Respondent's testimony in the course of the hearing that Respondent prescribed the scheduled drugs in addition to a number of other medications such as Roboxin and anti-inflammatories which he did record and which Dr. Breland confirmed were appropriate as treatment for traumatic arthritis. A portion of Petitioner's Composite Exhibit 15, court certified records, show one "Donald Richard Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person was subsequently tried and found guilty of one count and entered a plea of guilty to the other. A Circuit Court Judgment was entered. The date of the commission of this person's offenses are close to the date of a prescription by Respondent to his patient "D.B." but there is absolutely nothing in the court documents to connect them to the D.B. treated by Respondent except a partial similarity of name. Nor does the similarity of name of a co-defendant, Tereza Ann Bozeman (see infra.) prove an inescapable link of "Donald Richard Bozeman" to Respondent's patient, "D.B." who was married to someone of partially similar name. Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, "D.B." for a non-medical or criminal purpose or that the patient was drug-addicted. Upon all the foregoing information taken together it is clear Respondent failed to keep written medical records justifying the course of treatment of his patient, D.B. This finding is made despite both of Petitioner's experts' testimony that there is no affirmative professional requirement that dosage and number of tablets be recorded anywhere except on a prescription. That concern is only a portion of the inadequacies of these records. However, in light of Dr. Breland's greater familiarity with all of Respondent's records and the standard of medical practice in the community, and the greater detail provided by his testimony and the explanations provided by Respondent at formal hearing, Dr. Breland's opinion that the course of treatment for this patient, isolated from all others, does not represent malpractice is accepted over Dr. Cohen's opinion that it does. T. B. (Counts II, XV) It is admitted (Requests for Admission) and found that between approximately May 1, 1982, and April 9, 1983, Respondent prescribed at least the following quantities of schedule- controlled substances to his patient, T.B.: DATE DRUG STRENGTH QUANTITY 05/01/82 Valium 05/01/82 Percodan Demi 07/10/82 " " " 30 08/14/82 " " " 08/14/82 " " " 18 08/14/82 Valium 09/11/82 Percodan 09/11/82 Valium 12/12/83 Percocet #5 Although in some respects, Drs. Breland and Cohen emphasized different faults or inadequacies of Respondent's records which they reviewed concerning T.B. (Composite P-2), both experts concur that the records do not justify the course of treatment of this patient. Dr. Cohen bases his opinion on his analysis that the history Respondent recorded for this patient was not sufficiently detailed. Specifically, the initial office visit record is flawed by only writing down patient's vital signs and recording no physical findings. Dr. Cohen stated it is unjustifiable to prescribe a narcotic analgesic on the first office visit and to continue to refill the prescription on subsequent visits without recording how the patient had done on those medications and further without recording physical examination, assessment of how the patient is responding to the medication, a plan outline for prophylactic care, and patient education. Further, both Drs. Breland and Cohen assert that although there is no affirmative professional requirement to record dosage and tablet numbers except on prescriptions, it is the custom of reasonably prudent similar physicians to record amount, dosage quantity of drugs prescribed, and method of taking drugs, and Respondent's records do not do so. Respondent's records for this patient also offend custom and usage of the profession in that they indicate several office visits for which there are no recorded findings or treatments whatsoever. Dr. Breland's opinion that the records do not justify the treatment and that they fall below the customary standard of care are based on his analysis thereof emphasizing that the records of the first office visit do not evidence a physical examination other than taking a blood pressure reading and weighing the patient. There is a brief history of migraine headaches for three months recorded and also recorded is a past diagnosis and treatment with codeine and talwin; the records note no previous surgery, no previous fracture, and no physical findings. Then, Cafergot PB #2, Valium #3 and Percodan-demi were prescribed by Respondent. The records should have specified whether or not previous treatment was successful and if it was successful, Respondent could have subsequently prescribed less addictive drugs. In Dr. Breland's opinion, it is "hard to justify" a Class II drug without trying some other modalities available. Respondent first saw this patient on May 1, 1982, for migraine headaches and prescribed Cafergot PB and Percodan-demi. He selected Percodan- demi because Percodan is habit-forming. In the course of the formal hearing, he testified, "I just didn't know another medication to go to after you pass codeine that would be effective with patients, other than giving them Demerol and the harder narcotic medications" and that when he first began seeing this patient he was less aware of the similar use of the less addictive drug, Inderal, than he is now. On the physical examination portion of his clinical notes, Respondent indicated that the patient had been using Codeine, Talwin, and "Dx" and "Rx". He then and thereafter (8/14/82 and 9/11/82) prescribed analgesics and vasoconstrictors (Cafergot PB and Ergotamine) together with the Valium because Valium, in his opinion, is often ineffective without more because of the significant emotional components of migraine headaches. Respondent also expressed his independent recollection of discussing with this patient the alternative treatment of acupuncture but admitted he did not record this instruction. Respondent's explanation is not sufficient justification for the repeated prescriptions of controlled substances in light of Dr. Breland's more knowledgeable and thorough explanation of the standards of record-keeping necessary to justify continued prescription of the particular controlled substances here at issue. Dr. Breland faults another of Respondent's prescriptions dated 12/4/82 of Cafergot PB#2 (a combination of drugs primarily containing an Ergotamine derivative and caffeine), Percocet, and Valium because Respondent's records do not show how many pills were prescribed nor do they give directions for taking them. For prescriptions on 1/8/83, 8/14/82, 9/11/82, and 2/12/83, Dr. Breland expressed as his chief concern that there was an absence of recorded physical findings, history, and blood pressure plus no recorded amount of dosage listed for most prescription drugs, but Dr. Breland also determined that prescribing Cafergot is consistent with Respondent's diagnosis of vascular headaches and his prescriptions for these dates is an appropriate lesser treatment to be tried before prescribing a Schedule II drug, and, further, that Respondent's records justify prescribing Cafergot. However, the opinion expressed in the prior sentence is not compelling in face of the records having no notations to show the effect, if any, of Cafergot or other drugs or to show why Respondent prescribed stronger medication. Dr. Breland also felt Respondent should have prescribed other less addictive drugs before going to the Schedule II-controlled substances as he did, and that if Respondent's findings were negative, he should have recorded them as negative rather than leaving the record blank, because without such records it cannot be determined if a physical examination was ever made and because in absence of recorded physical findings, no Schedule II drugs should have been prescribed. A portion of Petitioner's Composite 15, court-certified records show one "Tereza Ann Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person entered a plea of guilty to a lesser-included misdemeanor. The Circuit Court withheld adjudication and placed her on probation. The date of one of the offenses coincides with one of the dates of a prescription by Respondent to his patient, "T.B." but there is absolutely nothing in the Court documents to connect them to the "T.B." treated by Respondent, except a partial similarity of name. The court documents also charge "Donald Richard Bozeman" who has a similar name to that of another of Respondent's patients (see supra.) but the court documents do not indicate the charged individuals are married or provide any other link to Respondent's patient(s). Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, T.B., for a non-medical or criminal purpose or that the patient was drug-addicted. Tommy B. (Counts III, XV) It is admitted (Request for Admissions) and found that between approximately August 16, 1981, and February 19, 1983, Respondent prescribed at least the following quantities of schedule controlled substances to Tommy B.: DATE DRUG STRENGTH QUANTITY 08/15/81 Valium 08/15/81 Percodan 08/15/81 Dalmane 10/30/81 Tylox 12/05/81 " 12/05/81 Valium 12/06/82 Darvon compound 02/17/82 Percodan 30 04/01/82 " Demi 04/01/82 Percodan 30 05/29/82 Percodan Demi 06/21/82 Tylox 24 07/12/82 Percocet #5 30 02/19/83 Percocet 02/19/83 Valium In the course of the hearing, Respondent independently recalled that this patient presented on 8/15/81 and that Respondent himself personally recorded the notes for that date including a history, diagnosis of L-S syndrome, and treatment. On that date he observed scars on the patient's back from back surgeries which the patient related had been done at Southern Baptist Hospital in New Orleans. Respondent conceded that he failed to record the physical findings of scars and failed to record full details of the related surgeries so that at first glance it might appear to others, in this case Dr. Breland, that Respondent was only filling in a history of surgeries without making his own diagnosis. Respondent stated that he had relied on the Physician's Desk Reference, which he characterized as a "bible of the medical profession", and which recommends Percodan as a pain-killer. The treatise itself was not offered in evidence. Respondent also stated that the Percodan-based drugs he prescribed effectively relieved this patient's pain. There is no contrary evidence on this point of effectiveness but it still was not contemporaneously recorded by Respondent in the patient's record. Both Drs. Cohen and Breland opined that Respondent's records for Tommy B. did not justify the prescribing of these controlled substances, most specifically Percodan. These opinions have not been accepted for the following reasons. In the absence of any supporting evidence, Dr. Cohen's considerable testimony concerning his belief that this must have been a scam or scheme of Respondent to indirectly charge for a controlled substance prescription by requiring frequent office visits is rejected as conscientious but pure conjecture. Dr. Breland expressed concern that Percodan-demi was among the drugs prescribed by Respondent in the presence of a record notation within the physical findings which relates that "patient says he can't take Percodan". Respondent denied he made this notation, and related it is in someone else's handwriting and not true. Respondent's testimony on this score is corroborated by clear observation of the records. Most of Dr. Breland's other complaints concerning Respondent's record of this patient devolve to Dr. Breland's inability to read Respondent's handwriting and his original erroneous belief that the history and exam was chronologically incorrect and taken by someone other than Respondent. Dr. Breland's opinion that the records are deficient because the fracture of the back was not specifically recorded by Respondent's indicating whether there was an old fracture or current pain and by Respondent's not indicating whether there was thoracic or lumbar distress, and because there is no recitation of whether the fracture is pelvical or in any body of the vertebrae, and his objection to failure of Respondent to either record "no x- rays" if none or to record x-rays if there were some instead of leaving a blank space constitute technique over professional custom requirement of record- keeping. Dr. Breland also described the two month fluctuation down to Percodan- demi and then up to the stronger drug of Percocet from 4/1/82 to 2/19/83 as unjustified because no less addictive medicines had been tried and no degree of relief from less addictive drugs was attempted by Respondent, but Dr. Breland described the Percodan- based drugs and the Valium as medically acceptable where based on the degree of relief the patient had received. In such a situation Dr. Breland would use these drugs for pain treatment and consider them medically justified. Like Dr. Cohen, Dr. Breland also found unacceptable the failure of Respondent to record amounts and dosages in his office medical records, but on many occasions throughout their testimony, both of Petitioner's experts observed the requirement of listing amount and dosages is for prescriptions only and not for a doctor's office records. Upon the failure of adequate predicate for Dr. Cohen's conclusion of unjustified prescriptions, the absence of any admissible evidence of any addiction in this patient, and the only positive evidence of the effect of these prescriptions being Respondent's opinion that it was effective, the opinions of both Drs. Cohen and Breland that the medical records do not justify the course of treatment of Tommy B. are rejected. J. C. (COUNTS IV; XV) It is admitted (Requests for Admissions) and found that between January 4, 1982, and February 26, 1983, Respondent prescribed at least the following schedule-controlled substances to J.C.: DATE DRUG STRENGTH QUANTITY 01/04/82 Percodan 24 03/23/82 Tylox 30 04/17/82 Percodan 04/17/82 " " 05/01/82 Tylenol #4 30 05/01/82 Valium 30 05/04/82 Tylox 30 06/12/82 Valium 06/16/82 Tylox 36 07/17/82 " 30 08/14/82 " 30 10/03/82 " 30 10/30/82 Tylenol #4 11/13/82 Percodan 30 01/15/83 Percocet 01/15/83 Valium 28. J.C.'s chief complaint was migraine headaches, "nerves", and back trouble. Respondent prescribed Percodan for pain, Valium for "nerves", and Cafergot-pb for migraines. He diagnosed hypertensive heart disease, anxiety neurosis, migraine headaches, and lumbosacral syndrome. He only used Percodan four times over a year's period due to the severity of the symptoms brought on by the tug and strain on this 200-pound woman's back. Dr. Cohen ranks the relatively minimal fault of writing progress notes in two corners and across the top and side of a page in the same category as overprescribing. Dr. Cohen's concern over the absence of recorded physical