The Issue The issue is whether, pursuant to Section 57.111, Florida Statutes, Petitioner (all references to "Petitioner" are to Dr. Reich, even though in the preceding case he was the respondent) is entitled to attorneys' fees and costs in defending a case against him in which Respondent alleged that he was guilty of deviating from the applicable standard of care and failing to keep appropriate medical records.
Findings Of Fact At all material times, Petitioner has been a licensed physician in Florida, holding license number ME 0051631. He is Board-certified in ophthalmology. At all material times, Petitioner has been a "small business party," within the meaning of Section 57.111(3)(d), Florida Statutes. From 1996-98, Petitioner worked part-time at The Metabolic Treatment Center in Ft. Myers. Twice weekly, Petitioner visited the center and saw patients, who generally complained of symptoms consistent with metabolic conditions. Toward the end of Petitioner's term of employment at The Metabolic Treatment Center, its owners, one or more natural persons, sold the facility to a publicly traded corporation. Petitioner's relationship with the new chief operating officer was poor. One day, Petitioner reported to work and found the facility had been closed, leaving Petitioner without access to the records kept by the center. Petitioner commenced litigation with the corporate owner of The Metabolic Center to obtain copies of medical records. Petitioner obtained a court order compelling the corporation to turn over medical records, but the corporation did not do so, and the case was closed in February 1999 without Petitioner's ever obtaining the records that he had sought. The corporate owner was administratively dissolved by the Department of State in September 1999. On November 21, 2000, Respondent filed an Administrative Complaint against Petitioner concerning one patient whom he treated in 1997 at The Metabolic Treatment Center. In 2001, Respondent prepared a 50-count Administrative Complaint against Petitioner concerning 10 patients whom he had treated at The Metabolic Treatment Center. In 2001, Petitioner was represented by attorney William Furlow. Mr. Furlow and a representative of Respondent negotiated a settlement, but Petitioner claimed that he had lacked the authority to enter into the settlement. The Board of Medicine declined to reopen the settlement and issued a Final Order to this effect. Petitioner appealed to the First District Court of Appeal, which issued an opinion on March 26, 2004, requiring the Board of Medicine to give Petitioner an evidentiary hearing on the factual issue of whether he had authorized Mr. Furlow to settle the case on the conditions set forth in the settlement agreement. Rather than litigate the authorization question, the Board of Medicine filed an amended Administrative Complaint on August 20, 2004, concerning the lone patient who had been the subject of the earlier-filed Administrative Complaint, and filed a second Administrative Complaint on October 27, 2004, concerning the 10 patients who had been the subject of the never-filed, 50-count Administrative Complaint. After transmittal to the Division of Administrative Hearings, these cases, which were consolidated, became DOAH Case Nos. 04-3222PL and 04-4111PL, respectively. By the time of the filing of the 2004 Administrative Complaints, Petitioner was represented by his present counsel. However, this representation has not been continuous. Shortly before the final hearing in the consolidated cases, Petitioner's counsel moved for leave to withdraw because Petitioner had fired them. The motion was granted, an accompanying request for continuance was denied, and Petitioner represented himself at the hearing, which took place on December 6 and 7, 2005. The undersigned Administrative Law Judge issued a Recommended Order on May 5, 2006. The Recommended Order excluded all of Respondent's evidence consisting of purported medical records, except for the records that Petitioner had identified in a prehearing deposition. These evidentiary rulings left evidence concerning only four patients. The recommendation was for the Board of Medicine to enter a Final Order dismissing all charges against Petitioner concerning all but the four patients mentioned above. For these patients, the recommendation was for the Board to enter a Final Order finding Petitioner guilty of the financial exploitation of four patients, failure to perform a statutory obligation as to three patients, failure to maintain adequate medical records on three patients, preparation of inappropriate prescriptions for two patients, and violation of the applicable standard of care as to one patient. The Recommended Order recommended an administrative fine of $29,000 and five