The Issue Should discipline be imposed against Respondent's medical license for alleged violations of Sections 456.072(1)(aa), and 458.331(1)(p), Florida Statutes (2003)?
Findings Of Fact Stipulated Facts Petitioner is the state department charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. At all times material to this (Administrative) Complaint, Respondent was a licensed physician within the State of Florida, having been issued license number ME66779. Respondent's address of record is Nature Coast Orthopedics, P.O. Box 640580, Beverly Hills, Florida 34464-0580. Respondent is board-certified in orthopedic surgery. On or about February 25, 2004, Respondent scheduled or had Patient D.M. scheduled for an anterior cruciate ligament (repair of a tear in a ligament), repair of the right knee at Seven Rivers Regional Medical Center in Crystal River, Florida. On or about February 25, 2004, Patient D.M. a 25-year-old male, was prepped for surgery and taken to the operating room. On or about February 25, 2004, Respondent entered the operating room and initiated the surgery with an incision of Patient D.M.'s left knee. On or about February 25, 2004, the intended and/or planned surgical site for Patient D.M., was his right knee. Subsequent to performing the incision to Patient D.M.'s left knee, Respondent realized that he was performing surgery on Patient D.M.'s wrong knee. Respondent applied a steri-strip to Patient D.M.'s left knee subsequent to making an incision on the left knee. Respondent made a skin incision on Patient D.M.'s left knee. Additional Facts Respondent graduated from medical school in 1989. He was in residency for five years and has been in practice for about 11 years beyond that time. Other than his disciplinary history with the State of Florida, Board of Medicine (the Board of Medicine) he has no disciplinary past with other boards or jurisdictions. Respondent is board-certified by the American Board of Orthopedic Surgery. Respondent has active privileges at Seven Rivers Regional Medical Center (Seven Rivers Regional) and Health South Citrus Service Center, an outpatient facility. Those facilities are located in Crystal River, Florida, and Lancanto, Florida, respectively. Respondent has an office practice that employs 12 staff. They include a receptionist, billing personnel, what is described as back-help, a Physician's Assistant (P.A.) and medical assistants. Respondent supervises the P.A., pursuant to registration with the State of Florida. Respondent takes emergency calls at Seven Rivers Regional, to include pediatric orthopedic calls. Respondent also takes hand calls which are related to injuries in that portion of the anatomy below the shoulders. After an 1998 incident involving a wrong-site surgery for which discipline was imposed by the Board of Medicine on Respondent, discussed in detail later in the facts, Respondent made some changes to his practice in dealing with the problem of wrong-site surgery. This involved the imposition of other checks and balances. One of the changes was referred to as a time-out, promoted by changes in hospital rules at what is now Seven Rivers Regional and by Respondent's choice. In 1998 the hospital was known as Seven Rivers Hospital. Persons other than Respondent were engaged in the establishment of additional checks and balances to avoid wrong-site surgeries. The risk manager and director of nursing at Seven Rivers Regional were engaged in this process. The time-out related to the cessation of other activities in treating the patient, to confirm the correct surgery site. Before commencing the surgical procedure the limb involved in the procedure would be marked by nursing staff. The nursing staff would then confirm the site, followed by the time-out period shortly after the preparation for surgery. Confirmation would verbally be made with different staff members, documentation was expected to be checked and any image studies checked to confirm the proper site. Generally, following the 1998 incident involving wrong- site surgery by Respondent, Seven Rivers Hospital established rules addressing the problem of wrong-site surgeries. Greater emphasis was made to enforce those rules after the Respondent‘s second incident considered in this case. In the present case it was intended that reconstruction be made of the anterior cruciate ligament of the right knee of Patient D.M., through arthroscopic reconstruction. The patient in the present case was seen in Respondent's office prior to surgery. The expectation was that the office staff would confer with the staff at Seven Rivers Regional concerning the type of procedure to be performed, to be followed later by orders from the Respondent that were faxed to the operating room staff at Seven Rivers Regional. Those orders would describe the limb involved in the surgery. In the present case the circulating nurse, together with the surgical technician were involved with preparing the limb for surgery, applying antiseptic solution and draping the patient's limb. Those persons are hospital employees. Prior to surgery, the wrong limb was marked by the nursing staff and the draping took place in the operating room. Patient D.M. underwent general anesthesia prior to the surgery. Before the procedure commenced in the present case, Respondent asked the nurse in the operating room if the correct limb had been prepared and the response was in the affirmative. Respondent started the procedure. The only means of confirmation by Respondent at that point was by verbal communication between the circulating nurse and Respondent. Respondent realized that he was ultimately responsible to make certain that the surgery was performed at the correct site. In the present case Respondent took an 11 blade and made a slight incision. He noticed that the video-screen which was normally placed on the opposite side of the intended limb to be examined, was on the same side as the limb that had been prepared for examination. As Respondent made the incision he was uncomfortable with that setting. He turned to the circulating nurse and asked if he could see the patient's chart. By review of the chart he discovered that he had made an incision on the wrong knee, that had been draped and prepared for examination. The incision was about a quarter-inch in size and the surgical knife had been placed about a half-inch into the skin. In this case no second incision was made as would be normal for this type of surgery. Having discovered his error Respondent placed surgical tape across the incision he had made and the draping was broken down from the unintended site and a new draping placed on the intended site. After these changes surgery was performed on the proper knee. Respondent