findings for this patient was not confirmed by Dr. Breland (see infra.) and his concern because the number and dosage of Cafergot-pb (non-scheduled), Valium (scheduled) and Percodan (scheduled) were frequently not recorded by Respondent is less significant in light of Dr. Breland's testimony that the best custom and practice of the medical profession is to record these matters but such recordation is not required for office records but only for prescriptions. Dr. Cohen also faulted Respondent for prescribing symptomatically with no effort to educate the patient to prevent or "prophylax" against migraines or to prescribe common anti- inflammatory medications usually prescribed for migraines. Dr. Breland noted that Tylenol #4 is a controlled substance but made no specific objection to Respondent's prescription of it for this patient. Cafergot-pb is not a controlled substance and its prescription by Respondent was not faulted by Dr. Breland. All of Dr. Breland's testimony on this patient is couched in vague terms of "it is hard to justify" Respondent's prescription of Percodan and Percocet on just this work-up and Dr. Breland felt Respondent's prescription of Percodan on the first visit was not justified without obtaining a further medical history, but he would have approved eventual (not first visit) use of Percodan for this patient's migraine headaches if it were not for the presence of hypertensive heart disease or her neurosis. Although the records fail to state why Percodan-based drugs were used, Dr. Breland felt these drugs would have been appropriately prescribed for the lumbosacral syndrome. By comparison, J.C's recorded medical history is more extensive than that of most of the patient records involved in this action. The history taken by Respondent lists previous surgery of a hysterectomy, of a previous fracture to the left hip, and of a tonsillectomy. Also given is an elevated blood pressure of 160 over 100, height and weight, state of parity, and diagnoses. The date of her last period and of her hysterectomy are not given. Petitioner's two expert witnesses each would have made separate and different judgment calls on all prescriptions here related, except that each concurs that Respondent's initial prescription of Percodan on this patient's first visit was unjustified without a further recorded history; therefore, Dr. Breland's summation that the records justify overall treatment of this patient is accepted. L. C. (COUNTS V; VI; XV) It is admitted (Requests for Admission) and found that between approximately March 27, 1978, and April 23, 1983, Respondent prescribed at least the following quantities of schedule-controlled substances to L.C.: DATE DRUG STRENGTH QUANTITY 03/27/78 Darvon Compound 07/21/78 Darvon 07/21/78 Darvon Compound 07/21/78 Valium 10/23/79 Percodan 10/31/79 Preludin 11/17/80 Preludin 11/28/81 Darvon Compound 12/28/81 Percodan 24 01/14/82 " " 30 04/02/82 " " 36 06/08/82 " " 36 07/17/82 " " 36 08/28/82 " " 36 09/25/82 " " 24 09/25/82 Darvon Compound 12/03/82 Percodan 30 01/15/83 " " Dr. Cohen's opinion that there had been prescription of an amphetamine drug for an unjustified purpose and that the patient's records did not justify the Respondent's prescribed course of treatment is rejected as partially predicated upon inadmissible and unadmitted exhibits. The opinion of Dr. Breland is accepted that most of these prescriptions as only part of the course of treatment as a whole were acceptable. More particularly, Dr. Breland indicated there are other doctors similarly geographically situated who use Percodan similarly; there was a very adequate history taken, although the date appears out of order on the page; Respondent's early prescribing of Roboxin and Darvon (one of the less addictive controlled substances) would be a good treatment for osteoarthritis which was part of Respondent's diagnosis of this patient; there was not enough Percodan prescription here for Dr. Breland to say it was not justified in this patient's case. Dr. Breland was unsure when Preludin became a scheduled substance and so would not comment on that aspect of the case. This is an issue of law and is discussed under "Conclusions of Law." T. G. (COUNTS VII; XV) Between approximately July 23, 1978, and April 26, 1983, Respondent treated a patient by the name of T.G. During that period, the stipulated records reveal at least the following prescriptions, among others: DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 7/23/78 30 Percodan 7/23/78 Darvon Compound 9/21/78 Percodan 10/14/78 Percodan 10/14/78 Darvon Compound 11/21/78 24 Percodan 11/21/78 Darvon 12/6/78 30 Percodan 12/6/78 Darvon Compound 12/28/78 Percodan 12/28/78 Darvon 1/23/79 Qualudes 1/29/79 24 Percocet 1/19/82 24 Percocet 3/4/82 Valium 3/4/82 Percodan 4/29/82 Percocet 8/19/82 Percodan 8/19/82 Valium 10 mg 9/25/82 Valium 9/25/82 Percocet 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Percocet 10/14/82 40 Valium 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Valium 10/14/82 40 Percocet #5 10/14/82 40 Percocet 10/14/82 40 Valium Additionally, the Respondent occasionally prescribed Tetracycline and Actifed Syrup for colds, and the parties have stipulated these are not controlled substances. Although Dr. Breland tagged Respondent's use of Roboxin 750, Percodan 30, Darvon compound and Prednisone (a Cortisone- like anti-inflammatory) on the first visit as "borderline acceptable," it was his and Dr. Cohen's mutual opinions that in the absence of recorded physical findings, the Respondent's prescribing of controlled substances in these quantities and with this frequency to this patient was not justified by the records Respondent kept. Dr. Breland, in particular, found unacceptable the Respondent's diagnosis of lumbosacral syndrome without detailed physical findings or any x-ray diagnosis, and both experts took exception to the continued and repeated prescriptions of the addictive drugs, Valium and Percodan, in a case where Respondent's records repeatedly indicate a good response. Both further opined against Respondent's delayed attempt to diminish the use of these addictive drugs. The doctors' opinion that the records do not justify the prescriptions are accepted. DAVID G. (Counts VIII; XV) The stipulated records reveal at least the following controlled substances were prescribed by Respondent to his patient, David G., between December 17, 1981, and February 12, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 12/17/81 Ativan 12/30/81 Ativan 2/12/82 Valium 3/06/82 Seconal 3/11/82 Valium 4/08/82 Seconal 8/28/82 Seconal 8/28/82 Valium Respondent saw this patient 12 times in approximately 2 years and accepted David G.'s representation that he had been previously prescribed Ativan, a controlled substance of the same chemical family as Valium. Although Respondent claims he verified all prior medications, the verification here is not reflected in his record. The records themselves do not reflect for most occasions why this patient was being treated nor do they set forth an assessment of why Respondent switched from less to more addictive sedative hypnotics. Ativan is a tranquilizer on Schedule III. Seconal is a sedative on Schedule II. In an isolated response, Dr. Breland testified that if the Respondent's initial diagnosis of insomnia and anxiety neurosis had been arrived at after taking a proper history and after a proper physical examination which was not recorded, he would not find Respondent's use of these medications, including Seconal, improper, because there are doctors in the same geographical area who would also use Seconal. However, the ultimate opinion of both of Petitioner's experts is accepted that in the absence of a recorded initial physical examination and a recorded history beyond merely recording height and weight and an unverified former medical treatment, the course of this patient's treatment was not justified by the records kept. DAN G. (Counts IX; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, Dan G., Jr., between January 9, 1979, and April 22, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 01/09/79 Percodan 02/22/79 Talwin (50 mg) 11/18/81 Percodan 11/30/81 Percodan 01/02/82 Percodan 01/19/82 Percodan 02/05/82 Percodan 03/30/82 Percodan 04/12/82 Percodan 05/01/82 Percodan 05/01/82 Valium 05/18/82 24 Percodan 06/05/82 Valium 06/22/82 Percodan Demi 06/22/82 Darvon Compound 06/22/82 Valium 07/24/82 Percodan 07/24/82 Valium 08/28/82 Percodan Demi 08/28/82 Valium 09/25/82 Percodan 09/25/82 Valium 10/30/82 Valium 10/30/82 Percodan 12/03/82 Percodan 02/19/83 Percocet 03/26/83 Percodan 03/26/83 Valium 04/22/83 Tylox 04/22/83 Valium Respondent's records for this single patient sometimes specify "Jr." and sometimes do not. The initial record indicates a surgical incision along the lateral aspect of both femurs and pain on palpation of both hips, and records a history of total hip arthroplasty (two total hip replacements) in 1979 with the patient evidencing pain secondary to a post-operative procedure to correct aseptic necrosis of both femurs. At formal hearing, Respondent stated that this patient first presented in a wheel chair and returned frequently, due to chronic pain and was already on Demerol when first seen by Respondent. The chronic pain was not always repeatedly recorded in Respondent's records. Both of Petitioner's experts concede that prescriptions of Percodan would be consistent if that were all that were relieving the pain when the patient presented to Respondent, and Dr. Cohen opined that Percodan and Talwin were possibly consistent with aseptic necrosis of a femur. Respondent had admitted (R-1), a hospital summary of subsequent surgery (conversion of left total hip arthoplasty to girdlestone on 8/19/83) at the Veteran's Administration Hospital in Gainesville. This exhibit of subsequent surgery corroborates the previous 1979 history taken by Respondent which indicated that medications on discharge from the VA Hospital included Demerol 50 mg. po q 4h prn for pain. In light of no evidence of patient addiction and no evidence of poor response by this patient to Respondent's prescribing and treatment, the opinions of Dr. Breland and Dr. Cohen that Respondent's prescribing was excessive and necessarily addictive and therefore was unjustified are rejected, however the undersigned accepts their mutual opinions that the Respondent's records by themselves without the subsequent corroboration of the VA Hospital report do not justify the treatment Respondent administered to Dan G. Respondent admits R-1 was not relied on in treating this patient. C. R. (Counts X; XI; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, C.R., between July 3, 1978, and April 22, 1983: 2/ DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCES 07/03/78 Percodan 07/03/78 Percodan Compound 07/20/78 30 Percodan 08/14/78 30 Percodan 11/01/78 30 Percodan 12/05/79 Desoxyn 12/05/79 Percodan 01/02/79 Desoxyn 02/05/79 Percodan 02/12/79 18 Percodan 03/28/79 Percodan 04/16/79 Percodan 05/03/79 Percodan 05/17/79 Percodan 05/17/79 Darvon Compound 05/17/79 Percodan 05/17/79 Darvon Compound 06/14/79 6 Percodan 06/14/79 24 Desoxyn 09/18/79 Desoxyn 10/04/79 Percodan 11/10/79 Preludin 01/28/80 P 06/12/80 Preludin (75 mg.) 09/18/80 Preludin (75 mg.) 11/17/80 Percodan 01/27/81 Darvon Compound 04/27/81 Percodan 07/28/81 Percodan 08/31/81 24 Percodan 09/21/81 24 Percodan 12/16/81 Percodan 01/06/82 Percodan 01/29/82 Percodan 03/02/82 Percodan Demi 03/02/82 03/28/82 Percodan 04/20/82 Percodan 05/13/82 06/04/82 Percodan Demi 07/03/82 Percodan Demi 08/03/82 36 Percodan Demi 08/28/82 Percodan 08/28/82 Valium 12/20/82 24 Percocet 5 12/20/82 30 Valium (10mg) 01/15/83 6 Tylenol #6 01/22/83 Percodan Preludin and Desoxyn are amphetamine drugs. Desoxyn was legitimately prescribed for weight control in 1978. Respondent's prescription of both drugs was ostensibly to modify the amount of weight supported by the patient's leg bones. Dr. Breland is not sure whether both drugs were reclassified for control in 1979 or not but this is an issue of law resolved in "Conclusions of Law" supra. Despite Dr. Breland's testimony that if he did not have to base his opinion on the Respondent's inadequate recorded history and findings, he would term the prescribing of Percodan and Roboxin as recorded to be borderline acceptable, the undersigned accepts his and Dr. Cohen's mutual opinion that the frequent prescriptions of Percodan, Percodan- demi or Percocet (narcotic analgesics) for the Respondent's recorded diagnosis of arthritis and right leg pain resulting from previous right thigh surgery are unjustified by the records. Their respective opinions that this pattern of prescribing was excessive and unjustified in light of the potentially addictive nature of these drugs is also accepted. B. W. (Counts XII; XIII; IV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, B.W. between June 7, 1979, and January 29, 1983. 