The Issue Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(m) and (t), Florida Statutes (2005)?
Findings Of Fact Stipulated Facts: Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is John B. Milton, M.D. Respondent is a licensed medical doctor in the State of Florida having been issued license ME 53961. Respondent's mailing address of record is 4702 Van Kleeck Drive, New Smyrna Beach, Florida 32169. Additional Facts: Hospital Records (Petitioner's Exhibit numbered 1) On December 31, 2005, Patient W.C. came to the Bert Fish Medical Center (Bert Fish) in New Smyrna Beach, Florida, at 1:40 a.m. He was 40 years old at the time. He was seen in the Emergency Department at Bert Fish. Triage of the patient took place at 1:43 a.m. The triage record reports that he walked in to the hospital complaining of his throat swelling and difficulty breathing. The record reflects that the patient was experiencing pain of an intensity level seven (7) in his throat. At the time his blood pressure was 153/83. His pulse rate was 88. His respirations were 20. His temperature was 98.2. His 02 sat. was 99. In the heading within the Emergency Department Triage Record, statement of "Previous Surgery/Other Medical Hx (referring to history)" it states "allergic reaction to birds with throat swelling, " According to the Emergency Department triage nursing notes Patient W.C. was first seen by Respondent at 1:55 a.m. on the aforementioned date. Respondent was serving in the capacity of emergency room physician at Bert Fish at the time. Among the nursing note entries in the Emergency Department triage record for Patient W.C. are handwritten nursing notes that state: At 2:05 Rocephin was given; at 2:20 a.m. pt. (patient) states throat closing saO2 98%; at 2:25 a.m. pt. (patient) tubed by Dr. Milton- placement checked tube pulled-(pt.) patient vent 100% O2 via ambu; at 2:31 a.m. crick. (cricothyroidotomy) by Dr. Milton tube inserted 100% 02; at 2:35 a.m. H/R 40's - atropine; at 2:37 a.m. b/p 213/90 P-87 Dr. Milton attempting crick 0249 epi 1 mg IV; at 2:41 a.m. Dr. Schreiber here; at 2:43 pt. (patient) tubed by Dr. Schreiber s/r 0 pulses and at 2:54 a.m. code called by Dr. Milton. The Bert Fish Emergency Physician Record refers to Patient W.C.'s chief complaint as "shortness of breath." It states "pt (patient) seems to have acute severe pharyngitis and difficulty breathing and mild stridor at rest." The degree of the condition is further described in the record as "moderate." An associated symptom is listed under "Pulmonary," as "cough." It is noted in this record that the patient is experiencing a "sore throat." The Emergency Physician Record under the "Social Hx (history)," notes that the Patient W.C. was a "smoker" and occasionally used "alcohol." No reference is made to the use of any other form of drugs. On the patient chart describing a physical exam performed on the patient, the categories of "alert" and "anxious" are checked. The level of distress is described as "NAD." There is a reference to "pharyngeal erythema," associated with that entry a handwritten note states "mild stridor at rest." A reference is made to "lymphadenopathy" both right and left "mild." There was no "respiratory distress" and "breath sounds nml (normal);" Again the condition "stridor" is noted while the patient is "at rest." "CVS" is noted as regular rate rhythm with "no JVD." On the same page as discussed in the preceding paragraph, within the patient record maintained by Bert Fish, under "clinical impression," Respondent notes several things in the overall experience in treating the patient. They are in turn: acute severe pharyngitis/epiglottitis; emergency cricothroidotomy cardio pulmonary arrest and ER death. These entries reflect events at the end of the case. The medication administration record at Bert Fish in relation to Patient W.C. notes administration of Decadron (a steroid) at 2 a.m.; Solu-cortef (a steroid) at 2:02 a.m.; Rocephin (an antibiotic) at 2:05 a.m.; Versed (a sedative) at 2:20 a.m. and Anectine (a paralytic agent) at 2:25 a.m. A separate set of entries is made in the Code Blue Record at Bert Fish, noting the administration of Epinephrine, and Atropine during the Code Blue response prior to Patient W.C.'s death due to his cyanotic condition (lack of oxygen). Nurse's notes on the Code Blue Record for Patient W.C. maintained by Bert Fish state: Upon me entering the room Dr. Milton was doing CPR on pt. Dr. Schreiber, Dr. Milton and the ER staff attending to pt. ER staff busy. I started scribing for them. Note pt. was in PRA throughout the code. Pt. was given 3 ep. & 3 atoprine total = (-)response. Respondent signed the Code Blue Record as physician. The ER Physician's Order Sheet, as signed by Respondent concerning Patient W.C., in a shorthand reference, describes orders for nebulized racemic Epinephrine, which is an aerosol adrenaline agent, together with the Solu-cortef, Decadron and Rocephin. In the records maintained by Bert Fish concerning Patient W.C., there is a handwritten note made by Respondent at 3:35 a.m., on December 31, 2005, following Patient W.C.'s death, which says: S/P IV steroids, Racemic epinephrine PT continued to c/o "getting worse" "can't breath." At times his respirations were gasping. .. I discussed with him fact the he may require intubation & he understood. PT placed in TRI and preparation made for intubation. PT had secure IV site, Respiratory TX in Room to assist. S/P preoxygenation 1HR> 80 PT had IV Versed and Anectine to facilitate intubation. The laryngoscope revealed a massive "beefy" appearance of the epiglottis. Attempted X 2 E 8.0 & 7.5 ET to secure an airway but Ø success. PT had attempts to ventilate E BVM? Ø air movement. PT cyanotic @ this point so a scalpel was used to attempt a crichothyroidotomy. When a ETT was passed thru the incision however attempts to ventilate were again unsuccessful. Dr. Schreiber (gen surgery) had been paged and he responded. He was able to place a ETT in the airway but by now PT had arrested. Monitor-bradycardia at this time ACLS measures were undertaken and PT given repeated doses of atropine/epinephrine/CPR-> ventilated E BVM. PT continued to have Ø response to proper ALS measurers and Resus efforts stopped @ 0254. Patient Care Explained Nurse Haas William Haas, R.N., was working at Bert Fish on the early morning that Patient W.C. was seen. Nurse Haas first saw the patient around 1:55 a.m. He hooked the patient up to a monitor and took his vital signs. None of the readings were considered by the nurse to be abnormal. Those readings were blood pressure 153/83, heart rate 88, respirations 20, temperature 98.2. and O2 sat. 99%. Patient W.C. was taken into treatment room 16 and was seen by Respondent and nurse Haas. Nurse Haas asked Respondent what Respondent thought was wrong with the patient. Orders were given by the Respondent for 8 mg. of Decadron and 100 mg. of Solu-cortef IV. The purpose of these medicines was to reduce inflammation. Both medications were steroids designed for that purpose. At that time Respondent gave an order for the antibiotic Rocephin. Respondent also wanted a racemic Epinephrine treatment. That treatment was to be provided by the respiratory therapist. When nurse Haas first saw the patient, the patient was complaining about difficulty breathing. Nurse Haas did not observe any manifestation of those difficulties. At one point the patient told nurse Haas that he, the patient, was experiencing an allergic reaction to feathers or birds. The patient told nurse Haas by way of history that it happened to him in the past. (None of this was true. He had no allergy to birds. The patient's deception was never discovered by the hospital treatment team, and they all proceeded on the basis that the patient had a bird allergy.) On the evening before arriving at the hospital, the patient explained to nurse Haas that he went to bed about 9:00 or 10:00 p.m. and woke up around 1:00 a.m. with a raspy feeling in his throat and he felt like his throat was closing up. So he came to the emergency room for care. After attending to the patient in treatment room 16, nurse Haas left the presence of the patient. He next saw the patient standing in treatment room 17 talking on the phone. This was around 2:20 a.m. The patient was again placed on a monitor to track his vital signs. Nothing about those vital signs appeared abnormal. At that time Mary Boothe, R.N., told nurse Haas that the patient was going to be intubated. Nurse Haas inquired of Respondent on the subject, and Respondent told nurse Haas that the patient wanted to be intubated and to get ready to perform the intubation. The procedure for intubation that was being utilized by Respondent is referred to as rapid sequence intubation or RSI. Nurse Haas retrieved Anectine and Versed to be administered in the intubation. The patient was told about the procedure for intubation. The patient was laid down. Nurse Haas gave the patient Versed and Anectine. The Versed was designed to, as nurse Haas describes it, "muddle the mind." The Anectine was an agent that would promote paralysis in the area where the intubation would occur. When in treatment room 17, at around 2:20 a.m., the patient said to nurse Haas that the patient felt that his throat was closing. Those remarks were made when the patient was being hooked up to the monitor to measure his vital signs. This was the second time that the patient had mentioned his throat closing. He had made similar remarks when nurse Haas first saw him in treatment room 16. Steve Igrec, R.T., participated in the intubation procedure in addition to nurse Haas, nurse Boothe and Respondent. Prior to the laryngoscope being introduced in the intubation procedure, nurse Haas did not notice any sharp decline in Patient W.C.'s vital signs. When Respondent accessed the airway for Patient W.C., nurse Haas heard Respondent say, "Oh, he's got epiglottitis," while proceeding further with the intubation. Respondent was unable to intubate and removed the ET tube. Another tube was used to try and intubate, again without success. Nurse Boothe Nurse Boothe first encountered Patient W.C. after he had undergone his racemic Epinephrine treatment. He came out of the treatment room and told her that he did not feel that the treatment had worked. Respondent came by and the nurse repeated what the patient had told her. Nurse Boothe did not notice anything about the patient that made her believe that he was having difficulty breathing. He coughed and told her, "Can you hear it?" but he was not gasping for air, nor making gestures about his chest or throat. Respondent then offered the patient the option of being admitted to the hospital and continuing treatments by steroids to address his condition or putting him on a ventilator and letting him have the treatments through the ventilator. The patient elected the latter option. The ventilator option would allow the patient to be released the next day. The patient was told by Respondent that he would "knock him out" and put the tube in and give the patient the medication that way and that the patient's release would come the next day. Nurse Boothe did not hear the Respondent make any mention to the effect of what might happen if there were difficulties in intubating the patient. The attempted intubation was made in the treatment room 17, which is also referred to as CC-1. The patient walked into the room. Once in the room nurse Boothe did not notice anything about the patient that indicated any difficulty breathing. The patient did mention that he was not feeling any better. Nurse Boothe overheard the patient talking on the telephone. On his end of the conversation he told his wife that he did not feel any better and that they were going to "knock him out" and put him on a breathing machine overnight and that he would see her the following day. Nurse Boothe noticed that as the attempted intubation proceeded, the patient began to have trouble with the intubation. The equipment that was in the room for those purposes included the laryngoscope, the intubation tube, and a stylet. Before the tube was introduced the patient was being ventilated with a bag and mask. When difficulties arose concerning the intubation, nurse Boothe left the treatment room to get a scalpel and to get what is referred to as a "cric" kit. That kit is a set-up that has been assembled to aid in providing emergency access to the trachea. The kit is not kept in treatment room 17. It was kept in another room on a respiratory cart. Nurse Boothe observed Respondent utilize the scalpel and the "cric." After the Respondent experienced difficulties in this effort, the on-call surgeon was contacted by a secretary at the hospital. The Surgeon Arrives On December 31, 2005, Dr. Schreiber was the on-call surgeon at Bert Fish. When he was paged by the hospital, he called and was told that he needed to go immediately to the emergency room because of an airway problem. He received the call at approximately 2:30 a.m. He arrived at the hospital at 2:41 a.m. Once at the hospital Dr. Schreiber, took over and performed surgery, insertion of the endotracheal tube, thereby ventilating the patient. That procedure by Dr. Schreiber was quickly performed. Mr. Igrec Mr. Igrec administered the racemic Epinephrine treatment to Patient W.C. Prior to providing the treatment Mr. Igrec visibly examined the patient to see if the patient was using assessory muscles to breathe or if he had any stridor, any wheezing or anything of that nature. He did not observe the patient using any assessory muscles to breathe. He did not notice the patient evidencing stridor, that is to say a high- pitched sound that is made when a person experiences upper airway obstruction. Mr. Igrec provided two of the treatments to Patient W.C. Before the second treatment, he visibly examined Patient W.C. and did not notice the patient having difficulty breathing. Sometime during the course of the treatment, near the end, the patient asked the question, "How long is this going to take to work?" Mr. Igrec told the patient to give it time. The patient appeared anxious. He did not appear short of breath. Mr. Igrec reported to Respondent that he had provided Patient W.C. the second treatment. Following the second treatment, Mr. Igrec suggested to Respondent the use of Decadron to aerosolize Patient W.C. The racemic Epinephrine is a short- acting drug, and Decadron is a steroid that takes longer to work. In response, the Respondent told Mr. Igrec "We may have to intubate." Mr. Igrec was called to treatment room 17 where Respondent told him that they were going to intubate Patient W.C. In preparation, an ambu-bag, mask, intubation tube, pressure cuff, stylet and strap were retrieved. The cuff was used to keep the intubation tube in place during the procedure. The stylet keeps the tube rigid. Once the patient was sedated, Mr. Igrec began to use the ambu-bag with the patient. At that time, there was no difficulty using the bag, squeezing the bag to provide air into the patient's lungs. Mr. Igrec had one hand on the mask over the patient's face and one hand on the ambu-bag. Respondent used the laryngoscope in placing the tube, trying to look while placing the tube. The tube went into the stomach and not the trachea, such that ventilation did not occur. After that, when Mr. Igrec was bagging the patient he had a lot more resistance, to the point where Respondent had to hold the mask while Mr. Igrec bagged the Patient W.C. After a second attempt to intubate the patient, Respondent attempted to establish a surgical airway. Respondent was using a scalpel and palpating the patient to try and find the crichothyroid cartilage to create the necessary incision. An incision was created. There was no success in placing an airway because the tube did not pass through the crichothyroid cartilage. Mr. Igrec understood this because the tube that he had cut down to place and to ventilate the patient could not be used because there was no hole in the trachea. Blood was pooling around the patient. Dr. Schreiber arrived and established the surgical airway. During this time, CPR was provided the patient under Code Blue conditions where the patient's heart had stopped beating. Attempts at reviving the patient were not successful. Respondent and Patient W.C. Prior to the occasion when he intubated Patient W.C., Respondent had vast experience in performing intubations. As he describes it, this is a necessary skill for an emergency room doctor, recognizing that having an unobstructed airway is vital to a patient's survival. When intubating a patient, Respondent believes that you would want to do this before they "crash," before they lose their vital signs and become unconscious. Before his attempt to intubate Patient W.C., Respondent had never had an instance in which he could not intubate the patient, a function that he had performed numerous times without the assistance of a surgeon or an anesthesiologist. By contrast, before the circumstance that was confronted in Patient W.C., Respondent had never performed a crichothyroidotomy. He had been trained to perform that procedure. On December 31, 2005, nurse Haas approached Respondent and told Respondent that he placed Patient W.C. in a treatment room, described as the ortho room, and that the patient was having trouble breathing and that he needed to be seen by Respondent. Respondent inquired of the patient about the duration of his problem. He asked the patient if he had asthma. Had this happened before? The patient told Respondent that he was having an allergic reaction to his wife's bird and that this problem that he was experiencing had occurred once years before. Respondent asked the patient if he was telling Respondent that an hour ago he was fine and that now he was not. Patient W.C. said "absolutely." When listening to the patient's lungs Respondent did not notice any wheezing. There was no fever in the patient and the patient had not been sick. Unlike the other health care providers attending the patient, Respondent observed that Patient W.C. was having trouble getting air in, the patient was having inspriatory stridor. Respondent believed that the presentation by Patient W.C. was that of someone having an allergic reaction, with some airway compromise, he refers to as laryngospasm. Respondent told nurse Haas to start an IV on the patient and get respiratory therapy to provide a racemic Epinephrine treatment. The reasons for this decision was Respondent thought the patient was having an allergic reaction. In particular, Respondent's impression at that moment was that the patient was someone having an allergic reaction to birds. Patient W.C.'s case was comparable to another case that Respondent had with a woman who had experienced an allergic reaction. In the case of the woman, the patient worsened and quickly had to be intubated. The differential diagnosis that Respondent was proceeding with was that of a patient having an allergic reaction. The orders Respondent gave concerning administration of medications were designed to alleviate an airway problem associated with an allergic reaction. Consistent with Respondent's orders, the nurse started the IV and provided medications, and the respiratory therapist came to provide the aerosol treatment. Respondent observed that Patient W.C. was sitting up in bed and did not appear to be doing anything unusual. Respondent received the report on the patient's status. Respondent went to see Patient W.C., who at that time was anxious and restless. He was having trouble getting air in and telling Respondent that he could not breathe and that his airway was closing off. Patient W.C. told Respondent that "you guys ain't helping me at all." Respondent told the patient that the treatment already provided was the normal thing that was done. Respondent got more history from the patient by asking the patient, "You were perfectly fine until an hour ago?" The response was "yes." Respondent asked the patient if he had not been sick at all. Again the response was "no." The Respondent asked the patient if he had a sore throat. The patient said a little bit. Respondent took a tongue depressor and looked in the patient's throat. It looked pretty normal. (The Emergency Physician Record indicated the patient had a sore throat.) The patient had very mild prominent lymph nodes but nothing out of the ordinary. There was still no wheezing. At that juncture, the decision was made to give Patient W.C. another aerosol treatment. In addition, the decision was made to provide antibiotics in case there was some tracheitis, pharyngitis. It was anticipated that the antibiotics would take 24 hours to have any effect. Epiglottitis was a condition at the bottom of the list on the differential diagnosis. Respondent's experience with that condition was that a patient would be sick for a period of time before the condition worsened. Nothing in Patient W.C.'s presentation led Respondent to believe that he had epiglottitis at that point. By way of history, there was no indication from the patient that he had used cocaine within 24 hours of the time of his visit to the emergency room. (Indeed subsequent toxicology studies revealed recent use of cocaine.) Had such use been reported Respondent would have acted differently in treating Patient W.C. In his second encounter with the patient on the night in question, the patient told him several times that his airway was closing off and that he believed that any second he was not going to be able to breathe. In reply, Respondent told Patient W.C. that the normal things to address his condition had been done, but there was one other thing that could be done and that would be to intubate Patient W.C. Respondent explained that it meant that they would lay the patient in a critical care room and render him unconscious and take a breathing tube and put it into his lungs and admit Patient W.C. to the hospital. This would then be followed by 24 to 48 hours of ventilatory support with use of steroids to address swelling. Patient W.C. told Respondent "let's do it quick." Respondent told a nurse to gather the standard rapid sequence medication, which in this instance involved the use of Versed and Anecitine. In the procedure room where the intubation was attempted, the procedure commenced with the patient having a good heart rate. There was a crash cart available in case there were problems. At the moment, Respondent continued to believe that the patient was experiencing an allergic reaction. Although the patient could have been experiencing epiglottitis secondary to infection, the patient did not show any signs or symptoms of that condition, indications of an on-going infection such as a fever. He was not sweating, his heart rate was not rapid. Once in the treatment room where the intubation was attempted, the patient worsened. Patient W.C. was gasping. He closed his eyes a second. The respiratory therapist Mr. Igrec experienced problems bagging the patient. Efforts by Respondent and the respiratory therapist were not succeeding in getting air into the patient. When Respondent looked in, using the laryngoscope, he noticed something that he had not encountered before. Patient W.C.'s epiglottis had the appearance of a "mushroom." It did not appear as normal anatomy. Respondent described it as a "moonscape." When Respondent looked into the patient using the laryngoscope, he describes the "picture" as looking like a scorched airway when viewing the larynx and the epiglottis. Now that he had observed the epiglottitis, Respondent decided to try and "get under it" using the ET tube. He encountered a complete blockage. Respondent then asked for a smaller tube. The smaller tube did not work. Efforts at bagging the patient were not successful. Respondent concluded that he could not intubate the patient and could not ventilate the patient in that manner, leaving him the only choice, in his perception, to deal with the obstruction by establishing a surgical airway. Respondent asked for a scalpel to perform a "cric." Respondent also told someone to call and get the surgeon and indicate that there was an airway emergency and to come immediately, as Dr. Schreiber did. Respondent took the scalpel and located the crichothyroid membrane below the crichothyroid cartilage and made an incision and air bubbled out. Respondent widened the incision, as he had been trained to do in a course dealing with trauma associated with the airway. Respondent took the ET tube that he had been using and inserted it. It went in smoothly and the treatment team was able to bag the patient. Respondent then noticed that the heart rate was dropping and that the "stats" were not coming up. Respondent then observed that the patient's neck was bigger. What had happened was that the tube had slipped out of the incision, tracking anteriorly over the trachea and the air was being introduced into the neck. Once the subcutaneous emphysema was seen in the neck, it occurred to Respondent that the tube was in the wrong place. The patient was bleeding profusely. There was an effort at reintroducing the tube but the neck had become more swollen, and the tube could not be replaced. A nursing supervisor, Tom Frith, went to the next trauma room and took one of the crichothyroidotomy kits and brought it back. Respondent was not trained to use that kit. He had seen the kits used at a demonstration. The kit was opened. Respondent took a needle from the kit and tried to find an airway but was unable to locate the airway that had been created because efforts at aspiration produced more blood. Other equipment in the kit was utilized to try to replace the endotracheal tube back in the patient, but the field would quickly fill with blood and the tube could not be placed into the membrane. When Dr. Schreiber arrived, using the skill of a surgeon, not that of an emergency room doctor, he performed an emergency tracheotomy on Patient W.C. Respondent acknowledges that persons suffering from an allergic reaction have a common presentation where they experience hives and itching. Some people have wheezing. Patient W.C. had none of these symptoms. Nonetheless, the patient appeared to Respondent to be having an allergic reaction involving the airway Respondent describes as laryngospasm. Respondent understood the patient's condition to be one in which he was able to move about and speak but he was unable to get air in. While able to compensate for that condition for awhile, that ability did not last. Respondent had never seen a patient with epiglottitis. Hypothetically, if a patient were perceived as having that condition, Respondent would consult with a surgeon or an anesthesiologist, if he had time. If confronted with classic signs of epiglottitis, Respondent would start an IV, give the patient supplemental oxygen and not attempt intubation unless the case was emergent. Given sufficient time, the patient would be taken to an operating room and an anesthesiologist could attempt intubation, failing which a surgeon would be available to address the obstruction by placing a surgical airway. This case became one of an emergency, and Respondent took the measures he deemed appropriate. Concerning notes made pertaining to treatment provided Patient W.C., that record was provided after Patient W.C. died. Given the volume of patients that were being seen in the emergency room, other patients as well as Patient W.C., five sets of records and tests were being established aside from Patient W.C. As a consequence, Respondent was doing paperwork on those patients and telling nurses what to do for Patient W.C. Only after the attempts at trying to save Patient W.C. were unsuccessful and after talking to Patient W.C.'s family did Respondent turn his attention to the medical records for Patient W.C. Expert Opinion Dr. John Murray is an emergency physician at Central Florida Regional Hospital in Sanford, Florida. He is licensed to practice in Florida and has been since 1983. He is also licensed to practice in Alabama. Dr. Murray attended medical school at the University of South Florida in Tampa, Florida. He did his residency at the University of Alabama in Tuscaloosa, Alabama. His residency was in family practice. Dr. Murray practiced in Tuscaloosa, Alabama, in emergency medicine, until four or five years ago. He then entered family practice for about three years. Following that time, he returned to practice in emergency medicine. Dr. Murray is board-certified in family practice and emergency medicine. Dr. Murray was received as an expert in emergency medicine to allow him to offer his opinion as an expert. Dr. Murray served as Petitioner's consultant in the case and was presented as its witness at hearing. To prepare himself to testify, Dr. Murray reviewed the Bert