did not consult with any family member before proceeding to perform surgery on the appropriate knee, having addressed the wrong knee in the beginning. The family was informed after the procedure was completed. The patient was informed of the mistake after awakening from anesthesia. The Respondent made entries into the medical record concerning the incident in the present case. After the surgery in the present case Respondent followed-up the patient at his office. No complications were experienced by the patient in either site, the wrong knee or the proper knee. The initial visit involving Patient D.M. took place on February 17, 2004, and the surgery was performed on February 25, 2004. The last scheduled appointment at Respondent's office was August 26, 2004, but Patient D.M. declined that appointment having returned to work, after expressing his view that to come to Respondent's office was an imposition. Respondent made the risk manager and director of nursing aware of the error in the treatment of Patient D.M. The incident was reviewed by the hospital. No action was taken against Respondent's privileges to practice at Seven Rivers Regional as a result of the incident. Following the present incident Respondent has varied his approach. The changes are to involve more people in the time-out period than before the present incident. This includes the anesthesia staff, surgical technician, circulating nurse, and Respondent. Resort is now made to the surgical consent record and any imaging studies that were performed to confirm that the proper site is addressed in the surgery. Prior to the present incident Respondent did not follow a practice of taking the patient's chart with him to the surgery. He depended on orders that had been sent by fax and hard copies following the transmittal of the initial fax to the hospital, to create the basis for surgical site identification by others. In the present case the doctor's orders forwarded to Seven Rivers Regional made clear that the arthroscopy was to be performed on the right knee. The comment section to the pre- operative patient care flow sheet refers to the right knee as the limb to be addressed by the arthroscopy. Likewise the special consent to operation or other procedures refers to the right knee. The anesthesia questionnaire involved with Patient D.M. refers to the right knee, in relation to the procedure in the arthroscopy. All are appropriate references to the location of the site for surgery. Joyce Brancato is the CEO of Seven Rivers Regional. She identified that there are four orthopedic surgeons who practice at the hospital. All four, including Respondent, attend adult cases. Three including Respondent, treat hand calls, and a like number respond to pediatric cases, to include Respondent. If Respondent were suspended it would mean that at certain times during the month patients would have to be diverted or transferred from Seven Rivers Regional to another hospital. There would be an influence on inpatient orthopedic care, in that Respondent provides 63 percent of inpatient surgical care at the facility. In particular, patients who present at the emergency room needing hip repair or fracture repair would be inconvenienced. If Respondent were placed on probation, he would not be allowed to supervise his P.A., who in turn could not see patients that the P.A. follows. No other doctor is available in the practice to supervise the P.A. If Respondent were suspended, services would not be provided through his clinic leaving the patients to seek care elsewhere. Additionally, Respondent is the sole orthopedic physician, to his knowledge, who admits Medicare patients to Seven Rivers Regional. As a result of the present incident Respondent received no pecuniary benefit or self-gain. None of the allegations in the Administrative Complaint involve controlled substance violations. Prior Discipline In relation to a prior disciplinary case against Respondent, that incident took place at Seven Rivers Hospital, now Seven Rivers Regional. The surgery in the prior case took place in 1998. It also involved a wrong-site surgery. As Respondent explained at the November 8, 2005 hearing, the prior case involved a female patient scheduled for a knee arthroscopy. The surgical site identification protocol involved at the time was to have the nursing staff prepare the patient for the surgery. As a consequence, when the Respondent entered the operating room the unintended knee had been draped. Respondent confirmed the surgery site by conferring with a nurse in attendance and starting the procedure. Incisions were made to examine the knee, the wrong knee, the incisions were about a quarter of an inch in length, one for the camera to view the site and one for the surgical instruments used to address the underlying pathology. When the wrong knee was examined following the incisions, Respondent did not find the pathology that he expected given the patient's prior history and physical examination that had been conducted. Other than the incisions being made in the wrong knee, there were no other consequences in the way of impacts to the patient's health. In the prior case in which the wrong knee had been prepped by staff, Respondent recognizes that he as the surgeon was responsible to ensure that surgery commenced on the correct knee. In the prior case, after realizing that he had commenced surgery on the wrong knee, Respondent stopped the procedure, he went to the waiting area and spoke to the patient's husband and explained the circumstances and absent any objection indicated that he intended to proceed with the case involving the correct knee. Before the correct knee could be addressed, there was a delay associated with the breaking down the sterile field on the incorrect knee and starting the process anew to address the correct knee. After conversing with the husband Respondent returned to the operating room and performed surgery on the correct knee. During the pendency of these events the patient was anesthetized. When the patient recovered from the anesthesia Respondent explained what had occurred. The expected pathology was discovered in the proper knee and addressed and the patient satisfactorily recovered from surgery without complications. In the prior case, Respondent made a record indicating that he had initiated the surgery in the wrong site. All requirements incumbent upon Respondent in view of the terms of the Consent Order entered in the prior case, DOH Case No. 98-16838 were met by Respondent.
The Issue The issues in this case are whether Respondents performed a wrong procedure on patient C.C., as set forth in the second amended administrative complaints, and if so, what is the appropriate sanction.