3/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/01/79 Valium 10/15/79 Tylenol #3 06/19/80 Tylenol #3 06/08/81 Ritalin (20mg) 08/11/81 Valium 08/15/81 Valium 09/15/81 Talwin 11/14/81 Talwin 12/07/81 24 Ritalin (20 mg) 12/20/81 Talwin 01/23/82 Talwin 02/12/82 Percodan Demi 02/27/82 Tylenol #4 03/04/82 Ritalin 03/18/82 Percodan Demi 04/02/82 30 Talwin 07/03/82 24 Ritalin 08/28/82 30 Ritalin 09/22/82 24 Percodan 10/14/82 Talwin (50mg) 12/21/82 24 Percodan 01/29/83 Tylox Ritalin is a sympathomimetric amine drug, which may only be properly prescribed in certain types of cases more specifically set out in the following "Conclusions of Law." Respondent's diagnosis, that this patient had chronic anxiety and back pain, is reflected in his written records. This is essentially the only recorded history on this patient. Respondent did not record a diagnosis of narcolepsy. Respondent did, however, introduce R-2, a consultation report to a Dr. Yankovich dated 1/5/82 from a Dr. Elzawahry which states the impression: "narcolepsy; low back syndrome. . . maintain on Ritalin 10 mg. po tid." Respondent testified that he had received similar information concerning the narcolepsy and psychiatric disturbance earlier than 1/5/82 first by telephone and then by written reports thereon from consulting neurologists, surgeons, and psychiatrists, and that through inadvertence this document was not turned over to Petitioner's investigator. However, Respondent did not explain why his files did not contain these other consultants' reports or why he did not write-up their contents or the dates they were received by him or why his prescriptions of 20 mg were so much greater than those recommended by Dr. Elzawahry. Dr. Breland felt that if Respondent were aware when he first prescribed Ritalin to this patient that the consultant had recommended it because of a good response, then Respondent's Ritalin prescriptions would be justified. It was also noted by Dr. Breland that Ritalin once was believed by the medical profession to be appropriately prescribed in the treatment of depression but that method had ceased and was statutorily proscribed by the time periods in question. Dr. Breland's expert opinion on prior belief of the medical profession is accepted. His conclusions of law invade the province of the hearing officer and are rejected in part and accepted in part as set out in the "Conclusions of Law." Dr. Breland did not feel under the circumstances that the Ritalin was contraindicated. Accordingly, Dr. Cohen's testimony that Ritalin is very dangerous if prescribed for chronic anxiety and depression is hereby discounted in that unlike Dr. Breland, he did not have the benefit of R-2 when testifying by earlier deposition. Dr. Cohen felt Valium was useful for chronic anxiety and that Tylenol #3 and Talwin were useful for pain but that there were excessive prescriptions of these drugs with few or no notations indicating any pain. In most instances all that is noted in Respondent's records on this patient is a prescription listed beside the date. Dr. Breland remarked that even the forms used by Respondent did not include a space for physical findings. J. M. (Counts XIV; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, J. M., between October 25, 1980, and March 9, 1982: 4/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/25/80 Percodan 01/05/81 Percodan 05/19/81 Emprin #4 06/03/81 Emprin #4 07/29/81 18 Percodan 09/25/81 12 Percodan 09/25/81 18 Tylenol #3 11/07/81 24 Tylox 11/21/81 Percodan 12/17/81 Percodan 01/02/82 Percodan 02/22/82 Percodan 03/09/82 Percodan The records of history and findings on this patient are reasonably complete and were faulted by Dr. Breland mostly because without appropriate dates one cannot tell if the history was taken on the initial visit as it should have been or later, and because the dates given are frequently out of order. In Dr. Breland's opinion, some of the modes of therapy utilized by Respondent were not of his choice but Dr. Breland only seriously objected to Respondent's continued and excessive use of Percodan as unsafe. Dr. Cohen's opinion was that the Respondent's conduct constituted mal- prescribing over malpractice. Dr. Breland's opinion was that Respondent's overall conduct with regard to these eleven patients constituted malpractice in that it was the failure to practice medicine with that level of care, skill and treatment of a reasonably prudent similar physician, under similar circumstances. Dr. Breland has had the benefit of reviewing all of Respondent's exhibits and he practices in the same geographical locale as Respondent. His opinion in this regard is accepted as to the overall pattern of practice with these eleven patients, despite his previous opinions that specific cases might not evidence malpractice.

Florida Laws (3) 120.57458.331893.03
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DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs JOHN B. MILTON, M.D., 07-003609PL (2007)
Division of Administrative Hearings, Florida Filed:Deland, Florida Aug. 09, 2007 Number: 07-003609PL Latest Update: Jun. 25, 2008

The Issue Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(m) and (t), Florida Statutes (2005)?

Findings Of Fact Stipulated Facts: Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is John B. Milton, M.D. Respondent is a licensed medical doctor in the State of Florida having been issued license ME 53961. Respondent's mailing address of record is 4702 Van Kleeck Drive, New Smyrna Beach, Florida 32169. Additional Facts: Hospital Records (Petitioner's Exhibit numbered 1) On December 31, 2005, Patient W.C. came to the Bert Fish Medical Center (Bert Fish) in New Smyrna Beach, Florida, at 1:40 a.m. He was 40 years old at the time. He was seen in the Emergency Department at Bert Fish. Triage of the patient took place at 1:43 a.m. The triage record reports that he walked in to the hospital complaining of his throat swelling and difficulty breathing. The record reflects that the patient was experiencing pain of an intensity level seven (7) in his throat. At the time his blood pressure was 153/83. His pulse rate was 88. His respirations were 20. His temperature was 98.2. His 02 sat. was 99. In the heading within the Emergency Department Triage Record, statement of "Previous Surgery/Other Medical Hx (referring to history)" it states "allergic reaction to birds with throat swelling, " According to the Emergency Department triage nursing notes Patient W.C. was first seen by Respondent at 1:55 a.m. on the aforementioned date. Respondent was serving in the capacity of emergency room physician at Bert Fish at the time. Among the nursing note entries in the Emergency Department triage record for Patient W.C. are handwritten nursing notes that state: At 2:05 Rocephin was given; at 2:20 a.m. pt. (patient) states throat closing saO2 98%; at 2:25 a.m. pt. (patient) tubed by Dr. Milton- placement checked tube pulled-(pt.) patient vent 100% O2 via ambu; at 2:31 a.m. crick. (cricothyroidotomy) by Dr. Milton tube inserted 100% 02; at 2:35 a.m. H/R 40's - atropine; at 2:37 a.m. b/p 213/90 P-87 Dr. Milton attempting crick 0249 epi 1 mg IV; at 2:41 a.m. Dr. Schreiber here; at 2:43 pt. (patient) tubed by Dr. Schreiber s/r 0 pulses and at 2:54 a.m. code called by Dr. Milton. The Bert Fish Emergency Physician Record refers to Patient W.C.'s chief complaint as "shortness of breath." It states "pt (patient) seems to have acute severe pharyngitis and difficulty breathing and mild stridor at rest." The degree of the condition is further described in the record as "moderate." An associated symptom is listed under "Pulmonary," as "cough." It is noted in this record that the patient is experiencing a "sore throat." The Emergency Physician Record under the "Social Hx (history)," notes that the Patient W.C. was a "smoker" and occasionally used "alcohol." No reference is made to the use of any other form of drugs. On the patient chart describing a physical exam performed on the patient, the categories of "alert" and "anxious" are checked. The level of distress is described as "NAD." There is a reference to "pharyngeal erythema," associated with that entry a handwritten note states "mild stridor at rest." A reference is made to "lymphadenopathy" both right and left "mild." There was no "respiratory distress" and "breath sounds nml (normal);" Again the condition "stridor" is noted while the patient is "at rest." "CVS" is noted as regular rate rhythm with "no JVD." On the same page as discussed in the preceding paragraph, within the patient record maintained by Bert Fish, under "clinical impression," Respondent notes several things in the overall experience in treating the patient. They are in turn: acute severe pharyngitis/epiglottitis; emergency cricothroidotomy cardio pulmonary arrest and ER death. These entries reflect events at the end of the case. The medication administration record at Bert Fish in relation to Patient W.C. notes administration of Decadron (a steroid) at 2 a.m.; Solu-cortef (a steroid) at 2:02 a.m.; Rocephin (an antibiotic) at 2:05 a.m.; Versed (a sedative) at 2:20 a.m. and Anectine (a paralytic agent) at 2:25 a.m. A separate set of entries is made in the Code Blue Record at Bert Fish, noting the administration of Epinephrine, and Atropine during the Code Blue response prior to Patient W.C.'s death due to his cyanotic condition (lack of oxygen). Nurse's notes on the Code Blue Record for Patient W.C. maintained by Bert Fish state: Upon me entering the room Dr. Milton was doing CPR on pt. Dr. Schreiber, Dr. Milton and the ER staff attending to pt. ER staff busy. I started scribing for them. Note pt. was in PRA throughout the code. Pt. was given 3 ep. & 3 atoprine total = (-)response. Respondent signed the Code Blue Record as physician. The ER Physician's Order Sheet, as signed by Respondent concerning Patient W.C., in a shorthand reference, describes orders for nebulized racemic Epinephrine, which is an aerosol adrenaline agent, together with the Solu-cortef, Decadron and Rocephin. In the records maintained by Bert Fish concerning Patient W.C., there is a handwritten note made by Respondent at 3:35 a.m., on December 31, 2005, following Patient W.C.'s death, which says: S/P IV steroids, Racemic epinephrine PT continued to c/o "getting worse" "can't breath." At times his respirations were gasping. .. I discussed with him fact the he may require intubation & he understood. PT placed in TRI and preparation made for intubation. PT had secure IV site, Respiratory TX in Room to assist. S/P preoxygenation 1HR> 80 PT had IV Versed and Anectine to facilitate intubation. The laryngoscope revealed a massive "beefy" appearance of the epiglottis. Attempted X 2 E 8.0 & 7.5 ET to secure an airway but Ø success. PT had attempts to ventilate E BVM? Ø air movement. PT cyanotic @ this point so a scalpel was used to attempt a crichothyroidotomy. When a ETT was passed thru the incision however attempts to ventilate were again unsuccessful. Dr. Schreiber (gen surgery) had been paged and he responded. He was able to place a ETT in the airway but by now PT had arrested. Monitor-bradycardia at this time ACLS measures were undertaken and PT given repeated doses of atropine/epinephrine/CPR-> ventilated E BVM. PT continued to have Ø response to proper ALS measurers and Resus efforts stopped @ 0254. Patient Care Explained Nurse Haas William Haas, R.N., was working at Bert Fish on the early morning that Patient W.C. was seen. Nurse Haas first saw the patient around 1:55 a.m. He hooked the patient up to a monitor and took his vital signs. None of the readings were considered by the nurse to be abnormal. Those readings were blood pressure 153/83, heart rate 88, respirations 20, temperature 98.2. and O2 sat. 99%. Patient W.C. was taken into treatment room 16 and was seen by Respondent and nurse Haas. Nurse Haas asked Respondent what Respondent thought was wrong with the patient. Orders were given by the Respondent for 8 mg. of Decadron and 100 mg. of Solu-cortef IV. The purpose of these medicines was to reduce inflammation. Both medications were steroids designed for that purpose. At that time Respondent gave an order for the antibiotic Rocephin. Respondent also wanted a racemic Epinephrine treatment. That treatment was to be provided by the respiratory therapist. When nurse Haas first saw the patient, the patient was complaining about difficulty breathing. Nurse Haas did not observe any manifestation of those difficulties. At one point the patient told nurse Haas that he, the patient, was experiencing an allergic reaction to feathers or birds. The patient told nurse Haas by way of history that it happened to him in the past. (None of this was true. He had no allergy to birds. The patient's deception was never discovered by the hospital treatment team, and they all proceeded on the basis that the patient had a bird allergy.) On the evening before arriving at the hospital, the patient explained to nurse Haas that he went to bed about 9:00 or 10:00 p.m. and woke up around 1:00 a.m. with a raspy feeling in his throat and he felt like his throat was closing up. So he came to the emergency room for care. After attending to the patient in treatment room 16, nurse Haas left the presence of the patient. He next saw the patient standing in treatment room 17 talking on the phone. This was around 2:20 a.m. The patient was again placed on a monitor to track his vital signs. Nothing about those vital signs appeared abnormal. At that time Mary Boothe, R.N., told nurse Haas that the patient was going to be intubated. Nurse Haas inquired of Respondent on the subject, and Respondent told nurse Haas that the patient wanted to be intubated and to get ready to perform the intubation. The procedure for intubation that was being utilized by Respondent is referred to as rapid sequence intubation or RSI. Nurse Haas retrieved Anectine and Versed to be administered in the intubation. The patient was told about the procedure for intubation. The patient was laid down. Nurse Haas gave the patient Versed and Anectine. The Versed was designed to, as nurse Haas describes it, "muddle the mind." The Anectine was an agent that would promote paralysis in the area where the intubation would occur. When in treatment room 17, at around 2:20 a.m., the patient said to nurse Haas that the patient felt that his throat was closing. Those remarks were made when the patient was being hooked up to the monitor to measure his vital signs. This was the second time that the patient had mentioned his throat closing. He had made similar remarks when nurse Haas first saw him in treatment room 16. Steve Igrec, R.T., participated in the intubation procedure in addition to nurse Haas, nurse Boothe and Respondent. Prior to the laryngoscope being introduced in the intubation procedure, nurse Haas did not notice any sharp decline in Patient W.C.'s vital signs. When Respondent accessed the airway for Patient W.C., nurse Haas heard Respondent say, "Oh, he's got epiglottitis," while proceeding further with the intubation. Respondent was unable to intubate and removed the ET tube. Another tube was used to try and intubate, again without success. Nurse Boothe Nurse Boothe first encountered Patient W.C. after he had undergone his racemic Epinephrine treatment. He came out of the treatment room and told her that he did not feel that the treatment had worked. Respondent came by and the nurse repeated what the patient had told her. Nurse Boothe did not notice anything about the patient that made her believe that he was having difficulty breathing. He coughed and told her, "Can you hear it?" but he was not gasping for air, nor making gestures about his chest or throat. Respondent then offered the patient the option of being admitted to the hospital and continuing treatments by steroids to address his condition or putting him on a ventilator and letting him have the treatments through the ventilator. The patient elected the latter option. The ventilator option would allow the patient to be released the next day. The patient was told by Respondent that he would "knock him out" and put the tube in and give the patient the medication that way and that the patient's release would come the next day. Nurse Boothe did not hear the Respondent make any mention to the effect of what might happen if there were difficulties in intubating the patient. The attempted intubation was made in the treatment room 17, which is also referred to as CC-1. The patient walked into the room. Once in the room nurse Boothe did not notice anything about the patient that indicated any difficulty breathing. The patient did mention that he was not feeling any better. Nurse Boothe overheard the patient talking on the telephone. On his end of the conversation he told his wife that he did not feel any better and that they were going to "knock him out" and