Fish hospital records relating to Patient W.C., the autopsy report, the Administrative Complaint, correspondence from Respondent's attorney, Respondent's deposition, the deposition of the nurses who treated Patient W.C. at Bert Fish, the deposition of the respiratory therapist involved with Patient W.C.'s patient care, and the toxicology report pertaining to Patient W.C. Having prepared himself Dr. Murray testified concerning Respondent's performance when measured against the expected "standard of care." In offering his opinion, Dr. Murray conformed to the expectation that Respondent's performance meet what was minimally acceptable in the standard of care. Dr. Murray does not believe that Respondent met the standard of care incumbent upon Respondent. In Dr. Murray's opinion, when a patient is seen in an emergency room the development of the differential diagnosis begins with the worse case scenario. In Patient W.C.'s case, the first consideration in the differential diagnosis should have been epiglottitis, recognizing that the main problem in the condition is inspiratory stridor, the closing of the airway or the upper airway which may cause the patient to die. Therefore, the physician should do everything possible to assure that this does not happen. Dr. Murray believes that the patient was presenting with signs and symptoms of epiglottitis when he arrived at the emergency room at Bert Fish. Dr. Murray believes that when Respondent decided to intubate Patient W.C., it should have been anticipated that there was going to be a very difficult procedure if the patient had acute epiglottitis. Sometimes the intubation fails and there is the need to provide a surgical airway. Because Respondent did not anticipate that difficulty, the intubation procedure was not properly "setup," according to Dr. Murray. That setup would envision dealing with intubation to potentially be followed by the need to provide a surgical airway. Given the possibility that the patient had epiglottitis, it was important to have the most experienced person available to perform the intubation. Dr. Murray believes that would be an anesthesiologist. Beyond that point, if the surgical airway is needed, a surgeon should be available to provide a surgical airway. Dr. Murray believes there was time to have a successful intubation, or if not, the provision of a successful airway by surgery and these arrangements were not made. Notwithstanding the patient's reported history, recognizing the symptoms present, Dr. Murray did not believe that the patient was suffering from an allergic reaction. Nothing in the medical records suggested to Dr. Murray that Patient W.C. was under the influence of cocaine when he was seen at Bert Fish. Commenting on the medical record where the term "pharyngeal erythema" was circled, Dr. Murray explained that pharyngitis is a form of infection either viral or bacterial in relation to the red or sore throat seen in the back of the throat of Patient W.C. when examined by Respondent. Respondent also made reference to lymphadenopathy both right and left, swollen lymph nodes. Patient W.C. was experiencing inspiratory stridor, difficulty in getting air in to his lungs. With inspiratory stridor, swollen lymph nodes and a red and painful throat, Dr. Murray said he would be concerned about Patient W.C.'s having an infection. Dr. Murray was concerned that if Patient W.C. had a lot of inspiratory stridor that the condition might be epiglottitis. With infection and stridor, the airway can close quickly. These circumstances could make intubation of the patient difficult, if not impossible. Dr. Murray acknowledges that epiglottitis was on Respondent's differential diagnosis for Patient W.C. Respondent's orders for use of racemic Epinephrine through nebulization and the provision of steroids, Decadron and Solu-cortef were appropriate in Dr. Murray's view. Repeating the nebulization would have been appropriate in dealing with an allergic reaction which was the number one condition treated by Respondent. Dr. Murray speaks of the use of antihistamines as well. Dr. Murray opined that as long as Patient W.C. was perceived as having an allergic airway problem, the patient would be treated with updraft treatments and antihistamines, if the patient remained stable and did not appear to be "going down hill and crashing." If the patient is "crashing," stops breathing, then a response to the condition would be necessary before the patient had respiratory arrest. However, with epiglottitis most patients would have to be intubated to protect the airway. The condition would be treated as an infection with use of an antibiotics and steroids over time while being cautious about the patient having his or her airway close off. Criticism that Dr. Murray has of Respondent's care was not the basic idea that the patient was intubated to address epiglottitis. It was the expectation that intubation need not be done unless it was absolutely an emergent circumstance, i.e., the patient had stopped breathing. If there is suspected epiglottitis, the physician should not use a tongue blade that may cause spasms or a laryngoscope. The physician should not paralyze the patient. The doctor is going to be confronted potentially with the fact that there is "no hole" to put the tube, in an attempt at intubation and it becomes necessary to "do something and get an airway in." Again the arrangement that needs to be made, in Dr. Murray's opinion, is the double setup to address the intubation and possible surgical airway. Dr. Murray does not believe that Respondent had the needed equipment to address the patient's condition when he began the intubation. In particular, the necessary equipment for the second step in the double setup, that of providing a surgical airway had not been sufficiently arranged by Respondent. Only in the instances where the patient had stopped breathing and Respondent had no time to call in other physicians would it be appropriate to paralyze the patient and attempt the intubation. Dr. Murray does not believe that the patient was dying, and there was the opportunity to call in the surgeon who was available in eight minutes, to provide assistance if one anticipates difficulty. Dr. Murray described three methods of addressing the surgical airway. One is crichothyroidotomy, which was attempted here. The second method is jet insufflation used in pediatrics but also taught for use in adults. The third method is the use of a needle with a catheter. Dr. Murray explained that if using the crichothyroidotomy is a procedure that is comfortable to the physician, then there is no necessity for redundancy beyond the use of that method for providing a surgical airway. Redundancy would be the use of the kit known as Seldinger that causes a small puncture wound. This method is a new technique, an alternative to needle crichothyroidotomy and regular crichothyroidotomy. The Seldinger method is the jet insufflation. Jet insufflation is not a common procedure in adults and is used more in pediatric care. In Dr. Murray's opinion, a reasonably prudent emergency room doctor would know of the availability of that option for ventilating a patient whether the patient is an adult or a child. Dr. Murray criticizes Respondent's medical records for Patient W.C. In his review, Dr. Murray did not find an explanation why it was necessary to intubate Patient W.C. at that moment and by the method employed. The record does not justify attempting a paralytic intubation under the existing circumstances, according to Dr. Murray. Dr. Marlon Priest, witness for Respondent, graduated from the University of Alabama with a degree in chemistry. He attended the University of Alabama School of Medicine from 1974 until 1977. He completed an internal medicine residency. From 1981 through November of 2006, Dr. Priest was on the faculty of the University of Alabama, Birmingham, Alabama, and served as a professor of emergency medicine and director of critical care transport. Over the years, Dr. Priest has had extensive experience in emergency medicine in a hospital setting. He is licensed to practice medicine in Alabama. Dr. Priest was accepted as an expert and allowed to testify concerning his opinion of Respondent's care provided Patient W.C., whether Respondent met the standard of care. Dr. Priest reviewed the Administrative Complaint, the medical records from Bert Fish concerning Patient W.C., Respondent's deposition, the deposition of Thomas Beaver, M.D., and the deposition of Michael A. Evans, Ph.D. to prepare himself to testify. He found the information sufficient to prepare to offer his opinion concerning the care provided Patient W.C. When asked whether Respondent violated the standard of care for failing to consult with or gain the assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis and attempting RSI, referring to rapid sequence intubation on Patient W.C., fell below the standard of care for an emergency room physician, Dr. Priest indicated that he felt that Respondent met the applicable standards. Dr. Priest believes emergency medicine has evolved to the point where emergency room physicians are able to assess and carryout that form of intubation. In Dr. Priest's experience, on numerous occasions, he has intubated patients without consulting a surgeon or an anesthesiologist. Based upon those insights Dr. Priest does not believe that Respondent was obligated to consult a surgeon or an anesthesiologist before attempting the intubation on Patient W.C. Specific to Patient W.C.'s case, the patient presented with shortness of breath and stridor and having failed to improve following treatment to address a possible allergic reaction, the decision was made to oxygenate the patient prior to some event where the patient could not breathe. Based upon the symptoms of the patient and gravity of the situation, Dr. Priest is persuaded that it was appropriate to attempt intubation. Concerning the allegation that Respondent failed to meet the standard of care by inducing paralysis in Patient W.C., Dr. Priest indicated that RSI is the preferred method of gaining access to a patient's airway where the patient is awake and alert and who might struggle if that method was not employed in an effort to intubate the patient. In his opinion, Dr. Priest makes mention of the progression in the case from having stridor, complaining of not being able to breathe and Dr. Priest's expectation that the airway was becoming smaller over time. Dr. Priest believes that the principal diagnosis in the differential pertaining to Patient W.C., possible allergic reaction was a reasonable diagnosis based upon information in the patient records. Concerning the allegation about Respondent's medical records related to alleged failure to document symptoms in Patient W.C. that would justify paralysis and RSI, as opposed to other less risky forms of securing the airway, Dr. Priest believes that there is sufficient evidence in the medical record to justify the intubation. Related to the second allegation dealing with record keeping by Respondent alleging that Respondent failed to document Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, Dr. Priest believes that this information would have been written down by someone else on the treatment team during the course of the treatment, the attempt to intubate. Even beyond that point, Dr. Priest believes that standard protocol would call upon the respiratory therapist or the nurse to create the record or potentially someone else on the hospital staff, not the Respondent. The inaccurate report by Patient W.C. concerning his past history with bird allergies changes the priorities in the differential diagnosis, in Dr. Priest's opinion. That history meant that allergic reaction was placed at the top of the differential diagnosis, in particular with a physical examination that was consistent with the history. Dr. Priest holds this belief even in the absence of fever, sweating, or questionable vital signs in the patient. When Dr. Schreiber entered the treatment room, he noticed a group including a physician and nurses who were attending Patient W.C. They were trying to resuscitate the patient. The patient did not have an airway. The patient was cyanotic. The patient was bloated and did not have a pulse. An attempt was being made to revive the patient from arrest. A valve bag mask was being used and drugs administered that would support the patient's blood pressure. An effort at gaining a surgical airway had not succeeded. There was a surgical incision on the patient's neck. Blood was on the patient and on the floor. At the moment no attempt was being made to establish a surgical airway. Dr. Schreiber observed that the patient had a protruding tongue that was obstructing this mouth and airway. Dr. Schreiber observed that the Petitioner's upper check and abdomen were bloated. Dr. Schreiber noted that the patient evidenced crepitancy, indicating subcutaneous air in the patient's neck and chest. This would be consistent with the placement of an airway tube into the subcutaneous tissue outside the trachea and air blown into the area. Dr. Schreiber made a nick in the trachea and placed a number 8 ET tube into the trachea. Following the placement of the ET tube in the trachea, Dr. Schreiber observed air movement in the lungs. However, the patient did not regain a pulse or adequate saturation of oxygen. On January 3, 2006, Dr. Thomas Beaver, Chief Medical Examiner and pathologist, performed an autopsy on Patient W.C. As part of his Medical Examiner's report on Patient W.C., special studies had been done, and a comprehensive toxicology analysis performed by AIT Laboratories. Dr. Beaver determined the cause of death as complications of acute epiglottitis and that the manner of death was of natural causes. The complications of acute epiglottitis were explained as a status post crichothyroidotomy. Dr. Beaver also noted atherosclerotic cardiovascular disease involving coronary arteries, mild. In particular, Dr. Beaver found that the epiglottis was swollen to an extent that it obstructed the deceased's airway. The condition observed was not the result of an attempted intubation of the patient, in Dr. Beaver's opinion. The condition observed was a disease process that Dr. Beaver felt was on-going for a matter of hours or perhaps a number of days before the attempted intubation. This type of mechanical obstruction in the epiglottitis would obstruct the airway and disable the patient from breathing, according to Dr. Beaver. The condition of the epiglottitis was not perceived by Dr. Beaver to be in association with some form of allergic reaction. The exact cause was not clear. Dr. Beaver does not believe that the ingestion of cocaine, whose metabolites were in the body caused the death. Marie Herrmann, M.D., is the present Medical Examiner and pathologist in the jurisdiction where Dr. Beaver served. Dr. Herrmann had the opportunity to review Dr. Beaver's autopsy report on Patient W.C. and to examine some evidence available to Dr. Beaver in performing his examination. She too was not persuaded that cocaine was a contributing factor to Patient W.C.'s death. In offering this opinion Dr. Herrmann was aware of the toxicology report from AIT Laboratories. Dr. Herrmann agrees with Dr. Beaver's opinion concerning Patient W.C.'s cause of death. Dr. Herrmann was unable to determine within a reasonable degree of medical certainty that the efforts by Respondent to intubate Patient W.C. caused the blockage in the airway. Michael Evans, Ph.D., is the founder, president and CEO of AIT Laboratories. He is an expert in toxicology. He testified concerning the findings in his laboratory related to Patient W.C. using established protocols for examination of the samples provided his facility. Based upon his analysis, Dr. Evans believes that Patient W.C. had ingested cocaine as recent as three hours and no longer than 24 hours before his death based upon values found in the blood and urine samples provided. Bruce Goldberger, Ph.D., is an expert in forensic toxicology. He is a professor and director of toxicology at the University of Florida College of Medicine, Departments of Pathology and Psychiatry. He is familiar with the medical examiner's report prepared by Dr. Weaver and the AIT Laboratories' report on Patient W.C. Dr. Goldberger offered the opinion that Patient W.C. could have been using cocaine a day or two before his death. He defers to the medical examiner as to the cause of the patient's death. It is accepted from the findings made in the autopsy report by Dr. Beaver that Patient W.C. died from complications of acute epiglottitis, from natural causes, not as a result of Respondent's attempt to intubate the patient. Having considered the facts and the opinions of experts, clear and convincing evidence was not presented to establish the violations alleged in Count One (Section 458.331(1)(t), Florida Statutes) paragraph 27. a). and b). related to consultation with or assistance from an anesthesiologist or the on-call surgeon prior to inducing paralysis in the patient as part of RSI. Likewise, the violation alleged in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. a). relating to failure to document symptoms justifying paralysis and RSI was not proven by clear and convincing evidence. Concerning the alleged violation in Count Two (Section 458.331(1)(m), Florida Statutes) paragraph 30. b). involving the documentation of Patient W.C.'s O2 sat. and cardiac activity during the RSI attempt and subsequent procedures, the opinion of Dr. Priest is compelling. Based upon that opinion Respondent would not be expected to provide that documentation and maintain the record beyond that point in time. Respondent's Background Respondent received his undergraduate education from the University of Tennessee, earning a B.S. in biology. He attended medical school in Nashville, Tennessee, at Harry Medical College and worked as an emergency physician in Tennessee. He undertook a flexible internship at the University of Tennessee in Knoxville, Tennessee. In 1987 Respondent went to Jacksonville, Florida, to do a three-year residency in pediatrics, graduating from that program in 1990. During that time he worked in local emergency rooms in St. Augustine, Palatka, and Tallahassee, Florida. He took courses in Advanced Trauma Life Support and Advanced Cardiac Life Support. Since 1990 Respondent has been a full-time emergency room physician living in New Smyrna Beach, Florida. At present, Respondent works for M. Care Emergency Services in Jacksonville, Florida. Mitigation and Aggravation Respondent has no prior violations related to his license to practice medicine in Florida. Patient W.C.'s Family Patient W.C. was married to F.C. and had two young children. At his death his daughter was approximately two-and- a-half years old and his son was 14 months old. Following Patient W.C.'s death, the family has had a difficult time coping with their loss.
Recommendation Based upon the findings of facts found and the conclusions, RECOMMENDED: That a final order be entered, which dismisses the Administrative Complaint, as amended. DONE AND ENTERED this 14th day of April, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2008.
Findings Of Fact At all times relevant hereto Thomas P. Elliott was licensed in Florida as an osteopathic physician having been first licensed in Florida in 1977 and issued Certificate No. 0003751. He graduated from an accredited osteopathic school of medicine in Kirksville, Missouri in 1952 and was duly licensed in Missouri where he practiced for some 23 years before entering the U.S. Air Force medical corps for two years. He was assigned to Tyndall AFB in Panama City, Florida. Upon his release from the USAF and licensure in Florida, he moved to Largo, Florida in 1977 where he set up a general practice as an osteopathic physician. Jack Bianco was first seen by Respondent on 12/19/B3 complaining of constant back pain. Examination and x-rays showed the degeneration of lower spine which could result in some pain. Bianco gave a history of an accident while in the military in 1966 which required extensive surgery and use of a brace for several years. Respondent acknowledged that if a patient said he had pain, he was given the benefit of the doubt. Although Bianco had received treatment at VA facilities those records were never asked for nor obtained by Respondent. Bianco stated he was allergic to Codeine and refused prescriptions for anti-inflammatory drugs. On this initial visit he was treated by manipulation, high frequency pulse and given a prescription for Dilaudid. Bianco remained a patient of Respondent until September 1984. At each visit, which occurred at approximately one week intervals, Bianco was treated with manipulation, high frequency pulse therapy and issued a prescription for Dilaudid. During the nine months Bianco was a patient he was given prescriptions for 374 Dilaudid, 4 mg. Dilaudid is the brand name for Hydromorphone Hydrochlorite. It is the strongest form of morphine available for oral ingestion and is a Class II controlled substance because of its highly addictive attributes. Extended use of Dilaudid (beyond two or three weeks) is generally deemed suitable only for terminally ill patients suffering from a painful malady such as cancer. Respondent recognized that Bianco was coming for treatment principally to get Dilaudid but he nevertheless continued to prescribe Dilaudid and never referred Bianco to a drug treatment facility. In March 1984, Respondent reduced the number of Dilaudid prescribed at one time to 8 but in July 1984 increased the number to 10. Respondent testified he attempted to take Bianco off the Dilaudid and Bianco did not return for treatment after receiving his last prescription from Respondent September 6, 1984. However, as noted below, Bianco's records (and others) were seized by the Sheriff's Office September 11, 1984. Records maintained by Respondent on Bianco fail to record results of the treatment given. On nearly every visit the same treatment was given followed by the prescription for Dilaudid. Although Respondent testified + + + + shown on the patient record showed that response to the treatment was first class, there is no record that Bianco's condition was improving, remaining constant or getting worse, or that any effort was made to change the medication to a less addictive drug. Respondent was never registered to participate in a detoxification program. Without such registration it is illegal for a practitioner to prescribe maintenance drugs to an addict. Between 1979 and 1984, Respondent also treated Stanley Berry, Lawrence Brainard, Cheryl Morelli, Michael Morelli; Donald Murray, Nicholas Spano, Linda Valentine, Paul Broussard, Lee Coryell, Arthur Gray, Sherri Gray, Raine Troupe, Bruce Flood, Debora Bolte, Leon Clifford, Gail Outlaw, William Ellmore, Horace Maybee, William Noble, Irene Morelli and Ernest Pingatore, as alleged in the Administrative Complaint. All of these patients complained of pain, generally back pain, on the first visit. Most reported having been involved in an earlier accident and reinjuring the back recently. The examinations given by Respondent consisted of checking the x-rays if the patient presented one to see if there was any skeletal problem that could cause pain. Otherwise he would palpate the patient to find a potential cause of pain. On these initial visits and throughout the period the patient was treated by Respondent, vital signs (blood pressure, temperature and pulse) were rarely, if ever, taken by Respondent or anyone else at his office. Most of these patients were given manipulation, heat or high pulse frequency treatment and prescriptions for Dilaudid on the first visit. Those who presented records showing they had been given Demerol or Percodan were usually given prescriptions for Demerol or Percodan and a muscle relaxant. Both Demerol and Percodan are Class II controlled substances. These patients' charts, like the chart on Bianco, failed to record what, if any, progress was made as the treatment progressed. Petitioner's expert witnesses, who reviewed the patient records and testified in these proceedings, could not decipher some of the notations made by Respondent on these charts as he used abbreviations, pluses, etc. While it would be very important for a doctor to read the patient record of a patient who had been treated by another physician, there is no specific format or specified abbreviations for maintaining patient records. All of these patients were given prescriptions for Class II drugs with inadequate documentation to justify the use of such drugs in the patient records. They were also given these prescriptions for a much longer time than was indicated for the physical symptoms which could easily lead to addiction, assuming the patient was not already addicted. Many of these patients were referred to Respondent by other patients above named. Those patients with the same surnames were from the same family, generally husband and wife. Respondent testified he gave no significance to the fact that he was prescribing large quantities of Class II drugs to two members of the same family. Frequently drug addicts refer other addicts to a doctor from whom the referrer is able to obtain drugs. Some of these patients were recognized as addicts by Respondent. Nevertheless, he would discuss their dependency with them, continue to prescribe controlled substances for them and never referred any of his patients to a detoxification center. Some of Respondent's patients listed above were given prescriptions for sufficient quantities of Schedule II drugs that they disposed of these drugs on the street. Approximately of those patients above noted were arrested by police for drug related offenses. These practices constitute prescribing controlled substances not in the course of Respondent's professional practice. Donald Murray was a patient of Respondent's from July 1979 through July 1984. During this period he received 198 prescriptions for Dilaudid, 240 prescriptions for Percodan, 16 prescriptions for Tuinol, as well as prescriptions for Tylox and Desoxyn (for narcolepsy). No entry in the patient record justified a diagnosis of narcolepsy for this patient. During the 28-day period between May 18, 1982 and June 28, 1982, Murray was given prescriptions for 72 Dilaudid, 4 mg. and 74, Percodan. In April 1983, Murray was given prescriptions by Respondent for 240 Percodan in less than a 30-day period. Respondent testified Murray needed the drugs to maintain his law practice. Nicholas Spano was a patient of Respondent from July 10, 1980 until September 7, 1984. Between July 19, 1982 and September 7, 1984, Spano received prescriptions for more than 2700 Percodan and prescriptions for 424 Tylox, another Class II drug. At the time these prescriptions were given to Spano, Respondent was aware of a psychiatric report by Dr. Joye dated 3/23/81 that Spano was believed to have a narcotic dependence on Percodan, of Joye's recommendation to discontinue Percodan, and of a report by Dr. Adams dated March 31, 1981 that Spano had been a chronic user of Percodan. In 1982, Detective William Logan in the vice and narcotic squad of the Pinellas County Sheriff's Office contacted Respondent regarding a forged prescription to one of his patients. At that meeting they discussed how not to get involved with drugs. Subsequent thereto Logan received complaints from pharmacies in Largo regarding what appeared to the pharmacist as excess prescriptions for narcotics written by Respondent and an investigation was commenced. On March 6, 1984, Respondent telephoned Logan to say he had read that two of his patients had been arrested, viz. Raine Troupe and Bruce Flood. Respondent acknowledged to Logan that he knew these men were addicts and that he was taking them off slowly. Respondent also admitted having other patients who were questionable. By this time Respondent had become a suspect in the criminal investigation and further telephone calls from Respondent were not returned by Logan. Respondent's office was searched on September 11, 1984, pursuant to a subpoena and patient records of the 23 patients above noted were seized. Respondent was subsequently brought to trial in Circuit Court in and for Pinellas County, entered a plea of nole contendere, and on August 25, 1985, adjudication of guilt of unlawful delivery of controlled substance was withheld, Respondent was placed on probation for three years, ordered to pay certain costs, and prohibited from prescribing Schedule II drugs.
The Issue The issues in these consolidated cases are whether Respondent committed the violations charged in four Administrative Complaints and, if so, what is the appropriate discipline.