Findings Of Fact The Department of Health, Board of Medicine, is the state agency charged with regulating the practice of medicine in the state of Florida, pursuant to section 20.43 and chapters 456 and 458, Florida Statutes. At all times material to this proceeding, Respondents were licensed physicians within the state, with Dr. Kenneth D. Stahl having been issued license number ME79521 and Dr. Eddie Ward Manning having been issued license number ME110105. Dr. Stahl has been licensed to practice medicine in Florida since 1999 and in California since 1987. He has never had disciplinary action taken against either license. Dr. Stahl is board certified by the American College of Surgeons in general surgery, cardiac and thoracic surgery, and trauma and critical care surgery. Dr. Stahl's address of record is 3040 Paddock Road, Fort Lauderdale, Florida 33141. Dr. Manning has been licensed to practice medicine in Florida since May 31, 2011. He has never had disciplinary action taken against his license. On June 23, 2011, Dr. Manning was a resident in general surgery. Dr. Manning's address of record is 1900 South Treasure Drive, Apartment 6R, North Bay Village, Florida 33141. In February 2011, patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital (JMH) with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous (IV) antibiotics. She was discharged on March 4, 2011. On June 22, 2011, patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography (CT) scan of patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Dr. Stahl later described her anatomy as "very distorted." Patient C.C. was scheduled for an emergency appendectomy, and patient C.C. signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, Dr. Manning was the chief or senior resident, and Dr. Castillo was the junior resident. Notes indicate that Dr. Stahl was present throughout the critical steps of the procedure. Dr. Stahl had little recollection of the procedure, but did testify that he recalled: looking at the video image and seeing a tremendous amount of infection and inflammation and I pulled-–I recall that I myself went into the computer program and pulled up the CT scan and put that on the screen right next to the video screen that's being transmitted from the laparoscope and put them side-to-side and compared what the radiologists were pointing to as the cause of this acute infection and seeing on the laparoscopic video image that that indeed matched what I saw in the CT scan and I said, well, let's dissect this out and get it out of her so we can fix the problem. Dr. Stahl further testified that the infected, hollow organ that was dissected and removed was adherent laterally in the abdomen and was located where the appendix would normally be. He recalled that an abscess cavity was broken into and the infected, "pus-containing" organ that was removed was right in the middle of this abscess cavity. Dr. Stahl also recalled the residents stapling across the base of the infected organ and above the terminal ileum and the cecum and removing it. The Operative Report was dictated by Dr. Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the postoperative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that on June 23, 2011, at 8:00 a.m., patient C.C. "denies pain," and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with patient C.C. in the clinic the following Monday. At the meeting, patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The second amended administrative complaints allege that Dr. Stahl and Dr. Manning performed a wrong procedure when they performed an appendectomy which resulted in the removal of her ovary and a portion of her fallopian tube. It is clear that Dr. Stahl and Dr. Manning did not perform an appendectomy on patient C.C. on June 23, 2011. Dr. Stahl and Dr. Manning instead performed an oophorectomy and salpingectomy. It was not clearly shown that an appendectomy was the right procedure to treat patient C.C. on June 23, 2011. The Department did convincingly show that patient C.C. had a history of medical problems and that she had earlier been diagnosed with appendicitis, had been suffering severe pain for 12 hours with associated nausea and vomiting, that she suffered from an infection in her right lower quadrant, that the initial diagnosis was acute appendicitis, and that the treatment that was recommended was an appendectomy. However, substantial evidence after the operation suggests that an appendectomy was not the right procedure. The infected and inflamed organ that was removed from the site of a prior abscess was not an appendix. After the procedure, patient C.C. no longer felt severe pain in her lower right quadrant, with associated nausea and vomiting. She was discharged the following day and was asymptomatic. It is, in short, likely that the original diagnosis on June 22, 2011, was incorrect to the extent that it identified the infected organ as the appendix. The pre-operative diagnosis that patient C.C.'s severe pain and vomiting were caused by a severe infection in an organ in her lower right quadrant was correct. Surgical removal of that infected organ was the right procedure for patient C.C. If that inflamed organ was misidentified as the appendix before and during the operation, that would not fundamentally change the correctness of the surgical procedure that was performed. The evidence did not clearly show that the wrong procedure was performed. It is more likely that exactly the right procedure was performed on patient C.C. That is, it is likely that an oophorectomy and salpingectomy were the right procedures to address the abdominal pain that caused patient C.C. to present at the JMH emergency room, but that the right procedure was incorrectly initially denominated as an "appendectomy," as a result of patient history and interpretation of the CT scan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order dismissing the second amended administrative complaints against the professional licenses of Dr. Kenneth D. Stahl and Dr. Eddie Ward Manning. DONE AND ENTERED this 15th day of July, 2015, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 2015.
Conclusions "HE PARTIES resolved all disputed issues and executed a Settlement Agreement. The parties are directed to comply with the terms of the attached settlement agreement, attached hereto and incorporated herein as Exhibit “1.” Based on the foregoing, this file is CLOSED. DONE and ORDERED on this the ay”® day of wfiglicha__. 2014, in Tallahassee, Florida. oe aah 4 i Zou DU ale SE TARY Agency for Health Ware Administration Wd §2 i" i aA} ey 2f Final Order C.I.No.: 11-3970-000 Page 1 of 3 A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Frank Rainer, Esquire Agency for Health Care Administration Broad & Cassel Bureau of Finance and Accounting P.O. Box 11300 (Electronic Mail) Tallahassee, Florida 32303 (Via U.S. Mail) Bureau of Health Quality Assurance Stuart Williams, General Counsel HealthCare 9 gency-for Health G (Electronic Mail) ; (Electronic Mail) Kelly Bennett, Chief MPI Shena Grantham, Chief Agency for Health Care Administration Medicaid FFS Counsel (Electronic Mail) (Electronic Mail) Douglas Lomonico State of Florida, Division of Administrative (Electronic Mail) Hearings The Desoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (Via U.S. Mail) Final Order C.L. No.: 11-3970-000 Page 2 of 3 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above named addressees by U.S. Mail on this the ay of ! Les 04, Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 Final Order C.I. No.: 11-3970-000 Page 3 of 3
Findings Of Fact Respondent, Putnam Community Hospital (Putnam) filed an application for a certificate of need (CON) , with respondent, Department of Health and Rehabilitative Services (HRS) , seeking to add fifty acute care beds, a CT scanner replacement, a DVI addition and ancillary expansions to its facility in Palatka, Florida. As is pertinent here, respondent HRS ultimately issued its proposed agency action on January 11, 1984 authorizing Putnam to add twenty-one additional acute care beds. Petitioner, NME Hospitals, Inc., d/b/a Seven Rivers Community Hospital (Seven Rivers) , also filed an application with HRS at or about the same time seeking authority to add thirty-one medical/surgical (acute care) beds to its existing seventy-five bed facility in Crystal River, Florida. The application was denied in toto by HRS on January 11, 1984. On February 24, i984, Seven Rivers filed a petition for formal administrative hearing and motion to consolidate wherein it requested a formal hearing to contest the issuance of a CON to Putnam, and to consolidate its own application for a CON in Case No. 84-0890 with that of Putnam in a comparative hearing. 1/ The first petition was dismissed without prejudice on May 4, 1984 because Seven Rivers had failed to demonstrate that its substantial interests were affected by the proposed agency action concerning Putnam. Thereafter, Seven Rivers filed an amended petition on May 21, 1984. On June 14, Putnam filed a motion to dismiss amended petition which is the subject of this recommended order. In its amended petition, Seven Rivers alleges its substantial interests are affected by Putnam's application because both applications were considered "(i)n the name batching cycle", "both are located in HRS District 3", "that the award of 21 beds to Putnam. .. reduced the inventory of beds needed in the district", and accordingly "the granting of the Putnam application will preclude or diminish the ability of Seven Rivers to obtain approval of its application". There are no allegations that the two facilities compete in any sense of the word, or that patients may choose one over the other, or that Putnam's facility will adversely impact on Seven Rivers' patient revenues, utilization of beds, quality of care, or any of the other criteria which HRS must consider in evaluating the application. 2/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the amended petition for formal administrative hearing filed on behalf of petitioner be DISMISSED, with prejudice. DONE and ENTERED this 22nd day of June, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1984.