put him on a breathing machine overnight and that he would see her the following day. Nurse Boothe noticed that as the attempted intubation proceeded, the patient began to have trouble with the intubation. The equipment that was in the room for those purposes included the laryngoscope, the intubation tube, and a stylet. Before the tube was introduced the patient was being ventilated with a bag and mask. When difficulties arose concerning the intubation, nurse Boothe left the treatment room to get a scalpel and to get what is referred to as a "cric" kit. That kit is a set-up that has been assembled to aid in providing emergency access to the trachea. The kit is not kept in treatment room 17. It was kept in another room on a respiratory cart. Nurse Boothe observed Respondent utilize the scalpel and the "cric." After the Respondent experienced difficulties in this effort, the on-call surgeon was contacted by a secretary at the hospital. The Surgeon Arrives On December 31, 2005, Dr. Schreiber was the on-call surgeon at Bert Fish. When he was paged by the hospital, he called and was told that he needed to go immediately to the emergency room because of an airway problem. He received the call at approximately 2:30 a.m. He arrived at the hospital at 2:41 a.m. Once at the hospital Dr. Schreiber, took over and performed surgery, insertion of the endotracheal tube, thereby ventilating the patient. That procedure by Dr. Schreiber was quickly performed. Mr. Igrec Mr. Igrec administered the racemic Epinephrine treatment to Patient W.C. Prior to providing the treatment Mr. Igrec visibly examined the patient to see if the patient was using assessory muscles to breathe or if he had any stridor, any wheezing or anything of that nature. He did not observe the patient using any assessory muscles to breathe. He did not notice the patient evidencing stridor, that is to say a high- pitched sound that is made when a person experiences upper airway obstruction. Mr. Igrec provided two of the treatments to Patient W.C. Before the second treatment, he visibly examined Patient W.C. and did not notice the patient having difficulty breathing. Sometime during the course of the treatment, near the end, the patient asked the question, "How long is this going to take to work?" Mr. Igrec told the patient to give it time. The patient appeared anxious. He did not appear short of breath. Mr. Igrec reported to Respondent that he had provided Patient W.C. the second treatment. Following the second treatment, Mr. Igrec suggested to Respondent the use of Decadron to aerosolize Patient W.C. The racemic Epinephrine is a short- acting drug, and Decadron is a steroid that takes longer to work. In response, the Respondent told Mr. Igrec "We may have to intubate." Mr. Igrec was called to treatment room 17 where Respondent told him that they were going to intubate Patient W.C. In preparation, an ambu-bag, mask, intubation tube, pressure cuff, stylet and strap were retrieved. The cuff was used to keep the intubation tube in place during the procedure. The stylet keeps the tube rigid. Once the patient was sedated, Mr. Igrec began to use the ambu-bag with the patient. At that time, there was no difficulty using the bag, squeezing the bag to provide air into the patient's lungs. Mr. Igrec had one hand on the mask over the patient's face and one hand on the ambu-bag. Respondent used the laryngoscope in placing the tube, trying to look while placing the tube. The tube went into the stomach and not the trachea, such that ventilation did not occur. After that, when Mr. Igrec was bagging the patient he had a lot more resistance, to the point where Respondent had to hold the mask while Mr. Igrec bagged the Patient W.C. After a second attempt to intubate the patient, Respondent attempted to establish a surgical airway. Respondent was using a scalpel and palpating the patient to try and find the crichothyroid cartilage to create the necessary incision. An incision was created. There was no success in placing an airway because the tube did not pass through the crichothyroid cartilage. Mr. Igrec understood this because the tube that he had cut down to place and to ventilate the patient could not be used because there was no hole in the trachea. Blood was pooling around the patient. Dr. Schreiber arrived and established the surgical airway. During this time, CPR was provided the patient under Code Blue conditions where the patient's heart had stopped beating. Attempts at reviving the patient were not successful. Respondent and Patient W.C. Prior to the occasion when he intubated Patient W.C., Respondent had vast experience in performing intubations. As he describes it, this is a necessary skill for an emergency room doctor, recognizing that having an unobstructed airway is vital to a patient's survival. When intubating a patient, Respondent believes that you would want to do this before they "crash," before they lose their vital signs and become unconscious. Before his attempt to intubate Patient W.C., Respondent had never had an instance in which he could not intubate the patient, a function that he had performed numerous times without the assistance of a surgeon or an anesthesiologist. By contrast, before the circumstance that was confronted in Patient W.C., Respondent had never performed a crichothyroidotomy. He had been trained to perform that procedure. On December 31, 2005, nurse Haas approached Respondent and told Respondent that he placed Patient W.C. in a treatment room, described as the ortho room, and that the patient was having trouble breathing and that he needed to be seen by Respondent. Respondent inquired of the patient about the duration of his problem. He asked the patient if he had asthma. Had this happened before? The patient told Respondent that he was having an allergic reaction to his wife's bird and that this problem that he was experiencing had occurred once years before. Respondent asked the patient if he was telling Respondent that an hour ago he was fine and that now he was not. Patient W.C. said "absolutely." When listening to the patient's lungs Respondent did not notice any wheezing. There was no fever in the patient and the patient had not been sick. Unlike the other health care providers attending the patient, Respondent observed that Patient W.C. was having trouble getting air in, the patient was having inspriatory stridor. Respondent believed that the presentation by Patient W.C. was that of someone having an allergic reaction, with some airway compromise, he refers to as laryngospasm. Respondent told nurse Haas to start an IV on the patient and get respiratory therapy to provide a racemic Epinephrine treatment. The reasons for this decision was Respondent thought the patient was having an allergic reaction. In particular, Respondent's impression at that moment was that the patient was someone having an allergic reaction to birds. Patient W.C.'s case was comparable to another case that Respondent had with a woman who had experienced an allergic reaction. In the case of the woman, the patient worsened and quickly had to be intubated. The differential diagnosis that Respondent was proceeding with was that of a patient having an allergic reaction. The orders Respondent gave concerning administration of medications were designed to alleviate an airway problem associated with an allergic reaction. Consistent with Respondent's orders, the nurse started the IV and provided medications, and the respiratory therapist came to provide the aerosol treatment. Respondent observed that Patient W.C. was sitting up in bed and did not appear to be doing anything unusual. Respondent received the report on the patient's status. Respondent went to see Patient W.C., who at that time was anxious and restless. He was having trouble getting air in and telling Respondent that he could not breathe and that his airway was closing off. Patient W.C. told Respondent that "you guys ain't helping me at all." Respondent told the patient that the treatment already provided was the normal thing that was done. Respondent got more history from the patient by asking the patient, "You were perfectly fine until an hour ago?" The response was "yes." Respondent asked the patient if he had not been sick at all. Again the response was "no." The Respondent asked the patient if he had a sore throat. The patient said a little bit. Respondent took a tongue depressor and looked in the patient's throat. It looked pretty normal. (The Emergency Physician Record indicated the patient had a sore throat.) The patient had very mild prominent lymph nodes but nothing out of the ordinary. There was still no wheezing. At that juncture, the decision was made to give Patient W.C. another aerosol treatment. In addition, the decision was made to provide antibiotics in case there was some tracheitis, pharyngitis. It was anticipated that the antibiotics would take 24 hours to have any effect. Epiglottitis was a condition at the bottom of the list on the differential diagnosis. Respondent's experience with that condition was that a patient would be sick for a period of time before the condition worsened. Nothing in Patient W.C.'s presentation led Respondent to believe that he had epiglottitis at that point. By way of history, there was no indication from the patient that he had used cocaine within 24 hours of the time of his visit to the emergency room. (Indeed subsequent toxicology studies revealed recent use of cocaine.) Had such use been reported Respondent would have acted differently in treating Patient W.C. In his second encounter with the patient on the night in question, the patient told him several times that his airway was closing off and that he believed that any second he was not going to be able to breathe. In reply, Respondent told Patient W.C. that the normal things to address his condition had been done, but there was one other thing that could be done and that would be to intubate Patient W.C. Respondent explained that it meant that they would lay the patient in a critical care room and render him unconscious and take a breathing tube and put it into his lungs and admit Patient W.C. to the hospital. This would then be followed by 24 to 48 hours of ventilatory support with use of steroids to address swelling. Patient W.C. told Respondent "let's do it quick." Respondent told a nurse to gather the standard rapid sequence medication, which in this instance involved the use of Versed and Anecitine. In the procedure room where the intubation was attempted, the procedure commenced with the patient having a good heart rate. There was a crash cart available in case there were problems. At the moment, Respondent continued to believe that the patient was experiencing an allergic reaction. Although the patient could have been experiencing epiglottitis secondary to infection, the patient did not show any signs or symptoms of that condition, indications of an on-going infection such as a fever. He was not sweating, his heart rate was not rapid. Once in the treatment room where the intubation was attempted, the patient worsened. Patient W.C. was gasping. He closed his eyes a second. The respiratory therapist Mr. Igrec experienced problems bagging the patient. Efforts by Respondent and the respiratory therapist were not succeeding in getting air into the patient. When Respondent looked in, using the laryngoscope, he noticed something that he had not encountered before. Patient W.C.'s epiglottis had the appearance of a "mushroom." It did not appear as normal anatomy. Respondent described it as a "moonscape." When Respondent looked into the patient using the laryngoscope, he describes the "picture" as looking like a scorched airway when viewing the larynx and the epiglottis. Now that he had observed the epiglottitis, Respondent decided to try and "get under it" using the ET tube. He encountered a complete blockage. Respondent then asked for a smaller tube. The smaller tube did not work. Efforts at bagging the patient were not successful. Respondent concluded that he could not intubate the patient and could not ventilate the patient in that manner, leaving him the only choice, in his perception, to deal with the obstruction by establishing a surgical airway. Respondent asked for a scalpel to perform a "cric." Respondent also told someone to call and get the surgeon and indicate that there was an airway emergency and to come immediately, as Dr. Schreiber did. Respondent took the scalpel and located the crichothyroid membrane below the crichothyroid cartilage and made an incision and air bubbled out. Respondent widened the incision, as he had been trained to do in a course dealing with trauma associated with the airway. Respondent took the ET tube that he had been using and inserted it. It went in smoothly and the treatment team was able to bag the patient. Respondent then noticed that the heart rate was dropping and that the "stats" were not coming up. Respondent then observed that the patient's neck was bigger. What had happened was that the tube had slipped out of the incision, tracking anteriorly over the trachea and the air was being introduced into the neck. Once the subcutaneous emphysema was seen in the neck, it occurred to Respondent that the tube was in the wrong place. The patient was bleeding profusely. There was an effort at reintroducing the tube but the neck had become more swollen, and the tube could not be replaced. A nursing supervisor, Tom Frith, went to the next trauma room and took one of the crichothyroidotomy kits and brought it back. Respondent was not trained to use that kit. He had seen the kits used at a demonstration. The kit was opened. Respondent took a needle from the kit and tried to find an airway but was unable to locate the airway that had been created because efforts at aspiration produced more blood. Other equipment in the kit was utilized to try to replace the endotracheal tube back in the patient, but the field would quickly fill with blood and the tube could not be placed into the membrane. When Dr. Schreiber arrived, using the skill of a surgeon, not that of an emergency room doctor, he performed an emergency tracheotomy on Patient W.C. Respondent acknowledges that persons suffering from an allergic reaction have a common presentation where they experience hives and itching. Some people have wheezing. Patient W.C. had none of these symptoms. Nonetheless, the patient appeared to Respondent to be having an allergic reaction involving the airway Respondent describes as laryngospasm. Respondent understood the patient's condition to be one in which he was able to move about and speak but he was unable to get air in. While able to compensate for that condition for awhile, that ability did not last. Respondent had never seen a patient with epiglottitis. Hypothetically, if a patient were perceived as having that condition, Respondent would consult with a