The Issue Whether the Petitioner is entitled to reimbursement for medical treatments received by his wife for 4 manipulation treatments received in 1983?
Findings Of Fact At all times pertinent hereto, the Petitioner was an insured employee under the State of Florida Employees' Group Health Insurance Plan, as provided in Section 110.123, Florida Statutes. Nora Gomez, the Petitioner's wife, is entitled to participate in the Plan as an eligible dependent. Mrs. Gomez first visited David L. Hartz, a chiropractic physician on August 2, 1983. Dr. Hartz's office is located at 1610 West Plaza Drive, Tallahassee, Florida. Dr. Hartz treated Mrs. Gomez primarily for upper back and neck pain. Between August 2, 1983, and December 14, 1983, Dr. Hartz treated Mrs. Gomez 33 times. Initially, Mrs. Gomez received chiropractic manipulations 3 times per week. Visits were subsequently reduced to 2 times a week and from November 1, 1983, until December 14, 1983, when treatments stopped, her treatments were reduced to once a week. Twenty-nine of the 33 visits received by Mrs. Gomez have been paid by the Respondent. The Respondent is not seeking to be reimbursed for payments made to the Petitioner in excess of 26. The Respondent has refused to pay for 4 of the visits. The Petitioner was charged $18.00 per visit for Mrs. Gomez's treatments. The Respondent has refused to pay the Petitioner a total of $72.00 (4 visits x $18.00). Mrs. Gomez received her 26th treatment on November 1, 1983. Mrs. Gomez's condition at that time was, according to Dr. Hartz, as follows: I show that she had improved considerably over her initial findings but she still had some persistent pain in her neck and upper back and some inflammation, some nerve roots in her neck and some persistent muscle weakness. Deposition testimony of Dr. Hartz, page 15, lines 18-21. Dr. Hartz also indicated that he believed that Mrs. Gomez "could still improve some past that point." Deposition testimony of Dr. Hartz, page 11, lines 12-13. Based upon Dr. Hartz's testimony, Mrs. Gomez's problem was of a type which could be eventually treated on a "periodic supportive type treatment, on a periodic nature." Dr. Hartz was trying to treat Mrs. Gomez's problem, however, during 1983 to a point where she could receive such treatment. She did not, however, continue the treatments long enough to reach that point because of the Respondent's position that only 26 treatments would be reimbursed by the Petitioner's insurance. The Respondent reimburses for rehabilitative therapy but not for maintenance therapy under the State Plan. The Respondent determined that Mrs. Gomez's treatments after November 1, 1983 (her 26th visit) were for maintenance and not rehabilitative therapy because the Respondent determined that her condition stabilized. Therefore, the Respondent refused to make further payments. Dr. Hartz did indicate that Mrs. Gomez reached a point where she had persistent pain that would feel better for a while and then would return, and therefore, he "either had a choice to extend her treatment and let her hurt or treat her and keep her feeling as good as possible." This statement and the rest of Dr. Hartz's testimony is not sufficient to conclude, however, that Mrs. Gomez stabilized as of November 1, 1983, and therefore was receiving maintenance treatment only after that date. Dr. Hartz did not, however, based upon all his testimony, believe that Mrs. Gomez had reached a point during her treatment in 1983 where her treatment was in the nature of maintenance only. Dr. Hartz was still treating Mrs. Gomez through her last visit in 1983 in an effort to correct her condition sufficiently for her to receive only maintenance treatments. The 4 visits in 1983 for which reimbursement has not been made, were part of Dr. Hartz's effort to get Mrs. Gomez to a point where she would only need maintenance type treatment. The visits were in the nature of rehabilitative therapy, for which the Petitioner is entitled to reimbursement.
Recommendation Based on the foregoing Findings of Fact and Conclusion of Law, it is RECOMMENDED that the Respondent reimburse the Petitioner $72.00 for the 1983 treatments received by the Petitioner's wife for which reimbursement has been refused. DONE AND RECOMMENDED this 3rd day of December, 1986, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9673 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2595 The Respondent has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they were accepted. Those proposed findings of fact which have been rejected and the reasons for their rejection have also been noted. Paragraph numbers in the Recommended Order are referred to as "RO ." Paragraph Number of Petitioner's Proposed Findings of Fact: Accepted in RO 1-2. Accepted in RO 3-4. Accepted in RO 5. Accepted in RO 6. Accepted in RO 6-7. Accepted in RO 7. Accepted in RO 9-10. Accepted in RO 11 and 15. The quotation of Dr. Hartz's testimony contained in the last sentence of this proposed findings of fact is taken slightly out of context. See RO 15. Accepted in RO 14. This proposed finding of fact is rejected as contrary to the weight of the evidence. See RO 15-16. COPIES FURNISHED: Michael J. Gomez 2404 Harbor Drive Tallahassee, Florida 32303 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gilda Lambert, Secretary 435 Carlton Building Tallahassee, Florida 32301
The Issue At issue is whether Petitioner is entitled to an award of attorney's fees and costs pursuant to Section 57.111, Florida Statutes, the "Florida Equal Access to Justice Act," as well as an award of attorney's fees and costs pursuant to Section 120.57(1)(b)5, Florida Statutes (1995), now codified at Section 120.569(1)(c), Florida Statutes (1997), as alleged in the amended petition for attorney's fees and costs.