Findings Of Fact The Department has regulatory jurisdiction over licensed chiropractic physicians pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. In particular, the Department is authorized to file and prosecute an administrative complaint against a chiropractic physician after a probable cause panel (PCP) of the Board determines there is probable cause to suspect a licensee has committed a disciplinable offense, and provides direction to the Department on the filing of an administrative complaint. At all times material to the allegations in the Administrative Complaints, Dr. Aderholdt has been licensed to practice chiropractic medicine in Florida, having been issued license number CH 7814. He was first licensed on January 6, 2000. He practices in an office in Bradenton, Florida. Vax-D Therapy Three of the four Administrative Complaints involve patients of Dr. Aderholdt who received Vax-D therapy. The complaints are not directed to the provision of Vax-D therapy itself, or to any other treatments provided by Dr. Aderholdt. In all four cases, the patients generally spoke well of the chiropractic care they received from Dr. Aderholdt and the manner in which they were treated by him and his office staff. Vax-D therapy is a modality using the Vax-D model for decompression of the spinal discs and spinal structure. It is used to treat a range of issues associated with low back pain, including herniated, degenerated, and bulging discs. The Vax-D model is the originator of this technology; it was the first spinal decompression device. It is a large computerized moving table. It can be programmed to provide specific axial or distractive loading. The table moves in and out, pumping nutrients at the discs. Some research shows that it can actually pull discs away from where they are causing irritation on nerves and the spinal cord. The Vax-D model is FDA-cleared for use, and the literature supports its efficacy. The Vax-D model is an expensive piece of equipment. The price range for the initial purchase is between $100,000 and $150,000, with ongoing expense thereafter for maintenance and updates. Vax-D therapy is one of the most expensive forms of therapy, if not the most expensive, in the chiropractic profession. Other models coming out after Vax-D, as well as other tools, arguably can be used for similar purposes. However, as Petitioner’s expert readily acknowledged, Vax-D is the “Rolls Royce. It’s a really nice tool.” Vax-D spinal decompression is not covered by Medicare. In fact, when it comes to chiropractic care, Medicare has never covered anything besides spinal adjustments. Coverage for Vax-D treatment by private insurance companies is rare. In 2012, Dr. Salvatore LaRusso presented a study on spinal decompression to the profession, before the Federation of Chiropractic Licensing Boards, to inform state regulators of issues associated with Vax-D therapy. The one regulatory concern he reported was that some physicians were improperly billing Vax-D as a surgical decompression procedure, when it is plainly not surgery; it is an alternative to surgery, properly billed as a non-surgical decompressive tool or traction device. Dr. LaRusso’s study also made findings on the common methods of packaging and selling the service, and the range of charges observed. He found that most practitioners providing Vax-D therapy were selling the service as a cash item in their practice, with payment up front often required. The common model was to sell a package with a certain number of visits, with or without additional services included. Dr. LaRusso found that the per-visit charges ranged from $150 to $450, depending on the ancillary services added to the decompression. Dr. Shreeve does not have any issue with the use of or charges for Vax-D therapy. Dr. Aderholdt offers Vax-D therapy pursuant to a Vax-D Therapy Payment Plan agreement (Vax-D Agreement), which is comparable to the multi-visit packages that Dr. LaRusso’s study found to be common. After initial consultation, with intake forms, patient history, x-rays, evaluation, and examination, if a patient is determined to be appropriate for Vax-D therapy, Dr. Aderholdt will give his treatment recommendations and then turn the patient over to his office staff to address the financial aspects. If the patient wants to proceed with Vax-D therapy, the Vax-D Agreement will be reviewed and signed. Patients A.M., R.O., and P.D. each received Vax-D therapy, pursuant to signed Vax-D Agreements. The terms of the Vax-D Agreements for the three patients were the same. Patient B.O. wanted Vax-D therapy, but she was determined to not be an appropriate candidate for it. The Vax-D Agreements in evidence for Patients A.M., R.O., and P.D. provided that the named patient committed to 25 to 28 Vax-D therapy sessions, for $250.00 per session. The total amount that the named patient agreed to pay Dr. Aderholdt for 25 to 28 sessions was $5,500.00, which computes to an actual per-session cost of between $196.43 (for 28 sessions) and $220.00 (for 25 sessions). For the agreed price for 25 to 28 sessions, the Vax-D Agreement provided the following treatment package: at each session, the patient would receive 30 minutes of Vax-D therapy, 30 minutes of full range interferential electrical muscle stimulation (EMS), 15 minutes of hydro-massage therapy, and manipulation (adjustments) by the doctor if needed. The first set of x-rays was also included. Dr. Aderholdt requires an up-front payment for the Vax-D therapy package. For patients who want Vax-D therapy but need help coming up with the funds, Respondent’s office staff has put the patients in touch with Care Credit, which is a medical credit program. If a patient applies and is accepted, Care Credit will finance the cost without charging interest to the patient if the loan is repaid within one year. Care Credit apparently charges a fee to Respondent when credit is extended, similar to the fees charged to merchants by credit card companies for credit card purchases. No evidence was presented regarding Care Credit’s approval criteria or how widely this method is used. All that is known about Care Credit from the record evidence is that two patients who received Vax-D therapy applied for Care Credit and were approved. The other Vax-D patient charged half of the agreed price on a Visa credit card the first day of treatment, and charged the other half after 15 treatment sessions. Patient A.M. From the end of July 2013 to early February 2014, Dr. Aderholdt treated Patient A.M., then a 66-year-old female, for lower back pain and hip pain. Patient A.M. had tried other treatments and had seen chiropractors before, but reported that her pain kept getting worse. As shown by A.M.’s medical records, A.M. was first seen by Respondent on July 29, 2013. That day, A.M.’s intake form, patient history, and x-rays were taken and evaluated, and A.M. was examined by Respondent. Respondent then formulated A.M.’s initial treatment plan. Respondent recommended Vax-D therapy, along with chiropractic adjustments, EMS, and hydrotherapy. The initial treatment plan specified a two- session per day protocol for the first two to three weeks. On July 30, 2013, A.M.’s husband, J.M., signed the Vax-D Agreement (in the space for Patient Signature). J.M. did not remember signing the Vax-D Agreement, but both he and A.M. identified his signature on the Vax-D Agreement. A.M. was named in the agreement as the patient who committed to 25 to 28 Vax-D therapy sessions and agreed to pay $5,500.00 for those sessions. Respondent did not require full payment of the agreed price prior to treatment. Instead, he accepted payment of one- half ($2,750.00) of the Vax-D therapy package price, which was charged on A.M.’s or J.M.’s Visa credit card on July 30, 2013. In accordance with the initial treatment plan, Patient A.M. received two treatment sessions per day beginning July 30, 2013, in the morning and afternoon, for nearly three weeks. After 15 treatment sessions--more than half of the 25 to 28 sessions covered for $5,500.00--the balance of $2,750.00 was charged on A.M.’s or J.M’s Visa credit card. Between July 30, 2013, and February 3, 2014, Patient A.M. had more than 60 Vax-D therapy sessions--approximately 64 total sessions. A.M. initially testified with a fair degree of confidence that she thought she had about 30 treatment sessions, until she reviewed her prior statement made to Petitioner. A.M. testified that at every session, she received Vax-D decompression therapy, hydrotherapy, adjustments “up and down” her spine, and ice packs. She left every session feeling better, with relief from her pain. The relief was temporary, however; she said the pain would come back after a few hours. After 29 sessions, having received all of the treatment sessions covered by the Vax-D Agreement, A.M. started paying additional amounts for more Vax-D therapy and the other ancillary services that she continued to receive. For approximately 35 additional treatment sessions beyond those covered by the Vax-D Agreement, A.M. made seven additional payments in the total amount of $2,226.00. In all, A.M. paid $7,726.00 for approximately 64 Vax-D therapy sessions. Rounding down to an even 60 sessions, she paid an average of $128.77 per session. A.M. was covered by Medicare at the time of her treatment. She did not have any private “Medicare supplement” health insurance. At some point, the subject of Medicare coverage came up. The details of what was said, when, and to whom were not clearly established. The only fact clearly established was that Dr. Aderholdt did not bring up the subject. Patient A.M. testified that Dr. Aderholdt did not talk to her about payment when she first visited, but that she and J.M. asked him, “Does Medicare cover this,” and he said, “Yes.” J.M. said that Dr. Aderholdt did talk to them about payment, saying “we need to do so many treatments and we should pay so much money.” J.M. said that they asked, “Will Medicare take care of it?” Dr. Aderholdt answered, “Yes, we will bill Medicare.” J.M could not say whether he asked about billing Medicare before or after he signed the Vax-D Agreement, since J.M. did not remember signing the Vax-D Agreement. When Dr. Aderholdt was asked if he told A.M. her treatments would be covered by Medicare, he answered, “No, I don’t believe I did, no.” As an interesting contrast, Patient R.O. testified that Dr. Aderholdt told him Medicare would not cover treatment under the same Vax-D Agreement; Dr. Aderholdt does not believe he made that statement, either. In the middle of the spectrum, Patient P.D. testified that Respondent never said anything to her about insurance coverage or financial arrangements. He would only talk about treatment, turning P.D. over to the office manager or billing person to address the financial issues. This version is consistent with Respondent’s testimony that he does not address “the money thing” with patients. Instead, he said he assesses x-rays, takes patient histories, performs the evaluation and examination, and ultimately formulates the recommended treatment plans, whether Vax-D or something else. Then he turns the treatment plans over to his staff to address the financial issues with the patients. A.M. and J.M. did not demonstrate a clear and certain recollection of what they asked Dr. Aderholdt or exactly what he answered. Indeed, both J.M. and A.M. could not remember most every other detail about A.M.’s treatments, often confidently stating details that were shown to be wrong by more than a little, including how many treatment sessions, and how much was paid. For example, Patient A.M. initially reported that she had paid $13,179.00 to Dr. Aderholdt, when the total was $7,726.00. The undersigned cannot find--without hesitancy--that Dr. Aderholdt made any representation to J.M. and A.M. regarding Medicare coverage before J.M. signed the Vax-D Agreement by which A.M. committed to the Vax-D therapy package. Dr. Shreeve made the point well that it is difficult to resolve this kind of he said-she said conflict, although he made the point while confusing Patient A.M. (who claimed Respondent said there would be Medicare coverage) with Patient R.O. (who claimed Respondent said there would not be Medicare coverage), in the following exchange: Q: With Patient RO, what’s your understanding of what Dr. Aderholdt told him regarding Medicare reimbursements? A: Counselor, I’m going to tell you that the investigative record shows that the patient stated that Aderholdt told him that they would be paid, is what my recollection is. And, yet, that’s not something that weighs heavily on my mind because I wasn’t there. This becomes a “he said, she said.” He said he didn’t; he said he did. I can’t get into that fight. That’s not an issue for me. (Jt. Ex. 12 at 35). (emphasis added). Respondent (or his staff) may have told A.M. and J.M., when they asked about Medicare, that the office would complete and submit the Medicare claim forms. Respondent (or his staff) may have told A.M. and J.M., when they asked, that Medicare proceeds paid on the Vax-D therapy package would be refunded. But it would be unreasonable, on this record, to find that Respondent misrepresented that Medicare would provide full coverage, or that Respondent schemed to induce A.M. and J.M. to sign up for Vax-D by guaranteeing that Medicare would pay back everything, when Respondent did not even bring up the subject.8/ The Administrative Complaint alleges that on one or more occasions, Respondent did not submit Medicare claims for Patient A.M.’s treatment. Petitioner has apparently abandoned this allegation; its PRO has no proposed finding identifying any dates of service for which claims were not submitted. The Medicare claim forms for Patient A.M. were compiled by Petitioner’s counsel for use in taking Respondent’s deposition, and are attached as deposition exhibit 2. The evidence is difficult to cull through, as there are 84 separate pages of claims and they are not in chronological order; they start out in chronological order, but then jump forward two months, then continue jumping around on dates, back and forth and back again. As best can be determined, all service dates shown in Patient A.M.’s medical records appear to be accounted for by corresponding claim forms. It appears that one claim form may have a clerical mistake, identifying the date of service as August 3, 2013, when there was no treatment session that day; the actual service date may instead be September 4, 2013, which is the date the claim form was submitted. The Medicare claim forms in evidence demonstrate that claim forms for A.M.’s treatments were regularly submitted, either on or very shortly after the dates of service. The evidence is insufficient to prove that Respondent did not submit Medicare claims for Patient A.M.’s treatment.9/ The Administrative Complaint contains no allegations regarding the disposition of the Medicare claims, although it does allege that Patient A.M. received no reimbursement from Respondent for Medicare payments. Petitioner’s expert seemed to be under the impression that Respondent received Medicare payments, because he criticized Respondent for not providing reimbursement to Patient A.M. Respondent testified that he has received no payments from Medicare for A.M.’s treatments, and Petitioner acknowledges in its PRO that Medicare has not made payments to Respondent. Acknowledging that the Administrative Complaint allegation has not been established, Petitioner instead proposed a finding (not alleged in the Administrative Complaint) that all of A.M.’s Medicare claims submitted by Respondent were rejected and payment was denied. No evidence was offered to prove the actual disposition of the 84 pages of Medicare claims submitted for A.M.’s treatments. Instead, the only record evidence of Medicare adjudications on any claims for A.M. is a group of explanation of benefits forms (EOBs) attached to a March 6, 2014, letter from Patient A.M. to Petitioner’s investigator, which is a deposition exhibit. Patient A.M. identified the small handful of EOBs attached to the March 6, 2014, letter as EOBs she had at that time, reporting on the disposition of Medicare claims submitted by other providers during the same time period as her treatments with Respondent. The EOBs reported, as to each claim, whether the claim was covered in whole or in part; and, if covered, what amount was paid, or, if not, why not. There were no EOBs for claims submitted by Respondent’s office. Patient A.M. was not asked for, and did not offer, any additional EOBs at her deposition. If, in fact, all of the Medicare claims submitted by Respondent were rejected and payment denied, then there would be a stack of EOBs explaining why each claim was denied. On this record, the evidence is insufficient to make any finding as to the outcome of the Medicare claims submitted for Patient A.M.’s treatment. There is no evidence proving whether the claims were denied, approved, or simply never acted on by Medicare. A separate allegation in the Administrative Complaint is that Patient A.M. requested copies of the Medicare claim forms submitted by Respondent’s office for her treatment. Patient A.M. said that she made verbal requests to Respondent’s office staff for the Medicare claims on more than one occasion, and the parties stipulated that Patient A.M. made these requests. Respondent’s office should have responded by giving Patient A.M. copies of the Medicare claims. Dr. Aderholdt said that he was not aware that Patient A.M. had requested copies of her Medicare claim. But it is his responsibility to ensure that his staff promptly responds to requests by patients for insurance claim forms. In the course of Petitioner’s investigation, the Medicare claim forms for Patient A.M. were provided to Petitioner (according to the investigator’s report, on May 16, 2014). It is unknown whether a set of the claim forms was provided to A.M. at that time. She is entitled to a copy of the claim forms if she has not already been given a set. Respondent should have verified that Patient A.M. has received the claim forms she requested, or, if not, provided them to her. Finally, the Administrative Complaint alleges that on the Medicare claim forms for A.M.’s treatments on August 6, 2013, and December 11, 2013, Respondent utilized Current Procedural Terminology (CPT) code 98941, which is the code for adjustments to three or four regions of the spine. However, Respondent’s Subjective, Objective, Assessment and Plan notes (referred to as SOAP notes) for those dates identify spinal adjustments to L3, L4, and L5, which are in a single region--the lumbar region. Beyond the SOAP notes, however, Dr. Aderholdt’s notes for Patient A.M.’s morning session on August 6, 2013 (there were two sessions that day), show multiple adjustments, not only to the lumbar region, but also, to the sacrum and ilium. Dr. Aderholdt’s notes for December 11, 2013, show multiple adjustments to the thoracic, lumbar, and sacrum regions. At hearing, Dr. Shreeve identified the five spinal regions as follows: “a region would be considered cervical, thoracic, lumbar, sacrum, ilium.” (Tr. 106, lines 21-22). Based on his testimony, and considering all of Patient A.M.’s medical records, there were multiple adjustments to three spinal regions on both days identified in the Administrative Complaint.10/ The Administrative Complaint has no other factual allegations regarding CPT code issues in connection with Patient A.M.’s treatment. The complaint pointedly identified one specific CPT code that was used on two specific dates, but was allegedly not supported by SOAP notes for either date. At hearing, Dr. Shreeve attempted to expand the factual allegations regarding CPT coding issues by questioning other CPT codes shown on A.M.’s patient ledger. Dr. Shreeve’s criticism was improper, not only because he strayed beyond the allegations in the Administrative Complaint, but also, because the criticism was based on his misunderstanding of what Dr. Aderholdt’s patient ledgers portray. In particular, Dr. Shreeve was critical of CPT code 99212 entries (for focused patient examinations) on A.M.’s patient ledger, without use of modifier code -25. He said that these repeated entries of CPT code 99212 were inappropriate without use of modifier code –25, to indicate they should not be considered for payment, because they are redundant with other CPT treatment codes that include examination. Dr. Shreeve should have reviewed the actual Medicare claim forms to look for the modifier codes, because the CPT code 99212 entries do, in fact, add a modifier of -25. The modifier code conveys information to the third-party payor, as Dr. Shreeve acknowledged, regarding whether or how payment should be made. The modifier codes need to be used, when appropriate, on the Medicare claim forms, and they were used just as Dr. Shreeve said was appropriate. The modifier codes do not appear on Dr. Aderholdt’s patient ledgers because they are not claim forms sent to third- party payors, nor are they bills sent to patients. Instead, a patient ledger, as used in Respondent’s practice, is an internal practice management tool to account for and track everything associated with treating patients: how many examinations, how many adjustments, how many Vax-D treatments, how many ice packs, and so on. Dr. LaRusso explained that this is a perfectly reasonable use of patient ledgers, and is a common practice among physicians. The usage statistics are analyzed for practice management, for such purposes as making changes in the services or treatments and stocking supplies. Dr. Shreeve admitted that he assumed Respondent’s patient ledgers reflected the exact CPT coding used on insurance claims and bills sent to patients. The evidence refuted that assumption. Modifier codes were used on the Medicare claims. And Dr. Shreeve admitted he saw no evidence that Respondent’s patient ledger for A.M. was ever sent to her as a bill, or that any patient ledgers were ever sent to any patients as bills. Dr. Shreeve also admitted that there is no standard for patient ledgers, much less a regulation mandating the contents and use of patient ledgers. As he put it, he could go to 1,000 chiropractic offices and find 1,000 different variations in what is called a patient ledger. Dr. Shreeve would like to see a standard adopted for “patient ledgers,” but his aspiration simply underscores that there is no standard now; Respondent’s practices cannot be judged against or held to conform to a non-standard, non-regulation.11/ In somewhat stream-of-consciousness fashion, untethered from the Administrative Complaint, Dr. Shreeve interjected a number of other comments about Dr. Aderholdt’s practices related to Patient A.M., such as the adequacy and legibility of his medical records and the quality of x-rays. He raised questions about Dr. Aderholdt’s compliance with trust accounting requirements in connection with payments for A.M.’s Vax-D therapy, and Dr. Aderholdt’s compliance with obligations in connection with Petitioner’s investigation. None of these factual matters were alleged in the Administrative Complaint, and none of the corresponding statutory or rule provisions implicated by Dr. Shreeve’s open-ended commentary were charged in the Administrative Complaint. No findings can be made on matters not alleged, and violations not charged, in the Administrative Complaint. Moreover, there is no competent evidence fleshing out any of these matters, because they were not alleged, charged, or identified in the Joint Pre-hearing Stipulation as issues of fact or law to be litigated. Patient B.O. Between April and June 2013, Respondent treated B.O., then a 78-year-old female, for back and neck pain. B.O. is married to R.O. They both went to Respondent’s office on the same day for their initial consultation. B.O. completed intake forms, had x-rays and patient history taken, and was examined by Respondent, similar to R.O. Whereas R.O. was determined to be a candidate for Vax-D therapy, B.O. was not. Unlike for the Vax-D therapy plan, there was no protocol calling for a certain range of sessions needed and no set payment correlated to a planned number of sessions for B.O.’s recommended treatment plan that called for adjustments, hydrotherapy, and ice packs. At the time of her treatment, B.O. had Medicare coverage and a “Medicare supplement” insurance policy through Horizon Blue Cross and Blue Shield of New Jersey (Horizon). As was his practice, Respondent had B.O. address the financial aspects of the treatment he recommended with his office staff. Upon review of B.O.’s insurance coverage, B.O. was informed by Respondent’s staff that Horizon would probably cover the cost of her treatment that exceeded her copay. The staff determined that, although it was possible Horizon would apply its lower in-network copay of $15.00 per visit, there was no guarantee that Horizon would not consider Respondent out-of- network, with a copay of $25.00 per visit. Therefore, B.O. was charged $25.00 per visit. She paid that amount per visit, although sometimes she did not pay at all on one or more visits, and would catch up at a subsequent visit. B.O. received treatments on 23 occasions. B.O. experienced some relief from her pain as a result of those treatments.12/ For those 23 visits, B.O. paid a total of $575.00 in copays. After B.O. had stopped going to Dr. Aderholdt for treatment, Horizon determined that its lower in-network copay of $15.00 per visit applied. The total copay amount should have been $345.00 for 23 visits. The difference is $230.00. The Administrative Complaint alleges that Respondent “overcharged” B.O., misrepresenting that her copay was the out- of-network charge, to exploit her for financial gain. This allegation was not proven. Respondent made no representation. The representations of his staff, as described by B.O., were not shown to be the product of anything other than a good faith attempt to determine the undeterminable details of insurance coverage. There is no evidence to support the allegation that B.O. was intentionally charged more than she should have been charged, based on the information available at the time. On this point, the expert testimony was in lockstep: figuring out insurance coverage details is a “nightmare.” It is virtually impossible, according to both experts, to obtain sufficient information to make a correct determination for a new patient on such issues as in-network versus out-of-network, because, as they agreed, the insurance coverage details keep changing. “Now, you can be in network today and they can decide you’re out of network tomorrow. And then you can be out of network and then they decide you’re in network, and they don’t tell you.” That’s--that makes no sense.” (Dr. Shreeve, Tr. 131). In fact, when asked how he determines if a patient is out-of-network, Dr. Shreeve responded: “Counselor, I don’t. I leave that to the patient. I run a cash practice. I give them a bill. We’ll help them fill out a health insurance claim form, if they need it. But they pay us when they receive the service.” (Tr. 130). The Administrative Complaint also alleges that Respondent billed Horizon for medical visits by Patient B.O. that did not occur. There is no credible evidence of this allegation; the evidence is to the contrary. Petitioner contends in its PRO that Respondent billed B.O. for treatments received on June 3, 7, 11, and 14, 2013, when B.O.’s appointments were cancelled on those days. The record citations offered by Petitioner fail to support this proposed finding. Instead, B.O.’s bank records directly refute the proposed finding, and corroborate Dr. Aderholdt’s treatment notes and the SOAP notes that detail B.O.’s treatment on those four days.13/ In addition to B.O.’s bank records, B.O.’s patient records include the “merchant copy” receipt for a debit card payment on June 14, 2013. The receipt shows that a $50.00 payment was made at Dr. Aderholdt’s office on June 14, 2013, and it bears the clear signature of B.O. B.O.’s accusation that she did not go to Respondent’s office for treatment on these four days is belied by the documentation that she personally went there and paid the copay charges for her treatments on those four days ($50.00 check on June 7 for two copays; $50.00 debit card payment on June 14 for two copays). Petitioner’s own expert, Dr. Shreeve, conceded that this evidence refutes B.O.’s accusation that her insurer was billed for treatment on four days when she did not go to Respondent’s office for treatment. A separate problem proving this allegation (besides B.O.’s false accusation) is that there is no evidence to prove what was billed to Horizon for B.O.’s treatments. There is no evidence in the record of claims submitted by Respondent’s office to bill Horizon for B.O.’s treatment. In pre-hearing discovery proceedings, shortly before hearing, Petitioner sought to compel production of Medicare claim forms or Horizon claim forms submitted by Respondent’s office. However, Petitioner declined an Order compelling production that was offered along with additional time to pursue this evidence. Instead, Petitioner chose to go forward with the hearing on the basis that there were no such records (as Respondent represented). Another allegation in the Administrative Complaint is that B.O. was not given a copy of her medical records upon request. B.O. testified that she made several verbal requests to two staff persons at Respondent’s office, Lisa14/ and Amanda, for her medical records. She said she was given a copy of her patient ledger, but nothing more. B.O. and R.O. then mailed a letter addressed to Respondent that they jointly wrote on December 31, 2013, requesting their medical records and updated patient ledgers. Respondent said that he was never informed of any verbal requests for records, nor did he believe he ever saw the letter that was mailed to him. Indeed, B.O. handwrote on her file copy of the letter, provided to Petitioner’s investigator: “Letter to Dr. who probably didn’t see – no response to date.” The evidence is clear and convincing that Respondent has failed in his obligation to promptly respond to B.O.’s requests for medical records. However, there is no evidence that Respondent was aware of the requests before the investigation and intentionally refused to comply, or that he ever instructed his office staff to ignore such requests. But even though the evidence only establishes that Dr. Aderholdt’s staff failed to promptly respond to requests for medical records, the obligation to ensure these patient requests are promptly addressed remains Dr. Aderholt’s responsibility. It is clear that his office procedures require serious overhauling, as both Dr. Aderholdt and his expert acknowledged. It is unknown if B.O.’s medical records were provided to her when they were produced by Respondent’s counsel during the investigation.15/ In her deposition, when B.O. was asked if she had gotten the records from Respondent’s office yet, she said “not from them.” Among other remedial steps in the aftermath of this proceeding, if B.O. and R.O. do not already have copies of their medical records and updated patient ledgers as they requested long ago, Respondent must provide them. It is concerning that he did not come to this hearing with proof that he had provided B.O. and R.O. with the records they had requested or confirmed that they already had a copy. Lastly, the Administrative Complaint alleges that Respondent received payment from Horizon for B.O.’s treatment, but has not provided a refund. There is insufficient evidence to determine whether B.O. is entitled to a refund. The only information regarding the extent to which Horizon covered B.O.’s treatment is the information in the EOBs issued by Horizon after B.O.’s treatment ended, identifying amounts that would be covered and reporting payments to Respondent. For B.O.’s treatments, Horizon paid $1,770.00 to Respondent. What is unknown is whether B.O. owed more for her treatments than what Horizon paid. Dr. LaRusso reasonably opined that the receipt of an insurance payment would not generate an obligation for a patient refund if the payment is applied to a balance due by the patient. No evidence, methodology, or calculation was offered to prove that after Horizon’s payment was applied, a refund was owed to B.O. As noted previously, Respondent’s “patient ledger” is an internal practice management tool that does not function as an accounting of what a patient or insurance company owes. However, the patient ledger for B.O. reflects a total amount of $5,575.00 in services provided to B.O. Application of the Horizon payments of $1,770.00 and B.O.’s payments of $575.00 would reduce the patient ledger amount by less than half. Again, this is not to say that Patient B.O. owes the remaining patient ledger amount, but it is at least a point of reference suggesting the possibility that the Horizon payment did not cover all of B.O.’s treatment costs. Viewed another way, all B.O. paid for 23 treatment sessions was $25.00 per visit. B.O. was informed at the outset that she would not be charged for the full treatments she would be getting, because Horizon would “probably” cover her treatment except for the copay. Although she paid $230.00 more than the amount Horizon ultimately applied as copays, if B.O. owed $230.00 or more for treatment provided that was not covered by Horizon’s payment, then no refund would be due. Patient R.O. As noted previously, Patient R.O. is Patient B.O.’s husband. Like B.O., R.O. was treated by Respondent from April through June 2013. R.O., then a 64-year-old male, sought treatment for severe back pain. R.O. completed the intake form, had x-rays and patient history taken, provided detailed records of recent treatments and surgeries (including back surgery), and was evaluated and examined by Dr. Aderholdt. Dr. Aderholdt determined that R.O. was a candidate for Vax-D therapy. Respondent’s then-office manager, Lisa, took over to address the financial aspects of the recommended treatment. R.O. informed Respondent’s staff that he could not afford to pay $5,500.00 up front. R.O. was given contact information for Care Credit. He called Care Credit, then submitted an application. R.O.’s application was approved, and Care Credit agreed to finance the cost of Vax-D therapy without charging interest if the amount was paid off within one year. R.O. accepted the loan, and the result was that Care Credit paid Respondent $5,500.00 minus a fee absorbed by Respondent, similar to fees by credit card companies charged to merchants for sales using their credit cards. R.O. testified that he has paid off the Care Credit loan. R.O. signed the Vax-D Agreement, by which he committed to 25 to 28 Vax-D therapy sessions at $250.00 per session, for a total payment amount of $5,500.00. His Vax-D Agreement included the treatment package detailed in paragraph 13 above. R.O. testified that during the time of his treatment by Respondent, he had health insurance coverage with Medicare and Horizon (the private Medicare supplement insurance coverage that B.O. also had). He also had Tricare for Life, but said that that coverage would not have been applicable. R.O. recalled that Respondent told him that none of his insurance plans would cover the Vax-D therapy. As previously noted, Respondent does not believe he discussed insurance coverage with R.O., as that is not his standard practice. Regardless, R.O. had no expectation of insurance coverage. R.O. found the Vax-D therapy helpful in relieving his pain. He felt better