surgeon or an anesthesiologist, if he had time. If confronted with classic signs of epiglottitis, Respondent would start an IV, give the patient supplemental oxygen and not attempt intubation unless the case was emergent. Given sufficient time, the patient would be taken to an operating room and an anesthesiologist could attempt intubation, failing which a surgeon would be available to address the obstruction by placing a surgical airway. This case became one of an emergency, and Respondent took the measures he deemed appropriate. Concerning notes made pertaining to treatment provided Patient W.C., that record was provided after Patient W.C. died. Given the volume of patients that were being seen in the emergency room, other patients as well as Patient W.C., five sets of records and tests were being established aside from Patient W.C. As a consequence, Respondent was doing paperwork on those patients and telling nurses what to do for Patient W.C. Only after the attempts at trying to save Patient W.C. were unsuccessful and after talking to Patient W.C.'s family did Respondent turn his attention to the medical records for Patient W.C. Expert Opinion Dr. John Murray is an emergency physician at Central Florida Regional Hospital in Sanford, Florida. He is licensed to practice in Florida and has been since 1983. He is also licensed to practice in Alabama. Dr. Murray attended medical school at the University of South Florida in Tampa, Florida. He did his residency at the University of Alabama in Tuscaloosa, Alabama. His residency was in family practice. Dr. Murray practiced in Tuscaloosa, Alabama, in emergency medicine, until four or five years ago. He then entered family practice for about three years. Following that time, he returned to practice in emergency medicine. Dr. Murray is board-certified in family practice and emergency medicine. Dr. Murray was received as an expert in emergency medicine to allow him to offer his opinion as an expert. Dr. Murray served as Petitioner's consultant in the case and was presented as its witness at hearing. To prepare himself to testify, Dr. Murray reviewed the Bert Fish hospital records relating to Patient W.C., the autopsy report, the Administrative Complaint, correspondence from Respondent's attorney, Respondent's deposition, the deposition of the nurses who treated Patient W.C. at Bert Fish, the deposition of the respiratory therapist involved with Patient W.C.'s patient care, and the toxicology report pertaining to Patient W.C. Having prepared himself Dr. Murray testified concerning Respondent's performance when measured against the expected "standard of care." In offering his opinion, Dr. Murray conformed to the expectation that Respondent's performance meet what was minimally acceptable in the standard of care. Dr. Murray does not believe that Respondent met the standard of care incumbent upon Respondent. In Dr. Murray's opinion, when a patient is seen in an emergency room the development of the differential diagnosis begins with the worse case scenario. In Patient W.C.'s case, the first consideration in the differential diagnosis should have been epiglottitis, recognizing that the main problem in the condition is inspiratory stridor, the closing of the airway or the upper airway which may cause the patient to die. Therefore, the physician should do everything possible to assure that this does not happen. Dr. Murray believes that the patient was presenting with signs and symptoms of epiglottitis when he arrived at the emergency room at Bert Fish. Dr. Murray believes that when Respondent decided to intubate Patient W.C., it should have been anticipated that there was going to be a very difficult procedure if the patient had acute epiglottitis. Sometimes the intubation fails and there is the need to provide a surgical airway. Because Respondent did not anticipate that difficulty, the intubation procedure was not properly "setup," according to Dr. Murray. That setup would envision dealing with intubation to potentially be followed by the need to provide a surgical airway. Given the possibility that the patient had epiglottitis, it was important to have the most experienced person available to perform the intubation. Dr. Murray believes that would be an anesthesiologist. Beyond that point, if the surgical airway is needed, a surgeon should be available to provide a surgical airway. Dr. Murray believes there was time to have a successful intubation, or if not, the provision of a successful airway by surgery and these arrangements were not made. Notwithstanding the patient's reported history, recognizing the symptoms present, Dr. Murray did not believe that the patient was suffering from an allergic reaction. Nothing in the medical records suggested to Dr. Murray that Patient W.C. was under the influence of cocaine when he was seen at Bert Fish. Commenting on the medical record where the term "pharyngeal erythema" was circled, Dr. Murray explained that pharyngitis is a form of infection either viral or bacterial in relation to the red or sore throat seen in the back of the throat of Patient W.C. when examined by Respondent. Respondent also made reference to lymphadenopathy both right and left, swollen lymph nodes. Patient W.C. was experiencing inspiratory stridor, difficulty in getting air in to his lungs. With inspiratory stridor, swollen lymph nodes and a red and painful throat, Dr. Murray said he would be concerned about Patient W.C.'s having an infection. Dr. Murray was concerned that if Patient W.C. had a lot of inspiratory stridor that the condition might be epiglottitis. With infection and stridor, the airway can close quickly. These circumstances could make intubation of the patient difficult, if not impossible. Dr. Murray acknowledges that epiglottitis was on Respondent's differential diagnosis for Patient W.C. Respondent's orders for use of racemic Epinephrine through nebulization and the provision of steroids, Decadron and Solu-cortef were appropriate in Dr. Murray's view. Repeating the nebulization would have been appropriate in dealing with an allergic reaction which was the number one condition treated by Respondent. Dr. Murray speaks of the use of antihistamines as well. Dr. Murray opined that as long as Patient W.C. was perceived as having an allergic airway problem, the patient would be treated with updraft treatments and antihistamines, if the patient remained stable and did not appear to be "going down hill and crashing." If the patient is "crashing," stops breathing, then a response to the condition would be necessary before the patient had respiratory arrest. However, with epiglottitis most patients would have to be intubated to protect the airway. The condition would be treated as an infection with use of an antibiotics and steroids over time while being cautious about the patient having his or her airway close off. Criticism that Dr. Murray has of Respondent's care was not the basic idea that the patient was intubated to address epiglottitis. It was the expectation that intubation need not be done unless it was absolutely an emergent circumstance, i.e., the patient had stopped breathing. If there is suspected epiglottitis, the physician should not use a tongue blade that may cause spasms or a laryngoscope. The physician should not paralyze the patient. The doctor is going to be confronted potentially with the fact that there is "no hole" to put the tube, in an attempt at intubation and it becomes necessary to "do something and get an airway in." Again the arrangement that needs to be made, in Dr. Murray's opinion, is the double setup to address the intubation and possible surgical airway. Dr. Murray does not believe that Respondent had the needed equipment to address the patient's condition when he began the intubation. In particular, the necessary equipment for the second step in the double setup, that of providing a surgical airway had not been sufficiently arranged by Respondent. Only in the instances where the patient had stopped breathing and Respondent had no time to call in other physicians would it be appropriate to paralyze the patient and attempt the intubation. Dr. Murray does not believe that the patient was dying, and there was the opportunity to call in the surgeon who was available in eight minutes, to provide assistance if one anticipates difficulty. Dr. Murray described three methods of addressing the surgical airway. One is crichothyroidotomy, which was attempted here. The second method is jet insufflation used in pediatrics but also taught for use in adults. The third method is the use of a needle with a catheter. Dr. Murray explained that if using the crichothyroidotomy is a procedure that is comfortable to the physician, then there is no necessity for redundancy beyond the use of that method for providing a surgical airway. Redundancy would be the use of the kit known as Seldinger that causes a small puncture wound. This method is a new technique, an alternative to needle crichothyroidotomy and regular crichothyroidotomy. The Seldinger method is the jet insufflation. Jet insufflation is not a common procedure in adults and is used more in pediatric care. In Dr. Murray's opinion, a reasonably prudent emergency room doctor would know of the availability of that option for ventilating a patient whether the patient is an adult or a child. Dr. Murray criticizes Respondent's medical records for Patient W.C. In his review, Dr. Murray did not find an explanation why it was necessary to intubate Patient W.C. at that moment and by the method employed. The record does not justify attempting a paralytic intubation under the existing circumstances, according to Dr. Murray. Dr. Marlon Priest, witness for Respondent, graduated from the University of Alabama with a degree in chemistry. He attended the University of Alabama School of Medicine from 1974 until 1977. He completed an internal medicine residency. From 1981 through November of 2006, Dr. Priest was on the faculty of the University of Alabama, Birmingham, Alabama, and served as a professor of emergency medicine and director of critical care transport. Over the years, Dr. Priest has had extensive experience in emergency medicine in a hospital setting. He is licensed to practice medicine in Alabama. Dr. Priest was accepted as an expert and allowed to testify concerning his opinion of Respondent's care provided Patient W.C., whether Respondent met the standard of care. Dr. Priest reviewed the Administrative Complaint, the medical records from Bert Fish concerning Patient W.C., Respondent's deposition, the deposition of Thomas Beaver, M.D., and the deposition of Michael A. Evans, Ph.D. to prepare himself to testify. He found the information sufficient to prepare to offer his opinion concerning the care provided Patient W.C. When asked whether Respondent violated the standard of care for failing to consult with or gain the assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis and attempting RSI, referring to rapid sequence intubation on Patient W.C., fell below the standard of care for an emergency room physician, Dr. Priest indicated that he felt that Respondent met the applicable standards. Dr. Priest believes emergency medicine has evolved to the point where emergency room physicians are able to assess and carryout that form of intubation. In Dr. Priest's experience, on numerous occasions, he has intubated patients without consulting a surgeon or an anesthesiologist. Based upon those insights Dr. Priest does not believe that Respondent was obligated to consult a surgeon or an anesthesiologist before attempting the intubation on Patient W.C. Specific to Patient W.C.'s case, the patient presented with shortness of breath and stridor and having failed to improve following treatment to address a possible allergic reaction, the decision was made to oxygenate the patient prior to some event where the patient could not breathe. Based upon the symptoms of the patient and gravity of the situation, Dr. Priest is persuaded that it was appropriate to attempt intubation. Concerning the allegation that Respondent failed to meet the standard of care by inducing paralysis in Patient W.C., Dr. Priest indicated that RSI is the preferred method of gaining access to a patient's airway where the patient is awake and alert and who might struggle if that method was not employed in an effort to intubate the patient. In his opinion, Dr. Priest makes mention of the progression in the case from having stridor, complaining of not being able to breathe and Dr. Priest's expectation that the airway was becoming smaller over time. Dr. Priest believes that the principal diagnosis in the differential pertaining to Patient W.C., possible allergic reaction was a reasonable diagnosis based upon information in the patient records. Concerning the allegation about Respondent's medical records related to alleged failure to document symptoms in Patient W.C. that would justify paralysis and RSI, as opposed to other less risky forms of securing the airway, Dr. Priest believes that there is sufficient evidence in the medical record to justify the intubation. Related to the second allegation dealing with record keeping by Respondent alleging that Respondent failed to document Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, Dr. Priest believes that this information would have been written down by someone else on the treatment team during the course of the treatment, the attempt to intubate. Even beyond that point, Dr. Priest believes that standard protocol would call upon the respiratory therapist or the nurse to create the record or potentially someone else on the hospital staff, not the Respondent. The inaccurate report by Patient W.C. concerning his past history with bird allergies changes the priorities in the differential diagnosis, in Dr. Priest's opinion. That history meant that allergic reaction was placed at the top of the differential diagnosis, in particular with a physical examination that was consistent with the history. Dr. Priest holds this belief even in the absence of fever, sweating, or questionable vital signs in the patient. When Dr. Schreiber entered the treatment room, he noticed a group including a physician and nurses who were attending Patient W.C. They were trying to resuscitate the patient. The patient did not have an airway. The patient was cyanotic. The patient was bloated and did not have a pulse. An attempt was being made to revive the patient from arrest. A valve bag mask was being used and drugs administered that would support the patient's blood pressure. An effort at gaining a surgical airway had not succeeded. There was a surgical incision on the patient's neck. Blood was on the patient and on the floor. At the moment no attempt was being made to establish a surgical airway. Dr. Schreiber observed that the patient had a protruding tongue that was obstructing this mouth and