years' probation. In Final Orders issued September 7 and October 9, 2006, the Board of Medicine substantially adopted the Recommended Order with revisions to the penalty. Petitioner appealed the Final Orders and, on January 23, 2008, the Fourth District Court of Appeal vacated the Final Orders. The reasoning of the court was that Petitioner had been denied access to medical records at The Metabolic Treatment Center, and, thus, there was no competent substantial evidence, given the clear and convincing standard, to support the findings of violations. On March 17 and 21, 2008, pursuant to the mandate, the Board of Medicine entered Final Orders dismissing all charges against Petitioner and taxing appellate costs of $610. On March 21, 2008, Petitioner filed his Petition Pursuant to the Florida Equal Access to Justice Act. The attorneys whom Petitioner had discharged immediately prior to the final hearing were re-engaged immediately after the issuance of the Recommended Order. These attorneys, who are presently representing Petitioner, prepared the briefs and argued the appeal. Petitioner seeks attorneys' fees for three phases of this litigation: 1) litigation over the purported consent agreement, concluding with the filing of the two Administrative Complaints that were transmitted to the Division of Administrative Hearings; 2) litigation in the two Division of Administrative Hearings cases through the appellate court's mandate; and 3) litigation with the Board of Medicine in obtaining the Final Order vacating the earlier Final Orders. To the extent that the first claim concerns the consent agreement, it is untimely for the reasons discussed in the Conclusions of Law. To the extent that the first claim concerns the same allegations covered in the second claim, it is part of the second claim. The second claim is really two claims: one concerns the proceeding at the Division of Administrative Hearings and culminating with the Final Orders issued by the Board of Medicine, and the second is for the appellate proceeding. The third claim really is part of the second claim, as the Board of Medicine never filed anything to initiate this phase of the overall proceeding. The question underlying the claim for attorneys' fees for the second phase of litigation is whether the Board of Medicine was substantially justified in filing the two Administrative Complaints in August and October 2004. Respondent has submitted as Respondent Exhibit A a voluminous stack of investigative reports prepared by the Agency for Heath Care Administration (AHCA) in connection with the disciplinary cases prosecuted against Petitioner. The periods of investigation run from July 9, 1998, through August 28, 2001, although the whole period is not covered and the periods covered by some reports overlap the periods covered by other reports. The investigative reports contain opinion letters from five physicians. The investigative report for the period of July 9, 1998, through September 9, 1998, contains an undated letter from Kevin M. Holthaus, M.D. Dr. Holthaus's letter addresses three patients, including one for whom AHCA had obtained medical records. Dr. Holthaus opined that Petitioner fell below the standard of care in the diagnosis and management of endocrine disorders like hypothyroidism and diabetes. Dr. Holthaus added that Petitioner failed to perform an appropriate history and physical examination prior to ordering extensive diagnostic studies. Dr. Holthaus noted that Petitioner's prescription of thyroid hormone, despite laboratory studies obviating the need for this treatment, posed a threat to the wellbeing of the patient. Dr. Holthaus's letter also states that Petitioner stood to gain from his actions, which included inadequate assessments of patient complaints and symptoms and inappropriate or inadequate diagnoses. The investigative report for October 14, 1998, through February 4, 1999, contains the notes of a telephone interview with Craig R. Sweet, M.D., who said that he had contacted The Metabolic Treatment Center about Petitioner's treatment of one patient. An unidentified person said that Petitioner no longer worked at the center, but had treated patients for nonexistent thyroid problems. Dr. Sweet stated that he had seen nothing justifying Petitioner's administration of thyroid medication or human growth hormone to the patient. This investigative report also contained a letter dated April 18, 1999, from E. Timothy Shapiro, M.D., who treats patients for a wide variety of endocrine problems. Dr. Shapiro, who was also an assistant clinical professor at the University of Miami, addressed one patient and found excessive and unjustified lab work, inappropriate treatment with thyroid hormone despite normal thyroid functions, inappropriate treatment with