The Issue The issue is whether Dr. Veloso is subject to discipline because he was convicted of the first degree misdemeanor of Medicaid fraud.
Findings Of Fact A three count information was filed against Dr. Veloso in the circuit court for Palm Beach County on April 2l, 1989, alleging that Dr. Veloso was guilty of filing a false Medicaid claim, receiving payment for a false Medicaid claim, and grand theft. A probable cause affidavit had been executed by a special agent for the Medicaid fraud control unit of the Office of the Auditor General on July 19, 1988, setting forth the results of interviews the agent had with persons on whose behalf Medicaid billings had been submitted by Dr. Veloso in 1986 and 1987. Patients stated that they had not actually been treated by Dr. Veloso. According to the judgment entered by the circuit court in Palm Beach County on October 2, 1989, Dr. Veloso entered a plea of guilty to the first degree misdemeanor of Medicaid fraud, as a lesser included offense encompassed within Count I of the information, which had charged him with the felony of filing a false Medicaid claim in violation of Section 409.325(4) (a), Florida Statutes. The judgment bears a hand interlineation that the guilty plea is an "Alford" plea. The judge withheld adjudication of guilt on October 6, 1989, and placed Dr. Veloso on probation for a period of one year, subject to a number of conditions, including that he pay restitution to the Department of Health and Rehabilitative Services of $492, along with $5,000 as the cost of investigation and $80.25 in court costs. A separate order requiring restitution in those amounts was also entered on October 2, 1989. At the time Dr. Veloso entered his guilty plea, he was represented by counsel. At the time of the events charged in the information, Dr. Veloso had been licensed as a medical doctor by the State of Florida since 1975. He was also a licensed pharmacist. Dr. Veloso has never before been the subject of disciplinary action by the Board of Medicine or the Board of Pharmacy. Dr. Veloso testified during the hearing that he is innocent of any wrong doing, and entered his plea of guilty only as a plea of convenience. He testified about the six patients who are named in Count I of the information, in an attempt to demonstrate that he had actually treated those persons, was familiar with them, and was therefore entitled to bill Medicaid for his services as a physician. Dr. Veloso also testified that he would not have pled guilty if he had known that doing so would jeopardize his licensure. The testimony of Dr. Veloso is not convincing. At the time when the State of Florida was prepared to go to trial on the criminal charges Dr. Veloso himself determined that there was a sufficient likelihood that his testimony would not be persuasive that he declined to go to trial, and entered the plea of guilty which is the basis for the board's administrative complaint. Dr. Veloso himself describes an "Alford" plea in his proposed findings of fact in the following way: A plea of "Alford" is the result of the holding in North Carolina v. Alford, 400 U.S. 25 (1970). Essentially, the Alford plea recognizes three elements: (a) a consistent affirmance of innocence, (b) a waiver of the right to a trial and (c) the existence of a record, at the time of the plea which contains overwhelming evidence against the accused. Based upon the certified copies of the documents from the criminal prosecution, Dr. Veloso's probation should have terminated by October 6, 1990. Dr. Veloso apparently has successfully completed his period of probation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Veloso be found guilty of having violated Section 458.331(1)(c), Florida Statutes (1985), that his license to practice medicine be suspended for a period of six months, and that he be fined $1,500. DONE and ENTERED this 26th day of February, 1991, at Tallahassee, Florida. WILLIAM R. DORSEY, JR. 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 26th day of February, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5481 Rulings on findings proposed by the Respondent: Findings 1 and 2 have been accepted. Finding 3 has been rejected. The reasons for the rejection are detailed in the Findings of Fact. COPIES FURNISHED: Richard Grumberg, Esquire Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Andrea Newman, Esquire Law Office of Michael P. Weisberg 1840 Coral Way, 4th Floor Miami, FL 33145 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent committed the offenses alleged in the Administrative Complaint and, if so, the penalties that should be imposed, against his license to practice medicine in the State of Florida.