after every treatment and wanted to continue. Rather than stopping after the 25 to 28 sessions included in the Vax-D Agreement, R.O. had a total of 40 treatment sessions. However, at some point, Respondent’s office manager informed R.O. that he needed to pay for additional sessions. R.O. said he could not afford to pay more, and discontinued treatment. After R.O. discontinued his treatments, he received an EOB from Horizon, stating that Horizon had paid a total of $5,465.84 in claims for both R.O. and B.O. According to the EOB summary, as noted above, $1,770.00 was paid to Respondent for treatments to B.O. The rest--$3,335.84--was paid to two providers for services to R.O. (A minor discrepancy is noted, in that Petitioner’s PRO stated that $3,335.00 was paid to Respondent for treatments to R.O.; however, the EOB reports that $10.84 was paid to a different provider (“Ga Emergency Phys”) for services provided to R.O. Thus, the actual total payment to Respondent for R.O.’s treatment was $3,325.00). The total amount paid to Dr. Aderholdt for R.O.’s 40 Vax-D therapy sessions, including Horizon’s payments, was $8,825.00, an average of $220.63 per session. R.O. believes the insurance payment should be paid to him as reimbursement for part of the $5,500.00 he paid. But that payment was for 25 to 28 sessions. The insurance payment was reasonably applied to the additional amounts due for R.O.’s sessions that were not covered by the $5,500.00 payment. No reason was offered as to why Dr. Aderholdt should not have applied the insurance payment to charges owed for the 12 sessions that were not covered by the Vax-D Agreement. Chiropractic physicians are not required to provide free care. Dr. Shreeve admitted that he does not provide chiropractic care to patients for free. As found above with respect to Patient B.O., R.O. joined B.O. in submitting a written request to Respondent for their medical records and updated patient ledgers by letter dated December 31, 2013, although Respondent said that he did not see the letter that was mailed to him. The findings above with respect to B.O., as one party to the joint written request, apply with equal force to R.O. as the other party to the joint written request. The Administrative Complaint also included an allegation that Respondent failed to practice chiropractic medicine at an acceptable level of skill, care, and treatment, charged as a violation under section 460.413(1)(r). This was the only charge in any of the Administrative Complaints that was based on the care provided by Dr. Aderholdt. The allegation was that adjustments indicated as having been performed on R.O. were physically impossible. However, at hearing, Petitioner’s expert retreated from the allegation, agreeing that the procedure in question was plausible. As a result of his concession, Petitioner’s PRO abandoned the charge, stating, “Petitioner is no longer pursuing discipline for the alleged violation of section 460.413(1)(r).” Pet. PRO at 4. Patient P.D. In March and April 2013, Respondent treated Patient P.D., then a 62-year-old female, for back pain. After completing intake forms and patient history, Patient P.D. was x-rayed, then examined and evaluated by Dr. Aderholdt, who determined that P.D. was a candidate for Vax-D therapy. Dr. Aderholdt turned P.D. over to his then-office manager, Lisa, to address the financial aspects of his recommended treatment plan. P.D. confirmed that Dr. Aderholdt never discussed financial issues or insurance with her. P.D. signed the Vax-D Agreement on March 8, 2013, the same day that she completed a Care Credit application that was approved for $5,500.00. P.D. paid off the Care Credit loan in 11 months, at $500.00 per month, so the loan was interest-free. At the time of the treatments, P.D. was not yet eligible for Medicare. She had insurance coverage through Blue Cross Blue Shield of Michigan (Blue Cross). P.D. said that Lisa, the office manager, told her that she would file claims with Blue Cross. Thereafter, P.D. had 33 Vax-D therapy sessions. P.D. was pleased with the Vax-D therapy. She found it effective in relieving her pain. P.D. learned at some point from Blue Cross that several months after her treatment ended, Blue Cross paid Respondent for a portion of P.D.’s treatment. No evidence was offered to prove the details of the Blue Cross coverage, such as EOBs explaining what was covered and what was not. P.D. said that she contacted Respondent’s office and spoke with staff multiple times before Respondent provided her reimbursement in the full amount of the Blue Cross payment. Respondent refunded $946.45 on April 8, 2015, and $1,046.45 on April 10, 2015, for a total of $1,992.90. P.D. acknowledged that she has been fully reimbursed and is owed nothing further. The Administrative Complaint includes an allegation that Respondent improperly utilized CPT “billing codes” 99204 and 99212 for P.D.’s first session on March 6, 2013. Dr. Aderholdt admitted that for March 6, 2013, P.D.’s patient ledger incorrectly lists both CPT code 99204 (for a comprehensive examination for a new patient), and CPT code 99212 (for a focused examination for an established patient). The first CPT code should have been the only one entered on this day. The second code was entered by mistake. Although Dr. Aderholdt admitted the error made in the patient ledger, there is no evidence that the erroneous CPT code was “utilized” for billing purposes. No evidence was presented that both CPT codes were submitted by Respondent in a claim for payment to Blue Cross (and Petitioner did not charge Respondent with having submitted a claim to P.D.’s insurer for a service or treatment not provided). No evidence was presented of the actual claims submitted to Blue Cross. No evidence was presented to show that P.D. was ever sent a bill utilizing the referenced CPT codes. The error recording an extra CPT code on P.D.’s patient ledger might throw off Respondent’s internal practice management statistics, but there is no evidence that the admitted CPT coding mistake on the patient ledger was repeated in any claim or bill submitted to anyone. Expert Opinions Considering All Four Cases Both Dr. Shreeve and Dr. LaRusso offered their overall opinions, taking the four cases as a whole. Dr. Shreeve’s Oinions Dr. Shreeve testified that, while he might be more understanding of issues he saw in each individual case, “I’ve got four cases that I reviewed together. I received them all at once. So my view on each individual case might be seen as a little more tolerant of something I saw. But when it becomes repeated, it becomes less understanding [sic].” (Tr. 109). In forming his opinions, Dr. Shreeve relied on allegations that have not been proven, his own extension of the Administrative Complaint allegations to add other concerns about use of CPT codes (which were also shown not to be valid concerns), and his observations about a litany of matters nowhere mentioned or charged in the Administrative Complaints. Dr. Shreeve made clear that he elevated his opinion from concerns about sloppy office practices to fraud, misrepresentation, and patient exploitation, because of matters that were either unproven, not alleged or charged, or both. For example, he injected the concern, shown to be based solely on patient ledgers, that CPT code 99212 appeared many times without the -25 modifier when used in conjunction with an adjustment CPT code. Starting with A.M.’s case, he complained of the repeated use of CPT code 99212 without a -25 modifier, when CPT code 98941 (adjustments) was used for the same office visit. He said, “If we were going to bill 99212, an E/M code with that, we would use a modifier of -25.” (Tr. 110). As previously found, however, Dr. Aderholdt did use the -25 modifier with every entry of CPT code 99212 in the Medicare claim forms. In explaining how his opinion was affected by his misimpression from the patient ledgers that CPT code 99212 was not used with the -25 modifier, he said: This is repeated over and over during the record. If it were one off, it occurred in one place in the ledger or on a form, you know, everybody is human. They can make a mistake. If it is the trend, that becomes not a mistake. That becomes, I’m doing the wrong thing. And if I’m doing it over and over again, and I’m then billing for one service two times, two different ways, and I’m – I hope to get paid for it. Then that’s where I start to see the trend of exploiting the patient for financial gain. (Tr. 111). Dr. Shreeve further elevated the significance of not seeing modifiers with the evaluation codes in the patient ledgers, when he spoke about R.O.’s case: If [Dr. Aderholdt] did both codes [for evaluation and adjustments] every visit, if he did, which is not normal, we would have to have a modifier, the -25, to tell us it’s a reduced service because it’s duplicative. A modifier was never present in any record I saw on this patient or any other patient of the records of Dr. Aderholdt. So misusing the codes. This is not standard of care that we expect, and this appears to me exercising influence on the patient to exploit them for financial gain. That’s what it looks like to me. By the time we’re through with the third case that’s what I see. (Tr. 148). Not only was this CPT coding issue not alleged in any of the four Administrative Complaints, but it is a false accusation. If Dr. Shreeve did not see a single use of CPT code 99212 with the -25 modifier in any record he saw, then he did not look at the records very carefully. As found above, the only evidence of actual claims submitted to any third-party payor--the Medicare claim forms for Patient A.M.--shows that CPT code 99212 was never used without the -25 modifier. But Dr. Shreeve only looked at the patient ledgers for modifiers. As also found above, the only two CPT coding issues that were alleged (improper use on two specified dates of CPT code 98941 for adjusting three or four spinal regions for Patient A.M.; and improper use on Patient P.D.’s first day of service of two patient examination CPT codes for billing purposes) were not proven. Dr. Shreeve also relied on the allegation that Patient B.O.’s insurance carrier was billed for treatment that was not provided. He pointed to “notes” written (by B.O.) on the patient ledger stating that the patient cancelled, but CPT codes were entered for treatments that day. He concluded: That’s blatant. I don’t have a way to explain that away. To me that absolutely says, I billed for something that I didn’t do. That’s fraud. Because that’s with intent. That’s not an accident. (Tr. 137). When Dr. Shreeve was shown the $50.00 debit card receipt signed by Patient B.O. on June 14, 2014, he quickly retreated: “That would indicate that they were there, even though they said they were not. So my apologies for that. It’s good to clear that up.” (Tr. 183). Later, he added that the June 14, 2013, payment of $50.00 was for that visit and the prior visit on June 11, 2013. He explained that this was consistent with Respondent’s daily notes, which identified treatments for each visit and also logged the copay charges by visit and B.O.’s periodic payments. Dr. Shreeve did not explain how he would alter his overall opinion after conceding that what he characterized as blatant fraud by Dr. Aderholdt was actually a false accusation by the patient. In formulating his overall opinion that what otherwise might be viewed as mistakes or sloppy office practice were elevated in his mind to fraud and exploitation, Dr. Shreeve also relied heavily on matters that were neither alleged nor charged in the Administrative Complaints, and, as a result, were not fleshed out with competent evidence in the record. Dr. Shreeve repeatedly alluded to issues regarding trust accounting requirements in statute and rule. The four Administrative Complaints that were issued as directed by the PCP on June 19, 2018 (as noted on the Administrative Complaints), contain no allegations related to trust accounting practices. The PCP-authorized Administrative Complaints do not charge Dr. Aderholdt under the trust accounting statute, section 460.413(1)(y), or the trust accounting rule, Board rule 64B2- 14.001. To the extent Dr. Shreeve’s perception of trust accounting issues contributed to his opinion that these four cases rise to the level of fraud and patient exploitation, that was error, and his opinion must be discounted accordingly. Likewise, Dr. Shreeve gratuitously offered critiques of Dr. Aderholdt’s medical records, including complaints about the handwriting, complaints about x-ray quality, questions about the adequacy of justifications for the course of treatment, and suggestions regarding how he would rewrite SOAP notes. Again, the Administrative Complaints are devoid of allegations directed to the quality or adequacy of Respondent’s medical records, and they are devoid of charges under the medical records provision in section 460.413(1)(m) and the corresponding medical records rule, Board rule 64B2-17.0065. To the extent these critiques contributed to Dr. Shreeve’s opinion that these four cases rise to the level of fraud and patient exploitation, that, too, was error, and his opinion must be discounted accordingly. Dr. Shreeve also relied on what he characterized as Respondent’s failure to respond, or failure to respond quickly enough, to investigative subpoenas. He made it clear that his opinion was greatly influenced by his perception that Respondent intentionally failed to meet his obligations in responding to the investigations: I think this is absolute fraud. The doctor is not wanting to do the right thing, has flagrant disregard for the law, and the statutes and the rules for the profession, for the Department of Health by not responding. (Tr. 153). Despite Dr. Shreeve’s view that he thinks it is “very clear” that Dr. Aderholdt did not respond timely during the investigation, the timeline and details of the investigation were not established by competent evidence; there is only hearsay evidence addressing bits and pieces of that history, with huge gaps and many questions about the reasons for those gaps (if the reasons why investigations were so protracted was relevant). But the details of the investigations are not laid out in the evidentiary record because the Administrative Complaints do not contain factual allegations related to Dr. Aderholdt’s actions or inactions during the investigation process, nor are there any charges predicated on what was or was not done during the investigation process. Either these matters were not presented to the PCP in June 2018 for inclusion in the Administrative Complaints, or they were presented and not included. Either way, Dr. Shreeve’s perception regarding whether Dr. Aderholdt met his legal obligations in responding to the investigations cannot be injected now. It was improper for Dr. Shreeve to consider, and give great weight to, circumstances that were neither alleged nor charged in the PCP-authorized Administrative Complaints. As found above, the proven allegations are that Respondent failed to provide Patient A.M. copies of the claims submitted to Medicare for her treatment (although she may have them now); and Respondent failed to provide copies of the medical records of Patients R.O. and B.O. upon their joint written request (although they may have them now). Only by considering allegations that were not proven and by injecting matters not alleged or charged was Dr. Shreeve able to characterize these four cases as involving the same problems again and again. In terms of the proven allegations, however, the only duplicative finding is with respect to the husband and wife team, in that Respondent did not meet his obligation to promptly respond to their joint request for medical records and updated patient ledgers. The matters considered by Dr. Shreeve beyond the allegations and charges in the Administrative Complaints were also improperly used by Dr. Shreeve to buttress his view that two disciplinary actions against Dr. Aderholdt based on facts arising in 2005 and 2006, raised “the same or similar” issues. Dr. Shreeve’s attempt to draw parallels between the prior actions and these four cases was unpersuasive. Dr. LaRusso disagreed with the characterization of the two prior actions as similar to the issues presented here. Dr. LaRusso’s opinion is credited. A comparison of the allegations, ultimately resolved by stipulated agreement in two 2008 Final Orders, confirms Dr. LaRusso’s view in this regard. The first disciplinary action was based on Respondent’s treatment of one patient in February 2005. An administrative complaint alleged that Respondent failed to complete intake forms, take the patient’s history, and conduct a sufficient examination to support the diagnosis. Respondent was charged with violating section 460.413(1)(m) by not having adequate medical records. The same facts gave rise to a second count of violating section 460.413(1)(ff) (violating any provision of chapters 456 or 460, or any rules adopted pursuant to those chapters), through a violation of rule 64B2-17.0065, which elaborates on the requirements for adequate medical records. There is no repetition of these statutory and rule violations charged in any of the four Administrative Complaints at issue here. The prior administrative complaint also alleged that Respondent billed the patient he saw in 2005 for neuromuscular reeducation and therapeutic exercises, when neither Respondent’s notes nor the SOAP notes reflected those services. In these cases, the only allegation regarding discrepancies between billing records and physician/SOAP notes is the allegation as to Patient A.M. that on two dates, Respondent used the CPT code for adjustments to three or four spinal regions, whereas the SOAP notes reflected adjustments to only one region. The prior disciplinary action supports the findings above that Respondent’s notes must also be considered, in addition to the SOAP notes, to determine what services A.M. received on those two days. A different kind of billing discrepancy allegation in Case No. 18-4485 is the claim that Respondent billed B.O.’s insurer for treatment on days on which services were allegedly never provided. This allegation was not proven, as found above. B.O.’s accusation that Respondent falsely charged for treatment on several days when no treatment was provided was itself proven to be a false charge. Perhaps Dr. Shreeve was thinking of this allegation, based on B.O.’s false charge, when he characterized the 2005 incident as involving the same or similar problems that he saw here. The allegation in the prior complaint was that the patient was actually billed for services not provided, and a refunded was ordered. At first, Dr. Shreeve believed the same was true in B.O.’s case. However, he later retreated and acknowledged that B.O. had not been truthful in her accusation. The only other allegation of a billing discrepancy in any of the four cases at issue was not a billing discrepancy at all, but rather, a CPT coding error on P.D.’s patient ledger that was not billed to anyone. As Dr. Shreeve noted, in the prior disciplinary action, Respondent agreed to be put on probation with a requirement that he practice with a monitor. Dr. Shreeve explained that the monitor would have worked with Respondent “to help this doctor not do the same behaviors that got them into trouble.” In his view, these four cases show that Dr. Aderholdt did not learn his lesson from the monitor “not to do the same problems again.” As he put it, “That really flips me rather quickly to think there’s a question of fraud.” (Tr. 152-153). To the contrary, whereas Respondent was faulted for not having intake records, patient histories, and appropriate examinations to support his diagnosis and recommended treatment plan in February 2005, no such issues were raised in these Administrative Complaints. Dr. Aderholdt did learn his lesson. The medical records for the four patients at issue include patient intake forms, patient histories, evaluations, and examinations that were not alleged to be inadequate. Nor was there any repetition of the problem with billing a patient for treatment or services that were not documented in the medical records taken as a whole, including Dr. Aderholt’s notes. The other disciplinary action resolved by settlement in a 2008 Final Order involved an advertising issue. The Department alleged that Respondent improperly advertised as a specialist in Vax-D disc therapy when the Board does not recognize any such specialty. The Department also found fault in the failure of the advertising to disclose the usual fee. The Department also critiqued an advertisement for identifying a different practice location than Respondent’s practice address of record. The charges were under section 460.413(1)(d), (cc), and (ff); rule 64B2-15.001(2)(e) and (i); and rule 64B2-10.0055. Quite plainly, this prior action bears no similarity to the four Administrative Complaints at issue here. No such allegations or charges were raised here. Dr. Shreeve did not contend that this prior action bears any similarity to the four cases here. Dr. Shreeve was never asked for his opinion as to the type or level of discipline he believes is warranted in these cases. However, his “flip” to “fraud,” due to the perceived repetitive nature of the issues in the four cases (whether charged or not)--which he characterized as the “same problems” in 2005 that resulted in discipline--was the basis for Petitioner proposing the most severe penalty available: license revocation, plus substantial fines and assessments of fees and costs. Dr. LaRusso’s Opinions Dr. LaRusso served as a Board member for multiple terms, and is a past-chair. After leaving the Board, he continued to serve on probable cause panels as recently as 2017. Having reviewed and been involved in thousands of disciplinary matters, he was of the strong opinion that nothing in the four Administrative Complaints warrant discipline at the level being sought here. Imposing a severe penalty in these four cases would be out of line with the Board’s prior practice in disciplinary matters. Dr. LaRusso’s studied review of all of the depositions and records in this case led him to opine that there is no evidence that Dr. Aderholdt deceived his patients, committed fraud, or engaged in double-billing or overbilling. Instead, Dr. LaRusso saw evidence of sloppy office practices, which he attributed to Dr. Aderholdt’s poor management skills. He has seen many doctors like Dr. Aderholdt over the years who just want to deal with taking care of patients. They do not want to have anything to do with administrative and clerical responsibilities. Instead, they leave everything besides patient care to their office manager and staff. In Dr. LaRusso’s view, Dr. Aderholdt’s office protocols and procedures require serious fine-tuning. He believes that Dr. Aderholdt would benefit from re-education in billing and collection practices, as well as laws and rules. He needs to ensure that procedures are in place, and followed, for prompt responses to patient requests for medical records or for claims sent to third-party payors. At the same time, however, Dr. LaRusso reasonably characterized the four cases as involving billing, clerical, communication, and correspondence issues. It bears emphasis that Dr. Aderholdt’s patient care is not in question. There are no issues of endangering the public, where a doctor is doing things that will hurt people, doing something dangerous or sexually inappropriate. Those are the cases where it is appropriate to go after someone’s livelihood, when the person does not belong in the profession. Dr. LaRusso observed that, rather than endangering the public, Dr. Aderholdt was helping his patients by relieving their pain, according to their own testimony. Dr. LaRusso agreed to become involved in this case because he found it so incongruous that the Department would be pursuing this action apparently to try to take Dr. Aderholdt’s license. Dr. LaRusso noted that the four investigations against Dr. Aderholdt were originally being spearheaded by a prior prosecutor for the Department (to whom Respondent’s counsel mailed CDs of patient records in 2014), and that the cases were assigned to Dr. Willis, who was a favored expert witness for the Department. Dr. LaRusso alluded to “inappropriate issues” with the prosecutor and expert that led to the Board having to pay a large award of attorneys’ fees and costs for pursuing discipline against Dr. Christian. According to Dr. LaRusso, those issues ultimately led to the prosecutor and expert being discharged from these cases. There is no evidence as to when or why Dr. Willis was replaced with Dr. Shreeve. Dr. Willis apparently was involved long enough to prepare an expert report. But then, according to Dr. LaRusso, the cases went dormant for a long period of time. The bits and pieces of hearsay evidence in the file comport with this understanding: there were four investigations that began upon complaints in 2014 by the four patients about billing and records issues; documents were collected from Respondent and from the patients; and Investigative Reports were issued, all before 2014 was over. It is unknown when Dr. Willis was involved, when he prepared his expert report, or when he was discharged from the cases. It is unknown when Dr. Shreeve was retained, but there was plainly some duplication of work, in that Dr. Shreeve prepared his own expert report. Neither expert report is in evidence. There is no evidence of any additional investigation or follow-up documentation from the patients or otherwise. There is no evidence of what was presented to the PCP--just that the panel met on June 19, 2018, and authorized the four Administrative Complaints issued on June 20, 2018. While this background is a bit of a curiosity, without impermissible speculation, the most that can be said about this history is that the protracted period of time from investigation to the PCP submission that resulted in issuance of the Administrative Complaints is apparently due, at least in large part, to the turnover in the prosecution-expert witness team assignments. Dr. LaRusso did not persuasively demonstrate grounds to cast nefarious aspersions on the Department for continuing forward with its investigation. One might reasonably question whether the Department dropped the ball, so to speak, in not updating its investigation, given the extended period of dormancy. For example, the Administrative Complaint in Case No. 18-4487 incorrectly alleged that P.D. was not reimbursed, when any cursory check with P.D. would have revealed the “news” that she had been repaid in April 2015, more than three years before the Administrative Complaint was authorized by the PCP. Dr. LaRusso may reasonably debate, as he did, whether the charges lodged against Respondent are inappropriate. And Dr. LaRusso may certainly question, as he did in convincing fashion, whether the discipline apparently being sought is unduly harsh, uncalled for, and way out of line with Board practice. But there is no basis in this record for attributing bad motives to the Department for prosecuting the Administrative Complaints. Dr. LaRusso’s opinions regarding the nature of the violations proven and the appropriate discipline in scale with those violations were more persuasive that Dr. Shreeve’s opinions. Dr. LaRusso’s opinions are credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Chiropractic Medicine: In Case No. 18-4484PL: Dismissing Counts I, II, and IV; and Finding that Respondent violated section 460.413(1)(aa), as charged in Count III; In Case No. 18-4485PL: Dismissing Counts I, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4486PL: Dismissing Counts II, III, and IV; and Finding that Respondent violated section 460.413(1)(i), through a violation of rule 64B2-17.0055(1), as charged in Count II; In Case No. 18-4487PL, dismissing Counts I and II; Placing Respondent on probation for a period of three years, with conditions deemed appropriate by the Board; Imposing a fine of $3,000.00; Requiring continuing education deemed appropriate by the Board; and Requiring payment of the costs of investigation and prosecution of the charges on which violations were found. DONE AND ENTERED this 15th day of February, 2018, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 February, 2018.
The Issue The issues presented for consideration on this occasion concern an administrative complaint brought by the State of Florida, Department of Professional Regulation, against the Respondent. In particular, it is alleged that on the named dates, January 7 and 8, 1983, Respondent failed to check vital signs for patients in the intensive care unit who were receiving her care. Additionally, it is alleged that Respondent abandoned patients in her care by leaving her assigned floor for long periods of time without notifying her supervisor. These actions purportedly are acts of unprofessional conduct which depart from or fail to conform to minimal standards of acceptable nursing practice per Section 464.018(1)(f), Florida Statutes, and violate Section 464.018(1)(j) , Florida Statutes, by violating Board of Nursing Rule 210- 10.05(2)(d) and (2)(e) 1., Florida Administrative Code, through inaccuracies in record keeping or falsification of patient records or charts.
Findings Of Fact Respondent is a licensed practical nurse, having been issued license No. 0524551 by the Board of Nursing in the State of Florida. At all times relevant to these proceedings, Respondent was employed as a nurse at Ormond Beach Hospital, Ormond Beach, Florida. Beginning at 11:00 p.m. on January 7, 1983, and continuing until January 8, 1983, at 7:00 a.m., Respondent was working in the intensive care unit of Ormond Beach Hospital. During that time, she was primarily responsible for the care of the Patients Eleanor Prentzel and Evelyn Burkman. On that duty shift, at 12:00 midnight and 6:00 a.m., Respondent checked the vital signs of the two patients. In addition, other assessments were made during that duty cycle related to the patients. The recordation of the vital signs and statement of assessments may be found in the 24 hour nurse's notes pertaining to the two patients. These entries are part of Petitioner's exhibits 2 and 3 admitted into evidence which are patient records related to the patients in question for Burkman and Prentzel respectively. During the duty shift, between 1:30 a.m. and 5:00 a.m., Respondent was gone from her duty station for an unacceptable amount of time. While absent, Ms. Burkman, who was a cardiac patient, complained of chest pains and had to be attended by Margaret S. Vogini, R.N., who was working in the ICU on this shift. Vogini had the patient do deep breathing and listened to her lungs and heart, checked her blood pressure and watched the cardiac monitor. The patient was experiencing pain on deep inspiration, which led Vogini to believe that the problem was with the patient's lungs and not related to cardiac difficulty. Respondent worked the duty shift beginning 11:00 p.m., January 8, 1983, and concluding 7:00 a.m., January 9, 1983. Again, she attended patients in the intensive care unit. One of those patients was Prentzel. The patient Burkman was assigned to Vogini on this duty shift. Again there were unacceptably longer periods of time when Respondent was out of the intensive care unit. During that duty shift, an unnamed patient became comatose and suffered cardiac arrest; requiring cardiopulmonary resuscitation. At that time, Respondent was not in the intensive care unit and had to be summoned back to the unit to assist other nurses that were working that shift. On this same shift, at 12:00 midnight, Respondent failed to take the temperature of the patient Prentzel. This should have been done in keeping with physician's orders either 30 minutes before or 30 minutes after midnight. Respondent indicated that the reason for not taking the temperature was because she did not want to wake the patient up. This was an inappropriate decision about a patient in the intensive care unit. Respondent also failed to record the blood pressure reading which she took related to the patient Prentzel at 12:00 midnight on this shift. Again, this was an inappropriate judgement about a patient in the intensive care unit. During the two evenings in question, Respondent was suffering from a bladder infection and reported this problem to Virginia Hilbert, R.N., nurse supervisor of the Respondent. This medical problem required frequent trips to the bathroom on the part of Respondent. On occasion, it was necessary for the Respondent to leave the intensive care unit to accomplish her purposes. At most, those trips would have taken four minutes and did not satisfactorily account for the length of time in which the Respondent was not caring for her patients on the two duty shifts at issue. Because of her conduct on the evenings in question, Respondent was called before the hospital administration for counseling. In the course of this session, Respondent admitted that she did not always take respiration of patients in her charge. She made this comment during the course of a discussion of the events of the two duty shifts in question. Nonetheless, the record does not establish with reasonable certainty that her comments pertained to those patients Burkman and Prentzel who were in her care on January 7-8 and 8-9, 1983. The circumstances described in discussing the absence of Respondent on the two duty shifts in question, leads to the conclusion that the Respondent was absent from her duty station without properly notifying another nurse or supervisor working in the unit. That absence without proper notification, as established through testimony of Nurse Vogini, was a departure from acceptable nursing practice in that it was below the minimal standards of acceptable and prevailing nursing practice in Florida. Charlotte Brooks, R.N., Assistant Administrator at Ormond Beach Hospital and Director of Nursing, set forth the importance of taking vital signs as next described. By taking vital signs, the nurse discovers the patient's reaction to illness, stress, and drugs. In the intensive care unit, the results of these checks demonstrate the need to either start or stop medication and measure the patient's response to the disease process. The taking of vital signs can detect shock and various other kinds of problems that the patient may experience. Generally, temperature and respiration checks help to track the patient's progress. Finally, these notations of vital signs made by the nurses assist subsequent shift nurses in treating the patients, to include initiation or institution of doctor's orders based upon reported vital signs.
The Issue Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(n), Florida Statutes [failure to keep written medical records justifying the course of treatment of patients as set out in Counts 1-4, 6-9, 11, and 13-14 of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 458.331(1)(cc) 1, 2, and 3, Florida Statutes [prescription of an amphetamine drug for purposes other than specifically stated in those subsections as set out in Counts 5 (Preludin), 10 (Preludin), and 12 (Ritalin) of the administrative complaint]. Whether Respondent's license shall be disciplined for violations of Section 453.331(1)(t), Florida Statutes [by engaging in gross or repeated malpractice or the failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances as set out in Counts 1-15 inclusive, of the administrative complaint].