Findings Of Fact Findings related to the underlying disciplinary action The Department of Health, Division of Medical Quality Assurance, Board of Dentistry (Department), is a state agency charged with the duty and responsibility for regulating the practice of dentistry pursuant to Section 20.43 and Chapters 455 and 466, Florida Statutes (1997). At all times pertinent to this proceeding, Robert J. Fish, D.D.S. (Dr. Fish) was licensed to practice dentistry in the State of Florida, having been issued license number DN 000 5694. On or about August 22, 1989, D. E. (the "Patient") filed a written complaint with the Department regarding the care and treatment that she had received from Dr. Fish. The complaint provided: On June 27, 1989 I came to see Dr. Garrison complaining about my lower partial made by Dr. Fish in 1988. Dr. Garrison examined [my] Lower Right #27, 28, 29 and found Buccal margins to be opened. Also, the Lower Partial is the kind his office uses as a temporary. Considering the amount of money paid, Dr. Garrison recommended that I consult with the Broward County Dental Assoc. They in turn told me that . . . they do not handle this type of problem and advised me to get in touch with the Fl Dept of Professional Regulation. As per my conversation with Mr. Hunter of your dept I filled these forms out and am enclosing zerox copies of my cancelled checks relating to payment and statements and other papers with pictures of my teeth. Should I have overlooked anything that I should have sent you kindly let me know. To the lay eye, the Patient's complaint would seem to relate to one matter, that being a lower partial, whose construction was more consistent with a temporary or transient appliance, as opposed to one intended for permanent use, and whereon the Buccal margins of teeth number 27, 28, and 29 were found to be open. In fact, as the investigatory record discloses, there are actually two separate items in the Patient's complaint. First is the complaint associated with open margins noted on teeth 27, 28, and 29. Those teeth are part of a fixed bridge installed by Dr. Fish, and distinguishable from the Patient's lower partial (denture), which was a removable appliance.3 Following receipt of the complaint, the Department began its investigation in accordance with Section 455.225(1), Florida Statutes. The matter was assigned DPR Case No. 89-09812. By letter of October 9, 1989, the Department advised Dr. Fish of the Patient's complaint, as follows: THE PATIENT STATES that you provided lower partial for teeth #27, #28 and #29 in 1988. Complainant alleges subsequent dentist advised her that buccal margins are open. She further has been advised that the partial denture that you indicated was a permanent- denture is the type that is normally used as a temporary denture. Apparently, at this stage, the Department did not appreciate the nature of the Patient's complaint or, as observed in Endnote 3, the significance of the language it used to convey the Patient's complaint to Dr. Fish. In response to the Department's letter, Dr. Fish forwarded to the Department copies of the Patient's records, including x-rays. Additionally, Dr. Fish provided the following written response regarding the lower partial (denture): This patient is high strung and often incoherent, she often appears to be suffering from memory loss, i.e. Alzheimer's disease. The lower partial was made as a provisional partial due (sic) the extraction of several teeth. The patient was informed that upon sufficient stabilization of the boney ridge she could obtain a cast frame & acrylic partial. She refused to have any relining procedures which are necessary as bone resorbtion takes place. This option is still available to her. Dr. Fish's response did not address the open Buccal margins noted on teeth 27, 28, and 29; however, as heretofore noted, that question was unrelated to any complaint the Patient might have voiced regarding the lower partial. Pertinent to an understanding of the Patient's complaint, the Patient's records reveal the following two treatments. First, in October and November 1987, Dr. Fish undertook preventive and reconstructive work on the lower (mandibular) right side of the Patient's mouth. That work consisted of the replacement of the existent crowns on teeth 27, 28, and 29, with a ceramic three unit lower right bridge (also referred to as a three unit lower right splint), consisting of three individual crowns on teeth 27, 28, and 29, tied together (splinted) to strengthen the periodontally involved teeth. Contemporaneously, Dr. Fish replaced the lower right molar (tooth 30) with a removable wrought wire and acrylic partial (removable denture). Second, in September 1988, Dr. Fish undertook preventive and reconstructive work on the lower left side of the Patient's mouth. At that time, an existing five unit bridge (teeth 18 through 22) was severed, the bridge for teeth 18 through 20 was removed, and teeth 18 and 19 were surgically extracted. Thereafter, the lower partial which had replaced the molar on the lower right side was modified to include the replacement of teeth 18, 19, and 20 on the lower left side. This lower wrought wire and acrylic partial (removable denture), which replaced the molar on the lower right and the teeth 18, 19, and 20 on the lower left, was the lower partial the Patient complained of to the Department. As part of its investigation, the Department also contacted H. B. Garrison, D.D.S. (Dr. Garrison), who succeeded Dr. Fish as the Patient's treating dentist. Dr. Garrison provided the Department with the Patient's records, including x-rays, and by letter of November 6, 1989, advised the Department that: [D. E.] . . . came to my office on 5/8/89 for an examination and x-rays. At that time it was noted that treatment had been rendered by another dentist in 1988 and was giving the patient a great deal of discomfort.4 I examined the lower bridgework and found the buccal margins of teeth #27, 28, 29 to be inadequately sealed. I also noted that the lower partial was inadequately fabricated. In my opinion, the care rendered fell below the minimum standards expected. If I can be of further assistance to you, please do not hesitate to contact me. Thank you. Given the Patient's records provided by Dr. Fish and Dr. Garrison, as well as Dr. Garrison's response, it is evident that there were two concerns raised by the Patient. First, the buccal margins observed on teeth 27, 28, and 29 of the lower right bridge, and second the adequacy of the lower partial. The Department presented its investigative report, together with the supporting documentation heretofore discussed, to the Probable Cause Panel of the Board of Dentistry (the Panel) for its consideration. Contemporaneously, the Department's counsel presented a draft closing order, which proposed a finding of probable cause with regard to the inadequacy of the lower partial and closure with a letter of guidance. No mention was made of the concerns related to the lower right bridge. The proposed order read as follows: CLOSING ORDER THE COMPLAINT: The Subject's treatment failed to meet the minimum standard of care. THE FACTS: The Subject provided patient D.E. with a lower denture which was allegedly unsatisfactory and has allegedly refused to correct the problem. Patient D.E. presented to a subsequent treating dentist who stated that the denture prepared by the Subject was inadequately fabricated. When contacted, the Subject stated that the denture provided to patient D.E. was made as a provisional partial due to the extractions of several teeth. The patient was informed by the Subject that upon stabilization of the lower ridge, she could obtain a cast frame and acrylic partial. The patient refused to have any relining procedures, which are necessary as bone resorption takes place. THE LAW: Based on the foregoing, probable cause does exist to establish a violation of Section 466.028(1)(y), Florida Statutes, however, this case will be closed with a letter of guidance. IT IS, therefore, ORDERED that this matter be, and the same is hereby, CLOSED. DONE and ORDERED this day of , 1990. CHAIRMAN, PROBABLE CAUSE PANEL BOARD OF DENTISTRY On April 27, 1990, the Panel met to resolve whether probable cause should be found and, if so, the appropriate disposition of the complaint. Initially, the Panel voted to find probable cause and to close the case with a letter of guidance, as recommended by the proposed closure order submitted by the Department's counsel; however, upon realizing that Dr. Fish had one prior disciplinary matter and two more cases pending on "below standard of care issues," the Panel elected to withdraw its decision to close with a letter of guidance and directed the Department to file an administrative complaint "based on a single charge of inadequate lower denture," a perceived violation of Section 466.028(1)(y), Florida Statutes. With regard to the separate matter relating to perceived deficiencies (open margins on teeth 27, 28, and 29) in the Patient's lower right bridge, the panel took no action. In May 1990, following the Panel's finding of probable cause, the Department employed Mervyn Dixon, D.D.S., as an expert to evaluate the Patient's compliant, and, by letter of May 25, 1990, the Department's counsel advised Dr. Dixon of the following matters: Thank you for consenting to review the enclosed case. . . . The Probable Cause Panel reviewed the merits of this claim on or about April 27, 1990. They determined that an expert review was necessary to properly evaluate the veracity of the complaint.5 A clinical examination of the patient may be necessary in order to make an evaluation. Please do not hesitate to accomplish a patient examination if it is deemed necessary. This particular patient does not have access to transportation. It will be necessary to coordinate with the Bureau of Investigative Services in order to provide transportation. As always, your prompt attention to this case and the receipt of your report within thirty (30) days will be greatly