Findings Of Fact At all times pertinent to this proceeding, Respondent was licensed to practice medicine in the State of Florida, having been issued license number ME 0003174. Respondent, who was first licensed to practice medicine in the State of Florida in 1946, retired in 1984 and his license was soon thereafter placed on an inactive status. Respondent is registered with the Drug Enforcement Agency, DEA # AP 0114087, authorizing Respondent to issue controlled substances in Coral Gables, Florida. In June 1987, Respondent resided in or near Franklin, North Carolina. Respondent is not licensed to practice medicine in the State of North Carolina, and he is not authorized to issue controlled substances in the State of North Carolina. On or about June 8, 1987, Respondent authorized Kenneth Leon Murphy, a pharmacist who at that time worked at the Revco Pharmacy in Franklin, North Carolina, to fill a prescription for acetaminophen with codeine and to dispense the same to Respondent. Codeine is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes. This prescription was filled on June 8, 1987, by the Revco Pharmacy in Franklin, North Carolina and picked up by Respondent that same day. On June 11, 1987, Respondent wrote a prescription for chloral0 hydrate to be dispensed to himself. Respondent listed his Drug Enforcement Agency number on the prescription. Respondent had the prescription filled by Mr. Murphy at the Revco Pharmacy in Franklin, North Carolina where he personally picked up the prescription. Chloral hydrate is a controlled substance as defined by the provisions of Chapter 893, Florida Statutes.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(q),(r), and (v), Florida Statutes, which reprimands Respondent for these violations, and which places Respondent's licensure on probation for a period of one year. It is recommended that no administrative fine be imposed in consideration of the mitigating factors presented by this case. DONE AND ENTERED this 22nd day of December, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 3670 The proposed finding contained in paragraph ten of the Petitioner's proposed recommended order that Respondent's license is delinquent is rejected as being unsubstantiated by the evidence. The remaining proposed findings of fact submitted on behalf of Petitioner are adopted in material part by the Recommended Order. COPIES FURNISHED: Andrea Bateman, Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William S. Piper, Sr., M.D. 1019 Malaga Avenue Coral Gables, Florida 33134 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth B. Basley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether respondent's license as a registered nurse should be disciplined on charges that she improperly recorded the administration and disposal of controlled substances in violation of Section 464.018(1)(d) and (f), Florida Statutes (1981).
Recommendation Based on the foregoing, it is RECOMMENDED: That respondent be administratively fined $500.00 and reprimanded for violating Section 464.018(1)(f) on three separate occasions. DONE and RECOMMENDED this 6th day of May, 1983, in Tallahassee, Florida. R. L. CALEEN, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of May, 1983. COPIES FURNISHED: W. Douglas Moody, Jr., Esquire 119 North Monroe Street Tallahassee, Florida 32301 Betty Bowman Fulk, pro se Apartment 1221 1500 N.W. 12th Avenue Miami, Florida 33136 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Helen P. Keefe, Executive Director Department of Professional Regulation Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32202
The Issue The issue is whether the Respondent's license as a practical nurse should be disciplined for the violations as set forth in the Administrative Complaint.
Findings Of Fact At all times relevant hereto, Respondent, Deborah Breski, held a license as a practical nurse in the State of Florida, license number 0584471. On August 26, 1990, Ms. Breski was employed at Sunrise Manor Nursing Home, Ft. Pierce, Florida, worked the morning shift on Hoffman A Wing, and was assigned to care for patient G. M. G. M.'s physician had ordered that 20 mg of Morphine be administered orally to G. M. no more often than every 4 hours, as needed for pain. Due to his throat cancer, G.M. had difficulty swallowing. On August 26, 1990, at approximately 2:00 p.m., Respondent signed-out 20 mg Morphine liquid for patient G. M. on this patient's Controlled Drug Record. Respondent subsequently initialed patient G. M.'s Medication Record and Profile to indicate her administration of Morphine liquid to this patient at approximately 2:00 p.m. Respondent charted the administration of 10 cc Morphine [the same as 20 mg] to patient G. M. at approximately 2:00 p.m. on August 26, 1990, on the Nurse's Medication Notes. She did not watch the patient ingest the drug, because it takes him a long time to swallow, and she had other patients who needed their medication. She did not, however, chart the effectiveness of the drug on the patient later in her shift. At approximately 3:15 p.m. on August 26, 1990, Respondent was relieved from her assignment on Hoffman Wing by LPN Michelle Delancy. Ms. Delancy prepared patient G. M.'s 6:00 p.m. dose of Morphine liquid. When she came to the patient she discovered a cup of liquid at the patient's bedside. Nurse Delancy asked G. M. if he had taken his pain medication earlier, and he respondend "no". Ms. Delancy then summoned Mr. Breski to patient G. M.'s room and questioned her as to the cup and its contents. Ms. Breski asked Ms. Delancy what Respondent should do with the unused medication, and Ms. Delancy indicated that it was Ms. Breski's Morphine and that she should take care of it. Ms. Breski then poured the unused Morphine back into patient G. M.'s original prescription bottle, in an effort to allow its reuse, and save the patient expense. The proper procedure for wasting medications such as Morphine is to dispose of the medication in the presence of another nurse, and to obtain that nurse's signature as verification that she had witnessed the wastage. Ms. Delancy did not witness Respondent's "disposal" of patient G. M.'s unused Morphine. The Department does not contend that Ms. Breski improperly took the Morphine herself or gave it to anyone else; it was poured back into the bottle. Ms. Breski did not document patient G. M.'s failure to consume his Morphine liquid, or her disposal of the medication by pouring it back into the prescription bottle; neither did she correct her previous charting. Patient G. M.'s records indicate that he received and ingested his scheduled 2:00 p.m. dose of Morphine. Ms. Breski's failure to observe the patient consume his medication created a potentially harmful situation. The patient G. M. could have taken his medication just prior to receiving his next scheduled dose, and would then have received a double dose of Morphine, which would have exceeded his physician's order. An expert for the Department opined that based upon a review of the evidence presented by Petitioner, Ms. Breski inaccurately and falsely recorded that she had administered medication to a patient when she had not actually done so; that Respondent did administer medication in a negligent manner, by not watching (and therefore ensuring) that the patient took the medication; and she made or filed a false report or record which she knew to be false, by documenting that she had administered the medication to the patient when she had not actually done so.