The Issue Whether the application of Martin Memorial Medical Center, Inc., to establish a 15-bed hospital-based skilled nursing unit meets the criteria for the issuance of a certificate of need.
Findings Of Fact The Agency for Healthcare Administration (AHCA) is the state agency which administers the certificate of need (CON) program for health care services and facilities in Florida. On April 18, 1997, AHCA published a need for a 15-bed hospital-based skilled nursing unit (SNU) in District 9, Subdistrict 2, for Martin County. Because the beds will be in a hospital, they will be licensed under Chapter 395, Florida Statutes. By contrast, freestanding, nursing facilities are licensed, pursuant to the provisions in Chapter 400, Florida Statutes. Since it is the only acute care hospital in the County, Martin Memorial Medical Center, Inc., d/b/a Martin Memorial Medical Center (Martin Memorial) applied for the CON to establish the 15-bed hospital-based SNU. Martin Memorial has 336 beds located on two separate campuses in Martin County. A satellite facility which has 100 beds, Martin Memorial South, is located in Port Salerno. Port Salerno is approximately 10 to 12 miles south of the City of Stuart. Martin Memorial also owns a 120-bed nursing home on the Port Salerno campus, Martin Nursing and Restorative Care Center (Martin Nursing Center). The facility includes a 40-bed subacute unit. Martin Nursing Center is operated by a long-term care company, Eden Park Management, Inc. Martin Memorial North, the larger, 236-bed hospital in Stuart, is the proposed location of the SNU. The SNU renovation project will cost approximately $242,000, and will occupy space which is currently used for outpatient services. AHCA preliminarily denied the CON application due to Martin Memorial's failure to propose to delicense and convert acute care beds to establish the SNU. AHCA withdrew its objection to the issuance of CON 8847 after reviewing occupancy levels by department at Martin Memorial. AHCA published the applicable fixed need pool in April 19971, which was calculated using proposed Rule 59C-1.036, published on February 7, 1997.2 Notice was given of the only challenge to the proposed rule which was filed by National Healthcare, L.P.3 and subsequently dismissed. No motion to consolidate that case with this one was ever filed. Healthsouth of Treasure Coast, Inc., d/b/a Healthsouth Treasure Coast Rehabilitation Hospital (Healthsouth) is a 90-bed rehabilitation hospital in Vero Beach, Indian River County, approximately 60 miles north of Martin Memorial North. Healthsouth is also in AHCA, District 9, but not in Subdistrict 2. In District 9, St. Lucie County is on the east coast, adjacent to Indian River County to the north, Martin County to the south, and Okeechobee County to the west. The four counties in District 9 are north of Palm Beach County, the only other county in the District. The hospital-based SNUs in the four northern counties in District 9 are: Port St. Lucie Hospital, in St. Lucie County, which has 150 beds and a 15-bed SNU, with CON approval for 9 more SNU beds; Lawnwood Regional Medical Center, also in St. Lucie County, which has 260 beds and a 33-bed SNU; Indian River Memorial Hospital, located within a mile of Healthsouth in Indian River County which has approximately 320 beds and a 20-bed SNU and approval for 8 more SNU beds; Sebastian Hospital, in Indian River County, which has between 100 and 150 beds and has recently been approved for 9 SNU beds; and Raulerson Hospital, in Okeechobee County, which has 101 beds including SNU. Healthsouth identifies its primary service areas as Indian River, St. Lucie, and Martin Counties. Healthsouth generally attracts 60 percent of its patients from Indian River County, 20 percent from St. Lucie, and 15 percent from Martin County. Patients are referred from both Martin Memorial North and South. Healthsouth asserted that a 15-bed SNU at Martin Memorial will compete with Healthsouth, resulting in a loss of patients in sufficient numbers to cause a substantial adverse impact on Healthsouth. Healthsouth's expert in health care planning and finance examined national acute care discharges as compared to the percentage of those cases which typically have follow-up subacute care. Using discharge data by Diagnostic Related Group (DRG), the expert quantified the percentages of subacute cases which can receive services in either a CMR hospital or a skilled nursing facility. Based on an estimate that 75 to 90 percent of the overlapping DRGs would be redirected to Martin Memorial, Healthsouth projected a loss ranging from 55 to 66 cases when applied to 1997 annualized data. The three largest categories of referrals from Martin Memorial are stroke, orthopedics, and rehabilitation, which account for 85 percent of total admissions to Healthsouth. The payer group from the three categories was used to determine the financial impact, using the midpoint of the projected loss of 60 cases or 900 patient days. The financial loss per case is the difference