testosterone despite normal testosterone levels, and inappropriate treatment with growth hormone despite inadequate growth hormone testing and no clinical features of growth hormone deficiency. Dr. Shapiro concluded that the evidence "points to a scheme to extract money." The investigative report for May 2, 2000, to July 19, 2000, includes an undated letter from H. Curtis Benson, M.D. Dr. Benson found that Petitioner ordered unnecessary lab tests, treated a patient for hypothyroidism despite normal thyroid function studies, and kept "cursory" medical records containing no mention of a complete physical examination. The investigative report for September 21, 2000, through November 8, 2000, notes that one patient reported that Petitioner had told her that she had a fatal blood disease, but, when she was seen by her regular physician, he found no problems with her blood. Interestingly, this complainant was the insurance investigator who had submitted the other complaints, which were the bases of the insurance company's concern of excessive and unnecessary testing. A principal of The Metabolic Treatment Center had invited the insurance investigator to visit The Metabolic Treatment Center as a patient and see the operation for herself. Also in this report is a letter from Mr. Furlow, dated November 20, 2000, stating that many of Petitioner's records were out of his possession when he was forced out by the center. The investigative report for March 22, 2001, through June 8, 2001, contains a letter dated January 2, 2001, from Dr. Shapiro. Stating that he had reviewed four more cases, Dr. Shapiro stated that Petitioner was performing excessive lab testing, usually of tests that carry high reimbursement levels. Dr. Shapiro questioned the accuracy of the numerous diagnoses of peripheral neuropathy, noting that Petitioner routinely ordered nerve conduction tests, which were performed by a radiologist, rather than, as was common in Dr. Shapiro's experience, a neurologist. Dr. Shapiro also stated that Petitioner treated patients with thyroid hormone despite their normal thyroid function. He concluded that this pattern of medical practice was fraudulent and below the applicable standard of care. This investigative report also contains a letter dated January 18, 2001, from Hamilton R. Fish, M.D., who had examined the records of three patients. Dr. Fish summarized his concerns as: 1) many unnecessary lab tests, including reported abnormalities in the nerve conduction studies with no follow-up or referral; 2) no follow-up or referral on a patient diagnosed with hyerinsulinemia and insulin resistance; 3) lab tests and an EKG done on one patient prior to an evaluation by a physician; and 4) inaccurate medical advice contained in The Metabolic Treatment Center handbook given to patients, such as a warning that exercise makes insulin levels rise. The investigative reports for January 12, 2001, through February 7, 2001, and March 22, 2001, through June 8, 2001, contain letters from Dr. Shapiro dated December 27, 2000, and March 19, 2001. In each of these letters, Dr. Shapiro analyzes another patient and finds excessive and inappropriate lab testing, inappropriate diagnoses and treatment, a failure to refer a patient with neuropathy to a neurologist, and a failure to meet the applicable standard of care. The transcript of the probable cause meeting held on October 22, 2004, reveals that the probable cause panel had all of the above-described investigative materials, which included extensive medical records. Counsel summarized to the panel the important portions of the Administrative Complaint concerning the 10 patients who were the subject thereof. In authorizing the filing of the Administrative Complaint, the chair noted that he had never seen such unanimity of opinion among the consultants and suggested an emergency suspension. Although the transcript of the probable cause meeting on the Administrative Complaint involving only one patient has been lost, it must be inferred, based on the memorandum of action, that a probable cause panel similarly considered the file materials and similarly authorized the filing of that Administrative Complaint a couple of months earlier. Respondent contends that Petitioner never claimed the existence of additional medical records until the final hearing. This is not exactly true, as the records contain representations that Petitioner was unable to obtain all of the records from The Metabolic Treatment Center. On the other hand, Petitioner did not provide the probable cause panels with any expert opinion in his favor, except for Petitioner's medical claims for his treatment methods, which are detailed in the Recommended Order. The first Administrative Complaint filed in this case was on November 21, 2000; it