Findings Of Fact Respondent, Tariq Husam Abdullah, is a licensed medical physician, practicing under license number ME 0021526. He is also known as Henry Nichols. The two are one and the same and there is no dispute over identity. Respondent appears to have been a hard worker, rising from a "bed pan hustler" at the old Fort Walton Hospital to his current level of education, licensure, and community position. Previous to Florida licensure, Respondent received his medical degree from Meharry Medical College in Nashville, Tennessee, where he also did his internship in straight medicine. Thereafter, Respondent performed three years of anatomical and experimental pathology at Washington University School of Medicine in St. Louis, Missouri, and two years in clinical pathology at the National Institute of Health and the United States Public Health Service in Bethesda, Maryland. Respondent is not board-certified, but is currently board-eligible in both pathology and laboratory medicine. At all times material hereto, Respondent engaged in medical practice in Bay County, Florida. During much of the time in question, Respondent had no assisting staff. His usual fee for each office visit of each of the patients referred to in the fifteen count administrative complaint was approximately $15- 20 maximum. They are a small portion of the approximately 1,000 patients he treated between 1978 and 1982, and in most cases his fees for office visits were $10.00 apiece. Sometimes his fees were paid and sometimes they were not paid. Medicaid and Medicare reimbursed all or a portion of many fees. In the course of his practice Respondent treated the following patients: D.B.; T.B.; Tommy B.; J.C.; L.C.; T.G. a/k/a L.C.; David G.; Dan G.; C.R.; B.W.; and J.M. Petitioner's expert-witness medical doctors were Jabe Armistead Breland and Michael W. Cohen. Dr. Breland was present at the formal hearing and had the advantage of reviewing Respondent's exhibits as well as Petitioner's exhibits in the forming of his opinions. Dr. Breland has been a licensed medical doctor in the State of Florida since September 1950. Most of that time he has practiced in the panhandle of north Florida which includes Panama City, Bay County. His office is in Marianna, Florida. He is board- certified in family medicine, licensed by the federal government to prescribe controlled substances, and was stipulated as an expert in the field of medicine. Dr. Michael W. Cohen testified by means of a deposition taken prior to formal hearing and did not have the advantage of review of Respondent's exhibits admitted in evidence at the formal hearing. He is a family physician with an M.D. from the University of Miami School of Medicine (1975), a graduate of Tallahassee Memorial Hospital Regional Medical Center Family Practice Program, and has been a board-certified family physician for six and one-half years. His practice is limited to Tallahassee and he has testified on contract for Petitioner six times previous to this case. He is accepted by the undersigned as an expert medical witness, but because of the unavailability to Dr. Cohen of Respondent's exhibits which were admitted in evidence at the formal hearing held subsequent to his deposition and because some of the materials upon which Dr. Cohen's opinions were predicated were excluded from evidence at the formal hearing, the weight and credibility of his prior deposition testimony is significantly impaired through no fault of Dr. Cohen and without any unfavorable reflection upon him. Dr. Wilson, Respondent's expert medical doctor who testified by after-filed deposition knew nothing of Respondent's records and was unaware of the precise charges against him. In the absence of appropriate predicate as to medical opinion, his testimony has been accepted only as to facts of which he had personal knowledge and as to character. It is his opinion that Respondent is the kind of person who deserves not to have his license suspended or revoked. Dr. Wilson partly financed Respondent's education. The parties by Request for Admission have established that Preludin is an amphetamine; more accurately Preludin is phenmetrazine. Ritalin is methylphenidate. Dioxan is a methylamphetamine. At all times pertinent these were Schedule II controlled substances pursuant to Chapter 893, Florida Statutes. Percodan is also a Schedule II controlled substance. Valium is a Schedule IV controlled substance. Darvon Compound and Tylenol 4 are Schedule III controlled substances. Respondent frequently talked to police, Sheriff's deputies and pharmacists in an effort to avoid his patients becoming addicted to drugs. He never was made aware from any source of any drug addiction or any arrests of any patients concerned in this action. He testified that he performed a physical examination in every case and verified all prior medications in every case, but he also conceded not verifying prior medications with previous doctors or hospitals. It is specifically found that in many instances none of these precautions appear in his records as set out infra. D. B. (Counts I; XV) It is admitted (Requests for Admission) and found that between February 19, 1979, and April 23, 1983, Respondent prescribed at least the following quantities of controlled substances to his patient, D. B.: DATE DRUG STRENGTH QUANTITY 02/19/79 Percodan Approximate 04/30/79 Darvon Compound 03/23/82 Valium 05/13/82 Tylenol #4 06/03/82 Percodan Demi 40 06/16/82 " " 18 07/10/82 " " 07/17/82 " " 36 08/14/82 " " 18 08/28/82 Percodan 08/28/82 Valium 01/15/83 Percodan 03/26/83 " 03/26/83 Valium 04/23/83 Percodan Respondent's treatment of his patient, D.B. with controlled substances was predicated upon his diagnosis of "traumatic arthritis." His records reflect, "hurting ankle, leg, and back" as the chief complaint. In no instance of prescribing scheduled drugs for this patient did Respondent maintain a record of the strength (dosage) and on only a few occasions did he record the quantity prescribed. This particular inadequacy of record-keeping seems also to have applied to additional non- scheduled drugs prescribed by Respondent for this patient. Although Dr. Breland acknowledged that many doctors only record the word "refill," good medical practice dictates that Respondent should have recorded at least the quantity and dosage at the time of the initial prescription. Normal protocol would be to also record the method of taking the medication. On this analysis, in Dr. Breland's professional medical opinion, Respondent's medical records for his patient, D.B. (Composite P-1) were inadequate and did not justify the course of treatment upon the recorded chief complaint. Dr. Cohen concurs. Further record inadequacies as noted by Dr. Breland include failure of the records to indicate which bone was fractured in relating the patient's medical history, recording only blood pressure as a vital sign, and failure to state what condition was being treated on subsequent visits. Dr. Cohen recited the same inadequacies in forming his professional medical opinion that Respondent's records do not justify the treatment received. Dr. Cohen further opined that if the patient had traumatic arthritis, the treatment prescribed was wholly inadequate due to the absence of any recorded plans for therapy. Dr. Breland, on the other hand, felt that a Percodan prescription is consistent with good medical practice for a patient who complains of traumatic arthritis and that Valium, a benzodiazepine drug which is a calmative or tranquilizer, may also be properly used for traumatic arthritis but that Valium would be contraindicated if there were associated patient nervousness and anxiety. Dr. Breland's opinion is that it would not be medical malpractice to prescribe Valium upon the basis of Respondent's records nor would it be medical malpractice based upon the continued prescribing of Percodan unless the patient became addicted. Dr. Breland's experience is that 1-3 months on Percodan would cause individuals to run the risk of addiction but knows of doctors in the Panama City locale who have prescribed Percodan in excess of three months with addiction resulting in some patients and not in others. Respondent conceded that his records for this patient should show greater detail but according to his recollection independent of the medical records, he recalled that on the first visit, he had accepted D.B.'s representation that D.B. had had prior surgery on the left ankle because the pins could be seen through that swollen ankle. Respondent's independent recollection was that D.B. did not ask for Percodan. Respondent testified that he prescribed the Percodan because "after codeine I can't think of another drug with potential for comfort." His failure to record further detail he explained as his belief that writing down prescriptions was a sufficient reference back to the original first visit diagnosis. Respondent admittedly did not record, but expressed independent recollection of also accepting D.B.'s representation of previous unsuccessful medication with codeine from a Dr. Smith and of recommending acupuncture as an alternative pain therapy but admitted he also did not record this latter instruction. The medical records themselves confirm Respondent's testimony in the course of the hearing that Respondent prescribed the scheduled drugs in addition to a number of other medications such as Roboxin and anti-inflammatories which he did record and which Dr. Breland confirmed were appropriate as treatment for traumatic arthritis. A portion of Petitioner's Composite Exhibit 15, court certified records, show one "Donald Richard Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person was subsequently tried and found guilty of one count and entered a plea of guilty to the other. A Circuit Court Judgment was entered. The date of the commission of this person's offenses are close to the date of a prescription by Respondent to his patient "D.B." but there is absolutely nothing in the court documents to connect them to the D.B. treated by Respondent except a partial similarity of name. Nor does the similarity of name of a co-defendant, Tereza Ann Bozeman (see infra.) prove an inescapable link of "Donald Richard Bozeman" to Respondent's patient, "D.B." who was married to someone of partially similar name. Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, "D.B." for a non-medical or criminal purpose or that the patient was drug-addicted. Upon all the foregoing information taken together it is clear Respondent failed to keep written medical records justifying the course of treatment of his patient, D.B. This finding is made despite both of Petitioner's experts' testimony that there is no affirmative professional requirement that dosage and number of tablets be recorded anywhere except on a prescription. That concern is only a portion of the inadequacies of these records. However, in light of Dr. Breland's greater familiarity with all of Respondent's records and the standard of medical practice in the community, and the greater detail provided by his testimony and the explanations provided by Respondent at formal hearing, Dr. Breland's opinion that the course of treatment for this patient, isolated from all others, does not represent malpractice is accepted over Dr. Cohen's opinion that it does. T. B. (Counts II, XV) It is admitted (Requests for Admission) and found that between approximately May 1, 1982, and April 9, 1983, Respondent prescribed at least the following quantities of schedule- controlled substances to his patient, T.B.: DATE DRUG STRENGTH QUANTITY 05/01/82 Valium 05/01/82 Percodan Demi 07/10/82 " " " 30 08/14/82 " " " 08/14/82 " " " 18 08/14/82 Valium 09/11/82 Percodan 09/11/82 Valium 12/12/83 Percocet #5 Although in some respects, Drs. Breland and Cohen emphasized different faults or inadequacies of Respondent's records which they reviewed concerning T.B. (Composite P-2), both experts concur that the records do not justify the course of treatment of this patient. Dr. Cohen bases his opinion on his analysis that the history Respondent recorded for this patient was not sufficiently detailed. Specifically, the initial office visit record is flawed by only writing down patient's vital signs and recording no physical findings. Dr. Cohen stated it is unjustifiable to prescribe a narcotic analgesic on the first office visit and to continue to refill the prescription on subsequent visits without recording how the patient had done on those medications and further without recording physical examination, assessment of how the patient is responding to the medication, a plan outline for prophylactic care, and patient education. Further, both Drs. Breland and Cohen assert that although there is no affirmative professional requirement to record dosage and tablet numbers except on prescriptions, it is the custom of reasonably prudent similar physicians to record amount, dosage quantity of drugs prescribed, and method of taking drugs, and Respondent's records do not do so. Respondent's records for this patient also offend custom and usage of the profession in that they indicate several office visits for which there are no recorded findings or treatments whatsoever. Dr. Breland's opinion that the records do not justify the treatment and that they fall below the customary standard of care are based on his analysis thereof emphasizing that the records of the first office visit do not evidence a physical examination other than taking a blood pressure reading and weighing the patient. There is a brief history of migraine headaches for three months recorded and also recorded is a past diagnosis and treatment with codeine and talwin; the records note no previous surgery, no previous fracture, and no physical findings. Then, Cafergot PB #2, Valium #3 and Percodan-demi were prescribed by Respondent. The records should have specified whether or not previous treatment was successful and if it was successful, Respondent could have subsequently prescribed less addictive drugs. In Dr. Breland's opinion, it is "hard to justify" a Class II drug without trying some other modalities available. Respondent first saw this patient on May 1, 1982, for migraine headaches and prescribed Cafergot PB and Percodan-demi. He selected Percodan- demi because Percodan is habit-forming. In the course of the formal hearing, he testified, "I just didn't know another medication to go to after you pass codeine that would be effective with patients, other than giving them Demerol and the harder narcotic medications" and that when he first began seeing this patient he was less aware of the similar use of the less addictive drug, Inderal, than he is now. On the physical examination portion of his clinical notes, Respondent indicated that the patient had been using Codeine, Talwin, and "Dx" and "Rx". He then and thereafter (8/14/82 and 9/11/82) prescribed analgesics and vasoconstrictors (Cafergot PB and Ergotamine) together with the Valium because Valium, in his opinion, is often ineffective without more because of the significant emotional components of migraine headaches. Respondent also expressed his independent recollection of discussing with this patient the alternative treatment of acupuncture but admitted he did not record this instruction. Respondent's explanation is not sufficient justification for the repeated prescriptions of controlled substances in light of Dr. Breland's more knowledgeable and thorough explanation of the standards of record-keeping necessary to justify continued prescription of the particular controlled substances here at issue. Dr. Breland faults another of Respondent's prescriptions dated 12/4/82 of Cafergot PB#2 (a combination of drugs primarily containing an Ergotamine derivative and caffeine), Percocet, and Valium because Respondent's records do not show how many pills were prescribed nor do they give directions for taking them. For prescriptions on 1/8/83, 8/14/82, 9/11/82, and 2/12/83, Dr. Breland expressed as his chief concern that there was an absence of recorded physical findings, history, and blood pressure plus no recorded amount of dosage listed for most prescription drugs, but Dr. Breland also determined that prescribing Cafergot is consistent with Respondent's diagnosis of vascular headaches and his prescriptions for these dates is an appropriate lesser treatment to be tried before prescribing a Schedule II drug, and, further, that Respondent's records justify prescribing Cafergot. However, the opinion expressed in the prior sentence is not compelling in face of the records having no notations to show the effect, if any, of Cafergot or other drugs or to show why Respondent prescribed stronger medication. Dr. Breland also felt Respondent should have prescribed other less addictive drugs before going to the Schedule II-controlled substances as he did, and that if Respondent's findings were negative, he should have recorded them as negative rather than leaving the record blank, because without such records it cannot be determined if a physical examination was ever made and because in absence of recorded physical findings, no Schedule II drugs should have been prescribed. A portion of Petitioner's Composite 15, court-certified records show one "Tereza Ann Bozeman" was charged in two counts of illegally selling Valium in Bay County on September 2 and September 11, 1982. This person entered a plea of guilty to a lesser-included misdemeanor. The Circuit Court withheld adjudication and placed her on probation. The date of one of the offenses coincides with one of the dates of a prescription by Respondent to his patient, "T.B." but there is absolutely nothing in the Court documents to connect them to the "T.B." treated by Respondent, except a partial similarity of name. The court documents also charge "Donald Richard Bozeman" who has a similar name to that of another of Respondent's patients (see supra.) but the court documents do not indicate the charged individuals are married or provide any other link to Respondent's patient(s). Accordingly, the court documents are probative of nothing in connection with Respondent's records or his patients, including but not limited to Petitioner's assertions that Respondent prescribed to his patient, T.B., for a non-medical or criminal purpose or that the patient was drug-addicted. Tommy B. (Counts III, XV) It is admitted (Request for Admissions) and found that between approximately August 16, 1981, and February 19, 1983, Respondent prescribed at least the following quantities of schedule controlled substances to Tommy B.: DATE DRUG STRENGTH QUANTITY 08/15/81 Valium 08/15/81 Percodan 08/15/81 Dalmane 10/30/81 Tylox 12/05/81 " 12/05/81 Valium 12/06/82 Darvon compound 02/17/82 Percodan 30 04/01/82 " Demi 04/01/82 Percodan 30 05/29/82 Percodan Demi 06/21/82 Tylox 24 07/12/82 Percocet #5 30 02/19/83 Percocet 02/19/83 Valium In the course of the hearing, Respondent independently recalled that this patient presented on 8/15/81 and that Respondent himself personally recorded the notes for that date including a history, diagnosis of L-S syndrome, and treatment. On that date he observed scars on the patient's back from back surgeries which the patient related had been done at Southern Baptist Hospital in New Orleans. Respondent conceded that he failed to record the physical findings of scars and failed to record full details of the related surgeries so that at first glance it might appear to others, in this case Dr. Breland, that Respondent was only filling in a history of surgeries without making his own diagnosis. Respondent stated that he had relied on the Physician's Desk Reference, which he characterized as a "bible of the medical profession", and which recommends Percodan as a pain-killer. The treatise itself was not offered in evidence. Respondent also stated that the Percodan-based drugs he prescribed effectively relieved this patient's pain. There is no contrary evidence on this point of effectiveness but it still was not contemporaneously recorded by Respondent in the patient's record. Both Drs. Cohen and Breland opined that Respondent's records for Tommy B. did not justify the prescribing of these controlled substances, most specifically Percodan. These opinions have not been accepted for the following reasons. In the absence of any supporting evidence, Dr. Cohen's considerable testimony concerning his belief that this must have been a scam or scheme of Respondent to indirectly charge for a controlled substance prescription by requiring frequent office visits is rejected as conscientious but pure conjecture. Dr. Breland expressed concern that Percodan-demi was among the drugs prescribed by Respondent in the presence of a record notation within the physical findings which relates that "patient says he can't take Percodan". Respondent denied he made this notation, and related it is in someone else's handwriting and not true. Respondent's testimony on this score is corroborated by clear observation of the records. Most of Dr. Breland's other complaints concerning Respondent's record of this patient devolve to Dr. Breland's inability to read Respondent's handwriting and his original erroneous belief that the history and exam was chronologically incorrect and taken by someone other than Respondent. Dr. Breland's opinion that the records are deficient because the fracture of the back was not specifically recorded by Respondent's indicating whether there was an old fracture or current pain and by Respondent's not indicating whether there was thoracic or lumbar distress, and because there is no recitation of whether the fracture is pelvical or in any body of the vertebrae, and his objection to failure of Respondent to either record "no x- rays" if none or to record x-rays if there were some instead of leaving a blank space constitute technique over professional custom requirement of record- keeping. Dr. Breland also described the two month fluctuation down to Percodan- demi and then up to the stronger drug of Percocet from 4/1/82 to 2/19/83 as unjustified because no less addictive medicines had been tried and no degree of relief from less addictive drugs was attempted by Respondent, but Dr. Breland described the Percodan- based drugs and the Valium as medically acceptable where based on the degree of relief the patient had received. In such a situation Dr. Breland would use these drugs for pain treatment and consider them medically justified. Like Dr. Cohen, Dr. Breland also found unacceptable the failure of Respondent to record amounts and dosages in his office medical records, but on many occasions throughout their testimony, both of Petitioner's experts observed the requirement of listing amount and dosages is for prescriptions only and not for a doctor's office records. Upon the failure of adequate predicate for Dr. Cohen's conclusion of unjustified prescriptions, the absence of any admissible evidence of any addiction in this patient, and the only positive evidence of the effect of these prescriptions being Respondent's opinion that it was effective, the opinions of both Drs. Cohen and Breland that the medical records do not justify the course of treatment of Tommy B. are rejected. J. C. (COUNTS IV; XV) It is admitted (Requests for Admissions) and found that between January 4, 1982, and February 26, 1983, Respondent prescribed at least the following schedule-controlled substances to J.C.: DATE DRUG STRENGTH QUANTITY 01/04/82 Percodan 24 03/23/82 Tylox 30 04/17/82 Percodan 04/17/82 " " 05/01/82 Tylenol #4 30 05/01/82 Valium 30 05/04/82 Tylox 30 06/12/82 Valium 06/16/82 Tylox 36 07/17/82 " 30 08/14/82 " 30 10/03/82 " 30 10/30/82 Tylenol #4 11/13/82 Percodan 30 01/15/83 Percocet 01/15/83 Valium 28. J.C.'s chief complaint was migraine headaches, "nerves", and back trouble. Respondent prescribed Percodan for pain, Valium for "nerves", and Cafergot-pb for migraines. He diagnosed hypertensive heart disease, anxiety neurosis, migraine headaches, and lumbosacral syndrome. He only used Percodan four times over a year's period due to the severity of the symptoms brought on by the tug and strain on this 200-pound woman's back. Dr. Cohen ranks the relatively minimal fault of writing progress notes in two corners and across the top and side of a page in the same category as overprescribing. Dr. Cohen's concern over the absence of recorded physical findings for this patient was not confirmed by Dr. Breland (see infra.) and his concern because the number and dosage of Cafergot-pb (non-scheduled), Valium (scheduled) and Percodan (scheduled) were frequently not recorded by Respondent is less significant in light of Dr. Breland's testimony that the best custom and practice of the medical profession is to record these matters but such recordation is not required for office records but only for prescriptions. Dr. Cohen also faulted Respondent for prescribing symptomatically with no effort to educate the patient to prevent or "prophylax" against migraines or to prescribe common anti- inflammatory medications usually prescribed for migraines. Dr. Breland noted that Tylenol #4 is a controlled substance but made no specific objection to Respondent's prescription of it for this patient. Cafergot-pb is not a controlled substance and its prescription by Respondent was not faulted by Dr. Breland. All of Dr. Breland's testimony on this patient is couched in vague terms of "it is hard to justify" Respondent's prescription of Percodan and Percocet on just this work-up and Dr. Breland felt Respondent's prescription of Percodan on the first visit was not justified without obtaining a further medical history, but he would have approved eventual (not first visit) use of Percodan for this patient's migraine headaches if it were not for the presence of hypertensive heart disease or her neurosis. Although the records fail to state why Percodan-based drugs were used, Dr. Breland felt these drugs would have been appropriately prescribed for the lumbosacral syndrome. By comparison, J.C's recorded medical history is more extensive than that of most of the patient records involved in this action. The history taken by Respondent lists previous surgery of a hysterectomy, of a previous fracture to the left hip, and of a tonsillectomy. Also given is an elevated blood pressure of 160 over 100, height and weight, state of parity, and diagnoses. The date of her last period and of her hysterectomy are not given. Petitioner's two expert witnesses each would have made separate and different judgment calls on all prescriptions here related, except that each concurs that Respondent's initial prescription of Percodan on this patient's first visit was unjustified without a further recorded history; therefore, Dr. Breland's summation that the records justify overall treatment of this patient is accepted. L. C. (COUNTS V; VI; XV) It is admitted (Requests for Admission) and found that between approximately March 27, 1978, and April 23, 1983, Respondent prescribed at least the following quantities of schedule-controlled substances to L.C.: DATE DRUG STRENGTH QUANTITY 03/27/78 Darvon Compound 07/21/78 Darvon 07/21/78 Darvon Compound 07/21/78 Valium 10/23/79 Percodan 10/31/79 Preludin 11/17/80 Preludin 11/28/81 Darvon Compound 12/28/81 Percodan 24 01/14/82 " " 30 04/02/82 " " 36 06/08/82 " " 36 07/17/82 " " 36 08/28/82 " " 36 09/25/82 " " 24 09/25/82 Darvon Compound 12/03/82 Percodan 30 01/15/83 " " Dr. Cohen's opinion that there had been prescription of an amphetamine drug for an unjustified purpose and that the patient's records did not justify the Respondent's prescribed course of treatment is rejected as partially predicated upon inadmissible and unadmitted exhibits. The opinion of Dr. Breland is accepted that most of these prescriptions as only part of the course of treatment as a whole were acceptable. More particularly, Dr. Breland indicated there are other doctors similarly geographically situated who use Percodan similarly; there was a very adequate history taken, although the date appears out of order on the page; Respondent's early prescribing of Roboxin and Darvon (one of the less addictive controlled substances) would be a good treatment for osteoarthritis which was part of Respondent's diagnosis of this patient; there was not enough Percodan prescription here for Dr. Breland to say it was not justified in this patient's case. Dr. Breland was unsure when Preludin became a scheduled substance and so would not comment on that aspect of the case. This is an issue of law and is discussed under "Conclusions of Law." T. G. (COUNTS VII; XV) Between approximately July 23, 1978, and April 26, 1983, Respondent treated a patient by the name of T.G. During that period, the stipulated records reveal at least the following prescriptions, among others: DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 7/23/78 30 Percodan 7/23/78 Darvon Compound 9/21/78 Percodan 10/14/78 Percodan 10/14/78 Darvon Compound 11/21/78 24 Percodan 11/21/78 Darvon 12/6/78 30 Percodan 12/6/78 Darvon Compound 12/28/78 Percodan 12/28/78 Darvon 1/23/79 Qualudes 1/29/79 24 Percocet 1/19/82 24 Percocet 3/4/82 Valium 3/4/82 Percodan 4/29/82 Percocet 8/19/82 Percodan 8/19/82 Valium 10 mg 9/25/82 Valium 9/25/82 Percocet 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Percocet 10/14/82 40 Valium 10/14/82 40 Percocet 10/14/82 40 Valium 10 mg 10/14/82 40 Valium 10/14/82 40 Percocet #5 10/14/82 40 Percocet 10/14/82 40 Valium Additionally, the Respondent occasionally prescribed Tetracycline and Actifed Syrup for colds, and the parties have stipulated these are not controlled substances. Although Dr. Breland tagged Respondent's use of Roboxin 750, Percodan 30, Darvon compound and Prednisone (a Cortisone- like anti-inflammatory) on the first visit as "borderline acceptable," it was his and Dr. Cohen's mutual opinions that in the absence of recorded physical findings, the Respondent's prescribing of controlled substances in these quantities and with this frequency to this patient was not justified by the records Respondent kept. Dr. Breland, in particular, found unacceptable the Respondent's diagnosis of lumbosacral syndrome without detailed physical findings or any x-ray diagnosis, and both experts took exception to the continued and repeated prescriptions of the addictive drugs, Valium and Percodan, in a case where Respondent's records repeatedly indicate a good response. Both further opined against Respondent's delayed attempt to diminish the use of these addictive drugs. The doctors' opinion that the records do not justify the prescriptions are accepted. DAVID G. (Counts VIII; XV) The stipulated records reveal at least the following controlled substances were prescribed by Respondent to his patient, David G., between December 17, 1981, and February 12, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 12/17/81 Ativan 12/30/81 Ativan 2/12/82 Valium 3/06/82 Seconal 3/11/82 Valium 4/08/82 Seconal 8/28/82 Seconal 8/28/82 Valium Respondent saw this patient 12 times in approximately 2 years and accepted David G.'s representation that he had been previously prescribed Ativan, a controlled substance of the same chemical family as Valium. Although Respondent claims he verified all prior medications, the verification here is not reflected in his record. The records themselves do not reflect for most occasions why this patient was being treated nor do they set forth an assessment of why Respondent switched from less to more addictive sedative hypnotics. Ativan is a tranquilizer on Schedule III. Seconal is a sedative on Schedule II. In an isolated response, Dr. Breland testified that if the Respondent's initial diagnosis of insomnia and anxiety neurosis had been arrived at after taking a proper history and after a proper physical examination which was not recorded, he would not find Respondent's use of these medications, including Seconal, improper, because there are doctors in the same geographical area who would also use Seconal. However, the ultimate opinion of both of Petitioner's experts is accepted that in the absence of a recorded initial physical examination and a recorded history beyond merely recording height and weight and an unverified former medical treatment, the course of this patient's treatment was not justified by the records kept. DAN G. (Counts IX; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, Dan G., Jr., between January 9, 1979, and April 22, 1983. DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCE 01/09/79 Percodan 02/22/79 Talwin (50 mg) 11/18/81 Percodan 11/30/81 Percodan 01/02/82 Percodan 01/19/82 Percodan 02/05/82 Percodan 03/30/82 Percodan 04/12/82 Percodan 05/01/82 Percodan 05/01/82 Valium 05/18/82 24 Percodan 06/05/82 Valium 06/22/82 Percodan Demi 06/22/82 Darvon Compound 06/22/82 Valium 07/24/82 Percodan 07/24/82 Valium 08/28/82 Percodan Demi 08/28/82 Valium 09/25/82 Percodan 09/25/82 Valium 10/30/82 Valium 10/30/82 Percodan 12/03/82 Percodan 02/19/83 Percocet 03/26/83 Percodan 03/26/83 Valium 04/22/83 Tylox 04/22/83 Valium Respondent's records for this single patient sometimes specify "Jr." and sometimes do not. The initial record indicates a surgical incision along the lateral aspect of both femurs and pain on palpation of both hips, and records a history of total hip arthroplasty (two total hip replacements) in 1979 with the patient evidencing pain secondary to a post-operative procedure to correct aseptic necrosis of both femurs. At formal hearing, Respondent stated that this patient first presented in a wheel chair and returned frequently, due to chronic pain and was already on Demerol when first seen by Respondent. The chronic pain was not always repeatedly recorded in Respondent's records. Both of Petitioner's experts concede that prescriptions of Percodan would be consistent if that were all that were relieving the pain when the patient presented to Respondent, and Dr. Cohen opined that Percodan and Talwin were possibly consistent with aseptic necrosis of a femur. Respondent had admitted (R-1), a hospital summary of subsequent surgery (conversion of left total hip arthoplasty to girdlestone on 8/19/83) at the Veteran's Administration Hospital in Gainesville. This exhibit of subsequent surgery corroborates the previous 1979 history taken by Respondent which indicated that medications on discharge from the VA Hospital included Demerol 50 mg. po q 4h prn for pain. In light of no evidence of patient addiction and no evidence of poor response by this patient to Respondent's prescribing and treatment, the opinions of Dr. Breland and Dr. Cohen that Respondent's prescribing was excessive and necessarily addictive and therefore was unjustified are rejected, however the undersigned accepts their mutual opinions that the Respondent's records by themselves without the subsequent corroboration of the VA Hospital report do not justify the treatment Respondent administered to Dan G. Respondent admits R-1 was not relied on in treating this patient. C. R. (Counts X; XI; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, C.R., between July 3, 1978, and April 22, 1983: 2/ DATE APPROXIMATE CONTROLLED QUANTITY SUBSTANCES 07/03/78 Percodan 07/03/78 Percodan Compound 07/20/78 30 Percodan 08/14/78 30 Percodan 11/01/78 30 Percodan 12/05/79 Desoxyn 12/05/79 Percodan 01/02/79 Desoxyn 02/05/79 Percodan 02/12/79 18 Percodan 03/28/79 Percodan 04/16/79 Percodan 05/03/79 Percodan 05/17/79 Percodan 05/17/79 Darvon Compound 05/17/79 Percodan 05/17/79 Darvon Compound 06/14/79 6 Percodan 06/14/79 24 Desoxyn 09/18/79 Desoxyn 10/04/79 Percodan 11/10/79 Preludin 01/28/80 P 06/12/80 Preludin (75 mg.) 09/18/80 Preludin (75 mg.) 11/17/80 Percodan 01/27/81 Darvon Compound 04/27/81 Percodan 07/28/81 Percodan 08/31/81 24 Percodan 09/21/81 24 Percodan 12/16/81 Percodan 01/06/82 Percodan 01/29/82 Percodan 03/02/82 Percodan Demi 03/02/82 03/28/82 Percodan 04/20/82 Percodan 05/13/82 06/04/82 Percodan Demi 07/03/82 Percodan Demi 08/03/82 36 Percodan Demi 08/28/82 Percodan 08/28/82 Valium 12/20/82 24 Percocet 5 12/20/82 30 Valium (10mg) 01/15/83 6 Tylenol #6 01/22/83 Percodan Preludin and Desoxyn are amphetamine drugs. Desoxyn was legitimately prescribed for weight control in 1978. Respondent's prescription of both drugs was ostensibly to modify the amount of weight supported by the patient's leg bones. Dr. Breland is not sure whether both drugs were reclassified for control in 1979 or not but this is an issue of law resolved in "Conclusions of Law" supra. Despite Dr. Breland's testimony that if he did not have to base his opinion on the Respondent's inadequate recorded history and findings, he would term the prescribing of Percodan and Roboxin as recorded to be borderline acceptable, the undersigned accepts his and Dr. Cohen's mutual opinion that the frequent prescriptions of Percodan, Percodan- demi or Percocet (narcotic analgesics) for the Respondent's recorded diagnosis of arthritis and right leg pain resulting from previous right thigh surgery are unjustified by the records. Their respective opinions that this pattern of prescribing was excessive and unjustified in light of the potentially addictive nature of these drugs is also accepted. B. W. (Counts XII; XIII; IV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, B.W. between June 7, 1979, and January 29, 1983. 3/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/01/79 Valium 10/15/79 Tylenol #3 06/19/80 Tylenol #3 06/08/81 Ritalin (20mg) 08/11/81 Valium 08/15/81 Valium 09/15/81 Talwin 11/14/81 Talwin 12/07/81 24 Ritalin (20 mg) 12/20/81 Talwin 01/23/82 Talwin 02/12/82 Percodan Demi 02/27/82 Tylenol #4 03/04/82 Ritalin 03/18/82 Percodan Demi 04/02/82 30 Talwin 07/03/82 24 Ritalin 08/28/82 30 Ritalin 09/22/82 24 Percodan 10/14/82 Talwin (50mg) 12/21/82 24 Percodan 01/29/83 Tylox Ritalin is a sympathomimetric amine drug, which may only be properly prescribed in certain types of cases more specifically set out in the following "Conclusions of Law." Respondent's diagnosis, that this patient had chronic anxiety and back pain, is reflected in his written records. This is essentially the only recorded history on this patient. Respondent did not record a diagnosis of narcolepsy. Respondent did, however, introduce R-2, a consultation report to a Dr. Yankovich dated 1/5/82 from a Dr. Elzawahry which states the impression: "narcolepsy; low back syndrome. . . maintain on Ritalin 10 mg. po tid." Respondent testified that he had received similar information concerning the narcolepsy and psychiatric disturbance earlier than 1/5/82 first by telephone and then by written reports thereon from consulting neurologists, surgeons, and psychiatrists, and that through inadvertence this document was not turned over to Petitioner's investigator. However, Respondent did not explain why his files did not contain these other consultants' reports or why he did not write-up their contents or the dates they were received by him or why his prescriptions of 20 mg were so much greater than those recommended by Dr. Elzawahry. Dr. Breland felt that if Respondent were aware when he first prescribed Ritalin to this patient that the consultant had recommended it because of a good response, then Respondent's Ritalin prescriptions would be justified. It was also noted by Dr. Breland that Ritalin once was believed by the medical profession to be appropriately prescribed in the treatment of depression but that method had ceased and was statutorily proscribed by the time periods in question. Dr. Breland's expert opinion on prior belief of the medical profession is accepted. His conclusions of law invade the province of the hearing officer and are rejected in part and accepted in part as set out in the "Conclusions of Law." Dr. Breland did not feel under the circumstances that the Ritalin was contraindicated. Accordingly, Dr. Cohen's testimony that Ritalin is very dangerous if prescribed for chronic anxiety and depression is hereby discounted in that unlike Dr. Breland, he did not have the benefit of R-2 when testifying by earlier deposition. Dr. Cohen felt Valium was useful for chronic anxiety and that Tylenol #3 and Talwin were useful for pain but that there were excessive prescriptions of these drugs with few or no notations indicating any pain. In most instances all that is noted in Respondent's records on this patient is a prescription listed beside the date. Dr. Breland remarked that even the forms used by Respondent did not include a space for physical findings. J. M. (Counts XIV; XV) The records stipulated in evidence reveal at least the following controlled substances were prescribed by Respondent to his patient, J. M., between October 25, 1980, and March 9, 1982: 4/ DATE APPROXIMATE QUANTITY CONTROLLED SUBSTANCE 10/25/80 Percodan 01/05/81 Percodan 05/19/81 Emprin #4 06/03/81 Emprin #4 07/29/81 18 Percodan 09/25/81 12 Percodan 09/25/81 18 Tylenol #3 11/07/81 24 Tylox 11/21/81 Percodan 12/17/81 Percodan 01/02/82 Percodan 02/22/82 Percodan 03/09/82 Percodan The records of history and findings on this patient are reasonably complete and were faulted by Dr. Breland mostly because without appropriate dates one cannot tell if the history was taken on the initial visit as it should have been or later, and because the dates given are frequently out of order. In Dr. Breland's opinion, some of the modes of therapy utilized by Respondent were not of his choice but Dr. Breland only seriously objected to Respondent's continued and excessive use of Percodan as unsafe. Dr. Cohen's opinion was that the Respondent's conduct constituted mal- prescribing over malpractice. Dr. Breland's opinion was that Respondent's overall conduct with regard to these eleven patients constituted malpractice in that it was the failure to practice medicine with that level of care, skill and treatment of a reasonably prudent similar physician, under similar circumstances. Dr. Breland has had the benefit of reviewing all of Respondent's exhibits and he practices in the same geographical locale as Respondent. His opinion in this regard is accepted as to the overall pattern of practice with these eleven patients, despite his previous opinions that specific cases might not evidence malpractice.