between net revenue per patient day of $458 and the variable expenses per patient day of $295, or $163. Given an incremental net income per adjusted patient day of approximately $163, the projected loss of 900 patient days a year, and an assumed 15-day average length of stay, Healthsouth projects a loss of approximately $150,000 a year in revenues if a 15-bed SNU is established at Martin Memorial. In 1995, the only hospital-based SNU in Healthsouth's service area was at Lawnwood. The SNU at Raulerson opened in April 1996, followed by Port St. Lucie in November 1996, and Indian River Memorial in May 1997. In addition, the new CMR program was developed at Lawnwood, while the unit at St. Mary's Hospital in West Palm Beach was expanded during 1997. By January 1998, Healthsouth reached full capacity, or an average daily census in the range of 84 to 89 patients in 90 beds. Healthsouth's medical director believes that it would have reached full capacity much sooner after its 20-bed expansion in mid-August 1997, but for the competition from the hospital-based SNUs. The expansion of Healthsouth has accomplished the objective of eliminating a 15-to-20 person waiting list which existed when it was a 70-bed facility. The average daily census (ADC) at Lawnwood, in 1995, was 31.1 patients in 33 beds. By the end of 1995, the average daily census at Healthsouth was 69.9 patients in 70 beds. From January 1996 to July 1997, the ADC in Raulerson's 12-bed SNU increased from 5.6 patients to 8.1. After Raulerson's SNU beds became available, the ADC of Healthsouth continued in the 68 to 69 range in 70 beds, indicating that Healthsouth was full. When Port St. Lucie's 15 SNU beds opened during the last two months of 1996, its ADC of 3.9 patients in 1996 increased to 13.5 for the first seven months of 1997. From the time Port St. Lucie's SNU became operational through the end of 1997, the ADC at Healthsouth ranged from a low of 67.2 in 70 beds in June 1997, to a high of 81.9 in 90 beds in November 1997, approximately three months after its expansion. Indian River Memorial, the largest referral source and the closest SNU to Healthsouth, opened a 20-bed SNU, in May 1997. Healthsouth failed to show any adverse impact as a result of the opening of any of existing SNUs in the District. All of the SNUs in the four-county area have filled relatively quickly when opened. At the same time, utilization of CMR services has also steadily increased. In 1996, Martin Memorial North referred 181 patients to Healthsouth; 134 were actually admitted. For the first eleven months of 1997, Martin Memorial North referred 147 patients (160 annualized) resulting in 109 admissions (119 annualized). The percentage of referrals which became admissions was the same, 74 percent, for both years. Martin Memorial South referred 27 patients with 22 of those admitted in 1996, and referred 33 of which 25 were admitted, based on actual data for the first eleven months of 1997 annualized for the entire year. Healthsouth notes that Martin Memorial North's referrals declined 12 percent, and the admissions declined by 11 percent comparing 1996 to 1997. Martin Memorial reported total discharges to Healthsouth of 155 patients in 1995, 155 in 1996 and 149 in 1997. Healthsouth's total admissions for 1996 and 1997, respectively, were 1463 and 1455. Assuming, that Healthsouth reasonably expects to lose $150,000 a year in pre-tax revenues as a result of the establishment of Martin Memorial's 15-bed SNU, that level of impact is not substantial, as compared to Healthsouth's revenues in excess of expenses, or profits of approximately $3.8 million in 1996. Considering the distance between Healthsouth and Martin Memorial, the differences in the intensity of the services they offer, and the historical absence of any substantial adverse impact on Healthsouth when closer referral hospitals established SNUs, Healthsouth has failed to establish that it will suffer an injury-in-fact if Martin Memorial initiates skilled nursing services in a 15-bed unit. Healthsouth failed to establish the reasonableness of the loss it projects, given the evidence that the average length of stay and number of cases likely to be redirected are overestimated. Assuming, nevertheless, the accuracy of Healthsouth's projections, the projected loss does not constitute a substantial adverse impact. Therefore, Healthsouth has failed to establish the facts necessary to support its claim of standing in this proceeding.
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 granting Martin Memorial's Motion to Dismiss the Petition to Intervene, filed by Healthsouth of Treasure Coast, Inc., d/b/a Healthsouth Treasure Coast Rehabilitation, and granting Certificate of Need No. 8847 to establish a 15-bed skilled nursing unit at Martin Memorial Medical Center, Stuart, Florida. DONE AND ENTERED this 1st day of July, 1998, in Tallahassee, Leon County, Florida. ELEANOR M. HUNTER 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 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1998.