was the complaint concerning one patient, so it was the precursor to the Administrative Complaint filed on August 20, 2004, in DOAH Case No. 04-3222PL. The next Administrative Complaint was filed in 2001, and it was the precursor to the Administrative Complaint filed on October 27, 2004, in DOAH Case No. 04-4111PL. From the earliest of these dates to the latest, Respondent had a reasonable basis in fact to proceed. Viewing the investigative materials in the manner most favorable to Petitioner, they presented a conflict between mainstream medical opinions concerning the proper diagnosis and treatment of endocrinal disorders and Petitioner's opinion, unsupported by other authorities (at least, in the investigative file), that conventional, acceptable ranges for various items, such as T-3 or TSH, are wrong or that holistic approaches are medically necessary to treat certain metabolic syndromes. At best, from Petitioner's point of view, this was a conflict in opinions between five practitioners, on the one hand, and Petitioner, on the other, and the informed, well-reasoned opinions of the five experts with whom Respondent consulted provided a reasonable basis in fact for the filing of all the Administrative Complaints and all of the charges contained within them.
The Issue The issue for consideration in this hearing is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, Petitioner, Board of Medicine, was the state agency responsible for the licensing of physicians in Florida and the regulation of the medical profession in this state. Respondent was licensed as a physician in Florida under license No. ME 0013461. Respondent started his practice in January, 1970 after completion of his internship and medical residency. After four years practice in Tampa he moved to Brandon in 1974 at the request of members of the community. At the time of his arrival in Brandon he was only the third physician in town and he practiced for five years without there being a hospital available locally. By the time the hospital opened in Brandon, there were 10 physicians actively practicing there. Though he has his own practice, contracts with managed care providers account for about fifty percent of Respondent's practice. Dr. Tyner can and does diagnose and treat patients with diabetes mellitus as a part of his practice. As far as he is concerned, the standard of care in diagnosis has not changed much since he entered practice, but the standard of care in treatment has. In his opinion, the standard of care is not the same throughout the country. By the same token, the standard with regard to medical records has changed, too. When Respondent first started practice, a physician was required to insert just pertinent positive findings in his records, but the insurance companies have encouraged greater completeness in recent years. Respondent first saw M.C. for back pain on September 17, 1976, when the patient was 35 years old. At that time the patient reported he had undergone two back surgeries and was 100 percent disabled. During the first visit, Respondent received the patient's prior records from the referring physician in Louisiana, which records included a history of the covered worker's compensation injury to the back, and Respondent did certain diagnostic tests, including leg raises. These leg raises indicated back problems. These records were sent to the patient's attorney when a claim was filed against the Respondent, but though the records Respondent had prepared were returned, those of the prior physician were not. Respondent also took his own history of the patient from where the prior records left off. When Respondent first saw this patient, M.C. was bitter about his prior medical care and extremely resentful of physicians. He limited Respondent's focus to the injury covered by worker's compensation and initially refused to discuss or be tested for anything not related thereto and for which he might be liable for fees. The patient was so hostile, in fact, he struck out at another physician, Dr. Winters, in Respondent's presence. According to Respondent, this was not at all unusual for this patient who evidenced a definite "attitude" toward physicians and tended to disbelieve what he was told. Respondent encouraged the patient to lose weight because of his obesity. When the patient came in for his second visit with Respondent on September 28, 1976, he had lost some weight. On the December 16, 1976 visit, the patient had lost some more weight and the physical exam done at that time was normal, except for the fact that the patient's back still hurt. Respondent's records reflect he next saw the patient on October 6, 1977 when the patient had lost another seven pounds. At this time, Respondent recommended the patient lose still more