The Issue The issue in this case is whether Respondent, Arnaldo Carmouze, P.A., committed violations of Chapter 458, Florida Statutes (2001), alleged in an Administrative Complaint filed with Petitioner on February 25, 2004, in DOH Case Number 2002- 16502, as amended; and, if so, what disciplinary action should be taken against his license to practice as a physician assistant in Florida.
Findings Of Fact The Parties. Petitioner, the Department of Health (hereinafter referred to as the "Department"), is the agency of the State of Florida charged with the responsibility for the investigation and prosecution of complaints involving physicians and physician’s assistants licensed to practice medicine in Florida. § 20.43 and Chs. 456 and 458, Fla. Stat. Respondent, Arnaldo Carmouze, P.A., is, and was at the times material to this matter, a physician's assistant licensed to practice in Florida, having been issued license number PA 9100713. Mr. Carmouze's address of record at all times relevant to this matter is 6545 Southwest 95th Avenue, Miami, Florida 33173. No evidence that Mr. Carmouze has previously been the subject of a license disciplinary proceeding was offered. Mr. Carmouze's Supervising Physician. At the times relevant Mr. Carmouze worked under the supervision of Dr. Manuel Fernandez-Gonzalez, a physician licensed to practice medicine in Florida. Dr. Fernandez-Gonzalez, who has practiced emergency medicine, holds Florida medical license number ME 17907. Dr. Fernandez-Gonzalez currently practices family medicine at 9600 Southwest 8th Street, Miami, Florida. Prior to April 2002, Dr. Fernandez-Gonzalez and Mr. Carmouze worked together in Miami, providing emergency room care and seeing patients at a nursing home. The emergency room services were provided pursuant to employment contracts that both had entered into with a company providing emergency room services at the hospital in south Florida where Dr. Fernandez- Gonzalez and Mr. Carmouze provided services. Mr. Carmouze's Assignment to Weems Memorial Hospital. The company for which Mr. Carmouze was employed also provided emergency room services for Weems Memorial Hospital (hereinafter referred to as "Weems"). Weems is located in Apalachicola, Florida, located in the Florida Panhandle, approximately 520 miles from Miami. Weems is a rural hospital, licensed under Chapter 395, Florida Statutes. It does not have 24-hour, on-site ancillary services such as X-ray, laboratory, and respiratory therapy. These services are available to the emergency room on an on-call basis after business hours. At the times relevant, Malvinder Ajit, M.D., a Florida licensed physician, was the Director of the Emergency Department at Weems. Dr. Ajit has not provided any documentation to the Department indicating that he has ever acted as supervising physician of record for Mr. Carmouze. Mr. Carmouze was assigned by the company by which he was employed to work in the emergency room at Weems in April 2002 and again in June 2002. He worked in the emergency room at Weems as a physician's assistant for part of April 2002, and part of June 2002. While at Weems, Mr. Carmouze provided emergency room medical services to more than 100 patients. While working at Weems, Dr. Fernandez-Gonzalez, who remained in Miami, continued to act as Mr. Carmouze's supervising physician. Mr. Carmouze did not notify the Department that he was practicing as a physician's assistant at Weems in April or June 2002. The evidence, however, failed to prove that Mr. Carmouze was working for, and thus "employed," by anyone different from the employer that he worked for in Miami. The only evidence on this issue proved that Mr. Carmouze continued throughout the relevant period to work for Dr. Fernandez-Gonzalez and the company that provided emergency room services at Weems. Dr. Carmouze's Treatment of Patient A.M. On June 7, 2002, Patient A.M., an 84-year-old female, was brought to the emergency room (hereinafter referred to as the "ER"), at Weems by ambulance. She arrived at approximately 23:24 hours (11:24 p.m.). A.M.'s medical history included congestive heart failure, coronary artery disease, and atrial fibrillation. She presented to Mr. Carmouze in apparent respiratory distress (respiratory rate of 36 to 40), had no measurable blood pressure, and a pulse rate of 100 to 108. While being transported to the ER from her home, A.M. was given oxygen by rebreather mask. During her transport, her oxygen saturation level improved from 68% to 91%. Mr. Carmouze assessed A.M.'s condition, obtained her medical history, ordered lab work and other tests, and ordered and initiated nebulizer treatments for her. She was alert, oriented and had a Glasgow score of 15/15, indicating she was responding to verbal and pain stimuli. Mr. Carmouze ordered nebulizer treatments with albuterol and atrovent to assist her breathing. Additionally, A.M. received 100% oxygen through a nonrebreather mask. Mr. Carmouze also determined that A.M. was "dry," meaning that her fluid volume was depleted and, therefore, she was dehydrated. As a result, her blood pressure was low. In an effort to treat this condition, Mr. Carmouze ordered an I.V. with 0.9 normal saline. He also ordered a Dopamine drip to increase A.M.'s heart rate in an effort to increase her blood pressure. Mr. Carmouze appropriately denied a request from a nurse to administer Lasix to A.M., because A.M. was "dry." Lasix is a diuretic used to decrease fluid volume. It opens the arteries and reduces fluids, thereby lowering blood pressure. Lasix was contraindicated for A.M. and contrary to the appropriate efforts initiated by Mr. Carmouze to treat A.M.'s low blood pressure. Despite Mr. Carmouze's treatment of A.M., her condition continued to deteriorate. At or near 23:50 hours (11:50 p.m.), approximately 25 minutes after A.M. had arrived at the ER, an ER nurse contacted A.M.'s primary physician by telephone and obtained an order to administer Lasix to A.M. The Lasix was administered immediately. A.M.'s oxygen saturation level was 81%, down 10 points since her arrival, when the Lasix was administered. Within half an hour, at 0:18 hours (18 minutes after midnight) on June 8, 2002, A.M.'s oxygen saturation level had dropped another 10 points, to 71%. A.M. then "crashed and coded." Mr. Carmouze initiated appropriate emergency measures when A.M. coded, including initiating Cardio Pulmonary Recitation and endotracheal intubation. A.M. was given epinephrine, atropine, and a CVP line was placed. These actions by Mr. Carmouze were appropriate. Mr. Carmouze did not attempt or order that A.M. be intubated prior to 0:18 hours when she coded. A.M.'s primary physician, Dr. Sanaullah, arrived at the ER. Shortly after she coded, Dr. Sanaullah continued the same efforts initiated by Mr. Carmouze. A.M., however, did not recover, expiring at 01:00. The "Standard of Care" for Treating A.M. Four expert witnesses testified in this matter, rendering opinions as to whether Mr. Carmouze's treatment of A.M. was consistent with "that level of care, skill, and treatment which is recognized by a reasonably prudent similar [physician assistant] as being acceptable under similar conditions and circumstances. . . " (hereinafter referred to as the "Standard of Care"). The expert witnesses who testified were Dr. Fernandez-Gonzalez, Dr. Julio Lora, Dr. Harry W. Lee, and James L. Cary, P.A. Dr. Fernandez-Gonzalez's testimony as to whether Mr. Carmouze treated A.M. within the Standard of Care is rejected for lack of credibility. Dr. Fernandez-Gonzalez's testimony has been found to lack credibility for the reasons explained by Petitioner in paragraph 25 of Petitioner's Proposed Recommended Order. That paragraph, except for the last two sentences, is hereby adopted. Additionally, Dr. Fernandez- Gonzalez's testimony is rejected because, in the undersigned's judgment, he made too much of an effort to give the answers that he appeared to conclude that Mr. Carmouze wanted him to give. The testimony of Dr. Lora on the other hand is found to be credible. Dr. Lora, testifying as an expert in cardiology and internal medicine, offered convincing explanations as to why Mr. Carmouze did not violate the Standard of Care in his overall treatment of A.M. and, in particular, in not attempting to intubate A.M. earlier than he did. Dr. Lee's testimony, while corroborating Dr. Lora's testimony, was cumulative and of little weight. A.M. was reported to be awake, alert, and oriented. She was breathing, albeit with difficulty, on her own. Therefore, it was appropriate for Mr. Carmouze to attempt the other measures to assist her breathing he instituted. Mr. Cary's testimony, while credible, was not convincing, especially given Dr. Lora's expert opinions. Mr. Cary's testimony was taken during a discovery deposition by Respondent and, as a result, the benefit of his testimony to Petitioner's case was limited. The evidence failed to prove that Mr. Carmouze violated the standard of care: In his treatment of A.M.; By failing "to contact his supervising physician, the ED director, and/or Patient A.M.'s primary physician for assistance in treating Patient A.M."; By failing "to identify a treatment plan for Patient A.M."; and By failing "to consult his supervising physician prior to ordering Demerol, a controlled substance, for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M." Mr. Carmouze's Treatment Plan and Medical Records for Patient A.M. Mr. Carmouze, as the Department has conceded in Petitioner's Proposed Recommended Order, paragraph 13, page 20, did identify a treatment plan for Patient A.M. Having found that Mr. Carmouze did not err when he did not initiate intubation of A.M. earlier than he did, the evidence failed to prove that "he failed to maintain medical records that justified the course of treatment in that he failed to record a reason for not intubating sooner in an attempt to address Patient A.M.'s respiratory distress." There is no indication in Mr. Carmouze's medical records for A.M. that Mr. Carmouze attempted to contact Dr. Ajit or Dr. Fernandez-Gonzalez. The medical records do indicate, however, that A.M.'s primary physician, Dr. Sanaullah, was "notified and arrived for code." While the evidence did not prove who notified Dr. Sanaullah, Petitioner failed to prove that Mr. Carmouze was not responsible for Dr. Sanaullah's notification. Mr. Carmouze failed to identify himself by name or professional title in A.M.'s medical records. He also failed to include Dr. Fernandez-Gonzalez's name and title in A.M.'s medical records. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on A.M.'s medical records. While the quality of Mr. Carmouze's medical records for A.M. was correctly characterized as "minimally acceptable" by Mr. Cary, the evidence failed to prove clearly and convincingly that those medical records were not adequate. This finding is based upon the lack of an unequivocal opinion from Mr. Cary concerning the adequacy of the medical records and a comparison of Mr. Cary's opinions with those of Dr. Lee in support of Mr. Carmouze's medical records for Patient A.M. Mr. Cary, on the one hand, made the following negative comments about Mr. Carmouze's medical records for A.M: "[T]he record isn't really clear on what did happen because he did not write down any times on intervention of what he did." Petitioner's Exhibit numbered 1, page 14; "[W]hen you look at this face sheet here you don't get a picture of what happened and at what time, there's no real times there, no progression of the treatment." Petitioner's Exhibit numbered 1, page 67. Mr. Cary stated that there was no time noted in Patient A.M.'s history/physical section, and that a portion of that section was illegible. Petitioner's Exhibit numbered 1, page 21 and 25. On the other hand, Mr. Cary stated that "[the medical record for A.M.] is minimally acceptable, it just doesn't give a good clear picture of the sequence of events." Petitioner's Exhibit numbered 1, page 68. Mr. Cary also stated the following when asked if he thought Mr. Carmouze maintained medical records that justified the course of his treatment regarding Patient A.M.: "There were medical records that were there, I think they could have been more complete and more detailed . . . ." These statements, taking into account the fact that Mr. Cary was able to read almost all of Mr. Carmouze's medical record pertaining to A.M. on direct examination by counsel for Mr. Carmouze, reduces the effectiveness of his other opinions. Finally, it is noted that all of Mr. Carmouze's experts, along with Mr. Cary, were able to read Mr. Carmouze's notes, other than a word or two. Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Patient C.M. On April 23, 2002, Patient C.M., a 20-year-old male presented to Mr. Carmouze at Weems' ER. C.M. complained of a server headache. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient J.S. On April 24, 2002, Patient J.S., a 37-year-old female presented to Mr. Carmouze at Weems' ER. J.S. complained of a burn. In pertinent part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril. Patient B.M. On April 24, 2002, Patient B.M., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. B.M. complained of a headache of two-days' duration. In pertinent part, Mr. Carmouze ordered 25 milligrams of Demerol administered to B.M. at the ER. Mr. Carmouze noted in the medical record for B.M. a diagnosis of scabies/headache cluster, severe. This is the only diagnosis made at Weems' ER for B.M. Patient R.M. On April 24, 2002, Patient R.M., a 73-year-old male, presented to Mr. Carmouze at Weems' ER. R.M. complained of abdominal pain and constipation of several days’ duration. In patient part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to R.M. at the ER. Mr. Carmouze noted in the medical record for R.M. a diagnosis of abdominal pain, impaction. This is the only diagnosis made at Weems' ER for R.M. Patient M.F. On April 25, 2002, Patient M.F., a 34-year-old female, presented to Mr. Carmouze at Weems' ER. M.F. complained of left-flank pain. In relevant part, Mr. Carmouze ordered 50 milligrams of Demerol and 50 milligrams of Vistaril administered to M.F. at the ER. Mr. Carmouze noted in the medical record for M.F. a diagnosis of left-flank pain, left nephrolithiasis. Patient G.C. On June 7, 2002, Patient G.C., a 20-year-old male, presented to Mr. Carmouze at Weems' ER. G.C. complained of right-flank pain. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Patient G.B. On June 7, 2002, Patient G.B., an 83-year-old female, presented to Mr. Carmouze at Weems' ER. G.B. complained of wrist, knee, and leg pain, secondary to a fall. In relevant part, Mr. Carmouze ordered two separate doses of Demerol, 50 milligrams each, and Vistaril, 50 milligrams each. Mr. Carmouze noted in the medical record for G.B. a diagnosis of chest contusion, leg edema, and right Colles' fracture. This is the only diagnosis made at Weems' ER for G.B. Patient K.S. On June 8, 2002, Patient K.S., an 18-year-old female, presented to Mr. Carmouze at Weems' ER. K.S. complained of lower back pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.S. a diagnosis of intractable back pain, trauma to spine. This is the only diagnosis made at Weems' ER for K.S. Patient C.W. On June 8, 2002, Patient C.W., a 46-year-old female, presented to Mr. Carmouze at Weems' ER. C.W. complained of headache and dizziness. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for C.W. a diagnosis of headache and anemia. This is the only diagnosis made at Weems' ER for C.W. Patient M.A.C. On June 9, 2002, Patient M.A.C., a 49-year-old female, presented to Mr. Carmouze at Weems' ER. M.A.C. complained of pain in the lower right abdomen and back. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for M.A.C. a diagnosis of diabetes mellitus and abdominal pain. This is the only diagnosis made at Weems' ER for M.A.C. Patient R.S. On June 9, 2002, Patient R.S., a 34-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of shoulder pain. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for R.S. a diagnosis of right shoulder tendon tear. This is the only diagnosis made at Weems' ER for R.S. Patient K.M. On June 11, 2002, Patient K.M., a 52-year-old male, presented to Mr. Carmouze at Weems' ER. R.S. complained of wrist pain secondary to a fall. In relevant part, Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams. Mr. Carmouze noted in the medical record for K.M. a diagnosis of a Colles' fracture. This is the only diagnosis made at Weems' ER for K.S. Facts Common to Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. Mr. Carmouze did not note in his medical records for Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M. (hereinafter referred to jointly as the "Pain Patients "), that he had consulted with Dr. Fernandez- Gonzalez or Dr. Ajit prior to ordering Demerol for the Pain Patients. Demerol is a controlled substance. Dr. Fernandez-Gonzalez' testimony regarding alleged consultations he had with Mr. Carmouze concerning the Pain Patients and other patients seen by Mr. Carmouze while at Weems is rejected as lacking credibility for the reasons explained, supra. Mr. Carmouze also failed to note in the medical records for the Pain Patients his name and professional title. His name was stamped on the Emergency Room Record he completed for Patients M.A.C., G.M., and R.S. His name was also written into the space under "Time/Initials" on the Emergency Room Record for Patients M.A.C., C.W., R.M., and J.S. None of these records, however, included his title of "physician assistant." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the Pain Patients. Mr. Carmouze failed to ensure that the signature of Dr. Fernandez-Gonzalez or Dr. Ajit was included in the medical records of the Pain Patients. The Other "106 Patients". While at Weems ER, Mr. Carmouze provided medical services, in addition to A.M. and Pain Patients, to 106 other patients at issue in this case (hereinafter referred to as the "106 Patients"). Petitioner's Exhibit numbered 4 is a composite exhibit of medical records for the 106 Patients. There are approximately two patients for whom more than one medical record has been included in Petitioner's Exhibit numbered 4. The foregoing findings relate to the 108 medical records for the 106 Patients. Mr. Carmouze failed to note in most of the medical records for the 106 Patients his name and professional title. Of the approximately 108 records, Mr. Carmouze's name does not appear in any fashion on 48 of them. The rest either include his name (but not title) either stamped on the record or written into the box titled "Time/Initials." On two of the medical records both Mr. Carmouze's name and "P.A." have been written into the box titled "Time/Initials." Mr. Carmouze failed to identify Dr. Fernandez-Gonzalez or Dr. Ajit by name and professional title in the medical records of the 106 Patients. Mr. Carmouze did not ensure that either the signature of his supervising physician or Dr. Ajit was included on the medical records of the 106 Patients.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the a final order be entered by the Board of Medicine finding that, Arnaldo Carmouze, P.A., has violated Subsections 458.331(1)(m) and (v), Florida Statutes, as described in this Recommended Order; issuing a reprimand; placing Mr. Carmouze's license on probation for one year; requiring that he pay an administrative fine of $5,000.00; requiring that he perform five hours of CME in a subject(s) determined appropriate by the Board; and suspending his license for six months (with the suspension stayed provided he complies with probation). DONE AND ENTERED this 13th day of December, 2006, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of December, 2006. COPIES FURNISHED: Irving Levine Matthew Casey Assistants General Counsel Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Julie Gallagher, Esquire Greenberg Taurig, P.A. 101 East College Avenue Tallahassee, Florida 32301 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dr. M. Rony François, Secretary Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether Disciplinary action should be taken against Respondent's license to practice medicine, number ME 0028355, issued by the State of Florida, based on the alleged violations of Section 458.331(1), Florida Statutes, as contained in the Administrative Complaint filed by the Petitioner.