airway. Dr. Schreiber observed that the Petitioner's upper check and abdomen were bloated. Dr. Schreiber noted that the patient evidenced crepitancy, indicating subcutaneous air in the patient's neck and chest. This would be consistent with the placement of an airway tube into the subcutaneous tissue outside the trachea and air blown into the area. Dr. Schreiber made a nick in the trachea and placed a number 8 ET tube into the trachea. Following the placement of the ET tube in the trachea, Dr. Schreiber observed air movement in the lungs. However, the patient did not regain a pulse or adequate saturation of oxygen. On January 3, 2006, Dr. Thomas Beaver, Chief Medical Examiner and pathologist, performed an autopsy on Patient W.C. As part of his Medical Examiner's report on Patient W.C., special studies had been done, and a comprehensive toxicology analysis performed by AIT Laboratories. Dr. Beaver determined the cause of death as complications of acute epiglottitis and that the manner of death was of natural causes. The complications of acute epiglottitis were explained as a status post crichothyroidotomy. Dr. Beaver also noted atherosclerotic cardiovascular disease involving coronary arteries, mild. In particular, Dr. Beaver found that the epiglottis was swollen to an extent that it obstructed the deceased's airway. The condition observed was not the result of an attempted intubation of the patient, in Dr. Beaver's opinion. The condition observed was a disease process that Dr. Beaver felt was on-going for a matter of hours or perhaps a number of days before the attempted intubation. This type of mechanical obstruction in the epiglottitis would obstruct the airway and disable the patient from breathing, according to Dr. Beaver. The condition of the epiglottitis was not perceived by Dr. Beaver to be in association with some form of allergic reaction. The exact cause was not clear. Dr. Beaver does not believe that the ingestion of cocaine, whose metabolites were in the body caused the death. Marie Herrmann, M.D., is the present Medical Examiner and pathologist in the jurisdiction where Dr. Beaver served. Dr. Herrmann had the opportunity to review Dr. Beaver's autopsy report on Patient W.C. and to examine some evidence available to Dr. Beaver in performing his examination. She too was not persuaded that cocaine was a contributing factor to Patient W.C.'s death. In offering this opinion Dr. Herrmann was aware of the toxicology report from AIT Laboratories. Dr. Herrmann agrees with Dr. Beaver's opinion concerning Patient W.C.'s cause of death. Dr. Herrmann was unable to determine within a reasonable degree of medical certainty that the efforts by Respondent to intubate Patient W.C. caused the blockage in the airway. Michael Evans, Ph.D., is the founder, president and CEO of AIT Laboratories. He is an expert in toxicology. He testified concerning the findings in his laboratory related to Patient W.C. using established protocols for examination of the samples provided his facility. Based upon his analysis, Dr. Evans believes that Patient W.C. had ingested cocaine as recent as three hours and no longer than 24 hours before his death based upon values found in the blood and urine samples provided. Bruce Goldberger, Ph.D., is an expert in forensic toxicology. He is a professor and director of toxicology at the University of Florida College of Medicine, Departments of Pathology and Psychiatry. He is familiar with the medical examiner's report prepared by Dr. Weaver and the AIT Laboratories' report on Patient W.C. Dr. Goldberger offered the opinion that Patient W.C. could have been using cocaine a day or two before his death. He defers to the medical examiner as to the cause of the patient's death. It is accepted from the findings made in the autopsy report by Dr. Beaver that Patient W.C. died from complications of acute epiglottitis, from natural causes, not as a result of Respondent's attempt to intubate the patient. Having considered the facts and the opinions of experts, clear and convincing evidence was not presented to establish the violations alleged in Count One (Section 458.331(1)(t), Florida Statutes) paragraph 27. a). and b). related to consultation with or assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis in the patient as part of RSI. Likewise, the violation alleged in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. a). relating to failure to document symptoms justifying paralysis and RSI was not proven by clear and convincing evidence. Concerning the alleged violation in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. b). involving the documentation of Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, the opinion of Dr. Priest is compelling. Based upon that opinion Respondent would not be expected to provide that documentation and maintain the record beyond that point in time. Respondent's Background Respondent received his undergraduate education from the University of Tennessee, earning a B.S. in biology. He attended medical school in Nashville, Tennessee, at Harry Medical College and worked as an emergency physician in Tennessee. He undertook a flexible internship at the University of Tennessee in Knoxville, Tennessee. In 1987 Respondent went to Jacksonville, Florida, to do a three-year residency in pediatrics, graduating from that program in 1990. During that time he worked in local emergency rooms in St. Augustine, Palatka, and Tallahassee, Florida. He took courses in Advanced Trauma Life Support and Advanced Cardiac Life Support. Since 1990 Respondent has been a full-time emergency room physician living in New Smyrna Beach, Florida. At present, Respondent works for M. Care Emergency Services in Jacksonville, Florida. Mitigation and Aggravation Respondent has no prior violations related to his license to practice medicine in Florida. Patient W.C.'s Family Patient W.C. was married to F.C. and had two young children. At his death his daughter was approximately two-and- a-half years old and his son was 14 months old. Following Patient W.C.'s death, the family has had a difficult time coping with their loss.

Recommendation Based upon the findings of facts found and the conclusions, RECOMMENDED: That a final order be entered, which dismisses the Administrative Complaint, as amended. DONE AND ENTERED this 14th day of April, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2008.

Florida Laws (9) 120.569120.5720.43381.0261456.072456.073456.50458.331766.102 Florida Administrative Code (1) 64B8-8.001
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COLONIAL HEALTH CARE SERVICES, INC. vs AGENCY FOR HEALTH CARE ADMINISTRATION, 06-001882MPI (2006)
Division of Administrative Hearings, Florida Filed:Tallahassee, Florida May 19, 2006 Number: 06-001882MPI Latest Update: Apr. 06, 2007

The Issue Whether Medicaid overpayments were made to Petitioner and, if so, what is the total amount of those overpayments. Whether Petitioner should be directed to submit to a "comprehensive follow-up review in six months."

Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner Petitioner is owned by Yuval Levy, a Florida-licensed consultant pharmacist and registered pharmacist since 1990. Mr. Levy has served as Petitioner's president and chief executive officer since the "end of 1995." At all times material to the instant case, Petitioner has operated Colonial Drug (Pharmacy), a Florida-licensed closed system pharmacy located in Broward County, Florida. At all times material to the instant case, Petitioner acquired from pharmaceutical wholesalers licensed under Florida law all of the drugs dispensed through the Pharmacy. During the period from May 23, 1999, through February 23, 2001 (Audit Period), the Pharmacy filled approximately 180,000 prescriptions annually. A quarter of them (25 percent) were dispensed to Medicaid recipients. Petitioner's Participation in the Medicaid Program Petitioner was authorized during the Audit Period to provide pharmacy services to eligible Medicaid recipients in Florida. Petitioner provided such services pursuant to a Medicaid Provider Agreement (Provider Agreement). The Provider Agreement contained the following provisions, among others: The Provider agrees to participate in the Florida Medicaid program under the following terms and conditions: * * * Quality of Service. The provider agrees to provide medically necessary services or goods of not less than the scope and quality it provides to the general public. The provider agrees that services or goods billed to the Medicaid program must be medically necessary, of a quality comparable to those furnished by the provider's peers, and within the parameters permitted by the provider's license or certification. The provider further agrees to bill only for the services performed within the specialty or specialties designated in the provider application on file with the Agency. The services or goods must have been actually provided to eligible Medicaid recipients by the provider prior to submitting the claim. Compliance. The provider agrees to comply with all local, state and federal laws, rules, regulations, licensure laws, Medicaid bulletins, manuals, handbooks and Statements of Policy as they may be amended from time to time. Term and signatures. The parties agree that this is a voluntary agreement between the Agency and the provider, in which the provider agrees to furnish services or goods to Medicaid recipients. . . . Provider Responsibilities. The Medicaid provider shall: * * * (b) Keep and maintain in a systematic and orderly manner all medical and Medicaid related records as the Agency may require and as it determines necessary; make available for state and federal audits for five years, complete and accurate medical, business, and fiscal records that fully justify and disclose the extent of the goods and services rendered and billings made under the Medicaid. The provider agrees that only records made at the time the goods and services were provided will be admissible in evidence in any proceeding relating to the Medicaid program. * * * (d) Except as provided by law, the provider agrees to provide immediate access to authorized persons (included but not limited to state and federal employees, auditors and investigators) to all Medicaid-related information, which may be in the form of records, logs, documents, or computer files, and all other information pertaining to services or goods billed to the Medicaid program. This shall include access to all patient records and other provider information if the provider cannot easily separate records for Medicaid patients from other records. * * * (f) Within 90 days of receipt, refund any moneys received in error or in excess of the amount to which the provider is entitled from the Medicaid program. * * * (i) . . . . The provider shall be liable for all overpayments for any reason and pay interest at 12% per annum on any fine or repayment amount that remains unpaid 30 days from the date of any final order requiring payment to the Agency. * * * (l) If submitting claims to the Agency electronically, abide by the terms of the Standard Electronic Claims Submission Agreement. * * * Petitioner executed such a Standard Electronic Claims Submission Agreement (Submission Agreement), through which it expressed its understanding of and agreement to the following, among other things: * * * 3. Providers must correctly enter the claims data, monitor the data, and certify that the data entered is correct. * * * Providers must have on file the applicable source data to substantiate the claim submitted to the Medicaid program. Providers must allow the Agency or any of its designees . . . to review and copy all records, including source documents and data related to information entered through electronic claims submission. Providers must abide by all Federal and State statutes, rules, regulations, and manuals governing the Florida Medicaid program. Providers must sign and adhere to all conditions of the Medicaid Provider Agreement and be officially enrolled in the Medicaid program to participate in the electronic claims submission. Currently, and at all times material to the instant case, Petitioner "bill[ed] everything electronically." Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook Among the requirements with which Petitioner, in paragraph 3 of the Provider Agreement and in paragraph 7 of the Submission Agreement, agreed to comply were those set forth in the Prescribed Drug Services Coverage, Limitations and Reimbursement Handbook (PDSCLR Handbook). During the Audit Period, Chapter 2 of the PDSCLR Handbook contained substantially the following "record keeping requirements" (with the underlined language reflecting additions to these requirements made effective July 20, 20002): Record Keeping Requirements The provider must retain all medical, fiscal, professional and business records on all services provided to a Medicaid recipient. Records may be kept on paper, magnetic material, film, or other media. In order to qualify as a basis for reimbursement, the records must be signed and dated at the time of service, or otherwise attested to as appropriate to the media. Rubber stamp signatures must be initialed. The records must be accessible, legible and comprehensible. Record Retention Records must be retained for a period of at least five years from the date of service. Types of Records That Must be Retained The following types of records, as appropriate for the type of service provided, must be retained (the list is not all inclusive): Medicaid claim forms and any documents that are attached; Professional records, such as patient treatment plans and patient records; Prior and past authorization, and service authorization information; Prescription records; Business records, such as accounting ledgers, financial statements, purchase/acquisition records, invoices, inventory records, check registers, canceled checks, sales records, etc.; Tax records, including purchase documentation; Patient counseling documentation; and Provider enrollment documentation. Requirements for Prescription Records The pharmacy must maintain a patient record for each recipient for whom new or refill prescriptions are dispensed. The record may be electronic. The pharmacy's patient record system must provide for the immediate retrieval of the information necessary for the pharmacist to identify previously dispensed drugs when dispensing a new or refill prescription. The patient record must contain the following information: The recipient's first and last name, address, date of birth, and gender; A list of all prescriptions that were obtained by the recipient at the pharmacy during the 12 months immediately preceding the most recent service that includes: the name of the drug or device, prescription number, strength of the drug, the quantity, date received, and the prescriber's full name and state license number; Any known allergies, drug reactions, idiosyncrasies, chronic conditions or disease states of the patient, and the identity of any over-the-counter drugs or devices currently being used by the patient that may relate to prospective drug use review; Any related health information indicated by a licensed health care practitioner; and The pharmacist's comments, if any, relevant to the patient's drug therapy. Right to Review Records Authorized state and federal agencies and their authorized representatives may audit or examine a provider's records. This includes all records that AHCA finds necessary to determine whether Medicaid payments were or are due. This requirement applies to the provider's records and records for which the provider is the custodian. The provider must give authorized state and federal agencies and their authorized representatives access to all Medicaid patient records and to other information that cannot be separated from Medicaid-related records. The provider must send, at his or her expense, legible copies of all Medicaid- related information to the authorized state and federal agencies and their authorized representatives. Incomplete Records Providers who are not in compliance with the Medicaid documentation and record retention policies described in this chapter may be subject to administrative sanctions and recoupment of Medicaid payments. Medicaid payments for services that lack required documentation or appropriate signatures will be recouped.