Findings Of Fact The Respondent Jorge Suarez-Menendez, M.D., is a licensed medical physician having been issued license number ME 0030879. His last known business address is 1300 Coral Way, Miami, Florida 33145. Gladys Maher was admitted to American Hospital via the emergency room on May 13, 1982, complaining of abdominal pain, nausea and vomiting. The admitting physician, Dr. Amorin also noted that laboratory results revealed problems with the patient's gall bladder and the Respondent was consulted when the surgeon detected abdominal wall defects which included hernias and diastasis of the rectus muscle. A repair of the diastasis of the rectus muscle is performed utilizing an abdominal lipectomy since such a procedure is a necessary by-product of the gall bladder surgery and repairs of the hernias and diastasis when a single incisional technique is used. Although a lipectomy was performed on the patient by the Respondent, it was not billed to the insurance company, Midland Mutual. However, the Respondent did not attempt to hide the fact that a lipectomy was performed since it was clearly described in the Respondent's operative report. The laboratory report also indicated that a lipectomy was performed. An addendum to the operative report was dictated in April, 1983, by the Respondent to clarify that a lipectomy was performed on the patient when it was brought to his attention that the term "lipectomy" was mistakenly not typed on the operative report. The patient, who had undergone prior abdominal surgery in Cuba, had four hernias repaired by the Respondent. All of the hernias were in the same general location as the original surgery which is represented by a scar running from the patient's navel to the pubic region. The bill submitted by the Respondent could be considered duplicative if the diastasis of the rectus muscle was in the same spot as the umbilical and incisional hernias. The testimony presented by the parties concerning the location of the diastasis of the rectus muscle and whether this repair should have been considered a separate procedure from the repair of the incisional, umbilical and ventral hernias, was conflicting and inconclusive. The Petitioner established that the Respondent's itemized charges for the surgery performed on this patient were significantly higher than the fees charged by other, more qualified and experienced plastic surgeons in the Dade County area. However, the appropriateness of the Respondent's charges and whether such fees should be paid are a matter between the Respondent and the patient's insurer since the Department clearly lacks the authority to regulate fees charged by physicians regardless of the unconscionable nature of such charges. In its Proposed Recommended Order, the Department conceded that no substantial evidence of fraud exists in the Respondent's treatment of Jose Menendez, although the fees charged by the Respondent were characterized as excessive. The Hearing Officer concurs in the Petitioner's assessment of the evidence concerning the Respondent's treatment of Jose Menendez since Respondent's charge of $2,000.00 to remove glass fragments from this patient's eye was grossly excessive. The counts of the Administrative Complaint relating to Gladys Maher arose as a result of a referral to the Department by a representative of the insurance carrier who had been hired to screen patient claims. At the hearing, counsel for the Respondent introduced a memorandum from the insurance carrier, Respondent's Exhibit 1, regarding the Respondent's claim for Mrs. Maher's surgery in which a disparaging comment was made regarding the Respondent's ethnic background. This document was introduced to demonstrate that the Respondent's claim could have bean scrutinized differently from other physician's because of his Hispanic heritage. The inference which surrounds the memorandum is disturbing and it is urged that the Department ensure that in the future complaints regarding a physician are initiated on the basis of the physician's alleged wrongful acts rather than his national origin.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Board of Medical Examiners enter a final order dismissing the Administrative Complaint filed against the Respondent Jose Suarez-Menendez. DONE and ENTERED this 16th day of August, 1984, in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2000 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 11th day of August, 1984. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Edward A. Carhart, Esquire 717 Ponce de Leon Boulevard, Suite 331 Coral Gables, Florida 33134 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Petitioner, Peter P. McKeown, is a graduate of the University of Queensland Medical School in Brisbane, Australia. He holds the degrees of Bachelor of Medicine and Bachelor of Surgery. Doctorates of Medicine, under the British system, are reserved for specialists. Nonetheless, the medical training Petitioner received equates to that leading up to the award of the degree of Doctor of Medicine in the United States, and he is a physician and licensed as such in several states. He has completed residencies in general and thoracic surgery in Australia and the United States and has taken advanced training in cardiovascular and thoracic surgery at Emory University. Immediately before coming to the University of South Florida, (USF), Dr. McKeown was an Assistant Professor of Surgery at the University of Washington. In mid to late 1988, Dr. McKeown responded to an advertisement USF had placed in the Journal of the American Medical Association seeking applicants qualified for appointment at the Associate Professor level "... to join the Department of Surgery at the University of South Florida College of Medicine as the Chief of Cardiothoracic Surgery." He was selected for the position and joined the faculty effective May 1, 1989. All the correspondence leading up to Petitioner's joining the University faculty referred not only to his appointment as Associate Professor but also his assignment as Chief of the Cardiothoracic Surgery Division. Only the actual state employment contract described his employment exclusively as Associate Professor and made no mention of the Chief position. Under these circumstances, Petitioner did not gain any proprietory interest in the position of Chief of the Cardiothoracic Surgery Division. Dr. McKeown held the position of Chief of the Cardiothoracic Surgery Division until April, 1994, when, as a result of a decision made by the Chairman of the school's Department of Surgery, he was replaced as Chief and that position was filled, on a temporary basis, by the Department Chair. Petitioner claims that when he arrived at USF to assume the directorship, an administrative position, he saw an opportunity to develop the position into something significant. He contends he would not have come to USF unless he was to be the Chief of the Division as there was no appeal to him in a position as a general faculty member. He wanted an opportunity to budget, hire people, and develop plans and programs, and in order to advance in academic medicine, one must, at some point, hold an administrative position. Apparently the Department of Surgery had experienced a rapid turnover in faculty. It is not clear whether this caused or was the result of a dispute with administrators and medical staff at Tampa General Hospital, (TGH), where much of the clinical medical school activity is carried on. However, the program was recognized as being weak in cardiothoracic surgery, and this condition offered Petitioner the challenge he wanted. In his five years as Chief, Petitioner increased both the number and quality of personnel and revenues considerably. He developed affiliations with several foreign universities and recruited qualified people, built up the laboratory, secured more grants, developed a program of continuing medical education and raised the examination scores of the school's graduates. He opened new clinical programs and built up both billings and collections to the point where the program revenues were increased at least 2 to 5 times. By 1992- 1993, the Division was making money and generating a surplus and still used