appreciated. . . . Dr. Dixon examined the Patient on June 16, 1990, and, by letter of June 21, 1990, reported the results of that examination to the Department, as follows: On June 16, 1990, I performed a dental clinical exam for patient D.E. in my office. Since the complaint was limited to the mandibular arch, I merely noted that the patient presented with a full maxillary denture. The following findings were observed in the mandibular arch: 1.) the patient was wearing a wrought wire and acrylic lower partial 2.) a ceramic 3 unit bridge was present on teeth #'s 27, 28, 29 3.) a gold and acrylic 2 unit bridge was present on teeth #'s 21 and 22 4.) the four mandibular incisors were natural teeth and free from marked periodontal disease. The right three unit ceramic bridge exhibited the following: 1.) #27 has an open facial margin that would admit an explorer 2.) #28 has an open margin that would admit an explorer 3.) #29 exhibited a grossly open margin both facial and distal 4.) the only occlusion (partial out) was provided by tooth #28 - see enclosed bite registration 5.) also please see enclosed x-ray The mandibular wire and acrylic partial exhibited extremely tight clasps and the lingual adaptation around the teeth and crowns was very poor. Please see enclosed study model. It is my conclusion that neither the mandibular ceramic 3 unit bridge or the mandibular wire and acrylic partial meet community standards. I have provided the x-ray, photo, bite registration and study model as evidence since it is necessary for the patient to have these items replaced.6 In the process of replacement, they will be destroyed. On September 6, 1990, the Department issued an administrative complaint against Dr. Fish (DPR Case No. 89-009812) and on October 9, 1991, an amended administrative complaint.7 The amended complaint was served on Dr. Fish on October 15, 1991, and contained the following allegations upon which the Department proposed to take disciplinary action against Dr. Fish's license to practice dentistry: On or about October 1, 1987, patient D.E. presented to the Respondent [Dr. Fish] for bridgework on teeth #27, #28, and #29. On or about September 15, 1998, D.E. presented to the Respondent for a lower partial. On or about May 8, 1989, D.E. presented to a subsequent treating dentist complaining about discomfort with his (sic) lower partial. The subsequent treating dentist examined patient D.E.'s bridgework and observed the buccal margins of teeth #27, #28, and #29, were inadequately sealed. He also noted that the lower partial was the type usually used as a temporary partial. On or about June 16, 1990, patient D.E. presented to a departmental expert for examination. The consultant observed the teeth #27, #28, and #29 contained open margins. Failure to adequately provide a lower denture that was absent any open margins is failure to practice dentistry within the minimum standard of care as recognized by the prevailing peer community. Based on the foregoing, the Respondent is guilty of violating the following statutory provisions: Section 466.028(1)(y), Florida Statutes, by being guilty of incompetence or negligence by failing to meet the minimum standard of card (sic) in diagnosis and treatment when measured against generally prevailing peer performance. The administrative complaint filed by the Department is at material variance with the directions of the probable cause panel. Notably, while the complaint perceives the distinction between the two treatments (bridgework and lower partial) which formed the basis for the Patient's complaint, it bases the perceived violation of section 466.028(1)(y) on problems associated with the bridgework. The Panel did not find probable cause, nor direct the filing of a complaint, regarding the bridgework but, rather, the lower partial (denture). Dr. Fish filed an election of rights whereby he disputed the allegations contained in the amended administrative complaint, and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. Consequently, the case was referred to the Division of Administrative Hearings (DOAH) to conduct the formal hearing Dr. Fish had requested. The case was docketed as DOAH Case No. 92-0687. A formal hearing on the administrative complaint was held on June 1, 1993, where proof was offered and received regarding perceived deficiencies in both treatments (the bridgework and lower partial) provided by Dr. Fish. Subsequently, on January 24, 1994, a Recommended Order was rendered which concluded, inter alia, that the Department had failed to establish, by the requisite degree of proof, that, with regard to either the bridgework or the lower partial denture, Dr. Fish had failed to meet the minimum standard of care in diagnosis and treatment, and recommended that a final order be entered dismissing the amended administrative complaint. On April 16, 1994, the Board of Dentistry (Board) met to consider the Recommended Order. At the time, no exceptions had been filed by any party, and the Department recommended that the Board adopt the findings and recommended dismissal contained in that order. Notwithstanding, following discussion, the Board resolved to remand the case to the Division of Administrative Hearings. The Order of Remand was issued May 13, 1994. Following consideration of the parties' responses to the Order of Remand, the presiding officer entered an order (Order on Remand) on December 7, 1994, declining remand. That order, while amplifying upon the basis for certain factual findings and conclusions reached related to credibility, concluded that the Board had not presented any compelling reason to reconsider the findings of fact, conclusions of law, or recommended disposition contained in the Recommended Order. On January 6, 1995, the Board met to consider the Recommended Order and Order on Remand, and on February 25, 1995, entered a Final Order. The Final Order, with nominal modification, adopted the findings of fact and conclusions of law set forth in the Recommended Order, as well as the recommended disposition, and dismissed the amended administrative complaint filed against Dr. Fish. Findings related to the claim for attorney's fees and costs Pertinent to the claim for attorney's fees and costs, it is observed that the Department has, by its response to the application, conceded that the underlying action was initiated by the Department, or its predecessor, that Dr. Fish prevailed in the underlying case, and that the claim for attorney's fees and costs was timely filed. Accordingly, an award of reasonable attorney's fees and costs is appropriate provided Dr. Fish can establish, by a preponderance of the evidence, that he was a "small business party," as defined by Section 57.111(3)(d), Florida Statutes, and the Department fails to establish that its actions were substantially justified or special circumstances exist which would make an award unjust. Addressing first Dr. Fish's status, the proof demonstrates that at the time the underlying proceeding was initiated Dr. Fish was a "small business party," as that term is defined by Section 57.111(3)(d), Florida Statutes. Supportive of such conclusion is the proof of record which demonstrated that, at all times material: (1) Dr. Fish was the sole owner of, and operated his dental practice as, an unincorporated business; (2) that the principal place of business for his dental practice was Broward County, Florida; (3) that Dr. Fish resided in Broward County, Florida, and had been domiciled in the State of Florida since 1973; and, (4) that Dr. Fish's business did not employ more than 25 full time employees and his net worth, including both personal and business investments, was less than two million dollars. Next, it must be concluded that the Department failed to demonstrate that its actions were substantially justified or that special circumstances existed which would make an award unjust. Dispositive of this issue is the proof which demonstrated that the Panel did not find probable cause to conclude that the bridge work provided by Dr. Fish fell below community standards and did not direct the Department to file an administrative complaint on such issue. Therefore, the Department was without any factual or legal basis to file a complaint challenging the adequacy of the bridgework installed by Dr. Fish.8 Consequently, Dr. Fish is entitled to an award of reasonable attorney's fees and costs under Section 57.111, Florida Statutes.9 Here, Petitioner's counsel claims $25,511.50 (based on 184.5 hours) as attorney's fees, and $1,699.06 as costs, reasonably and necessarily incurred in the underlying proceeding. The Department, as heretofore noted, did not oppose the request for attorney's fees and costs by affidavit, but responded that it "[could] not agree that the attorney's fees and costs sought by the Petitioner are reasonable or necessary without further review [following discovery]." Thereafter, the Department never filed an affidavit, as required by law, opposing the request for fees and costs, did not question or oppose any portion of the request during hearing, and has not objected to any of the requests post- hearing. Section 57.111(4)(c), Florida Statutes, and Rule 60Q- 2.035(4), Florida Administrative Code. Indeed, the only proof of record regarding the reasonableness and necessity of the attorney's fees and costs sought was offered by Dr. Fish. With regard to attorney's fees, that proof suggested that the hours dedicated to the case (184.5) were reasonably and necessarily incurred, and that the hourly rate sought (an average of slightly over $138.00 per hour) was reasonable and less than the community standard of $175.00 per hour. Consequently, the attorney's fees sought in the sum of $25,511.50 were reasonable. With regard to costs, the proof observed that the $1,699.06 claimed was "reasonable." (Petitioner's Exhibit 2). Given the provisions of section 57.111(4), and the record, Petitioner's claim of attorney's fees in the sum of $25,511.50, and costs in the sum of $1,699.06 are, without further discussion, found reasonable.