[3] Note: See Chapter 5 in this handbook for information on administrative sanctions and Medicaid payment recoupment. During the Audit Period, Chapter 5 of the PDSCLR Handbook contained the following provisions, among others: Provider Abuse Abuse Abuse means provider practices that are inconsistent with generally accepted business or medical practices and that result in an unnecessary cost to the Medicaid program or in reimbursement for goods or services that are not medically necessary or that fail to meet professionally recognized standards for health care. Financial Abuse Financial abuse means abuse resulting in overpayments to providers. Overpayment Overpayment includes any amount that is not authorized to be paid by the Medicaid program whether paid as a result of inaccurate or improper cost reporting, improper claims, unacceptable practices, fraud, abuse, or mistake. * * * Incomplete or Missing Records Incomplete records are records that lack documentation that all requirements or conditions for service provision have been met. Medicaid may recoup payment for services or goods when the provider has incomplete records or cannot locate the records. Note: See Chapter 2 in this handbook for Medicaid record keeping and retention requirements. During the Audit Period, other portions of the PDSCLR Handbook contained requirements regarding the information that providers, in preparing a claim for reimbursement, had to include, while elsewhere in the handbook other billing requirements, as well as billing prohibitions, were discussed. Florida Administrative Code Rule Provisions Additional requirements with which Petitioner, in paragraph 3 of its Provider Agreement and in paragraph 7 of the Submission Agreement, agreed to comply included those contained in the following provisions of the Florida Administrative Code governing the practice of pharmacy: Florida Administrative Code Rule 64B16- 27.103 Only a Florida registered pharmacist or registered pharmacy intern acting under the direct personal supervision of a Florida registered pharmacist may, in the State of Florida, accept an oral prescription of any nature. Upon so accepting such oral prescription it must immediately be reduced to writing, and only a Florida registered pharmacist or registered pharmacy intern acting under the direct personal supervision of a Florida registered pharmacist may, in the State of Florida, prepare a copy of a prescription or read a prescription to any person for purposes of providing reference concerning treatment of the person or animal for whom the prescription was written, and when said copy is given a notation shall be made upon the prescription that a copy has been given, the date given, and to whom given. Florida Administrative Code Rule 64B16- 27.400 * * * (3) Only a Florida licensed pharmacist may make the final check of the completed prescription thereby assuming the complete responsibility for its preparation and accuracy. * * * Florida Administrative Code Rule 64B16- 28.140 (1) Requirements for records maintained in a data processing system. * * * Original prescriptions, including prescriptions received as provided for in Rule 64B16-28.130, F.A.C., Transmission of Prescription Orders, shall be reduced to a hard copy if not received in written form. All original prescriptions shall be retained for a period of not less than two years from date of last filling. To the extent authorized by 21 C.F.R. Section 1304.04, a pharmacy may, in lieu of retaining the actual original prescriptions, use an electronic imaging recordkeeping system, provided such system is capable of capturing, storing, and reproducing the exact image of the prescription, including the reverse side of the prescription if necessary, and that such image be retained for a period of no less than two years from the date of last filling. Original prescriptions shall be maintained in a two or three file system as specified in 21 C.F.R. 1304.04(h). * * * (3) Records of dispensing. Each time a prescription drug order is filled or refilled, a record of such dispensing shall be entered into the data processing system. The data processing system shall have the capacity to produce a daily hard-copy printout of all original prescriptions dispensed and refilled. This hard copy printout shall contain the following information: Unique identification number of the prescription; Date of dispensing; Patient name; Prescribing practitioner's name; Name and strength of the drug product actually dispensed, if generic name, the brand name or manufacturer of drug dispensed; Quantity dispensed; Initials or an identification code of the dispensing pharmacist; and If not immediately retrievable via CRT display, the following shall also be included on the hard-copy printout: Patient's address; Prescribing practitioner's address; Practitioner's DEA registration number, if the prescription drug order is for a controlled substance; Quantity prescribed, if different from the quantity dispensed; Date of issuance of the prescription drug order, if different from the date of dispensing; and Total number of refills dispensed to date for that prescription drug order. The daily hard-copy printout shall be produced within 72 hours of the date on which the prescription drug orders were dispensed and shall be maintained in a separate file at the pharmacy. Records of controlled substances shall be readily retrievable from records of non-controlled substances. Each individual pharmacist who dispenses or refills a prescription drug order shall verify that the data indicated on the daily hard-copy printout is correct, by dating and signing such document in the same manner as signing a check or legal document (e.g., J. H. Smith, or John H. Smith) within seven days from the date of dispensing. In lieu of producing the printout described in subparagraphs (b) and (c) of this section, the pharmacy shall maintain a log book in which each individual pharmacist using the data processing system shall sign a statement each day, attesting to the fact that the information entered into the data processing system that day has been reviewed by him or her and is correct as entered. Such log book shall be maintained at the pharmacy employing such a system for a period of two years after the date of dispensing provided, however, that the data processing system can produce the hard-copy printout on demand by an authorized agent of the Department of Health. If no printer is available on site, the hard-copy printout shall be available within 48 hours with a certification by the individual providing the printout, which states that the printout is true and correct as of the date of entry and such information has not been altered, amended or modified. The prescription department manager and the permit holder are responsible for the proper maintenance of such records and responsible that such data processing system can produce the records outlined in this section and that such system is in compliance with this subsection. Failure to provide the records set out in this section, either on site or within 48 hours for whatever reason, constitutes failure to keep and maintain records. In the event that a pharmacy which uses a data processing system experiences system downtime, the following is applicable: An auxiliary procedure shall ensure that refills are authorized by the original prescription drug order and that the maximum number of refills has not been exceeded or that authorization from the prescribing practitioner has been obtained prior to dispensing a refill; and All of the appropriate data shall be retained for on-line data entry as soon as the system is available for use again. * * * (5) Authorization of additional refills. Practitioner authorization for additional refills of a prescription drug order shall be noted as follows: On the daily hard-copy printout; or Via the CRT display. The Audit and Aftermath Commencing on April 16, 2001, Heritage Information Systems, Inc. (Heritage), on behalf of AHCA, conducted an audit of Petitioner's paid Medicaid claims for the period from May 23, 1999, through February 23, 2001.4 Petitioner had submitted 37,416 such claims (Audit Period Claims), for which it had received payments totaling $2,797,964.36. The purpose of the audit was to determine whether, and if so to what extent, Petitioner was overpaid for these Audit Period Claims. Prior to the audit, Heritage provided Pharmacy personnel a Notice to Medicaid Provider of Initiation of On-Site Audit, which read as follows: The Agency for Health Care Administration (Agency), under federal and state laws, has the responsibility to oversee the activities of Medicaid providers. This is to advise you that an on-site audit of your billings to the Medicaid program has been initiated. Audits are performed in order to determine if Medicaid billings conform to applicable laws, rules, and policies. The fact that an audit is performed carries with it no implication of any wrongdoing. Audits are conducted as part of the responsibility of Medicaid for ensuring the integrity of the program. Medicaid audits generally involve a review of provider medical, professional, financial, and business records as required to determine the propriety of billings. Attachment B is a summary of applicable laws and rules governing the access to required information. If additional information is desired, please notify the auditor named below. In conducting the audit, Heritage performed both a "prescription record review" and "purchase invoice analysis."5 For the "prescription record review," Heritage first selected a non-random, "judgmental sample" of 271 Audit Period Claims, for which Petitioner had received payments totaling $222,559.65. It then selected (from the remaining Audit Period Claims) a "random sample" of 250 claims,6 for which Petitioner had received payments totaling $18,250.05. Thereafter, Petitioner's records were examined to determine whether they contained documentation sufficient to support the claims in the "judgmental sample" and in the "random sample." Heritage's December 10, 2001, Final Report: In-Depth Audit (Final Heritage Report) contained an Executive Summary, which summarized what the audit had revealed to date. This Executive Summary read, in pertinent part, as follows: Heritage Information Systems, Inc. ("Heritage") conducted an in-depth audit of Colonial Drug ("Colonial") at the request of the Florida Agency for Health Care Administration ("AHCA"). The audit documented possible billing, policy and regulatory violations that resulted in apparent overpayments. The audit findings include the following: Auditors sampled 271 judgmental and 250 random prescription claims. A review of the judgmental sample documented $134,926.14 in overcharges. Findings from the random sample extrapolated to $1,568,499.62. The 95% one-sided lower confidence limit extrapolation is $1,189,026.15. Adding the judgmental sample findings to the 95% one- sided lower confidence limit for the extrapolated random sample findings totals $1,323,952.29. The discrepancies identified in the sample include the following: Pharmacy staff was unable to produce hard copy prescription records corresponding to 253 claims ("CF"). Fifteen (15) claims were billed for quantities greater than those ordered by the prescribers or dispensed to the patients ("OBQ"). Days supply amounts for nine (9) claims were billed incorrectly ("DS"). Nine (9) hard copy prescription records for controlled substances did not contain the prescribers' addresses ("NDAD"). Nine (9) hard copy prescriptions for controlled substances did not contain the prescribers' DEA numbers ("NDEA"). Seven (7) quantities were cut resulting in additional dispensing fees paid to the pharmacy ("CQ"). Seven (7) hard copy prescription records for controlled substances did not indicate the quantities of drug to be dispensed ("NQTY"). Two (2) prescription claims were billed for drugs that differed from those ordered by the prescriber (WDB"). * * * Heritage's audit documented apparent overcharges of $1,323,952.29. This figure represents a combination of non-extrapolated findings from the judgmental sample plus the 95% one-sided lower confidence limit for the extrapolated random sample findings. This report is submitted to AHCA for action deemed appropriate. Based on the information Heritage provided, AHCA preliminarily determined that Petitioner had been overpaid a total of $1,323,952.29 for the Audit Period Claims. By letter dated February 20, 2002, which it denominated its Provisional Agency Audit Report, AHCA advised Petitioner of this preliminary determination. AHCA's Provisional Agency Audit Report read, in pertinent part, as follows: An on-site audit of your pharmacy was initiated on April 16, 2001. The Florida Medicaid Program through the Agency for Health Care Administration has determined that you have been overpaid $1,323,952.29 in connection with claims submitted to Medicaid during the audit period(s). This conclusion is supported by the audit results. This review and the determination were made in accordance with the provisions of Chapter 409, Florida Statutes (F.S.), and Chapter 59G, Florida Administrative Code (F.A.C.). In applying for Medicaid reimbursement, providers are required to follow applicable statutes, rules, Medicaid provider handbooks, statements of Medicaid policy, and federal laws and regulations. Medicaid cannot properly