clinic funds to support research. During his tenure as Chief of the Division, Petitioner served under two Department of Surgery chairmen. The first was Dr. Connar, the individual who recruited him; and the incumbent is Dr. Carey, the individual who removed him. Petitioner asserts that at no time during his tenure in the position of Chief of the Cardiothoracic Surgery Division was he ever told, by either Department Chairman, that his performance was unsatisfactory. All Division heads within the Department were, from time to time, counseled about personnel costs, and Petitioner admits he had some differences with Dr. Carey about that subject and some other financial aspects of the job, but nothing different than anywhere else in academia. Petitioner was removed by Dr. Carey based in part upon his alleged inability to get along with people. Though he claims this is not true, he admits to three areas of conflict. The first related to his objection to transplants being accomplished by unqualified surgeons which, he alleges, Dr. Carey permitted to further his own ends. The second related to the pediatric heart transplant program for which Petitioner supported one candidate as chair and Dr. Carey supported another. The third related to Petitioner's reluctance to hire a physician whom Dr. Carey wanted to hire but to whom Petitioner purportedly objected. Of the three areas of dispute, only the first two came before his removal, but he contends at no time was he advised his position was a problem for the Department. By the same token, none of Petitioner's annual performance ratings reflected any University dissatisfaction with his performance. At no time was he ever rated unsatisfactory in any performance area; and prior to his removal, he had no indication his position as Chief of the Division was in jeopardy. Dr. Carey indicates he did counsel with Petitioner often regarding his attitude but did not rate him down because he hoped the situation would improve. Dr. McKeown was called to meet with Dr. Carey in his office on April 12, 1994. At that meeting, Dr. Carey was very agitated. He brought up the "Norman" incident and indicated he was going to remove Petitioner as Chief of the Division. Dr. McKeown admits to having made an inappropriate comment regarding Dr. Norman, another physician, to a resident in the operating room while performing an operation. He also admits that it was wrong to do this and apologized to Dr. Norman both orally and in writing shortly thereafter. Dr. Norman accepted his apology and Petitioner asserts that after his removal, Dr. Norman called him and assured him he, Norman, had not prompted the removal action. Dr. Norman did not testify at the hearing. Dr. Carey removed Petitioner from his position as Chief because of the comments he had made regarding Dr. Norman. Almost immediately after the meeting was concluded, Dr. Carey announced in writing his assumption of the Chief's position, in which position he remained until he hired Dr. Robinson as Chief in April, 1995. Petitioner found out that Carey's threat to remove him had been carried out the following day when his nurse told him his removal had been announced at the Moffett Cancer Center. He thereafter heard other reports of his removal from other sources, and based on what had happened, concluded his removal was intended to be and constituted a disciplinary action for his comment regarding Dr. Norman. He was not advised in advance of Carey's intention to impose discipline nor given an opportunity to defend himself before the action was taken. He claims he was not given any reason for his removal before or at the time of his dismissal. It is found, however, that the removal was not disciplinary action but an administrative change in Division leadership. Dr. McKeown at first did nothing about his removal, believing it would blow over. However, after he heard his removal had been publicized, he called several University officials, including a Vice-President, the General Counsel and the Provost, to see how the matter could be handled. He claims he either got no response to his inquiries or was told it was a Medical College problem. He then met with the Dean of the College of Medicine who indicated he could do nothing. After he was removed as Division Chief, Petitioner's salary remained the same as did his supplement from his practice. He claims, however, his removal has had an adverse effect on his reputation in the medical and academic communities. It is his belief that people now feel something is wrong with him. Dr. Carey's blunt announcement of his assumption of the Chief's position, without any reasons being given for that move or credit being given to Petitioner for his past accomplishments has had an impact on his ability to work effectively. After his removal, he received calls from all over the world from people wanting to know what had happened. The removal has, he claims, also made it more difficult for him to get grants and has, thereby, adversely impacted his ability to do productive research. In addition, his removal made it difficult for him to carry out his academic duties. His specialty is still presented in student rotations, only in a different place in the medical curriculum. Dr. McKeown has sought reinstatement to the administrative position of Chief of the Division. He is of the opinion that Dr. Carey's action in removing him from his position as Division Chief was capricious and damaging to the University as well as to his career. Petitioner admits he could have been less confrontational in the performance of his duties as Division Chief, but he knows of no complaints about him from TGH, All Children's Hospital or the VA Hospital. There are, however, letters in the files of the Department Chairman which indicate some dissatisfaction with Petitioner's relationships in some quarters and, as seen below, there were signs of dissatisfaction from both TGH and All Children's Hospitals. Petitioner admits he may have been somewhat overbearing or abrasive, but neither his alleged inability to properly steward finances nor his alleged inability to get along with people were mentioned to him at the time of dismissal or before. After Dr. Carey assumed the Chairmanship of the Department of Surgery in July, 1990, he saw Dr. McKeown frequently on an official basis at first. A Chief, as Petitioner was, has many and varied functions such as administration, teaching, fiscal, research, clinic administration and the like. People skills are important because of the necessary interface with colleagues, faculty, administrators and the public. When Dr. Carey came to USF, Dr. McKeown had not been in place very long, and the Division of Cardiothoracic Surgery was not doing well financially. There were contract negotiations going on with the VA Hospital which were not going well, at least partly because, Dr. Carey asserts, Dr. McKeown had made some major unacceptable demands. As a result, Dr. Carey stepped in, along with Dr. Benke, who was very effective in dealing with the VA, and as a result, an agreement was reached which resulted in somewhere between $275,000 and $300,000 per year coming in which put the Division in the black. Dr. Carey recalls other instances indicating Dr. McKeown's inability to get along with others. One related to the relationship with TGH previously mentioned. TGH had made a decision to use a particular physician as head of its transplant program because, allegedly, Dr. McKeown had so angered private heart patients they would not let him be appointed even though Dr. McKeown was Dr. Carey's choice. As it turned out, Dr. Carey convinced the TGH Director and another physician to agree to a plan whereby Dr. McKeown would be head of the program 50 percent of the time. This would have been good for the University, but Dr. McKeown refused indicating that if he could not be in charge all of the time, he would not be in charge at all. Another incident relates to All Children's Hospital. That institution wanted to initiate a pediatric heart transplant program and a meeting was set up to which Dr. McKeown was invited. Petitioner so infuriated the community surgeons attending that meeting they would not work with him, and