Recommendation Based upon the foregoing, it is recommended that the Board of Nursing enter a Final Order finding that Deborah Breski has violated Sections 464.018(1)(f) and (h), Florida Statutes, (1989) and Rule 210-10.005(1)(e)(1) and (2), Florida Administrative Code. Respondent should therefore be reprimanded by the Board, fined an administrative fine of $250.00, and placed on probation for a period of one year, subject to the requirement of taking an appropriate continuing education course which includes instruction on the administration, charting and proper means to waste medication. RECOMMENDED in Tallahassee, Leon County, Florida, this 4th day of October, 1991. WILLIAM R. DORSEY 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 4th day of October, 1991. COPIES FURNISHED: Tracey Scott Hartman Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Deborah Breski 803 Cory Campbell Road Fort Pierce, Florida 34982 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation Board of Nursing 111 Coastline Drive, East Room 50 Jacksonville, Florida 32202
The Issue The issues to be determined are whether Respondent overprescribed controlled substances and failed to maintain legible medical records as alleged in the Administrative Complaint and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, through its Board of Osteopathic Medicine, is the state agency charged with regulating the practice of osteopathic medicine in the state of Florida, pursuant to section 20.43, and chapters 456 and 459, Florida Statutes. At all times material to this proceeding, Richard D. Vitalis was a licensed osteopathic physician in the state of Florida, holding license number OS 4823. Respondent’s current address of record is 3774 China Grove Mews Lane, Fairfax, Virginia 22025. At all times material to the Administrative Complaint, Respondent was practicing as an osteopathic physician at All Family Medical in North Lauderdale, Florida, a licensed pain management clinic. On or about January 27, 2011, L.N., a 29-year-old female, and a resident of Biloxi, Mississippi, presented to Respondent at his Fort Lauderdale office with complaints of back pain. Between January 27, 2011, and August 3, 2011, L.N. presented to Respondent on seven occasions. L.N. indicated that she had previously been prescribed oxycodone 15 mg, oxycodone 30 mg, and Xanax 2 mg. She also indicated that she was dependent on her prescriptions, that she needed them every few hours, that she expected to need them the rest of her life, and that they were not helping resolve her medical problems. L.N. underwent a magnetic resonance imaging (MRI) study on January 27, 2011. The MRI diagnostic images showed that L.N.’s spine had no evidence of pathological disease. There was a normal alignment of the vertebral bodies without evidence of compression or spondylolisthesis. There was normal signal throughout the vertebral bodies and within the visualized spinal cord. There was no significant disc disease, evidence of spinal stenosis, or exiting nerve root impingement at L1-2, L2-3, L3-4, or L5-S1. Although the MRI depicted some annular disc bulging at L4-5, there was no spinal stenosis or neural foraminal stenosis. There was no pathology shown on the MRI, and it was, in general, “a normal MRI.” As such, the MRI would not provide support for a conclusion that L.N. would have been in pain. There were no diagnostic images in L.N.’s file to contravene the medical conditions shown in the MRI. The only evidence of anything requiring treatment was L.N.’s complaint of low back pain. Such a complaint would call for muscle relaxers, physical therapy, hot/cold packs, or ultrasound, rather than narcotic pain medications. There was no evidence in the medical records that L.N. exhibited signs of nerve root impingement with pain radiating down the leg. The records did not demonstrate that Respondent performed a comprehensive medical examination of L.N., or that Respondent performed any type of objective testing of L.N., including straight leg raises, checking for deep tendon reflexes, or palpation of the area of concern for spasms. The records did not contain an adequate medical history of L.N., including height, weight, temperature, pulse, respiration, blood pressure, age, date of birth, and medication lists, nor did they contain an assessment of L.N.’s chief complaint or plan of treatment. The intake from L.N.’s first visit to Respondent indicated that she was taking opioids and benzodiazepines, though there was no evidence of prescriptions or prescribing physicians for those substances. The records did not demonstrate that Respondent obtained records of prior treating physicians, nor was there any evidence of an effort to do so. The records do not demonstrate that Respondent consulted with any other physician which, in the case of treatment resulting from an MRI review, would fail to meet the standard of care. The records do not demonstrate that Respondent recommended alternative interventions for L.N.’s pain complaints, including physical therapy, which would have been appropriate, and within the standard of care given the normal MRI results. The only alternatives noted were “heat” and “massage” on January 27, 2011, and “heat” on June 23, 