The Issue The issues for determination are whether Respondent violated the provisions of Section 466.028, F.S. (1981), as alleged, and whether a delay in investigation and processing the administrative complaint resulted in such prejudice as to warrant dismissing the complaint.
Findings Of Fact Based on the evidence of record and Respondent's admissions dated August 29, 1988, the following facts are found: Bert Ong, D.M.D. is licensed as a dentist in the State of Florida, having been issued license #DN 0006246. Dr. Ong graduated in dentistry from the University of the East in Manila, Philippines, in 1964. He immediately left for the United States and between then and 1974, when he was first licensed in Florida, he attended the University of Pittsburgh, and worked as a doorman, a dental assistant, a dental researcher, and medical records clerk. Dr. Ong has an active general dentistry practice at 4435 Curry Ford Road, Orlando, Florida. Margaret Antonette, previously known as Margaret Tyre or Margaret Harp (due to marriage), became a dental patient of Dr. William Branham at a clinic in Longwood, Florida in January 1981. In the course of his examinations, Dr. Branham took some x-rays, prepared study models, and did periodontal probings of Ms. Antonette's teeth. Those probings, for the purpose of determining the depth of pockets between a patient's gums and teeth, are recorded on Dr. Branham's chart. Healthy gums generally have pockets of three millimeters or less. Dr. Branham found pockets in Ms. Antonette's upper teeth ranging from two millimeters to eight millimeters (one eight, several sixes and two sevens). Dr. Branham refers patients to a periodontal specialist when depths exceed five millimeters. He referred Ms. Antonette to periodontist, Robert Ferris, D.D.S. as he wanted to have her periodontal condition evaluate prior to doing restorative work that she needed. Dr. Ferris diagnosed Ms. Antonette as having chronic periodontitis on September 1, 1981. He outlined a treatment plan and gave her an estimate of his fee. She did not follow up on that treatment, but instead went to Dr. Ong, because a friend told her he could do both her crowns and bridges and the periodontal surgery. Margaret Antonette's first visit to Dr. Ong was on February 16, 1982. She had a badly infected upper tooth and was in misery. She told Dr. Ong that she had recently been told by Dr. Ferris that she needed periodontal surgery and that she wanted bridges and crowns. Dr. Ong assured that he could do everything she needed, that he could give her healthy gums and pretty teeth. Although Dr. Ong claims that he did periodontal probes, these are nowhere indicated on his chart, with the exception of some ambiguous ink shading on the diagram for upper tooth number six. Even for that tooth the probe depth is missing. At the first visit Dr. Ong took X-rays and made study models. On March 11, 1982, he extracted tooth number six, the one that had been infected. At the next visit on March 26, 1982, Dr. Ong did sub-gingival scaling, curettage and root planing on teeth numbers two, three, seven and eight. He also prepared those teeth for a crown by using a burr to remove the enamel and shape them. He put a temporary crown on the teeth. His chart indicates only "crown preparation and temporary", for teeth numbers seven and eight, as he forgot to note numbers two and three and he made no note of the periodontal procedures. On April 9, 1982 he performed the same procedures on teeth numbers nine, ten and eleven; and on April 15, 1982, the same procedures were performed on teeth numbers fourteen and fifteen. The chart notations for those dates list the teeth numbers and note "crown preparation and temporary". No mention is made of the periodontal procedures. Permanent crowns and bridges were cemented on Ms. Antonette's upper teeth on May 7, May 18 and June 10, 1982. June 10, 1982, was Ms. Antonette's final visit to Dr. Ong. She understood the work was finished and she was set up for a recall appointment in February 1983, eight months later. She did not return. The treatment administered to Ms. Antonette by Dr. Ong was extremely painful. At one point he prescribed Darvon and Valium to her. Within a year of her final visit she began suffering with bleeding gums. The gums became more infected and she finally consulted a periodontist in October or November 1984. Appropriate extensive periodontal surgery was completed in December 1984. The result of the subsequent periodontal treatment was a shrinking of Ms. Antonette's gums, leaving unsightly and difficult to clean gaps between her replacement teeth and the maxillary and residual ridge in her upper mouth. The crown and bridgework done by Dr. Ong needs to be replaced. Dr. Ong should have diagnosed Ms. Antonette's periodontal disease on her first visit. He was aware that she had consulted a periodontist prior to visiting him and noted this on her chart. He claims that he can remember what the periodontal probes were, even though they were not written down, because they were mostly normal. In spite of this, he performed the periodontal procedures noted above, consisting of scraping with a sharp instrument, a scaler, removing tartar and calculus buildup from the roots of the teeth and removing diseased tissue from inside the gums. These procedures may be done by a general dentist, but it is essential that the patient be recalled after one or two months in order to evaluate the results on the gums. If the gums have not healed, it is generally accepted that periodontal surgery is required and, the patient is referred to a specialist. In February 1982, Ms. Antonette's gums were not mostly normal. Both Dr. Branham and Dr. Ferris had noted severe problems. She received no treatment for those problems prior to consulting Dr. Ong, and they would not have healed on their own. At best, the gums would have stayed the same, with no further deterioration. Even assuming that Dr. Ong had initially proceeded correctly with the curettage and root planning, he failed to wait to evaluate the results of the treatment prior to commencing the replacement work. Not only was the process more painful for the patient, his failure to wait until the gums had healed caused her to have to seek subsequent periodontal treatment that rendered Dr. Ong's replacement work useless. In addition to the problems caused by Ms. Antonette's subsequent essential periodontal treatment, the crowns placed by Dr. Ong were defective as they contained open margins. This means that spaces were left under the crown, making it impossible to clean the area and accelerating the progression of the periodontal disease. Dr. Ong failed to maintain dental records to justify his course of treatment of Margaret Antonette. No mention whatsoever is made of the condition of her gums. The "periodontal condition" (transcript, p. 238) that, according to Dr. Ong, justified the subgingival scaling and curettage, was not described on the chart or in Dr. Ong's testimony. Moreover, the procedures were not recorded. Dr. Ong's diagnosis and treatment of Margaret Antonette failed to meet minimum standards when measured against generally prevailing peer performance. Petitioner's several credible expert witnesses established this fact. Dr. Ong's own witness, Charles Graham, D.D.S., conceded that Dr. Ong's standard of care was on the "low end of the scale" (Respondent's exhibit #2, p. 34), and that he could use some training. Dr. Ong's motion to dismiss is based, in part, on his claim of prejudice by a delay of approximately 26 months between Ms. Antonette's complaint to the agency and the filing of the administrative complaint. During that time the records of Dr. Ferris, the periodontist whom she had consulted before going to see Dr. Ong, were destroyed in a flood. What remains of those records, as they pertain to Ms. Antonette, is a letter dated February 12, 1985, prior to the flood, addressed to Ms. Antonette, which Dr. Ferris dictated as he reviewed the actual charts. The letter summarizes his findings, outlines the treatment plan and establishes his fee. A finding that Ms. Antonette had periodontal disease at the time that she first visited Dr. Ong is based not only on this letter and Dr. Ferris' testimony, but also the records and testimony of Dr. Branham, Ms. Antonette's testimony, and the expert witnesses presented by the agency. Dr. Ong was not prejudiced by the delay, but rather contributed to it by his failure to honor a subpoena for his records, served on October 9, 1985, until the subpoena was enforced in May 1986.