weight, but his examination showed no other problems at that time. Respondent claims that he spoke with M.C. on either the first or second visit about the benefits of a complete routine physical work-up but the patient refused to allow it. Respondent also claims he repeated this suggestion several times but the patient always refused except to agree to small things for which he was not to be charged. None of these suggestions for examinations are documented in the patient records. On March 28, 1978 the patient showed another weight loss and his blood pressure was coming down. The patient's back pain had moved a bit and he had a penile rash and a cough, both of which were corrected. On the September 1, 1978 visit the patient had a sinus infection and he also asked for a prescription for his wife, a prior patient of the Respondent. Respondent did not charge the patient for this visit. When the patient returned on November 14, 1978, he complained of continuing back pain as he did on February 20, 1979. On this latter occasion, Respondent treated him with a mild tranquilizer and pain medication. When the patient came in or August 2, 1979, he was cautioned by Respondent about the toxic effect of the Darvon compound he was taking, but apparently the patient was not addicted. The visit on March 25, 1980 reflected the patient's weight was still going down but he was still experiencing back pain. At the visit on August 22, 1980, the patient was seen to have a cyst on his shoulder which was removed at no charge on a visit on August 28, 1980. Starting with the visit on December 4, 1980, the patient complained of greater leg pain with pins and needles in his left foot. Respondent gave him medications for that and adjusted his other medications to avoid any potential for addiction. This radiculated pain was, in Respondent's opinion, consistent with the patient's low back problems, and the patient continued to experience this low back pain at the visit on January 23, 1981 and, with greater severity, on February 19, 1981. On March 12, 1981, since the patient's pain had increased, the Respondent recommended a repeat myelogram, to which the patient agreed though he refused anything else. He would not submit to an EKG, to blood work, or to urinalysis. The myelogram administered on April 2, 1981 showed only degenerative changes to the patient's spine for which Respondent recommended physical therapy. Because the patient had difficulty getting along with the physical therapy staff, he did not complete the prescribed course of treatment. Respondent again saw the patient on August 4, 1981 because he had re- injured his back and had seen an orthopedic specialist who recommended a treatment which was ineffective. At the visit on January 7, 1982, the patient reiterated to Respondent that he was 100 percent disabled and told Respondent his daughter had left home. By this point, the patient seemed to have somewhat warmed up to the Respondent and was more amenable to conversation about matters other than his worker's compensation covered injury. At the March 22, 1982 visit, the patient's back seemed slightly better, and at the August 31, 1982 visit the patient reported his pain was controlled by medications. When the patient came in for a visit on September 14, 1982, he complained of dark blood in his urine and at ejaculation. Even though this was not a workers compensation related problem, the Respondent treated the patient and did not charge for it. At the November 5, 1982 visit the patient asked that the substance of their discussion not be included in the medical record. It cannot be determined whether this discussion pertains to that relating to the patient's daughter or to his condition, but in either case, it is indicative of the patient's desire to control the relationship. Respondent recalls that he frequently spoke to the patient about the need for laboratory work, but each time he did so, he claims, it would make the patient angry and the Respondent tip-toed around that subject. On March 7, 1983 the patient was still reporting back pain, as he did at the October 13, 1983 visit. On February 16, 1984, the patient reported having tingling in his toes and a loss of strength in his legs. These symptoms are consistent with atrophy of the nerves which could be due to the patient's back problem. When he came in on March 27, 1984, the patient still complained of weakness in his legs and difficulty with an erection which the Respondent felt was related to his prior infection. Impotence can also be the result of diabetes. The visit on June 15, 1984 revealed nothing significant, but at the visit on September 24, 1984, the patient again complained of back pain and a numbness in both feet up to the knees. He also complained of numbness in two