without his, Carey's, efforts, Dr. Carey claims the program was doomed to failure. As a result, Carey asked Dr. Nevitsky to help get the program started. This gave the USF an opportunity to participate in the program, but when Nevitsky left, they lost it. Still another example, according to Dr. Carey, is the fact that some surgeons on staff have called to complain about Dr. McKeown's attitude and unwillingness to compromise and negotiate and about his demands for service and staff, all of which creates friction among the hospital staff. A few days before Dr. Carey removed Petitioner as Chief, he spoke with the Dean of the College of Medicine, a Vice-president of the University, and others who would be impacted, about his concern regarding the Cardiothoracic Surgery Division and, in fact, he had had discussions with other officials even before that time. Long before making his decision to remove Petitioner, Carey spoke of his consideration of possibly shifting the emphasis within the Division to non-cardiac thoracic surgery in place of the cardiac program which Dr. Carey felt was not very successful. He believed the program did not do enough procedures to support the medical school affiliation. Dr. Carey chose to dismiss Dr. McKeown as Chief of the Division on April 12, 1994, after learning of McKeown's destructive attack on another surgeon before a junior physician in a public place, an operating room, (the Norman incident). He notes that over the years there was a building concern regarding Dr. McKeown's abilities as an administrator, and this incident with Dr. Norman was the last straw. Dr. Carey had received complaints about Petitioner from other physicians, all of which he discussed with Dr. McKeown. Finally, with the Norman incident, it became abundantly clear that Dr. McKeown's capabilities as a leader had diminished to the point where a change was necessary. Before he dismissed Petitioner, and during the investigation which led up to the dismissal, Dr. Carey admits, he did not give Dr. McKeown any opportunity to give any input to the decision. By the time Carey met with McKeown on April 12, 1994, his mind was made up. The Norman incident was demonstrative of what Carey perceived as McKeown's lack of supervisory ability, and it was that factor which led Carey to the ultimate decision to remove McKeown. He felt it necessary to act then and not leave Dr. McKeown in place during the search for a replacement. Petitioner cites alleged comments made by Carey to others that he would have relieved anyone for doing what Petitioner did in the Norman incident. Dr. Carey cannot recall having made such a statement. He claims he considered disciplinary action against Petitioner for the Norman comments but decided against it. However, it was the last in a series of incidents which caused him to question the propriety of McKeown's placement in the Chief's position, and which ultimately cemented his decision to replace him. Dr. Carey met with Dr. McKeown several times before the dismissal and counseled him about administrative deficiencies in his performance, but he never told Dr. McKeown that unless he improved, he would be dismissed. This is consistent with Petitioner's testimony that he was not warned of his shortcomings or of the administration's dissatisfaction with his performance. Disagreements in conversations between superior and subordinate, meant by the former to be corrective in nature, are not always taken as such by the latter. Dr. Carey did not document any of this in Dr. McKeown's personnel files but put some of the information he received by way of communications from others in the files. These are the letters submitted by the University, pursuant to agreement of the parties, subsequent to the hearing. They contributed to Carey's increasing concern about Dr. McKeown's ability to lead the Division. At no time, however, though he questioned Dr. McKeown's leadership, did Dr. Carey ever question his good faith and sincerity, nor does he do so now. When he finally decided action was necessary, on April 12, 1994, Dr. Carey wrote a memorandum to the Medical College faculty concerning his assumption of the position as Chief of the Cardiothoracic Surgery Division. He also advised Dr. McKeown of his removal. Dr. Carey remained in the Chief's position, holding that title in an administrative capacity and not from a clinical standpoint, for approximately one year, intending to stay in the position only until he could find a fully qualified thoracic surgeon to take the job. After Carey removed Petitioner, he was contacted by the Medical College Dean who asked that he get with McKeown and try to work something out. He thereafter offered Dr. McKeown the position of Chief of the cardiac section of the Division but McKeown declined. Dr. Carey also, on April 26, 1994, wrote to TGH recommending that Dr. McKeown be allowed to have more impact on the hospital's transplant program, pointing out that the change in McKeown's position at the University was occasioned by a need for a change in leadership. According to Dr. Tennyson J. Wright, Associate Provost of the University, disciplinary action against nonunion faculty members is governed by Rule 6C4-10.009, F.A.C., and requires notice of proposed action be given before such disciplinary action is taken. The contract which Dr. McKeown holds and has held since the inception of his tenure at the University, is a standard USF/State University System contract. It reflects Petitioner was hired as an Associate Professor, which is one of the three types of personnel classifications used within the system. These are faculty, administration and support. Petitioner's contract does not refer to his holding the Division Chief position and it is not supposed to. Such a position is an administrative appointment within a Department and a working title used to define the holder's duties, and service in such a position is at the pleasure of the Department Chair. Appointment to or removal from a Chief position is an administrative assignment. The position of Department Chairperson, on the other hand is a separate position and subclassification within the University classification system and is different.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Peter P. McKeown's, grievance against the University of South Florida School of Medicine arising from his removal as Chief, Cardiothoracic Surgery Division in the Department of Surgery be denied. DONE AND ENTERED this 19th day of January, 1996, 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 19th day of January, 1996. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 95-1832 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: 1. - 7. Accepted and incorporated herein. Though the documents in question refer to appointment, in actuality the personnel action was an appointment to the faculty with an administrative assignment to the position of Director of the Division. & 10. Accepted. 11. & 12. Accepted and incorporated herein. 13. & 14. Accepted and incorporated herein. - 19. Accepted and incorporate herein. Accepted and incorporated herein. Accepted. Rejected as inconsistent with the better evidence of record. Accepted. Accepted and incorporated herein. Rejected as inconsistent with the better evidence of record. & 27. Accepted. & 29. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. 32. - 34. First sentence accepted. Second sentence rejected as inconsistent with the better evidence of record. 35. - 37. Accepted. 38. Rejected as argument. 39. Accepted. FOR THE RESPONDENT: - 9. Accepted and incorporated herein. Accepted. - 14. Accepted and incorporated herein. 15. & 16. Accepted and incorporated herein. COPIES FURNISHED: Benjamin H. Hill, III, Esquire William C. Guerrant, Jr., Esquire Danelle Dykes, Esquire Hill, Ward & Henderson, P.A. Post Office Box 2231 Tampa, Florida 33601 Thomas M. Gonzalez, Esquire Thompson, Sizemore & Gonzalez 109 North Brush Street, Suite 200 Post Office Box 639 Tampa, Florida 33601 Olga J. Joanow, Esquire University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620 Noreen Segrest, Esquire General Counsel University of South Florida 4202 East Fowler Avenue, ADM 250 Tampa, Florida 33620-6250