Findings Of Fact At all times material to this complaint, Respondent was a licensed physician having been issued license number ME 0028355 by the State of Florida. This case represents Respondent's second disciplinary action. By a Final Order dated February 24, 1987, the Board of Medicine, in the case of Department of Professional Regulation vs. Robert Gonzalez, Jr., M.D., DOAH Case No. 85-1692, DPR Case No. 0033796, reprimanded Respondent, suspended Respondent's license for a minimum period of one year, and ordered a five year probationary period, and a $14,000 fine. The Final Order took effect upon filing and pertains to similar offenses at issue in the present case. (Adopts Petitioner's Proposed Finding of Fact (PFOF) 1) The present case arose from a review of hospital records and Respondent's patient records for seventeen patients who were hospitalized by Respondent at Pembroke Pines General Hospitals in Pembroke Pines, Florida in 1982 and 1983. However, none of the incidents giving rise to the complaint in the instant case occurred subsequent to the Final Order referenced in Finding of Fact 1 and all occurred during or shortly after the same timeframe as covered in the earlier offenses. (Adopts and expands Petitioner's PFOF 2). On August 4, 1982, Respondent admitted patient C.M. to Pembroke Pines General Hospital, who was assigned medical records number 6893 by Pembroke Pines General Hospital. The admitting diagnosis was acute respiratory tract infection, acute flu syndrome, acute laryngo/pharyngitis and possible pneumonitis. The patient was hospitalized for a period of two days. During the hospitalization of patient C.M., Respondent ordered the following tests which were performed on patient C.M.: two chest x-rays, "mono" screen, throat culture, blood serum levels (special 12), electrolytes, urinalysis, complete blood count (C.R.C.) and Platelet counts. Respondent discharged C.M. from Pembroke Pines General Hospital with the following diagnoses on August 7; 1982: acute flu syndrome, acute respiratory tract infection, and acute pharyngitis due to staphylococcus aureus. (Adopts Petitioner's PFOF 3) Pharyngitis is an inflammatory reaction of the throat. Although Respondent diagnosed patient C.M. as suffering from acute pharyngitis due to staphylococcus aureus, there was inadequate laboratory data to justify this diagnosis. The diagnosis should have been predicated upon the results of a sputum (secretions coughed out of the lungs) culture and sensitivity test. However, the results of the culture and sensitivity test were negative for the throat. Therefore, this diagnosis was incorrect. (Adopts Petitioner's PFOF 4). Pneumonitis is an infection of the lungs. The standards of the medical profession require that it be based on positive x-ray findings. In the case of patient C.M., there was no justification for Respondent's diagnosis of pneumonitis because both of the chest x-rays taken pursuant to Respondent's order were normal. (Adopts Petitioner's PFOF 5) Although Respondent diagnosed patient C.M. as suffering from acute flu syndrome, there was no justification for this diagnosis either. In fact, there was no justification for the admission of the patient to Pembroke Pines General Hospital. It is contra-indicated to hospitalize a sixteen-year-old male suffering from an upper respiratory infection because of the danger of developing a nasocomal infection, which is an infection that is produced as a result of exposure to bacteria in the hospital. By hospitalizing C.M. unnecessarily, Respondent placed patient C.M. at undue risk. (Adopts Petitioner's PFOF 6) In the year 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital on three occasions. The patient was assigned medical records number 4141 by Pembroke Pines General Hospital. The admission date for the hospitalizations were February 20, 1983, July 8; 1983, and August 31, 1983. There were no problems with the July 8, 1983, hospitalization of patient F.L. (With the elimination of subordinate and unnecessary material, this FOF adopts Petitioner's PFOF 7). On February 20, 1983, Respondent admitted patient F.L. to Pembroke Pines General Hospital with an admission diagnosis of cephalgia and uncontrolled hypertension. The patient was hospitalized for a period of three days. During this three-day period, the following tests were performed on patient F.L., pursuant to Respondent's orders: an intraveneous pyelogram (IVP) and voiding cystogram, chest x-ray, three "E.K.G.s", an SMA-18 (blood serum levels for eighteen different substances), a CRC, an echocardiogram, a 24-hour urinalysis for total protein, serum electrophoresis, a twenty-four hour urinalysis for catecholamine and methanephrine, a CT scan of the brain, a sinus series x-ray and cervical spine x-ray, an upper GI series, small bowel study, a cardiac isoenzyme profile and a plasma renin study. (Adopts Petitioner's PFOF 8) A voiding cystogram is a test used to check on the condition of the prostate. There was no indication in the records of patient F.L. of any prostate problem or complaint. Hence, there was no justification for the voiding cystogram which Respondent ordered for patient F.L. The upper G.I. series with small bowel follow-through, would be indicated if there is suspected small bowel obstruction or small bowel involvement. In Respondent's records for patient F.L., and the records pertaining to the hospitalization of F.L. at Pembroke Pines General Hospitals there is no indication that patient F.L. complained of or suffered from gastro-intestinal complaints. Therefore, the upper G.I. series with small bowel follow-through Respondent ordered was not justified. Additionally, the patient was admitted with cephalgia (headaches), and sinus x-rays and cervical spine x-rays were ordered. Sinus x-rays and/or cervical spine x-rays would be indicated where there was a history or indication of involvement of the sinus or cervical spine. Respondent's records for patient F.L. do not document any indication of involvement of the cervical spine and provide no history of sinus trouble. Accordingly, the cervical spine and sinus x-rays ordered by Respondent were neither indicated nor justified for patient F.L. C.P.K. enzymes are enzymes released into the bloodstream with damage of certain tissues in the body. Respondent ordered a cardiac isoenzyme profile to determine whether there was evidence of elevated C.P.K. enzymes and, therefore evidence of acute myocardial damage in patient F.L. However, patient F.L. displayed no symptoms which would justify performing this test. (With minor modifications to clarify the - finding and to conform to the record, FOF 9-11 adopt Petitioner's PFOF 9) On February 23, 1983, Respondent discharged patient F.L. with the following diagnoses: Cephalgia due to the presence of uncontrolled hypertension-diastolic, hyperuricemia, essential hypertension, neck pain secondary to cervical degenerative arthritis and chronic sinusitus condition, left maxilla. There was no justification in the records for patient F.L. which would establish uncontrolled hypertension, as a diagnosis, although Respondent's office records for patient F.L. do document the presence of hypertension in this patient and that numerous therapies were utilized unsuccessfully to control that hypertension. (With minor modifications to clarify the finding and to conform to the record, FOF 12 adopts Petitioner's PFOF 10) On August 31, 193, Respondent admitted patient F.L. for what Respondent described as a "mass of the left hemi- thorax" and labile hypertension. The mass was, in fact, a keloid or excess scar tissue which measured 2 centimeters at its greatest dimension. The records for patient F.L. provided a history of two previous resections of the same keloid. It constituted excessive, expensive and unnecessary hospitalization for Respondent to admit patient F.L. for removal of such a keloid, when that keloid could have been removed in the Respondent's office under local anesthesia. Also as a result of Respondent's decision to unnecessarily hospitalize patient F.L. for removal of a keloid, unnecessary pre-operative testing also was performed. This testing included a chest x-ray, an SKG, a complete blood count, an SMA 18, a urinalysis, and prothrombin dime or clotting tests. Respondent knew when he hospitalized patient F.L. for the surgical procedure of removal of a keloid that these pre-operative tests would be routinely performed. This constitutes inappropriate treatment. Since the history clearly indicated that the keloid, if removed, almost certainly would have reoccurred unless a plastic surgeon provided follow-up treatment to prevent the reformation of the keloid, its excision was unjustified. Accordingly, there was no justification for the admission of patient F.L. to Pembroke Pines General Hospital in August 1983. (Accepts, with modifications to reflect the record as a whole, Petitioner's PFOF 11-12). On September 2, 1983, Respondent discharged patient F.L. with the following diagnoses: keloid anterior chest wall, labile hypertension and anxiety reaction. Labile hypertension is hypertension that fluctuates erratically. This diagnosis was not supported by the hospital record for F.L. All blood pressure readings for the record for F.L., were constantly normal. (Adopts Petitioner's PFOF 13) On April 5, 1983, Respondent admitted patient J.G. to Pembroke Pines General Hospital for acute low back syndrome and weakness of the right extremities. Patient J.G. was assigned medical records number 2693 by Pembroke Pines General Hospital. Respondent hospitalized patient J.G. for a period of three days. During this hospitalization of patient J.G., Respondent provided no significant therapy which would justify hospitalization. Respondent's treatment of Patient J.G. during hospitalization included orders for Robaxin, a muscle relaxant, Riopan Plus, an antacid, Paraon forte, a muscle relaxant, and Ducolax suppositories and Peri-colase capsules for constipation. Additionally, the patient was treated with traction for the three-day period. The patient was given pelvic traction of twenty pounds- with alternating periods of two hours with traction and two hours without traction. In order to be effective or beneficial, the traction should have been given over a much longer period of time. Finally, Respondent treated patient J.G. with K-pads or heat pads around the clock. (Adopts Petitioner's PFOF 14). On April 6; 1983, patient J.G. was seen by an orthopedic consultant, pursuant to Respondent's request. The consultant's impression of the patient's condition was of cervical spondylosis. The consultant's recommended plan of treatment included bed rest and oral anti-inflammatories. (Adopts Petitioner's PFOF 15). Respondent's entire work-up and evaluation of patient J.G.; including the orthopedic consultation, could have been performed as an outpatient. There was no justification for the admission of patient J.G. to Pembroke Pines General Hospital. (Adopts Petitioner's PFOF 16). On October 10, 1982, Respondent admitted patient E.R. to Pembroke Pines General Hospital for acute cephalgia and photophobia. Patient E.R. was assigned medical records number 4910 by Pembroke Pines General Hospital. On admission, Respondent recorded a long-standing history of the patient suffering from headaches and chronic migraine syndrome. There was no justification for Respondent to admit patient E.B. for headaches, or for evaluation of these headaches. Respondent's migraine headaches might reasonably have been addressed by an initial referral to a neurologist on an outpatient basis. This was not done. (With elimination of subordinate and unnecessary material and as modified to more closely conform to the record as a whole, this FOF covers Petitioner's PFOF 17.) During the hospitalization of E.R., Respondent ordered a number of tests including two electrocardiograms, a CT scan of the brain, chest x-ray; sinus x-ray; mastoids x-rays; x-rays of the sella turcica and cervical spines, a bilateral mammogram, a CT scan of pituitary gland, a tomogram of the sella turcica, a platelet count, serum protein electrophoresis, CEA-EIA Enzyme Immunoassay, an SMA 12, Vitamin B12 and Folate serum levels, and progesterone levels. (Adopts Petitioner's PFOF 18). The testing ordered by Respondent for E.R. was excessive. For example, Respondent ordered a CT scan of the brain which adequately views the sinuses and the sella turcica. Therefore the further x-rays of the sinuses, mastoids and sella turcica and a tomagram of the sella turcica, were unnecessary and excessive. No other indicators, i.e. vision disturbances, independently justified Respondent's ordering the tomagrams. A C.E.A.-E.I.A. Enzyme Immunoassay was ordered, despite the fact that it was not indicated by either the patient history or the recorded physical examination results. A C.E.A.- E.I.A. Enzyme Immunoassay is a test for cancer of the stomach. (With elimination of cumulative and subordinate material, adopts Petitioner's PFOF 19). On May 8, 1983, Respondent admitted patient E.P. to Pembroke Pines General Hospital for evaluation and treatment of a gastrointestinal disorder, weakness and shortness of breath. E.P. was assigned medical records number 4924. Respondent ordered the following testing which was performed on patient E.P.: two CBCs, SMA-18, two urinalyses, CT scan of kidneys, barium enema, a GI series and small bowel follow-through, an intraveneous pyelogram a voiding cytourethrogram a platelet count, serum protein electrophoresis, a urine culture and a stool culture. There was no indication for Respondent to order the upper G.I. series and small bowel follow-through for patient E.P. The records demonstrate insufficient justification for the admission of patient E.P. to Pembroke Pines General Hospital on May 8, 1983; the final discharge diagnoses show hospitalization was unnecessary. On May 12, 1983, Respondent discharged patient E.P. from Pembroke Pines General Hospital with the following diagnosis: gastrointestinal disorder due to diverticulosis of the colon gastritis, and anxiety state reaction. Of these diagnoses, only the final diagnosis is possibly correct. Although an air contrast barium enema showed a few tiny scattered diverticuli within the distribution of the left colon, there was no support for Respondent's assertion that the diverticuli were the cause of a gastrointestinal disorder. The diagnosis of gastritis refers to an irritation of the stomach. This diagnosis is not supported either by the results of the upper G.I. series which were normal nor by x-rays of the stomach, which were also normal. (With modifications to more accurately reflect the record as a whole, this FOF accepts Petitioner's PFOF 21-23). On April 20, 1983, Respondent admitted O.A. to Pembroke Pines General Hospital. O.A. was assigned medical records number 5800. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 24). On September 20; 1982, Respondent admitted patient R.R. to Pembroke Pines General Hospital. Patient R.R. was assigned medical records number 5940. Petitioner established no violations by Respondent with regard to this patient. (Covers Petitioner's PFOF 25). On April 12, 1983, Respondent admitted to Pembroke Pines General Hospital a patient who was assigned medical records number 9235. The patient was admitted for acute abdominal pain on the right lower side. The patient was suffering from a hematoma, a collection of blood in the tissue. Most probably the patient had developed a hematoma of the rectus muscle as a result of coughing, because the patient's history revealed a severe upper respiratory infection accompanied by a cough. A surgical consultation prior to hospital admission would have revealed this condition and rendered hospital admission unnecessary; because the standards of the medical profession indicate that the hematoma should have been treated conservatively (i.e. no treatment was indicated). No testing should have been necessary, if a consultation had been sought. However, Respondent hospitalized the patient, ordered a chest x- ray, a pelvic sonogram and a barium enema. Neither the barium enema nor the pelvic sonogram would have been indicated if the patient had been seen by a consultant prior to ordering the tests. The patient was ultimately discharged on April 14, 1983 therefore, the hospitalization was unnecessary. (Adopts, with clarifying modification, Petitioner's PFOF 26-27). On March 29, 1983, Respondent admitted patient R.S. to Pembroke Pines General Hospital. Patient R.S. was assigned medical records number 9479 at Pembroke Pines General Hospital. No evidence was presented by Petitioner as to the propriety or necessity for the admission or the testing performed during the hospitalization of the discharge diagnoses. (With elimination of unnecessary material, this FOF adopts Petitioner's PFOF 28). On October 10, 1982, Respondent admitted patient K.G. to Pembroke Pines General Hospital. The patient was assigned medical records number 9540 by Pembroke Pines General Hospital. This twenty-three year old female was admitted with diagnoses of gastro-intestinal disorder and menstrual period disorder. The patient remained in the hospital for a period of three days. During the hospitalization, Respondent ordered the following tests: chest x-rays of sella turcica, a barium enema, pelvic sonogram; an EKG, an upper G.I. series with small bowel follow-through- a urinalysis, a platelet count, serum glucose levels (four); SMA 12, urine culture and colony count, progesterone levels, S Follicle- stimulating hormone levels and total estrogen levels. The x-rays of the sella turcica would be indicated where a pituitary tumor is suspected, but there was no indication that a pituitary disorder was suspected other than a vague reference to a menstrual disorder (which was never described in the records for patient K.G.). Therefore, this test was unnecessary. Although a barium enema was ordered, there was no description of pain or any disorder of the bowel and no indication of bowel changes which would indicate any disease of the colon. Therefore, the barium enema was not justified. Although the records reflect at least vague indications for ordering the upper GI series, the small bowel follow-through was not justified. Additionally, one isolated estrogen level was ordered. This was inappropriate because the test results would only be meaningful if a series of estrogen levels were obtained to determine the response curve of the ovaries. Therefore, "inappropriate" in this case means "unnecessary." The hospital admission of patient K.G. also was not appropriate. The entire evaluation could have been carried out by a gynecologist on an outpatient basis. No initial, pre-hospitalization referral to a gynecologist was reflected in Respondent's records. The patient was discharged on October 13, 1982, with the following diagnoses: abnormal menstrual periods due to left ovary cyst and abnormal pain due to mild gastritis associated with mild anxiety stage reaction. On his discharge summary for patient K.G., Respondent noted "all this information was given to the patient and was advised the patient to be seen by gynecologist for further result." Respondent's records further corroborated that the hospitalization was unjustified and unnecessary. (Covers Petitioner's PFOF 29-31) On August 4, 1982, Respondent admitted patient L.M. to Pembroke Pines General Hospital for treatment of "acute phlebitis". The patient was assigned medical records number 6965 by Pembroke Pines General Hospital. The patient was hospitalized for a period of thirteen days. Phlebitis is an inflammatory reaction of the vein(s). It is very important that the diagnosis be correct; because, with phlebitis, emboli or clots can break off and travel through the blood to the lungs. It is diagnosed clinically by history and by physical examination. On physical examination, the symptoms of phlebitis include the presence of swelling in the involved leg and the positive "Homan's sign." "Homan's sign" is the term used to describe the pain present from an inflamed deep vein, which pain is experienced when the leg is extended straight out and the foot is dorsiflexed or pushed back towards the leg placing stress on the calf muscle. Radiographically a venogram may be used to confirm or rule out the existence of phlebitis. A venogram is a test involving the injection of dye into the veins of the foot followed by an x-ray examination of those vessels. The records for patient L.M. do not contain adequate documentation of a physical examination of patient L.M. to establish the diagnosis of phlebitis. Thus, the patient may have had phlebitis, there were no adequate descriptions of the status of the right leg recorded in the patient records for L.M. Specifically, there is no mention of Homan's sign and there was no mention of any measurement of the patient's calves to determine whether there was swelling in the involved leg. Without a more thorough physical examination, Respondent should have performed a venogram to confirm the diagnosis. This was not done with patient L.M. (Adopts Petitioner's PFOF 32-34). While patient L.M. was hospitalized, Respondent treated the patient's unconfirmed phlebitis with Heparin (an anti-coagulent) intravenously. The patient remained on Heparin until August 15; 1982. On August 15, 1982, Respondent additionally ordered Coumadin, which is also an anti-coagulent, to be given to patient L.M. Respondent ordered Coumadin 5 mg. to be given by mouth at 6:00 p.m. (to be started on August 15, 1982)), and at 10:00 a.m. (to be started on August 16, 1982). Respondent's order provided that if the P.T. (prothrombin time) was twenty-five seconds, to hold the Coumadin. The normal prothrombin time is in the range of eleven to thirteen seconds. The dose of Coumadin given was inadequate to anti-coagulate the patient. (Adopts Petitioner's PFOF 35). On the day prior to discharge of L.M., Respondent wrote the following order: "If (patient) is below 20-tomorrow- and over 11.0. (patient) may be discharge(d)..." For the Coumadin to be effective (i.e. in order to have an adequate anti-coagulant effect from the Coumadin), the prothrombin time should have been above twenty prior to discharge. The prothrombin time on discharge was 12.9 seconds. (Adopts Petitioner's PFOF 36). From the hospital records for patient L.M. and the Doctor's orders for that patient there is adequate basis for the expert testimony that Respondent does not understand the therapeutic effect of Coumadin or its dosages. (Covers Petitioner's PFOF 37). On August 17, 1982; Respondent discharged patient L.M. from Pembroke Pines General Hospital with the following diagnoses: acute phlebitis of the right leg, anxiety stage reaction and migraine syndrome headaches. As discussed previously, the diagnosis of phlebitis cannot be substantiated from the records. Additionally, the records contain no documentation for the diagnosis of migraine syndrome headaches. (With the elimination of unnecessary material, this FOF adopts Petitioner's PFOF 38). On August 9, 1982, Respondent admitted patient M.A. to Pembroke Pines General Hospital for abdominal pain and a gastrointestinal disorder. This patient was assigned number 7448. The documentation of the history and physical examination for patient M.A. was significantly lacking. Patient M.A. was hospitalized for a period of three days. During that three-day period of hospitalization, the following tests were performed on M.A. pursuant to Respondent's orders: an E.K.G., a chest x-ray, an abdominal sonogram, a barium enema, a CRC, a urinalysis, a coagulation test and platelet count, fasting and non-fasting glucose levels (a total of six) SMA 12, a routine stool culture and a colonoscopy. All of the testing performed on patient M.A. could have been performed on an out-patient basis. There was no justification for admission of M.A. to Pembroke Pines General Hospital on August 9; 1982, or for the length of stay. Additionally, Respondent ordered the abdominal sonogram on patient M.A. without any indication for the test, which was unnecessary. This abdominal sonogram was used to view the liver, gallbladder and pancreas. However, there was no indication that M.A. experienced any problems with these organs. (Adopts Petitioner's PFOF 39-40). On admission, Respondent ordered that Diabenese 500 mg. (a glycogenic drug which will reduce the blood glucose levels and is normally used in the treatment of diabetes) be given by mouth daily. Additionally, Respondent ordered that the patient be given insulin on a sliding scale. Insulin is also normally used in the treatment of diabetes. However, diabetes was not listed as a diagnosis on discharge. The hospital chart provides no documentation for the use of Diabenese or the insulin. All glucose levels taken on this patient were within normal limits during the August 1982 hospitalization, and these eliminate any justification for the use of Diabenese or insulin for diabetes unrecorded. (As modified for clarity and to add the inference drawn by the undersigned from the evidence, this FOF adopts Petitioner's PFOF 41). On August 12; 1982, Respondent discharged patient M.A. from Pembroke Pines General Hospital with the following diagnoses: gastrointestinal disorder, abdominal pain secondary to several small diverticula of the left side of the colon, villous adenoma of the sigmoid colon, sinus bradycardia condition and essential hypertension. Several of Respondent's discharge diagnoses were either incorrect or not documented in the records for patient M.A. Sinus bradycardia is a very slow pulse rate. The pulses recorded for patient M.A. during hospitalization were 80, 68, 64, 68, 74 and 70 beats per minute, and were all within normal ranges. On one E.K.G. a notation was made that the pulse rate was slow. However, given the persistently normal pulse rates throughout the patient chart, the diagnosis of sinus bradycardia was incorrect. Additionally, Respondent's diagnosis of essential hypertension was incorrect. Essential hypertension means that type of hypertension for which there is no known cause. All of the blood pressure readings present in the hospital chart for M.A. were normal. Furthermore, the patient was taking no anti-hypertensive agents. Therefore, Respondent's diagnosis of essential hypertension in patient M.A. was also incorrect. Only one of Respondent's discharge diagnoses for patient M.A. was justified by use records for that patient, that of villous adenoma of sigmoid colon. This diagnosis was initially made by a consultant. (Adopts Petitioner's PFOF 42- 44). On March 22, 1983, Respondent admitted patient E.S. to Pembroke Pines General Hospital for abdominal pain with possible biliary disorders. The patient was assigned number 7917 and was hospitalized for a period of fourteen days. During that hospitalization, the following tests were performed on patient E.S., pursuant to Respondent's orders: an EKG, cervical spine x-rays; a voiding cystourethrogram and intravenous pyelogram, gallbladder sonogram; chest x-ray, an echocardiogram, a barium enema, an upper G.I. series, an oral cholestogram, small bowel series, sonogram of the thyroid glands an air contrast barium enema, a CRC, urinalysis, platelet count, glucose levels (a total of nine), SMA 12, a glucose tolerance test, an SMA 8, which included a serum glucose level, two routine stool cultures, a Thyroid profile, a two-hour post prandial blood sugar, 24 hour urine creatinine levels, insulin levels, by radioimmunoassay, and a Parathyroid hormone study. Much of the testing performed on E.S. during the hospitalization was excessive or unnecessary. Those tests that were indicated could have been performed on an out-patient basis. The insulin level by radioimmunoassay is indicated where secreting tumors of the pancreas are suspected. There was no indication in the records of patient E.S. that such a tumor was present. The intraveneous pyelogram is indicated where kidney disease is suspected. There was no indication in E.S.'s records that kidney disease was suspected or present. A sonogram of the thyroid is indicated where there is a palpable mass of the thyroid. In the records for patient E.S. there is no record of a palpable mass. In the records for patient E.S., the thyroid was described as mildly to moderately enlarged. However, there was no description of a mass or venous distention, and the carotid pulses are present. Therefore, it would appear unlikely that a mass was present. Accordingly, there was no indication for a sonogram of the thyroid gland. After performing a sonogram of the gall bladder (for which there was no indication) which yielded normal findings, Respondent ordered a cholecystogram. This latter test involves the oral consumption of a dye which is then excreted into the gallbladder so that the gallbladder can be viewed by x-ray. The test is used to determine if there are any filling defects in the gallbladder. In view of the normal gallbladder sonogram which had already been performed on patient E.S., it was excessive to additionally order the cholecystogram. There was no indication for performing a small bowel series on this patient. It was excessive to order and perform nine glucose levels where all of the levels obtained were within normal ranges. Respondent performed no real therapy on patient E.S. during the above-described hospitalization. The hospitalization was for diagnostic purposes. On April 5, 1983, Respondent discharged patient E.S. from Pembroke Pines General Hospital with the following diagnoses: diverticulosis of the sigmoid and descending colon, borderline diabetes mellitus, hyperuricemia, enlarged thyroid gland with hypofunctioning, diverticulum of the bladder and essential hypertension. The diagnosis "borderline diabetes mellitus," wads not justified by the patient's chart since all glucose levels found in the patient's chart were within normal ranges. (Adopts Petitioner's PFOF 45-47). On September 17, 1982, and on May 10, 1983, Respondent admitted patient A.W. to Pembroke Pines General Hospital. The patient was assigned medical records number 2966 by Pembroke Pines General Hospital. Petitioner established no violations with regard to this patient. (Covers Petitioner's PFOF 48). On October 6, 1982, Respondent admitted A.P. to Pembroke Pines General Hospital for a possible angina attack and a possible myocardial injury attack. Patient A.P. was assigned medical records number 8000 by Pembroke Pines General Hospital. Despite the fact that angina was suspected, Respondent failed to obtain a cardiac consultation during the October 1982 hospitalization of A.P. During the hospitalization of patient A.P., four chest x-rays and one CT Scan of the chest were performed pursuant to Respondent's orders. These tests revealed two areas of increased density in the left chest which were characterized as "masses." The recommendation made by the radiologists who reviewed the x-rays and the CT Scan was that further evaluation was necessary. Despite this recommendation, no further evaluation was performed in the hospital and no plan of follow-up or referral was included in the discharge summary prepared by Respondent. The importance of such documentation on "follow-up" is that it shows that the physician is aware of the problem and assures that the patient will be properly managed. From the records for A.P., it is impossible to determine whether or not Respondent planned proper management of the "masses" after discharge of the patient. (As modified to conform to the record as a whole- this FOF accepts Petitioner's PFOF 49-50). On October 23, 1982, Respondent discharged patient A.P. from Pembroke Pines General Hospital with several discharge diagnoses including the diagnosis of sliding hiatus[sic] hernia with gastroesophageal reflux. This diagnosis was not supported by the records for the patient. The hiatus is the opening in the diaphragm through which the esophagus passes into the stomach and should fit very snugly. In the case of a hiatal hernia, due to the increase of intra- abdominal pressure, a portion of the stomach slips through that opening and slides back and forth. Most commonly, if the patient is lying down, and particularly if the patient has had a sizable food intake immediately prior to lying down, the weight of the food will carry the stomach up into the abdomen. This is the disorder which Respondent diagnosed in patient A.P. The disorder is properly diagnosed by x-ray, specifically an upper G.I. series, Respondent did not order one. Respondent did order an upper abdominal sonogram and chest x- rays, neither of which would or did verify the existence of a sliding hiatal hernia with gastroesophageal reflux. Accordingly, Respondent's diagnosis was not substantiated. (As modified for clarity and to include the inferences of the undersigned, this FOF adopts Petitioner's PFOF -51). On July 1, 1983, Respondent admitted patient T.S. to Pembroke Pines General Hospital. Patient T.S. was assigned medical records number 9478 by Pembroke Pines General Hospital. The patient was admitted for acute right renal attack and remained in the hospital for a period of six days. On the patient's history, Respondent noted that his impression diagnosis was sinus bradycardia as a secondary problem. Respondent's evaluation of the cardiac status of the patient included ordering the following tests: three E.K.G.'s all of which were abnormal, indicating a previous myocardial infraction of indeterminate age, and a cardiac profile. In Respondent's Discharge for patient T.S., Respondent wrote: On admission, the patient was seen and examined by the ER physician, and after examination was accomplished the patient was admitted to the Telemetry Unit due to the previous history of organic heart disorder and having cardiac arrythmias. The patient was also complaining of chest pain at this time... Despite the above information, Respondent failed to obtain a cardiac "consult" for patient T.S. Furthermore, the cardiac status for the patient was never adequately evaluated. This does not meet the prevailing standards of the medical profession. (Adopts and expands Petitioner's PFOF 52-53). On July 2; 1983, an intraveneous pyelogram (IVP) was performed on patient T.S. pursuant to Respondent's order. The IVP revealed distal right ureteral calculus (or a kidney stone), which was the cause of the patient's renal (kidney) attack. Once the diagnosis of renal calculus was established, patient T.S. should have been discharged. Any remaining pain could be controlled with oral medication. However, instead of discharging the patient, Respondent kept the patient in the hospital for five extra days without adequate justification in the records. (Adopts and expands Petitioner's PFOF 54-55). While patient T.S. was hospitalized, Respondent ordered the following unnecessary or excessive testing: Lanoxin serum levels, quinidine serum levels, and a second IVP. The Lanoxin and quinidine levels would be indicated where it was necessary to monitor the levels of those drugs in the blood. However, the chart for patient T.S. contained no documentation that either quinidine or lanoxin were being administered to the patient, and, therefore, these tests were inappropriate. The second IVP was excessive testing because the first IVP provided all of the information sought by the second IVP, and the diagnosis was established on the original IVP. The hospitalization of patient T.S. was excessive in length and probably should have been no more that two days. (Adopts Petitioner's PFOF 56-57). On October 29, 1982, Respondent admitted patient D.S. to Pembroke Pines General Hospital for a hypertensive crisis and cardiomegaly. Petitioner established no violations with regardo this patient; who was assigned records number 0905. (Adopts Petitioner's PFOF 5). In general, the unrefuted expert testimony supports a finding that with respect to all of the records previously described, excluding patients O.A., R.R., R.S., A.W., and D.S., the admission notes and discharge summaries were not coherent. The undersigned accepts the expert testimony of Dr. Ehrlich that a large part of this lack of coherency is probably due to Respondent's inability to communicate in English with proficiency and fluency. However, the undersigned finds upon the expert opinion testimony of both Dr. Handworker and Dr. Ehrlich that these records of Respondent were additionally medically deficient as reflected in the foregoing findings of fact, in that Respondent's records failed to include pertinent necessary historical data that would be indicated, and Respondent failed, in his discharge summaries, specifically, to address the need for follow-up care. (Adopts, with modifications for clarity, Petitioner's PFOF 59). The refuted expert testimony is that with reference to two patients, M.A. and L.M., Respondent's records were not sufficient to justify the treatment of the patient. With respect to patient M.A., there was a significant lack of documented history and physical examination. With respect to patient L.M.; there was inadequate documentation of the clinical history and physical examination results, or of pertinent laboratory testing (venogram) to show that the patient, in fact, had phlebitis. Therefore, there was inadequate documentation for administering anti-coagulants to this patient. (Adopts Petitioner's PFOF 60). The unrefuted expert testimony is based only upon review of records. Neither testifying physician treated any patient referenced. In the case of at least one patient, the name is difficult even to determine. However, it is clear that in many instances; Respondent's records contained inadequate information to justify admission of the patients to the hospital, particularly with respect to patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4924), 9235, K.G. (9540), M.A. (7448), and E.S. (7917). In many instances; Respondent's records were inadequate to justify many of the diagnoses which were made by Respondent. Specifically, the records for patient C.M. (6893), F.L. (4144), E.P. (4924), L.M. (6965); M.A. (7448), and E.S. (7917), did not contain justification for many of the diagnoses made by Respondent. In many instances, the records were not adequate to justify all of the testing performed, particularly those records for F.L. (4144), E.R. (4910), Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478). In two instances; with respect to patients M.A. (7448) and T.S. (9478); Respondent's records were inadequate to justify the length of the hospital stay. (Adopts Petitioner's PFOF 61). In many instances, Respondent unnecessarily admitted patients. By admitting patients unnecessarily and for excessive periods of time, Respondent benefited from the daily charge which he could assess for seeing the patient while hospitalized and it is possible to infer therefrom that this amounts to exploitation of patients C.M. (6893), F.L. (4144), J.G. (2693), E.R. (4910), E.P. (4024), Patient No. 9235, K.G. (9540), M.A. (7448), and E.S. (7917) for the financial gain of the Respondent. However, without some further evidence of malicious intent above and beyond mere incompetency, the undersigned views the evidence insufficient to draw such an inference. (For the reasons stated herein, Petitioner's PFOF 62 is rejected). Then Respondent unnecessarily or excessively tested patients [Specifically, patients F.L. (4144), E.R. (4910), E.P. (4924); Patient No. 9235, K.G. (9540), M.A. (7448), E.S. (7917) and T.S. (9478)], the patients or their insurance companies were required to pay the hospital for these tests which should not have been performed. However, without some evidence of conspiracy or something more than mere incompetency, the undersigned does not view the evidence as sufficient to draw such an inference. Without more than appears in this record, it is not logical to assume that Dr. Gonzalez benignly set out to profit Pembroke Pines General Hospital out of the "goodness" or "badness" of his heart. Further, the very fact that he fairly consistently avoided consultations with specialists suggests that this Respondent was not intending to enrich any third parties. (For the reasons stated herein, Petitioner's PFOF 63 is rejected). Respondent failed with respect to all of the above-named patients (excluding R.R., D.S., A.W., R.S., and O.A.) to practice medicine with that level of care, skill and treatment which is recognized as acceptable by a reasonably prudent similar physician under similar conditions and circumstances when he: admitted patients without justification; unnecessarily and inappropriately ordered tests for the patients which were not indicated by the patient's symptomatology; incorrectly diagnosed and conditions of patients he treated; inadequately documented the need for admission to the hospital and testing, inadequately documented the justification for his diagnoses and inadequately documented follow-up care; inappropriately prescribed Coumadin for patient L.M.; and excessively hospitalized two patients. (Adopts Petitioner's first PFOF 64). Respondents for the reasons previously enumerated failed to practice medicine within the prevailing standards of practice in the community. (Adopts Petitioner's second PFOF 64). Diagnoses are of great significance in a patient's care. They impact on the future well-being of the patient. Respondent, with respect to the records reflected above, failed to demonstrate adequate diagnostic ability. (Adopts Petitioner's PFOF 65).