fingers which Respondent felt was a carpal tunnel problem due to the patient's use of a cane. On March 6, 1985, the patient complained of numbness of the calf and in his hands up to his elbows, the latter which Respondent felt to be related to carpal tunnel problems and the patient's back problems. At the visit on May 18, 1985, the patient finally agreed to a blood sugar test which reflected an abnormally high reading of 320. Respondent claims this is not a remarkably high reading sufficient to cause panic, but it is, nonetheless, far above normal. At this time, the Respondent started the patient on Glucotrol, a medication designed to force his pancreas to produce more insulin because Respondent concluded that the patient was a Type II diabetic. In Respondent's opinion, this is the treatment of choice for these symptoms. No evidence was presented in opposition to this opinion, and it is accepted. Diabetes is a metabolic condition wherein the blood sugar level is high or elevated because the patient has no insulin or is insulin deficient. The sugar remains high in the patient's blood and affects the patient's organs and, possibly, the nerves. The patient can develop numbness, tingling or discomfort in the feet. Diabetes can affect the patient's eyes and cause a loss of vision. It can also affect the heart, can block circulation and cause a tendency toward heart attack, stroke and poor leg circulation. It can also affect the kidneys. A Type II diabetic can be treated with medications, diet and exercise. With the treatment prescribed by Respondent, the patient's blood sugar came down somewhat, but not enough. Though the notes of the visit on July 12, 1985 revealed nothing significant, the records show that on August 20, 1985, the patient came in with a lesion on the base of his foot, an infected split of the callous, due, Respondent believed, to the patient's dragging his foot when he walked. In any event, the patient showed toes which were not normal for a diabetic. As a result, the Respondent did another blood sugar test on the patient which reflected another high reading of 295 which Respondent felt was due to the infection. He cleaned and cultured the wound and treated it with antibiotics. Renal function studies done at the time were normal and not consistent with diabetes. On August 26, 1985, the patient reported numbness in his feet and cold hands. That same day the patient was admitted to the Humana Hospital-Brandon where he was diagnosed as having diabetes mellitus. During the course of the patient's hospitalization he was seen by at least six physicians other than the Respondent. Respondent referred the patient to four of these, including a Dr. Jacobson, and Dr. Jacobson referred the patient to two others. On August 31, 1985, Dr. Grant, whose specialty was not identified, prepared a consultation report on this patient based on his independent thorough examination. In his report, Dr. Grant described the patient as "interesting and difficult" and rendered his opinion that the patient had a history of neuropathy involving the spinal thalamic tract with an etiology of syphilis, leprosy, amyloidosis, toxic exposure, "and much less likely, diabetes." Dr. Grant went on to state, "I say less likely for the diabetes because of [the patient's] relatively short history and rather severe neuropathy." Sometime thereafter, at a time not indicated, M.C. lost his foot. The Department's initial complaint form refers to uncontrolled diabetes as the basis therefor, but the only evidence to this effect is hearsay which cannot be used as the sole basis for a finding of fact. Many of the symptoms demonstrated by the patient are symptoms of diabetes, but they are also symptoms of other conditions as well. The obesity is consistent with diabetes, but not necessarily indicative of it. The numbness in the feet may be a symptom of diabetes, but also may be explained by other conditions the patient had. By the same token, his blood sugar is symptomatic of diabetes but is also frequently found as a result of infection which, it should be noted, the patient had at the same time the blood sugar was elevated. Respondent did not use many of the tests he could have used earlier on in his course of treatment of this patient, such as finger-stick blood tests, urinalysis and vibratory tests with a tuning fork, all of which are inexpensive or without cost, and can be done in the office. He did not do so because, he claims, the patient, for a long time after the beginning of their relationship, refused to allow him to do anything not related to his worker's compensation injury. Nonetheless, Respondent kept the patient on because the man needed help and there was no place else for him to go. Respondent's finances were not then and are not now a major