Recommendation Based on the foregoing it is hereby, RECOMMENDED: That the Board issue its final order finding Bert Ong, D.M.D., guilty of violations of subsections 466.028(1)(m) and (y), F.S. (1981), issuing a reprimand and imposing a $2,000.00 fine, suspending his license to practice dentistry for ninety (90) days, and thereafter placing him on probation for one year with a requirement for the completion of appropriate continuing dental education coursework in an amount and type to be specified by the Board. DONE and RECOMMENDED this 9th day of December, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-4172 The following constitutes my specific rulings on the findings of fact submitted by the Petitioner: Adopted in paragraph #1. Adopted in paragraph #2. 3.-6. Adopted in paragraph #3. 7. Adopted in paragraph #4. 8.-11. Adopted in paragraph #5. Adopted in paragraph #7. Adopted in substance in paragraph #13. Rejected as unnecessary. 15.-17. Adopted in paragraph #7. 18.-21. Adopted in paragraph #8. 22.-24. Adopted in paragraph #9. Adopted in paragraph #10. Adopted in paragraph #13. Adopted in paragraph #15. Adopted in paragraph #10. 29.-30. Rejected as cumulative. Adopted in paragraph 16. Rejected as contrary to the evidence. Although the porcelain shading did not match the patient's lower teeth, the uncontroverted testimony was that she selected the color and intended to have the lower teeth replaced later. 33.-35. Adopted in paragraphs #11 and 12. 36.-38. Adopted in paragraph #17. Adopted in substance in paragraph #18. Adopted in paragraphs #19 and #20. Respondent' s Proposed Findings of Fact I.-A. Addressed in conclusions of law. -B. Adopted in paragraphs #1 and 2. -C. Adopted in paragraphs #5 and 10. 2.-A.-D. Rejected as immaterial and unnecessary. "Count I" Adopted in paragraph #3. Adopted in substance in paragraph #4. Adopted in part in paragraph 5, otherwise rejected as unnecessary. Adopted in paragraphs #6-#11. Adopted in paragraph #10, except that the recall was eight, not six, months later. Adopted in substances in paragraphs #3, 4, and 11. G.-H. Adopted in summary paragraph #12. "Count II" A.) B.) C.) Adopted in paragraphs 6. D. Rejected as contrary to the weight of evidence (as to the standard) and immaterial (as to the form). COPIES FURNISHED: Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Richard I. Wallsh, Esquire 217 East Ivanhoe Boulevard, North Orlando, Florida 32804 William Buckholt, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Bruce Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether Respondent violated section 456.072(1)(v), Florida Statutes (2018), by engaging or attempting to engage in sexual misconduct.
Findings Of Fact The Department is the state agency charged with regulating the practice of osteopathic medicine and prosecuting disciplinary actions on the Board's behalf, pursuant to section 20.43 and chapters 456 and 459, Florida Statutes. Dr. Van Buskirk is an osteopathic physician. He is licensed to practice osteopathic medicine in the state of Florida pursuant to license number OS 5899, which has been active in good standing for over 30 years. Prior to the Complaint, he had never been disciplined or had a disciplinary action brought against him. V.C. was a patient of Dr. Van Buskirk from December 12, 2017, to August 28, 2018. As reflected in V.C.'s medical records, she sought treatment for chronic and acute pain, primarily in her neck, right upper leg, and right groin. V.C.'s right leg and groin issues caused her pain when walking, weakness on her right side compared to her left, and inability to lay in bed on her right side. V.C. was referred to Dr. Van Buskirk by a patient who had been treated by him and found the treatment helpful. V.C. was treated by Respondent once or twice a month, totaling 13 visits over the nine-and-one-half-month span. At each visit, V.C. first met with an assistant who obtained current information from V.C. regarding her pain issues and medical history/medication. After Respondent reviewed the information, he proceeded to perform osteopathic manipulative treatment on V.C. from the top down, meaning he would start on V.C.'s neck and work his way down. Respondent spent 35 to 45 minutes treating V.C. each visit. V.C.'s 13 appointments with Respondent were on the following dates: December 12 and 22, 2017; January 11 and 30, 2018; February 27, 2018; March 27, 2018; April 17, 2018; May 8 and 29, 2018; July 10 and 31, 2018; and August 14 and 28, 2018. V.C. described Dr. Van Buskirk as completely professional in his treatment of her for the first ten visits, despite providing treatment each time in an admittedly sensitive area, her groin. Respondent's practice is to ask patients to wear comfortable clothing for their treatment visits that will allow him to access the areas needing treatment. V.C., for example, usually was dressed in leggings over underwear and a tee shirt. For some of the visits, Respondent was able to provide the osteopathic manipulation, even to the upper leg and groin area, through the leggings. Sometimes, however, the leggings or their seam placement interfered with his ability to adequately sense the tightness, relaxation, and contraction of muscles in the treatment area. For some visits, then, he asked V.C. for permission to go underneath the leggings with one hand, which she gave each time requested. Respondent did so several times during the first ten visits, lifting her leggings at the waistband and putting one hand down above the middle of her thigh between the leggings and V.C.'s panties. V.C. said that each of these times, Respondent was completely professional, never saying or doing anything inappropriate. V.C. also confirmed that Respondent was completely professional on visit ten on July 10, 2018, when her recollection was that she had to remove clothing to provide access for Respondent to administer a cortisone shot in her right upper thigh. V.C.'s eleventh visit was on July 31, 2018. According to V.C., unlike her other visits, she went to this appointment during a lunch break from work, and she was wearing shorts instead of leggings. The shorts were bulky, so she removed them when it came time for her to lie down on the exam table, face up, for her upper leg and groin area treatment. Respondent testified that his consistent office practice is to offer patients scrubs and a chaperone when he requests them to remove articles of clothing for treatment. He recalled having to ask V.C. to remove bulky shorts on one occasion so he could provide treatment to her upper thigh and groin area. Though Respondent did not specifically recall offering her scrubs or offering to have someone else come in the treatment room, his belief was that he acted in accordance with his consistent practice and offered both scrubs and a chaperone. V.C. did not dispute this account.4 At the hearing, V.C. testified that she was lying face-up on the exam table, with Respondent standing on her right side at about mid-thigh, so that her hip was to his left and her feet were to his right. From this position, V.C. testified that Respondent abruptly "pulled" or "snapped" her underwear from right to left, exposing her genital area, and rested the heel of his left palm5 on her pubic area, while he massaged her right thigh with his right hand. In describing the positioning of his left hand in more detail, V.C. said that the base of his thumb was on her pubic hair, and the base of his pinky was just above her labia. She said Respondent rested the heel of his left palm on her pubic hair for two to three minutes (but acknowledged that in an earlier recounting of this incident in 2018, her estimate was one to two minutes). 4 Petitioner's Proposed Recommended Order (PRO) contains a number of inaccurate citations to the record evidence. For example, Petitioner proposed findings of fact to the effect that on July 31, 2018, Respondent neither offered a chaperone nor had one present, and that Respondent did not offer surgical scrubs to V.C. (Pet. PRO at 3, ¶¶ 4, 6). None of the record citations offered as support for these two proposed findings contain testimony that Respondent did not offer a chaperone or that Respondent did not offer scrubs to V.C. Instead, they contain Respondent's testimony that he believes he acted in accordance with his consistent office practice to make both of those offers that day, and V.C.'s testimony that there was not a chaperone in the room and that she took off her bulky shorts and lay down on the exam table (wearing a tee shirt and panties). V.C. did not testify that she was not offered a chaperone or scrubs. 