Recommendation Based on the foregoing, it is therefore RECOMMENDED that the Board of Medicine enter a final order finding Respondent guilty of violating Section 458.331(1)(n) and (t), Florida Statutes (Counts One and Two),and not guilty of violating Sections 458.331(1)(1) and (o)(Counts Three and Four), and suspending Respondent's license to practice medicine for a minimum of three years, with reinstatement conditioned upon proof of attendance and successful completion of courses selected by the Board of Medicine related to diagnosis and necessary record keeping. DONE and RECOMMENDED this 31st day of July, 1987, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 31st day of July, 1987. COPIES FURNISHED: Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Stephanie A. Daniel Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Robert A. Gonzalez, Jr. 1900 North Univeristy Drive Suite 110 Pembroke Pines, Florida 33024 Van Poole Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Soled Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The ultimate issues for determination are whether Respondent, Dr. Lieberman, committed the violations as alleged, and if so, what license discipline is appropriate. More specifically, did the following violations of Chapters 893 and 458, Florida Statutes, regulating the practice of medicine occur as alleged: As to Patient, M. A. Sections 893.05, Florida Statutes, and Section 458.1201(1)(k), Florida Statutes, (1977) reenacted as Section 458.331(1)(g), Florida Statutes, (1987) -- by inappropriately prescribing certain drugs classified as controlled substances. Section 458.1201(1)(m), Florida Statutes, (1977) reenacted as Section 458.331(1)(j) and (t), Florida Statutes, (1987) -- by utilizing examinations for his own sexual gratification, by making inappropriate remarks during examinations and by engaging in sexual activity with the patient within the patient-physician relationship. As to Patient, L. I. Sections 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, -- by forcibly engaging in sexual intercourse with a patient and by inappropriately using the examination for his own sexual gratification. As to Patient, D. B. Section 458.329, Florida Statutes, and Subsections 458.331(1)(j), [formerly (k)], (t) and (x), Florida Statutes, by engaging in sexual conduct with a patient and using the examination for purposes of obtaining sexual gratification. As to Patient, B. J. (Case NO. 88-3334) Section 458.331(1)(t), Florida Statutes, by failing to obtain appropriate tests on a patient who was later diagnosed as having cervical cancer.
Findings Of Fact At all times relevant to the allegations of the Administrative Complaints, Robert A. Lieberman was a physician licensed to practice medicine pursuant to Chapter 458, Florida Statutes, and holding license number ME 0023165. After two years in the U.S. Navy, serving as a physician with the rank of Lt. Commander, Dr. Lieberman opened a private practice in Orlando, Florida in 1976. At all times relevant to the allegations of the complaints, Dr. Lieberman has been Board Certified in obstetrics and gynecology and maintained his practice at 615 East Princeton Street, in Orlando, Florida. Dr. Lieberman's practice includes approximately 6500 patient visits per year and the delivery of approximately 180 infants per year. M. A. Patient M. A., also known as M. Q., was treated by Dr. Lieberman from February 1, 1977 until May 31, 1979. She also visited the office on October 24, 1979 for a pregnancy test, but was not seen by Dr. Lieberman on that date. During the course of her visits she was treated for a variety of complaints including difficulty in adjusting to birth control pills, gynecological infections, post-coital bleeding and a spontaneous abortion. She underwent an induced abortion on February 7, 1977, and later became an obstetric patient of Dr. Lieberman. She delivered a live birth on June 29, 1978. During the course of her treatment M. A. was an extremely stressed and disturbed young woman. In January 1978, She reported having been beaten by her boyfriend. She also reported heavy usage of cocaine and "sopors" (methaqualone) In January 1979, she reported she was raped. At one point, during a divorce, she wrote an anguished letter to Dr. Lieberman asking that he be her "shrink" (her term, which in the context of the letter meant counselor). (Petitioner's Exhibit 7.) During the course of his treatment of M. A., Dr. Lieberman's office notes and copies of prescriptions reflect the following controlled substances that he prescribed for her: Date 2/7/77 Type Percodan Dosage (not indicated) Number 12 2/22/77 Valium 10 mgs 30 3/1/77 Percodan (not indicated) 30 3/1/77 Quaaludes (not indicated) 10 3/10/77 Valium 10 mgs 30 3/18/77 Valium 10 mgs (not indicated) 5/6/77 Valium 10 mgs 60, plus one refill 5/20/77 Quaaludes 300 mgs 15, plus one refill 5/27/77 Valium 10 mgs 60, plus one refill 8/11/77 Tranxene 7.5 60 1/4/78 Phenobarbitol 1 gr 60, plus one refill 1/4/78 Darvocet N100 60 5/17/78 Quaaludes 300 mgs 30 7/13/78 Fiornal No. 3 20 7/17/78 Seconal 100 mgs 10 7/20/78 Fiornal No. 3 20 8/4/78 Quaaludes (not indicated) 30 8/7/78 Fiornal No. 3 15 8/24/78 Quaaludes 300 mgs 30 9/18/78 Quaaludes 300 mgs 30 9/19/78 Quaaludes (not indicated) 30 9/25/78 Quaaludes 300 mgs (not indicated) 10/10/78 Quaaludes 300 mgs 30 11/1/78 Quaaludes 300 mgs 30 11/6/78 Valium 10 mgs 30, plus two refills 11/6/78 Valium (not indicated) 30, plus two refills 12/15/78 Percodan (not indicated) 20 12/26/78 Quaaludes 300 mgs 30 1/2/79 Quaaludes 300 mgs (not indicated) 1/15/79 Placidyl 500 mgs 30 2/1/79 Valium 10 mgs 30 5/31/79 Placidyl 750 mgs 30 The medical records also reveal that M. A. was given a single injection of Demerol at the time of her abortion procedure on February 7, 1977. No evidence supports the allegation that this use of the drug was inappropriate. Quaaludes are a depressant and were prescribed for sleep, primarily. They have an effect comparable to barbiturates. They are highly addictive and, while legal at the time that Dr. Lieberman was prescribing them for M. A., they were removed from the market around 1982 because of their abuse. Placidyl is also a sleeping pill, although in a different class of drugs than Quaalude. Tranxene is similar to Valium and both are used as tranquilizers. Dr. Lieberman's office notes did not reflect the basis for the wide array and sometimes frequent prescriptions. In several instances he prescribed Quaaludes without any notation in his office records. This occurred on August 24, 1978, September 18, 1978 and October 10, 1978. Nevertheless, the testimony of the agency's physician witnesses lacked specificity with regard to the propriety of Dr. Lieberman's prescriptions to this patient. Dr. Curry felt that the prescriptions for Quaaludes were "excessive" and that it was "unwise" for a physician to prescribe this quantity of a popular street drug to a known drug abuser. (Petitioner's Exhibit 2, pp. 6 and 10.) He offered no opinion on the other controlled substances. Dr. Rudolph had a close family member who had a problem with Quaaludes and he would never prescribe this drug. He was concerned generally with regard to the variety of drugs, but could conclude that only the Quaaludes were absolutely, totally, unnecessary. (Petitioner's Exhibit 1, P. 71.) Neither physician was qualified as an expert in pharmacology and neither was particularly familiar with M. A.'s records, as they had difficulty reading the office notes. M. A.`s testimony with regard to her experiences as Dr. Lieberman's patient was vague and confused. Ten years ago she was, as she described, a different person, under substantial stress and thoroughly habituated to drugs. She claims that Dr. Lieberman knew that she was a substance abuser and willingly provided her with the prescriptions she sought. She also claimed that he made embarrassing "joking and filthy" comments about the appearance of her genitalia during her pelvic examinations. She also claims that on one occasion, when she had gone to his office seeking drugs, he required that she perform oral sex on him. The dates and specifics of these charges were not provided. M. A. admitted that during the period in question, she was on tranquilizing drugs all of the time and that she was not aware of all that Dr. Lieberman had done to her until 1982 or 1983. Prior to her testimony in this proceeding she had given sworn statements in deposition or otherwise with regard to her relationship with Dr. Lieberman. In one such statement given on November 9, 1984, she testified that she was a patient of Dr. Lieberman in the early 70's and that he prescribed drugs for her for a period of about eight years. (Petitioner's Exhibit 8.) The patient records and prescriptions substantiate that M. A. was a patient for approximately two years (1977-1979). Dr. Lieberman was not in private practice until 1976, and M. A. concedes that she first met him when she visited his office at East Princeton Street. In addition to discrepancies in dates, M. A. at various times claimed that Dr. Lieberman made advances or fondled her prior to the oral sex incident and, in contradiction, claimed that she was surprised by the incident as sex had never come up at all other than verbal teasing. (Transcript, pp. 52 and 68, Petitioner's Exhibit 3, P. 10.) In summary, M. A. was an earnest and emphatic witness. However, the lavish and unspecific charges she has made cannot alone form the basis of proof of the violations related to this patient in the Administrative Complaint. In spite of the ten years time that has elapsed since these violations allegedly occurred, the agency failed to produce written records, prescriptions, and corroborating testimony from the other patients through whom M. A. claimed Dr. Lieberman was supplementing her drugs, to substantiate her charges. L. I. L. I. was Dr. Lieberman's patient from July 1978 until November 1982. She was initially treated for conditions requiring a total abdominal hysterectomy. She had follow-up visits and was seen intermittently for other non-related complaints through April 1980. Two years later she again visited Dr. Lieberman on June 8, 1982, when she presented complaints of pain in her left side. On June 17, 1982, she was hospitalized and Dr. Lieberman performed an exploratory laparotomy with lysis of adhesions. That is, abdominal surgery was performed and adhesions or scar tissue attached to the ovary were broken apart, without complications. She was discharged after some further tests related to digestive and vision problems, on June 25, 1982. On July 2, 1982, L. I. returned to Dr. Lieberman's office for a post- operative examination and for removal of her bandages. At the time of the examination, as instructed, L. I. kept her clothing on, except for her underpants, which she removed. She was given a paper sheet which she used as she lay an the examining table. Dr. Lieberman conducted the examination without a chaperone, pulling the sheet up and pressing around the abdomen area. After the examination, he said she could get up and reached out to help her when she had difficulty. Instead of moving away, he stood and stared at L. I. as she sat on the table with her legs outstretched. This made her uncomfortable. He told her to scoot forward and when she did not, he pulled her forward and unzipped his pants. L. I. protested verbally with, "Don't do this, and "this is not right." He then leaned forward and quickly had sexual intercourse with her. Afterwards L. I. sat and cried. He turned to the sink and handed her tissues and asked if he had hurt her. He said that he did not want her to be upset, that it was important that she not say anything and that he would see her again in two weeks. (Transcript, Vol. I, pp. 79-86.) L. I. did not report the rape. She was profoundly embarrassed and felt that she was at fault for not struggling. In order to return to work after her surgery, L. I. had to have a release from her attending physician. She returned to Dr. Lieberman's office on July 20, 1982, as he was the only person who could provide the release insisted on by her employer. The nurse instructed her to get undressed for a pelvic examination. She questioned why a pelvic examination was necessary, but did undress. The nurse left and Dr. Lieberman entered the examining room. As he walked toward her, L. I. put her hand up and said, "No, not until the nurse comes'. He turned, and L. I. thought he had pushed a call button for the nurse. She stretched back on the table positioned for the examination, with her feet in the stirrups. Dr. Lieberman stood next to her at the side of the table, rather than at the end of the table between the stirrups, where a pelvic examination is usually conducted. He touched her between the legs with his bare hand and L. I. heard him undoing his pants. She said, "Oh, not this again," and the phone rang in the examining room. As he turned to answer the phone, she sat up and wrapped herself with the sheet. After the call, he walked out. As L. I. was getting dressed, he walked back in. She said, Just give me my release and I'll go". He told her to sit down and calm herself; she sat on the stool where her clothes had been and asked again for the release. He told her it was important not to say anything about what happened, that it had never happened before; he wrote her release on a prescription pad and left. (Transcript, Vol. I, pp. 90-94.) L. I. returned to Dr. Lieberman's office for one final visit in November 1982. She had received a card in the mail reminding her that it was time for a Pap test. By then she had thought about what had happened and felt that, given another opportunity, she could struggle or scream and someone would believe her. Otherwise, she was concerned it was just her word against the doctor. On this occasion, she undressed fully for the exam. A nurse was in the room almost the entire time and no improper advances or comments were made. The examination and discourse afterward were uneventful. Although, she told him that she was still upset about what happened. He didn't respond. L. I. never returned to Dr. Lieberman or to any other gynecologist. In March 1983, L. I. began seeing a mental health counselor through her employee assistance program when she was having trouble with one of her children. At some point in the counseling process, L. I. began discussing her experience with Dr. Lieberman. As a result of the counseling she gained some insight into her own reactions to the incident. She is intimidated easily and is compliant. She tries to let things go and handle matters in her own way. In his testimony at hearing, Dr. Lieberman agreed that L. I. was reticent and a subdued and submissive type of individual. (Transcript, Vol. IV, P. 138.) She obtained legal counsel civil brought a civil suit against Dr. Lieberman, which suit has since been settled. D. B. D. B. was a patient of Dr. Lieberman from June 1978 until September 1981. She first became his patient when he was the OB/GYN physician on call at Florida Hospital where she had been referred by a family practitioner. He performed emergency surgery, and she continued to see him on a regular basis for routine check-ups and a variety of gynecological services, including two abortions, treatment for infections, and birth control. On September 1, 1981, D. B. visited Dr. Lieberman's office for the purpose of being fitted for a diaphragm, a birth control device. At the instructions of the nurse, D. B. completely disrobed, and draped the paper vest and sheet. She was sitting on the examining table when Dr. Lieberman entered the examining room. They exchanged brief pleasantries with regard to his having been up all night delivering babies. He then approached her, attempted to push her down on the table, and french kissed her while fondling her left breast. She resisted physically by pushing forward, and the incident lasted only ten to fifteen seconds. As he wiped lipstick from his mouth, he told her that she wasn't cheating on her husband. She dressed, left the office and returned to her own office. (Transcript, Vol. I, pp. 52-58.) At the office she talked to a friend who suggested that she do something. The friend called the police and arrangements were made for her to meet them at her apartment. After she made her report to the police, D. B. was contacted by a female police detective, Sgt. Alana Hunter. D. B. decided not to press charges because she had two abortions prior to her marriage and had never told her husband. She was told that the abortions might be disclosed during the prosecution. She later retained the services of an attorney and a civil action is pending. B. J. B. J. was an OB/GYN patient of Dr. Lieberman from September 1979 until May 1984. Her medical care and treatment by Dr. Lieberman included obstetrical deliveries in June 1980 and November 1982, with intervening gynecological care. Part of that care included a test called a Pap smear. This procedure involves the taking of a sample of cells from the patient's cervix which sample is sent to a laboratory for a cytological/pathological examination to determine the presence of abnormal, precancerous or cancerous cells. It is a routine gynecological procedure with the primary purpose of early detection of cancer. The findings of examination of a Pap smear are reported in levels, ranging from I, which is considered normal; to II, considered abnormal or denoting inflamed or damaged cells; to III, inferring cancerous consideration; to IV and V, where carcinoma is more clear and definite. B. J. had Pap smears taken by Dr. Lieberman on September 26, 1979; June 23, 1980; December 18, 1980; July 28, 1981; and May 7, 1982 -- all Class I, although the laboratory reports for the latter three tests noted mild and moderate inflammation. On December 21, 1982, her Pap result was Class II. She was treated with a vaginal suppository and was appropriately directed to return for a follow-up test in one month. The repeat test on January 25, 1983, was still Class II. On February 8, 1983, Dr. Lieberman performed a cryocauterization of B. J.'s cervix. This is an office procedure involving the use of a probe-like instrument which is inserted flush up against the cervix. Nitrous oxide is released to the probe, freezing the atypical cells. This results in a discharge over the next six to eight weeks, during which time the entire surface of the cervix is sloughed away. Dr. Lieberman next saw B. J. on September 14, 1983, when another Pap smear was taken. This returned from the laboratory as a Class I. At that point he was satisfied that the cryocauterization had been successful. Sometime between September 1983 and February 1984, B. J. began experiencing bleeding during and after intercourse. She returned to Dr. Lieberman with that complaint on February 23, 1984. He found the cervix bled when touched and he took another Pap smear. This test returned as a Class II. Since he felt that the procedure had worked in the past, Dr. Lieberman performed another cryocautery procedure on B. J. on March 8, 1984. On May 8, 1984, she came back to his office still complaining of bleeding. Her cervix appeared beefy red and Dr. Lieberman saw very small points of bleeding. He applied a coagulent to attempt to stop the bleeding. She returned two days later and more coagulent was applied to her cervix. On May 30, 1984, Dr. Lieberman applied hot cauterization to her cervix. B. J. never returned for further treatment from Dr. Lieberman. Instead, B. J. changed her Health Maintenance Organization (HMO) family practitioner and was referred to another OB/GYN physician, Dr. Grace Sarvotham. During her pelvic examination B. J. bled profusely and was referred to Dr. Robert DeMaio, a Board-certified OB/GYN, practicing in Winter Park, Florida. Dr. DeMaio examined B. J. on September 5, 1984. Utilizing a colposcope, which is a microscope-type instrument, to magnify the cervix, he found areas of abnormal blood vessels and abnormal white epithelium. Because of these abnormalities, he took a biopsy. The report on the biopsy was returned on September 6, 1984, with the finding exophytic squamous cell carcinoma -- in lay terms, cancer of the cervix that had shown evidence of spread. B. J. was referred to Dr. Thomas Castaldo, a gynecological oncologist, who admitted her for surgery on September 17, 1984, and performed a radical abdominal hysterectomy and bilateral pelvic node dissection. That means her uterus and cervix were removed, along with the supporting tissues and pelvic lymph nodes. She is still being followed by Dr. Castaldo and has received radiation therapy from Dr. John Looper, a Board-certified radiation oncologist in Orlando, Florida. Dr. Lieberman claims that by May 1984, he was beginning to feel that a biopsy should be done on B. J.'s cervix. This procedure involves the surgical removal of a small amount of tissue and its examination under a microscope. He was familiar with this procedure and was trained in it, as well as in the cotoposcopy procedure utilized by Dr. DeMaio. Except with a Class V Pap smear, which undeniably indicates cancer, a diagnosis cannot be made from a Pap smear. The abnormalities or inflammations noted with a Class II Pap smear are symptoms of some condition which must be diagnosed before they are treated. Dr. Lieberman's use of the cautery procedures prior to diagnosis served to temporarily mask the symptoms. His failure to diagnose B. J.'s condition prior to treatment, or to rule out cancer or precancerous condition was a departure from the standards of acceptable and prevailing medical practice. SUMMARY OF FINDINGS One of the most sensitive but essential functions of a fact finder is the resolution of conflicting testimony by weighing the credibility of witnesses. Disposition of the issues in this case involves almost exclusively that function. M. A.'s rambling and confused account of her life as a drug abuser in the 1970's, indiscriminately consuming vast quantities of controlled substances, was either zealous hyperbole or a candid revelation of her tortured former existence and mental state. Neither construction recommends the credibility of her allegations of Dr. Lieberman's wrongdoing. The agency failed to prove the specifics of those allegations. There were a few prescriptions, some of which were never recorded in Dr. Lieberman's office notes for this patient, contrary to his avowed practice. But those prescriptions in no way fully corroborated M. A.'s testimony. Likewise, the expert opinions based on review of office notes, medical records and the prescription forms were too equivocal to outweigh contrary opinions offered by Dr. Lieberman's experts. L. I. and D. B., in contrast, were convincing and competent witnesses. L. I. credibly explained how she could return twice to the scene of her rape. Her unwillingness to immediately report the incidents was also explained. D. B. stated at hearing that she did not receive any treatment in Dr. Lieberman's office on September 1, 1981. In an earlier, out-of-hearing statement, she established that she had been fitted with a diaphragm during the visit and prior to Dr. Lieberman's untoward conduct. The earlier statement is consistent with the office notes in records maintained by Dr. Lieberman. The inconsistent statements do not, however, impeach her allegation that Dr. Lieberman kissed and fondled her on that occasion. Dr. Lieberman claims that he has no independent recollection of the visits by these patients on the dates in question. He denies that he is a violent person who could have assaulted these women. Although sexual assaults are generally considered acts of violence, in these instances little force was required. He had established a relationship of trust and took advantage of that trust. His testimony that coitus is anatomically impossible with the woman in a seated position, likewise begs the question. L. I. described her position as seated on the examining table with her legs dropped, when the extension of the table was dropped by Dr. Lieberman. He positioned her, as she described, with his arm around her buttocks, moving her forward. A simple rotation of the anatomical chart, received in evidence as Respondent's Exhibit 12, demonstrates how entry could have been accomplished under those circumstances. Uncontroverted expert testimony established that the sexual activities by Dr. Lieberman with L. I. and D. B. were outside the scope of generally accepted examination or treatment of a patient. With regard to Patient B. J., the solid weight of expert evidence established that the failure to obtain appropriate tests was an unacceptable deviation from the standards of reasonable medical care. The wrongdoing was not, as argued by counsel for Respondent, the failure to diagnose B. J.'s cancer. The violation was the persistent treatment of symptoms whose etiology had not been established. The testimony of Dr. William Russell, one of Respondent's experts, regarding the use of Pap smears in the detection of cancer, was informative, but his opinion that a colposcopy or biopsy of B. J.'s cervix during Dr. Lieberman's treatment was unnecessary is not persuasive in the face of the overwhelming competent evidence presented by the agency's witnesses.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered by the Board of Medicine finding Robert A. Lieberman, M.D., guilty of sexual misconduct in the practice of medicine and failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and revoking his license to practice medicine. DONE and ENTERED this 13th day of April, 1989, in Tallahassee, Leon County, Florida. MARY CLARK 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 13th day of April, 1989. APPENDIX Subsection 120.59(2), Florida Statutes, requires that if a party submits proposed findings of fact, the order must include a ruling on each. Counsel for Petitioner submitted a 101-page "proposed recommended order", with 599 separately numbered paragraphs styled "proposed findings of fact". The vast majority of these paragraphs are not proposed findings of fact, but rather are a summary statement of testimony of the witnesses, taken from the transcript of hearing and the two depositions of Petitioner's experts. The statements are not organized by issue or subject matter but faithfully follow the order in which the testimony was given at hearing. Although these statements have been read, no rulings need be made. Any rulings would be mere commentary on the testimony as summarized by Petitioner. Specific Rulings on Respondent's Proposed Findings of Fact (Case NO. 88-3333) Adopted in paragraph 1. Adopted in paragraphs 2 and 3. Adopted in paragraph 2. Adopted in paragraphs 4, 14 and 23, with the exception of the last sentence which is not addressed in the record. Adopted in substance in paragraph 4. Adopted in summary in paragraph 5, except that the number of months is 15, not 12. 7.-9. Adopted in summary in paragraph 10. 10.-12. Rejected as unnecessary. 13.-17. Adopted in summary in paragraph 6. 18.-45. Adopted in summary in paragraphs 5, 7 and 10. 46.-53. Rejected as unnecessary. 54. Adopted in substance in paragraph 4. 55.-60. Rejected as unnecessary. 61.-62. Adopted in paragraph 23. 63. Adopted in paragraph 24. 64.-65. Rejected as unnecessary 66. Adopted in paragraph 24. 67.-69. Rejected as unnecessary. Adopted in paragraph 43. Adopted in paragraph 14. Rejected as unnecessary. Adopted in paragraph 15. 74.-75. Rejected as unnecessary. 76. Adopted in paragraphs 18 and 19, except that the record does not establish that a pelvic examina- tion was conducted on July 20, 1982. (Case NO. 88-3334) 1. Adopted in paragraph 1. 2.-3. Adopted in paragraphs 2 and 3. Adopted in paragraph 27. Adopted in paragraph 28. Adopted in paragraph 29. Adopted in paragraphs 37 and 39. Adopted in paragraph 39. Adopted in paragraph 31. Adopted in paragraph 31, except that the record established that the condition is not unusual after a vaginal delivery. B. J.'s delivery was a Caesarean section. 11.-12. Adopted by implication in paragraphs 30 and 31. Adopted in paragraph 31. Rejected as contrary to the weight of evidence. Adopted in paragraph 32. Rejected as unnecessary. Adopted in paragraph 33. Rejected as unnecessary, but still implied in the finding in paragraph 34. 19.-21. Adopted in paragraph 34. Adopted in paragraph 35. Rejected as unnecessary. Adopted in paragraph 35. 25.-26. Adopted in summary in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 38. 29.-30. Rejected as unnecessary, except the fact that she underwent radiation therapy, addressed in paragraph 38. COPIES FURNISHED: PETER FLEITMAN, ESQUIRE ONE DATRAN CENTER, SUITE 1409 9100 SOUTH DADELAND BOULEVARD MIAMI, FLORIDA 33156 THOMAS M. BURKE, ESQUIRE RICHARD A. SOLOMON, ESQUIRE 11 EAST PINE STREET POST OFFICE BOX 1873 ORLANDO, FLORIDA 32802 DOROTHY FAIRCLOTH, EXECUTIVE DIRECTOR BOARD OF MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 KENNETH D. EASLEY, ESQUIRE GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