2011. Although it is possible that other alternative interventions were recommended, the illegibility of the intake forms prevents such a finding. The failure to recommend alternative interventions was a failure to meet the standard of care. On L.N.’s first visit to Respondent on January 27, 2011, a urine drug screen was performed. The drug screen tested positive for opioids and benzodiazepines. Subsequent to that first visit, Respondent performed no other drug tests. Such tests can confirm that the patient is taking prescribed medications, and not diverting them, and that the patient is not taking other non-prescribed medications. It is the medical standard of care to perform follow-up drug tests of patients when prescribing high doses of controlled substances, including opioids. The failure to closely monitor L.N. when prescribing high doses of opioids and benzodiazepines was a failure of the standard of care. Respondent did not communicate with L.N.’s pharmacy to ensure that she was not getting prescribed medicines from other doctors. Such information was, in 2010 and 2011, available from pharmacies. It was, during that period, the medical standard of care to communicate with the dispensing pharmacy. Respondent failed to meet that standard of care. There was no evidence to the contrary. Despite the fact that L.N. presented to Respondent with a stated history of opioid use and a positive drug screen, Respondent did not record L.N.’s medication history for the period up to her first visit with Respondent. The failure to take a medication history to substantiate the need and justification for the prescription of high-dose opioids is contrary to the 2010-2011 medical standard of care. Oxycodone was, during the relevant period, a Schedule II controlled substance with a high potential for abuse, and an accepted but severely restricted medical use in treatment in the United States. Abuse of oxycodone may lead to severe psychological or physical dependence. § 893.03(2), Fla. Stat. Roxicodone is a brand name for oxycodone hydrochloride. It is a short-acting opioid that is rapidly absorbed. Short- acting opioids have a greater potential for abuse. Furthermore, prescription of short-acting opioids, such as Roxicodone, would not be within the standard of care for long-term, chronic pain such as that described by L.N. Xanax is the brand name for alprazolam and is prescribed to treat anxiety. Alprazolam was, during the relevant period, a Schedule IV controlled substance, with a low potential for abuse, and an accepted medical use in treatment in the United States. Abuse of alprazolam may lead to limited physical or psychological dependence. § 893.03(4), Fla. Stat. At L.N.’s initial January 27, 2011, visit, Respondent prescribed medications including 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. The prescribed doses and amounts were consistent with L.N.’s self-reported medications that she was then taking, presumably prescribed by “Dr. Sanchez” in Biloxi. Respondent’s plan of treatment listed the medications L.N. requested and recommended follow-up in one month. The records contain no individualized treatment plan. Respondent’s examination notes are entirely illegible. Respondent’s records lack copies of prescriptions issued to L.N. on January 27, 2011. A patient agreement and informed consent form was included in L.N.’s patient file, but was not signed by L.N. L.N. next presented to Respondent with complaints of chronic lower back pain on February 22, 2011. The intake form is largely illegible, though “overall feels well” is discernable. At that visit, Respondent prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in one month. Again, there was no individualized treatment plan, and the examination notes were largely illegible. L.N. presented to Respondent with further complaints of chronic lower back pain on March 22, 2011. The intake form is largely illegible, though “overall feels well” is discernable. Respondent again prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in one month. Again, there was no individualized treatment plan, and the examination notes were illegible. L.N. presented to Respondent on April 21, 2011. The intake form is largely illegible, though “overall feels well” is discernable. Respondent renewed L.N.’s previous prescriptions. L.N. next presented to Respondent with complaints of chronic lower back pain on May 19, 2011. The intake form is entirely illegible. Respondent prescribed 210 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 90 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment was medication refill and follow-up in an illegible timeframe. There was no individualized treatment plan. Respondent’s examination notes were illegible and minimal. On June 23, 2011, L.N. presented to Respondent. The intake form, though largely illegible, appears to state that “pt feels good pain solved with meds.” The treatment prescribed by Respondent apparently having the desired effect, Respondent renewed L.N.’s prescription for 210 tablets of Roxicodone Oral 30 mg (though in two separate prescriptions for 180 tablets and 30 tablets, respectively), 120 tablets of Roxicodone Oral 15 mg, and 60 tablets of Xanax Oral 2 mg. The prescription