5 V.C. did not use the word "heel," but said "this part" of the palm, while pointing to the lower part of the palm above the wrist, which is the heel. V.C.'s description, though very detailed, is physically impossible in a number of respects, and as such, cannot be credited. To begin with, it is difficult to envision V.C.'s panties being "pulled" from right to left by someone standing on her right side. That would entail twisting the pulling hand to grasp the panties with the fingers and pull the panties to the side away from where the person is standing. Assuming the left hand were used to "pull" the panties from right to left, would that hand have remained holding the panties on the left side so as to expose V.C.'s pubic area? If so, it is difficult to imagine how the heel of the left palm could have rested on V.C.'s pubic hair. Further complicating the picture described by V.C., for the base of the left thumb to be at the top of the resting palm on V.C.'s pubic hair, with the base of the pinky at the bottom where the pubic hair ends, just above the labia, that left hand would have to contort 180 degrees from where the panties had been pulled (to the left side of V.C.'s pubic area). For the heel of the left palm to be resting on V.C.'s pubic area, with the base of the thumb high and the base of the pinky low, the fingers of the left hand would be pointed to V.C.'s right side at about the right upper thigh, rather than on the left side of her pubic area.6 The physical impediments fare no better if one were to assume that the panties were pulled left to right by Respondent's right hand. The problem is that with Respondent standing on Petitioner's right side, it is impossible to envision either left or right hand "pulling" panties away from right to left. And neither scenario supports V.C.'s description of what happened after the panties were pulled from right to left, leaving her exposed. V.C.'s description 6 Apparently recognizing the flaw in V.C.'s detailed description, Petitioner recharacterized V.C.'s testimony, suggesting that V.C. testified it was the base of Respondent's right thumb that was at the top on her pubic hair, with the base of his right pinky at the bottom just above her labia. (Pet. PRO at 3, ¶ 7). But that is not what V.C. said. She clearly was describing the positioning of Respondent's left hand. And, although Petitioner's version would help with this particular physical difficulty, it does not square with V.C.'s testimony that while the heel of Respondent's left palm rested on her pubic area, with base of thumb at the top and base of pinky below, Respondent put his right hand on her right upper thigh and started massaging her leg. of what Respondent did with his left hand defies physics. But V.C. also said that while the heel of Respondent's left hand rested on her pubic area, Respondent put his right hand on V.C.'s right thigh and began massaging her leg. With both of Respondent's hands now occupied on V.C.'s right side (heel of left palm resting on pubic area, base of left thumb high, base of left pinky low, fingertips at about V.C.'s upper right thigh; right hand on right upper thigh massaging her leg), neither hand could have been holding V.C.'s panties to the left side of her pubic area so as to keep her exposed. While V.C. described Respondent's pulling or snapping of her panties from right to left to expose her, followed by him resting the heel of his left palm on her pubic hair while he massaged her right thigh with his right hand, she could not recall whether, when, or how her panties returned to their rightful position. But elastic on panties makes a snapping sound when it returns into position after having been displaced. If V.C.'s panties had been pulled to the side exposing her pubic area, one would expect a "snapping" sound when the panties were released and the elastic would snap back into place. V.C.'s description did not seem to add up for this reason, too. V.C. said that she did not react to Respondent's actions by saying or doing anything, such as expressing her discomfort or distress, or stopping the treatment session early. Instead, V.C. said that she was in shock, so that after the one-to-two or two-to-three minute left heel-of-palm rest on her pubic hair, Respondent completed his regular course of treatment for another five or more minutes. V.C. acknowledged that Respondent never said anything inappropriate to her at any point. Respondent flatly denied V.C.'s account of inappropriate moving of her panties or inappropriate touching of her pubic area. According to Respondent, he never moved V.C.'s panties, but instead, provided the same osteopathic manipulation to her upper leg and groin area as he had at every other visit, except this time V.C. had removed her bulky shorts, while remaining covered by her panties. Respondent never observed any discomfort or distress by V.C.; and, as she acknowledged, she never expressed discomfort or distress. V.C. described her own uncertainty at the time as to whether what she perceived had been a mistake or an accident. She never said anything to Respondent or to his staff after the treatment session. She went to the receptionist desk, paid, and scheduled her next appointment for two weeks later, on August 14, 2018. V.C.'s testimony was inconsistent regarding whether she spoke with anyone about the July 31, 2018, treatment session between that day and her next appointment. She testified that she did not report the incident to anyone during the two weeks after the treatment session on July 31, 2018. But she also said that she spoke with her friend, T.B., for whom she works, that afternoon (July 31, 2018) when she returned to work, because, according to V.C., she was visibly distressed and T.B. asked her what was wrong. Petitioner offered T.B.'s testimony at the hearing to corroborate V.C.'s testimony. However, T.B. testified that he had a conversation at work with V.C. "in approximately November" 2018 that he initiated, not because he had observed V.C. in obvious distress, but because her performance was off that day. To explain why her performance was "off," she told T.B. she was upset because she had an experience at the doctor's office that was bothering her. She gave little detail, saying only that the doctor had touched her inappropriately. According to T.B., "she did say that it wasn't sex, that it was just inappropriate touching." (Tr. 120). V.C. had been seeing a psychiatrist for medical management of depression and insomnia. At her appointment on August 3, 2018, three days after the July 31 treatment session with Respondent, V.C. did not mention any incident to her psychiatrist. V.C. went to her next appointment with Respondent on August 14, 2018. She did not say anything to Respondent or his staff regarding the July 31 treatment session. Respondent provided the same osteopathic manipulative treatment he had performed the previous 11 visits. V.C. testified that Respondent was completely professional in both actions and words during the August 14 treatment session. After the session, she paid and scheduled her next appointment for August 28, 2018. V.C. went to the August 28 treatment session wearing leggings and a tee shirt. Respondent provided the same osteopathic manipulative treatment he had performed the previous 12 visits. When he started the treatment to her upper thigh and groin area, he was having difficulty sensing a particular tendon in the lateral groin area, to the right side of her groin. He requested permission to put one hand underneath her leggings, as he had previously done for some of the treatments to this area, and she gave her permission as she had previously. Respondent testified that when he went to lift up V.C.'s leggings at the waistband, he accidentally lifted both her leggings and her panties, sliding his hand down towards her right thigh to position his sensing finger on the tendon to the right side of her groin. He did not realize that