concern of the Respondent, and he, therefore, does not practice medicine based on his ability to collect a fee. Respondent did not note in his medical records his repeated urging to have the patient submit to tests which could have identified his diabetes earlier on. Though Respondent recognizes the importance of keeping adequate medical records, at the time in issue, Respondent claims, there was far less emphasis than now on a physician protecting himself by record keeping. Neither Respondent nor his witnesses were taught in medical school what now seems to be, "If it's not recorded, it didn't happen." He considers that axiom, merely "something [doctors] go by to protect [themselves]." The Respondent's expert, Dr. Stern, confirms this more recent emphasis on the documentation of detail in medical records, especially with respect to people declining or refusing certain tests or procedures. In his opinion, Dr. Tyner's records contain adequate justification for his prescription of Darvon and Librium for this patient. Dr. Stern reviewed the patient records and discussed, on several occasions, the Respondent's actions. It was his opinion, stated in the deposition admitted at hearing that, having considered the symptomology the patient was displaying, that is: the high blood sugar, the numbness in the feet, the tingling in the feet and thighs, the coldness of the toes, and the fact that the patient was overweight, all those symptoms are indications of the possibility of diabetes mellitus, but all may be caused by other conditions as well. There are several low cost tests that a physician can use when confronted with the symptoms displayed by this patient. These include a finger- stick test to test for blood sugar, urinalysis, and a vibratory sensation test. In addition, a referral to an endocrinologist could well be helpful. Dr. Tyner did at least one finger-stick test for blood sugar which revealed an abnormally high reading, but without relying on hindsight, Dr. Stern cannot say that, under the circumstances faced with this patient by Dr. Tyner, he would have ordered any more laboratory tests than Respondent did. With hindsight, he can now say he would have. Petitioner's expert, Dr. Ciocon, noted that a straight leg raising test, (Laesege) can be used to confirm the diagnosis of a pinched nerve, but did not find the Respondent had used it. In fact, this was done by Respondent early on in his relationship with the patient and the test indicated nerve root compression caused by something other than diabetes. Dr. Ciocon also described a numbness in the patient's leg as noted by Respondent as being of the "stocking glove" type which Ciocon indicated was indicative of diabetes. It is also an indication of other conditions and is frequently seen in alcoholics, and some medical authorities have concluded it is not a classical sign of diabetes. In the instant case, when M.C. demonstrated this symptom, Dr. Ciocon felt it was compatible with the carpal tunnel syndrome which was causing difficulty with his fingers. Dr. Kent R. Corral, a general internist practicing in Tampa, treats diabetes mellitus routinely and regularly. He contends there is a school of thought in medicine to the effect that control of the illness may or may not affect the development of the complications of diabetes. These complications are classed in various groups dealing with: retinlogy ---------- changes in the retina nephropathy -------- changes in the kidneys neuropathy --------- changes in the nerves athero-sclerosis ---- changes in vascular condition. The only study in the subject, one done as a result of the Diabetes Control and Complication Trial which deals with juvenile diabetes under control, indicates that strict control will impact the progress of diabetes. The majority of thought within the profession is otherwise, however. Dr. Corral evaluated Respondent's care of the patient in issue here and he is familiar with the standard of care of diabetes patients in the mid 1970's to the mid 1980's. He feels that Respondent's treatment of M.C. was up to the standards in place at that time, as was Respondent's record keeping. Respondent's records show the date of diagnosis of diabetes and that the conditions leading to the diabetic condition had been ongoing for a number of years prior to that time. Diabetes mellitus may be totally asymptomatic or symptoms may very much be in evidence. According to Dr. Corral, not every aspect of every patient encounter need be documented by the prudent physician. This applies to both positive and negative findings. Respondent's records show this patient had undergone two lumbar laminectomies prior to coming to the Respondent. This surgery impacts the spinal nerves which deal with the lower extremities. Relief of