originally called for 150 tablets of Xanax, but Respondent struck 90 of those. Respondent’s plan of treatment was medication refill and follow-up at the next appointment on July 23, 2011. A monthly medication dosage evaluation was completed for the June visit, as was a pain management treatment plan medical record. Those records provided little individualized information regarding L.N.’s plan of care. The pain management treatment plan form indicated that drug testing was completed; however, there were no results. L.N.’s final visit to Respondent occurred on August 3, 2011. She indicated, in what appears to be her handwriting, that she had used a “hot bath,” “heat,” and “some exercise.” Her treatment objective continued to be “complete resolution of pain with medication.” At that visit, Respondent prescribed 150 tablets of Roxicodone Oral 30 mg, 120 tablets of Roxicodone Oral 15 mg, and 60 tablets of Xanax Oral 2 mg. Respondent’s plan of treatment included only a list of medications. The pain management treatment plan form indicated that drug testing was completed; however, there were no results. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to practice medicine with that level of care, skill, and treatment recognized in general law as being acceptable under similar conditions and circumstances in his treatment of L.N. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent prescribed excessive and unnecessary amounts of Roxicodone and Xanax without a justifiable basis to do so, especially since the January 27, 2011, MRI report did not support a determination that L.N. was experiencing back pain so as to justify Respondent’s course of opioid treatment for L.N. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to create and maintain adequate and legible records supporting the course of treatment for L.N., or records documenting performance of a comprehensive physical examination of L.N. proportionate to her diagnoses. Based on the evidence of record, including the testimony of Dr. Porcase, and in the absence of any evidence to the contrary, it is found that Respondent failed to adequately monitor L.N.’s use of opioid therapies. The findings set forth herein are the result of Dr. Porcase’s undisputed expert testimony regarding the standard of care as it existed in 2010-2011, as well as the undersigned’s independent review of the record. Whether Respondent could have produced evidence to support his treatment of L.N. will remain a mystery, since Respondent essentially abandoned this proceeding. Despite challenging the Department’s Administrative Complaint, Respondent minimally and incompletely responded to written discovery, failed to meaningfully participate in Dr. Porcase’s deposition, twice refused to appear for his own deposition, despite personal service of the notice, and failed to make an appearance at the final hearing. In the absence of any testimony or evidence to counter that of the Department, the evidence presented by the Department, including the testimony of Dr. Porcase, was clear and convincing as to the matters set forth herein. Despite Respondent’s failure to actively contest the allegations in the Administrative Complaint, it must be recognized that the allegations concern a single patient over a total period of scarcely more than 6 months. There was no pattern of misconduct. Furthermore, Dr. Porcase acknowledged that the practices regarding the prescription of opioids in 2010-2011 were far different from those that exist today. Rather, “there was no standards that you were -- individualized your treatment to the pathology on imaging studies and patient’s complaints and their ability to function on medicine.” As to a doctor’s actions to rule out a patient’s drug-seeking behavior, he testified that “[i]t would be the individual physician having to make that determination based on his experience and diagnostic testing . . . and physical exam.” While the undersigned believes and gives weight to Dr. Porcase’s opinions regarding the standard of care, his testimony is equally compelling that the standard was not as clear-cut in 2010-2011 as it is in 2018. Though not affecting the ultimate findings regarding violations of law, it does affect the nature of the penalty that is warranted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Osteopathic Medicine, enter a final order: determining that Respondent violated sections 459.015(1)(x), 459.015(1)(t), and 459.015(1)(o); imposing an administrative fine of $2,000; issuing a letter of reprimand against Respondent’s license to practice osteopathic medicine; and awarding costs incurred in the prosecution of this case to the Department. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 May, 2018. COPIES FURNISHED: Ann L. Prescott, Esquire Philip Aaron Crawford, Esquire Prosecution Services Unit Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed) Richard D. Vitalis, D.O. 230 Caddie Court DeBary, Florida 32713 Richard D. Vitalis, D.O. 3774 China Grove Mews Lane Fairfax, Virginia 22025 Kama Monroe, Executive Director Board of Osteopathic Medicine Department of Health 4052 Bald Cypress Way, Bin C-06 Tallahassee, Florida 32399-3257 (eServed) Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 (eServed)