he had accidentally lifted her panties too until he put his palm down to sense the tendon just to the right of her groin, a little to the left of her right hip bone, and he felt skin under his palm instead of the cloth of her panties. He immediately started removing his hand. At the same time Respondent realized his palm had come to rest on V.C.'s skin, V.C. realized the same thing. She immediately said, "I am not comfortable with this." Respondent had already begun removing his hand as V.C. spoke. At the hearing, V.C. described this incident the same as Respondent did, with one exception. According to V.C., Respondent lifted her leggings and underwear with his right hand, then slid his left hand down the center, and that his palm came to rest on her pubic area, with his middle finger extending to where the pubic hair ends, just above her labia. She agreed that Respondent's palm made contact with her for just an instant. She said that as soon as she felt the contact, she spoke up and he immediately removed his hand. Respondent emphatically denied that he made contact with V.C.'s genitals or pubic area. He described with great specificity exactly where he had put his hand, and why. For the work he was trying to perform on V.C.'s lateral groin, he was trying to sense a tendon located about one to one and one-half inches to the left of V.C.'s right hip bone (on the front part of the pelvis), at about belt-line (perhaps a low-slung belt). At that location, his hand was four inches to the right of the middle of the pubic bone, which is where his hand would have been according to V.C.'s description. Respondent's detailed explanation, which he demonstrated during the hearing, was credible and is credited. Other than V.C.'s one statement—"I am not comfortable with this"— she said nothing to Respondent about the incident. V.C. did not stop the treatment session early. Instead, Respondent completed the osteopathic manipulative treatment. V.C. acknowledged that Respondent never said anything inappropriate or unprofessional during the August 28 treatment session or at any previous session. V.C. testified that after the treatment session, she did not say anything to staff about the incident, but paid and ran out of the office.7 When she got to her car, she telephoned Maureen Maguire, who is her friend and, also, her gynecologist. V.C. testified that she told Dr. Maguire about the incident that had just occurred, and about the earlier incident. V.C. recalls Dr. Maguire telling V.C. about a similar incident she had experienced when she was going to a massage therapist. At the hearing, Dr. Maguire confirmed that V.C. called after the second incident to tell her about both incidents. V.C. told Dr. Maguire that 7 Respondent's staff credibly disputed V.C.'s claim that she ran out of Respondent's office. V.C. did not show any sign of distress. the first time, Respondent "was doing a manipulation in her groin area and that his hand went where it should not have gone." (Tr. 107). V.C. told her she went back to give Respondent another chance because she had come to love and trust him, "and it happened again but it was even more aggressive of hand in the wrong place, like down her underwear exactly, on the second time." (Tr. 108). Dr. Maguire testified that V.C.'s description gave her the impression that the first time, Respondent's hand ended up in the wrong place on top of V.C.'s clothing, because V.C. made a point of saying the second time his hand went under her underwear. Dr. Maguire said that V.C. was upset, so she tried to talk V.C. through it by sharing the "similar" incident that happened to her with a massage therapist. Dr. Maguire said she told V.C. that her biggest regret was that she had done nothing about it. As a result of her experience, she urged V.C. to report the incidents. Dr. Maguire said that V.C. was looking to her for advice, asking how to go about reporting it. Dr. Maguire gave V.C. a couple of suggestions, telling her she should report the incidents to law enforcement and the Department.8 V.C. testified that she also disclosed the August 28 incident to V.D., a friend of her son's who was living in her house temporarily while between leases. According to V.C., when she got home that day, V.D. saw her distress and asked her what was wrong, so she told him about the incidents, and he offered his sympathy and attempted to comfort her. V.D.'s testimony by deposition was offered in evidence by Petitioner to corroborate V.C.'s testimony regarding her disclosure to him. V.D. confirmed that he found V.C. distressed one day and asked her what was wrong. He said V.C. described a single incident in which her doctor touched her vagina inappropriately. V.C. also told V.D. that after the inappropriate touching, the 8 V.C. first testified that she recalled Dr. Maguire urging her to report the incidents, but that Dr. Maguire did not know how V.C. should proceed. V.C. later testified that she does not recall even discussing the subject of reporting the incidents with Dr. Maguire. doctor "made a comment to her about, like, having a hard time resisting her and not being able to control himself around her. Something to that effect." (Pet. Ex. 7, p. 15-16). V.D. later clarified that he did not recall the exact wording used by V.C. to describe what the doctor had said to her, "but it was something to the effect of that he had desired her for a while, or that he had a hard time resisting her. Basically saying that—justifying what he—the assault by saying, I'm physically or sexually attracted to you, is the effect of what he said to her."9 (Pet. Ex. 7, p. 21-22). V.D. testified that V.C. asked him what she should do, and they discussed reporting the incident to law enforcement. V.C. told him she intended to report it to the police, and later told him that she had reported it. V.C. did not report the incident(s) to the police or to the Department or Board. She explained that she felt guilt and shame, and did not want to relive the incidents as she would have to in order to report it. She blamed the incidents on intensification of "crying jags" that she had experienced before. She also blamed the incidents for a return of insomnia, which she said she had gotten under control. On October 12, 2018, V.C. told her psychiatrist, Dr. McKinnon, about the incidents during her regular appointment with him. His notes reflect some inconsistencies in the details of the incidents.10 Following her disclosure, Dr. McKinnon's notes reflect that he told V.C. he had to report the 9 Even though Petitioner offered V.D.'s deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address V.D.'s testimony regarding the provocative statements V.C. attributed to Respondent. Instead, V.C. admitted at the hearing that Respondent made no inappropriate or unprofessional statements that day or any other day. 10 For example, Dr. McKinnon's notes reflect that V.C. told him that when Respondent put his hand under her leggings and panties on August 28, she immediately stopped the examination and left the office. At the hearing, V.C. did not dispute whether the notes accurately reflected what she told Dr. McKinnon. Instead, V.C. attempted to reconcile the discrepancy, suggesting the version in the notes was virtually the same as what happened because she "stopped [Respondent's] hand from being there, and then left the office a couple of minutes later." (Tr. 85). V.C.'s attempt to smooth over this discrepancy was unpersuasive. The notes also reflect that V.C. told Dr. McKinnon that she had consulted with an attorney who would not take her case. At the hearing, V.C. said that she did not recall telling Dr. McKinnon that, but she did not deny that the statement was true. incidents to the Florida Board of Medicine, and that she should report the matter to law enforcement or another attorney to explore her legal rights. Dr. McKinnon's notes contradict V.C.'s testimony about the effect of the incidents on her insomnia and crying jags. As of October 12, 2018, V.C. reported that, overall, the medications previously prescribed by Dr. McKinnon for management of her depression and insomnia had been helpful. In particular, V.C. reported that the dosage of one medication, which she "continues to take" twice a day, had effectively "reduced her crying