pressure appears to be the reason for these laminectomies done secondary to a work- related injury resulting in 100 percent disability of the patient. The pressure in issue in M.C. is called nerve root pressure. Symptoms of this include dysesthesia, a numbness, burning, tingling and pain in the extremities. It is similar to neuropathy, but different, Corral opines. Nerve root compression can be caused by a laminectomy as well as by post-surgery scarring. The scarring, the laminectomy and the nerve root compression can all create symptoms similar to diabetes but which, in these cases, are not caused by diabetes. In fact, there are many causes for these symptoms which are not related to diabetes. These include the presence of heavy metals, alcohol, peripheral vascular disease, arthritis, lupus, cancer, other metabolic disorders, and infections, including syphilis. All can cause tingling, pain, numbness and coldness in the lower extremities. Though a vibrating sensation can be tested in the lower extremities by the use of a tuning fork, Dr. Corral has not found this to be a useful test and he now uses a monofilament test which he has found to be better - a touch test. This test would not have been available in the late 1970's to mid 1980's, however. The loss of vibratory sensation is common to all the conditions cited above and loss of vibratory sense in a leg or foot would not be useful in diagnosing diabetes. In the case of M.C., Respondent's failure to test for vibratory sensation was not, in Dr. Corral's opinion, treatment below the appropriate standard of care. M.C. had developed a foot ulcer in August, 1985. On May 18, 1985, Respondent had already diagnosed diabetes through the use of a blood sugar test and had started treatment for the condition. Foot ulcers can be caused by diabetes as well as by many other conditions including infections, toxics, neuropathies, vascular diseases, arterial and venous disease, lymphedema, pressure necrosis, and syphilis.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a Final Order in this matter finding Respondent, John L. Tyner, M.D. not guilty of practicing medicine below standards, but guilty of keeping inadequate records, and imposing a fine of $2,500 as well as requiring him to complete the medical records course offered by the University of South Florida, both within reasonable time limits to be imposed by the Board. DONE and ENTERED this 6th day of June, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-2038 To comply with the requirements of Section 120.59(2), Florida Statutes (1995), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein, 5. Accepted. 6. Rejected as contra to the evidence of record. 7. Accepted and incorporated herein. 8. Rejected as contra to the evidence of record. 9. & 10. Accepted and incorporated herein. 11. Accepted. 12. Rejected as contra to the evidence of record. 13. & 18. Accepted and incorporated herein. Not a proper quotation of the authority cited. & 21. Accepted and incorporated herein. Not proven. & 24. Accepted and incorporated herein. Accepted. & 27. Accepted and incorporated herein. 28. Rejected as contra to the evidence or record. Respondent's Proposed Findings of Fact. Accepted and incorporated herein. Rejected as not being a proper Finding of Fact. Accepted and incorporated herein. - 7. Accepted and incorporated herein. Not a Finding of Fact but a statement of the allegation being discussed. & 10. Accepted and incorporated herein. Not a Finding of Fact but a statement of the allegation being discussed. - 18. Accepted and incorporated herein. 19. & 20. Accepted and incorporated herein. 21. & 22. Accepted. 23. & 24. Accepted and incorporated herein. 25. Not a Finding of Fact but a comment on the testimony of the witness. 26. & 27. Accepted. 28. & 29. Accepted and incorporated herein. 30. - 32. Accepted and, in substance, incorporated herein. 33. & 36. Accepted. 37. - 43. Accepted and incorporated herein. 44. - 47. Accepted. 48. First sentence not a Finding of Fact but a comment on the pleadings. Balance accepted. 49. First clause not a Finding of Fact but a comment on the pleadings. Balance accepted. 50. Accepted. 51. - 55. Accepted. 56. Accepted as both a Finding of Fact and a Conclusion of Law. 57. Rejected as not consistent with the evidence. 58. Not a proper Finding of Fact but a comment on opposing counsel's closing argument. 59. & 60. Accepted and incorporated herein. 61. & 62. Accepted and incorporated herein. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration 9325 Bay Plaza Boulevard, Number 210 Tampa, Florida 33619 A.S. Weekley, Jr., M.D., Esquire Shofi, Smith, Hennen & Gramovot, P.A. Tampa Commons, Suite 800 One North Dale Mabry Highway Tampa, Florida 33609 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