pay for claims that do not meet Medicaid requirements. When a provider receives payment in violation of these provisions, those funds must be repaid. This is, however, a provisional finding and we encourage you to submit any additional information or documentation that you may have that you feel may serve to change the overpayment. REVIEW DETERMINATION The audit included a judgmental sample review of selected paid claims and a separate review of a statistical[ly] valid random sample taken from the remaining population of paid claims with dates of service during the audit period. The overpayment found in the random sample was extended to the population using generally accepted statistical formulas and methods. The audit period for this review was from May 23, 1999, through February 23, 2001. This review identified an overpayment of $1,323,952.29. Attached are the overpayment calculations, a summary of documented discrepancies, and an itemized listing of discrepancies noted in the review of the judgmental and random sample. * * * Accordingly, we have determined at this time that you have been overpaid by the Medicaid program in the amount of $1,323,952.29. If you have documentation that you wish to submit that you feel would alter these findings, submit your written explanation and legible copies of the organized documentation to us within 30 days of receipt of this notice. . . . If you concur or accept these findings, please send your check in the amount of $1,323,952.29 for the identified overpayment . . . . If you have not submitted a written explanation and documentation or made payment within 30 days, we will send you notice regarding the agency's final determination. * * * Petitioner subsequently furnished additional documentation to AHCA. On or about May 30, 2002, AHCA sent this additional documentation to Heritage for "review, placement in [Heritage's] file, and action deemed appropriate." By letter dated November 15, 2002, AHCA informed Petitioner of its opportunity "to submit [any] further documentation" it wanted AHCA to consider. The letter read, in pertinent part, as follows: An audit of your pharmacy was initiated on April 16, 2001. The Florida Medicaid Program, through the Agency for Health Care Administration (Agency), issued a Provisional Agency Audit Report, dated February 20, 2002, and made a provisional overpayment determination. Subsequent to this determination, your pharmacy submitted additional documentation. However, the Agency extends to you an opportunity to submit further documentation that has not already been submitted that may change the overpayment. This review and determination were made in accordance with the provisions of Chapter 409, Florida Statutes (F.S.), and Chapter 59G, Florida Administrative Code (F.A.C.). In applying for Medicaid reimbursement, providers are required to follow the applicable statutes, rules, Medicaid provider handbooks, statements of Medicaid policy, and federal laws and regulations. Medicaid cannot properly pay for claims that do not meet Medicaid requirements. We encourage you to submit any additional information or documentation not already sent that you may have that you feel may serve to change the provisional overpayment. * * * Documentation standard for statistical audit review: Documents submitted after the completion of an audit may require an affidavit or other sworn statement, in addition to the documents, as a means to authenticate the documentation. Documentation that appears to be altered, or in any other way appears not to be authentic, will not serve to reduce the overpayment. Furthermore, additional documentation must clearly identify which discrepancy (claim) as set forth in the attached audit findings it purports to support. * * * Having reviewed the additional documentation that Petitioner had provided AHCA, Heritage prepared and submitted to AHCA an Addendum, dated May 13, 2003, to the Final Heritage Report it had previously submitted.7 The Addendum contained an Executive Summary, which stated the following, in pertinent part, regarding the "post audit review" conducted by Heritage: Post Audit Review/Revised Findings Post audit documentation from the pharmacy was forwarded to Heritage by AHCA and received on 1/3/03. Post audit documentation included copies of prescriptions and clinical records. The accepted documentation was incorporated into the audit findings and a revised overcharge amount was calculated. The revised judgmental sample review resulted in documented overcharges of $42,987.50. Revised findings from the random sample extrapolated to $701,790.88. The 95% one- sided lower confidence limit for this extrapolation is $484,189.15. Adding the judgmental sample findings to the 95% one- sided lower confidence limit of the random sample findings totals $527,176.65. Appended to the Addendum were, what Heritage referred to as, "discrepancy listings," accompanied by "edit sheets." The "discrepancy listings" specified those Audit Period Claims in the "judgmental sample" and in the "random sample" that were "discrepant" and, with respect to each such "discrepant" claim, identified, using the following "codes," the nature of the "discrepancy" from which the claim suffered and, in addition, set forth (in the "overcharges" column) the amount of any resulting overpayment: CF (Original hard copy prescription cannot be found on file during the audit)[8] CQ (A quantity less than that prescribed and less than that allowed, is billed and additional refills are dispensed resulting in undue dispensing fees)[9] DS (The days supply value submitted by the pharmacy is not consistent with the quantity and directions) DUP (Multiple claims for the same prescription fill are submitted and paid)[10] NDAD (The hard copy prescription does not include the prescriber's address)[11] NDEAC (The hard copy prescription does not contain a DEA number) NQTYC (The hard copy prescription does not indicate the quantity of drug to be dispensed) OBQ (Quantity paid exceeds the quantity authorized by the prescriber or dispensed to the recipient) UR (The number of refills billed and paid to the pharmacy exceeds the number authorized by the prescriber. Refills are dispensed without documented authorization from the prescriber) WDB (A pharmacy submits a claim for a medication that is different from the medication authorized to be dispensed to the patient)[12] WDBC (A pharmacy submits a claim for a medication that is different from the medication authorized to be dispensed to the patient, but with a showing of cause) WMDC (The claim for the prescription contains an incorrect prescriber license number, but the correct prescriber's name is documented in the pharmacy computer or is similar to the name of the prescriber billed)[13] WPB (The patient identified on a hard copy prescription is not the patient on the paid claim) These "discrepancy listings" are accurate as to all listed claims other than those denominated in Joint Exhibit 1 as "discrepant" claims 26 (August 9, 2000, fill), 52, 56, 61, 81, and 91. There were a total of 190 "discrepant" claims listed (including "discrepant" claims 26 (August 9, 2000, fill), 52, 56, 61, 81, and 91), some of which had "multiple discrepancies"14: 69 coded "CF"15 (with associated "overcharges" equal to the total amount paid for these claims); seven coded "CQ" (with associated "overcharges" equal to the undue "dispensing fees");16 11 coded "DS" (with no associated "overcharges"); four coded "DUP" (with associated "overcharges" equal to the total amount paid for these duplicate claims); nine coded "NDAD" (with no associated "overcharges"); 11 coded "NDEAC" (with associated "overcharges" equal to the "dispensing fees"); 8 coded "NQTYC" (with associated "overcharges" equal to the "dispensing fees"); 30 coded "OBQ" (with associated "overcharges" equal to the amount paid for the quantity in excess of that authorized); 16 coded "UR" (with associated "overcharges" equal to the total amount paid for these claims); one coded "WDB" (with an associated "overcharge" equal to the total amount paid for this claim); two coded "WDBC" (with associated "overcharges" equal to the "dispensing fees"); 59 coded "WMBC" (with associated overcharges " equal to the "dispensing fees"); and two coded "WPB" (with associated "overcharges" equal to the total amount paid for these claims). Of the 190 "discrepant" claims, 96 were in the "judgmental sample" and 94 were in the "random sample." On or about October 31, 2003, AHCA sent Petitioner a letter advising Petitioner of the status of AHCA's audit of the Audit Period Claims. The letter read, in pertinent part, as follows: The Agency for Health Care Administration, Office of Medicaid Program Integrity, with regard to the above-referenced audit, made a preliminary overpayment determination and sent a Preliminary Agency Audit Report to your attention. At this time, the Agency is temporarily placing this audit on hold, pending the outcome of litigation in an unrelated audit. Therefore, please maintain all of your Medicaid-related records and all documentation that supports the claims at issue in this matter until such time as this audit is finalized. Almost two years after having received Heritage's May 13, 2003, Addendum, AHCA prepared and sent to Petitioner its Final Agency Audit Report,17 which was dated April 8, 2005, and read, in pertinent part, as follows: The Agency for Health Care Administration, Office of Medicaid Integrity has completed the review of your Medicaid claims for the procedures specified below for dates of service during the period May 23, 1999, through February 23, 2001. A provisional agency audit report, dated February 20, 2002, was sent to you indicating that we had determined you were overpaid $1,323,952.29. Based upon a review of all documentation submitted, we have determined that you were overpaid $527,176.65 for services that in whole or in part are not covered by Medicaid. This report is not intended to imply any particular claim is or was covered. At a later date, the Agency may again review claims submitted during this period of time. Be advised that pursuant to Section 409.913(23)(a), Florida Statutes (F.S.), the Agency is entitled to recover all investigative, legal, and expert witness costs. Additionally pursuant to Section 409.913, F.S., this letter shall serve as notice of the following sanction(s): The provider is subject to a comprehensive follow-up review in six months. This review and the determinations of overpayment were made in accordance with the provisions of Section 409.913, F.S. In determining payment pursuant to Medicaid policy, the Medicaid program utilizes procedure codes, descriptions, policies, and the limitations and exclusions found in the Medicaid provider handbooks. In applying for Medicaid reimbursement, providers are required to follow the guidelines set forth in the applicable rules and Medicaid fee schedules, as promulgated in the Medicaid policy handbooks, billing bulletins, and the Medicaid provider agreement. Medicaid cannot pay for services that do not meet these guidelines. Below is a discussion of the particular guidelines related to our review of your claims and an explanation of why these claims do not meet Medicaid requirements. The audit work papers are attached, referencing the claims that were reviewed and found to be discrepant by this determination. REVIEW DETERMINATION(S) The audit included the review of a judgmental sample of selected claims and the review of a statistically valid random sample taken from the population of paid claims with dates of service during the audit period. The overpayment found in the random sample was extended to the population using generally accepted statistical formulas and methods. The audit period for this review was from May 23, 1999, through February 23, 2001. This review identified an overpayment of $527,176.65. Attached are the overpayment calculations, a summary of documented discrepancies, and an itemized listing of discrepancies noted in the review of the judgmental and the random sample[s]. * * * If you are not in bankruptcy and you concur with our findings, remit by check in the amount of $527,176.65. . . . * * * You have a right to request a formal or informal hearing pursuant to Section 120.569, F.S. . . . . [I]f a request for a hearing is made, the petition must be received by the Agency within twenty-one (21) days of receipt of this letter. . . . * * * As noted in the Preliminary Statement of this Recommended Order, Petitioner requested a "formal hearing," which ultimately was held on September 6 through 8, 2006. During the course of the hearing, AHCA made another downward revision in its total overpayment calculation (to $480,832.31), after determining that one "discrepant" claim in the "judgmental sample" ("discrepant" claim 26 (August 9, 2000, fill) previously coded "OBQ" should instead be coded "WMDC" (and that therefore the "overcharge" associated with this "discrepant" claim was $4.23, not $601.50), and further determining that five claims in the "random sample" ("discrepant" claims 52, 56, 61, 81, and 91) previously determined to be "discrepant" were in fact not "discrepant" (and that therefore Petitioner was not overpaid anything for these claims). Joint Exhibit 1 reflects this recalculation made by AHCA. The total amount that Petitioner was overpaid for the "discrepant" claims in the "judgmental sample" was $42,310.17. The total amount that Petitioner was overpaid for the 89 "discrepant" claims in the "random sample" was $4,339.32, or 17.36 dollars for each of the 250 claims in the sample. Extrapolating or projecting this result, in accordance with accepted statistical principles, to the entire universe of Audit Period Claims (which numbered 37,416) minus the 271 claims in the "judgmental sample" (a total of 37,145 claims), using a "95% one-sided lower confidence limit," yields an overpayment of $438,522.14. Adding this $438,522.14 overpayment to the $42,310.17 overpayment for the "discrepant" claims in the "judgmental sample" produces a total overpayment of $480,832.31 AHCA has made no additional revisions to its overpayment calculation in the instant case. It continues to maintain (and correctly so) that Petitioner received $480,832.31 in Medicaid overpayments for services claimed to have been provided during the Audit Period.18

Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that AHCA enter a final order finding that Petitioner received $480,832.31 in Medicaid overpayments for paid claims covering the period from May 23, 1999, through February 23, 2001, and requiring Petitioner to repay this amount to AHCA; and that AHCA decline to order a "comprehensive follow- up review [of Petitioner] in six months." DONE AND ENTERED this 14th day of December, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of December, 2006.

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