spells[.]" (Pet. Ex. 1, p. 1). V.C. had been seeing Dr. McKinnon for medication management of depression and insomnia since well before the incidents, and the October 12, 2018, notes, addressing her positive progress since her previous appointments (the most recent of which was August 3, 2018), do not support her testimony that these conditions had been under control before the incidents or that they worsened because of the incidents. After the October 12, 2018, visit, Dr. McKinnon reported what V.C. had told him about the incidents to the Department, which began an investigation. The Department also reported the incidents to the Sarasota Police Department which conducted an investigation, but no charges resulted. V.C. also told her long-time physical therapist, Ofer Nissan, about one or both incidents, possibly close in time to her visit to Dr. McKinnon. V.C. said that she told him about the incident(s) because he had been treating her for a long time and had always been appropriate. Mr. Nissan's deposition was offered by Petitioner in lieu of live testimony, because Mr. Nissan had become uncooperative after being subpoenaed to testify at the hearing and had stopped responding to calls by Petitioner's counsel. Mr. Nissan testified that V.C. told him Respondent touched her private area in an inappropriate way while he was working on her right inner thigh. When asked if V.C. had used the phrase, "private area," Mr. Nissan responded: "She used the word 'vulva.'" (Pet. Ex. 9, p. 18). When asked whether V.C. said whether there was inappropriate touching or penetration, Mr. Nissan responded: "She said penetration."11 (Pet. Ex. 9, p. 25). Despite what Mr. Nissan said he was told by V.C., he did not report the incident(s). He acknowledged that "Dr. Van Buskirk is a doctor with a lot of respect in this town. … I respect the doctor. I respect his reputation." (Pet. Ex. 9, p. 20). V.C. acknowledged at the hearing that she has retained lawyers to represent her, and they have prepared a complaint for damages against Respondent. Although V.C. acknowledged "there is a money component," she testified that that was not her priority; she just wants to hold him accountable. V.C. told her friend, T.B., for whom she works, something very different. T.B. described a conversation with V.C. in which she told him the incident12 had been reported to the police and asked him what he thought would happen. T.B. told her that if it was true, Respondent would probably end up in jail. V.C. responded that she would just rather have a monetary settlement. At the hearing, T.B. said he found V.C.'s comment strange: "I personally felt that that was a motivation beyond justice." (Tr. 123). At the hearing, Petitioner presented the expert testimony of Anthony Davis, D.O., to offer the opinion that if V.C.'s statements are believed, then Respondent had committed inappropriate touching of V.C.'s genitalia, an act that was outside of the scope of practice of osteopathic medicine. At the same time, he acknowledged that the examination and treatment of V.C. performed by Respondent on July 31 and August 28, 2018, were required based on V.C.'s presenting complaints, and were justified by the medical records. 11 Even though Petitioner offered Mr. Nissan's deposition testimony into evidence, Petitioner did not ask its witness, V.C., to address the inconsistencies in Mr. Nissan's testimony regarding what V.C. told him. 12 T.B. said that in 2018, V.C. only told him about a single incident. T.B. testified that V.C. called him one week before the hearing to tell him (for the first time) that there had been two incidents, and also to tell him that she was filing a civil lawsuit against Respondent. Dr. Davis also offered his view that there was no sexual misconduct in this case, either outside the standard of care or by not acting in accordance with governing medical statutes and rules. He testified that Respondent did not use the patient/physician relationship to engage in sexual activity outside the scope of practice. Respondent presented the expert testimony of Walter Ehrenfeuchter, D.O. Like Dr. Davis, he was qualified as an expert in osteopathic medicine. But Dr. Ehrenfeuchter was also qualified in the additional area of osteopathic manipulative treatment, a specialty area that is particularly germane here, since Dr. Van Buskirk's practice has focused exclusively on osteopathic manipulative treatment for the last 12 years. Like Dr. Davis, Dr. Ehrenfeuchter reviewed V.C.'s patient records and the allegations raised. He also reviewed deposition testimony of Dr. Davis, V.C., and Respondent. Dr. Ehrenfeuchter went far beyond Dr. Davis's fairly conclusory opinions, by going into compelling detail, in both his testimony and illustrative exhibits, to explain the treatment techniques employed by Respondent in treating V.C., the challenges working in delicate physical areas to address V.C.'s specific complaints, and the related standards of care implicated in this case. Dr. Ehrenfeuchter's detailed presentation fully supported his overall opinions that Respondent's actions in examining and providing osteopathic manipulative treatment to V.C. were appropriate and within the scope of practice. Ultimate findings of fact Even if V.C.'s testimony were fully credited, Dr. Van Buskirk did not engage in or attempt to engage in sexual misconduct. He did not engage or attempt to engage in verbal or physical sexual activity with V.C. He did not induce or attempt to induce V.C. to engage in sexual activity. V.C.'s testimony, if credited, went no further than to suggest passive momentary resting of a palm or part of a palm on V.C.'s pubic area in the course of providing osteopathic manipulative treatment to V.C.'s painful groin. For many reasons, though, V.C.'s testimony cannot be credited. Her testimony lacked credibility, clarity, and consistency. The details she described were confused or contrived in many respects. The testimony of Petitioner's other witnesses, offered for the purpose of demonstrating consistency in V.C.'s statements from July 2018 through the hearing, instead demonstrated glaring inconsistencies on material points. The best that could be said about V.C.'s overall testimony is that V.C. may have been influenced by what others told her, starting with Dr. Maguire sharing her "similar" experience of realizing that she had been violated, such that V.C. built up in her own mind the belief that she, too, was violated. Yet V.C.'s embellishments, as described by the "corroborating witnesses," to V.D. (inventing verbal come-on statements of a sexual nature) and to Ofer Nissan (changing her allegation to inappropriate touching of her vulva and adding penetration) suggest the possibility of a more purposeful nefarious intent to spin a tale to try to capitalize financially. Respondent's testimony that he did not touch V.C. inappropriately was more credible than V.C.'s testimony, and is credited. Dr. Ehrenfeuchter's expert opinion that Respondent's examination and treatment of V.C. was appropriate, supported by the medical records, and within the standard of care and scope of appropriate osteopathic manipulative treatment practice was well-supported, more persuasive than Dr. Davis's opinion (to the extent it was inconsistent), and is credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, issue a final order determining that Respondent, Richard Van Buskirk, D.O., is not guilty of a violation of section 456.072(1)(v), Florida Statutes (2018), and dismissing the Administrative Complaint. DONE AND ENTERED this 24th day of February, 2021, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 2021. COPIES FURNISHED: Andrew Perrin, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Corynn Colleen Alberto, Esquire Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 Kathryn Hood, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Stephanie Clark, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Tallahassee, Florida 32301 Kama Monroe, JD, Executive Director Board of Osteopathic Medicine Department of Health Prosecution Services Unit 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 Louise St. Laurent, General Counsel Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399
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.
