The Issue The issues in these cases are whether Respondent violated Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2002), in DOAH Case No. 09-4678PL; Subsections 456.072(1)(l), 458.331(1)(m), and 458.331(1)(t), Florida Statutes (2003), in DOAH Case No. 09-4679PL; and Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), in DOAH Case No. 09-4680PL, and, if so, what discipline should be imposed.
Findings Of Fact At all times relating to the three Administrative Complaints at issue, Dr. Kachinas was a licensed medical doctor within the State of Florida, having been issued license number ME 65595. He is board-certified by the American Board of Obstetrics and Gynecology. DOAH CASE NO. 09-4678PL In 2002, Dr. Kachinas was working at several clinics that were owned by the same individual. He received payment from Sarasota Women’s Health Center and Tampa Women’s Health Center. His primary office was located in Sarasota, but he rotated through the offices located in Clearwater and Tampa. He was advised that he would be attending a patient in the Tampa office. One of the medications that he used in his method of sedating patients, Propofol, was not available in the Tampa office. He took a vial of the Propofol and took it to the Tampa office, holding the vial in his hand. While at the Tampa office, Dr. Kachinas drew the Propofol into a syringe. He did not have to use the Propofol for the patient. He placed the syringe filled with Propofol inside the sock that he was wearing. Dr. Kachinas transported the syringe back to the Tampa office. He used this method of transport so that the office manager in the Tampa office would not know that he was transporting the drug. When he got back to the Tampa office, he placed the filled syringe in a secure place. Propofol must be used within 24 hours after being drawn into a syringe. The next day it was decided that the drug would not be used on another patient, and Dr. Kachinas wasted the syringe filled with Propofol. At the clinics where Dr. Kachinas worked, there were no logs to keep track of the drugs, except for the drug Fentanyl. Dr. Kachinas acknowledged in a letter dated January 30, 2007, to the Department of Health that his method of transporting Propofol was “unorthodox.” In the same letter, Dr. Kachinas acknowledged that “a reasonable and prudent doctor would not generally transport medication in that manner, but foolishness seemed reasonable in that aberrant environment.” DOAH CASE NO. 09-4679PL On March 26, 2004, B.S. presented to Premier Institute for Women’s Health (Premier) for an elective termination of pregnancy. Dr. Kachinas was the physician who handled the procedure. Dr. Kachinas maintained records relating to B.S. at Premier. In 2004, Petitioner subpoenaed B.S.’s records from Dr. Kachinas’ office. Petitioner received a packet of documents, which purported to be B.S.’s medical records. In July 2006, Lori Jacobs, an employee of Premier, sent Petitioner another copy of the documents sent in 2004. Neither the records provided in 2004 nor the records provided in 2006 contain progress notes for B.S.’s treatment on March 26, 2004, and March 27, 2004. For the first time on November 5, 2009, Dr. Kachinas produced a three-page document, which he claimed was part of B.S.’s medical records that had been misplaced in B.S.’s insurance file. Two of the pages purported to be progress notes for March 26 and 27, 2004. The third page, which is also labeled as a progress note, is dated June 29, 2004, and appears to relate to insurance claims. The two pages relating to March 26 and 27 are on paper which is a different color from the progress note relating to insurance claims and the progress notes which were previously furnished in 2004 and 2006.1 Additionally, the progress notes for March 26 and 27, 2004, contain a break in each of the ruled lines on the sheets on both the right and left sides of the sheets. The insurance progress note and the progress notes furnished in 2004 and 2006 do not have such breaks in the ruled lines. Dr. Kachinas completed a Laminaria Insertion report documenting procedures done on March 26, 2004, and March 27, 2004. The March 26, 2004, report documents the insertion of Laminaria and administration of medications. The comment section of the report documents the removal of the Laminaria and administration of medications on March 27, 2004. The comment section continues to document the administration of medications and the taking of vital signs after the removal of the Laminaria and also the transfer of the patient to Doctors Hospital. The detail on the comment sections suggests that Dr. Kachinas was making his progress notes in the Laminaria Insertion report. The failure to produce the purported progress notes for March 26 and 27, 2004, until November 5, 2009; the difference in the color of the paper of the March 26 and 27, 2004, purported progress notes and the other progress notes in Dr. Kachinas’ records; the presence of breaks in the ruled lines on the March 26 and 27, 2004, purported progress reports, which do not appear on the other progress notes; and the detail of the comments on the Laminaria Insertion report support the conclusion that the progress notes submitted as Respondent’s Exhibit 1 were not done contemporaneously with the treatment given to B.S. on March 26 and 27, 2004, but were prepared for this proceeding. Thus, the progress notes for March 26 and 27, 2004, are not credited. Dr. Kachinas determined B.S.’s pregnancy to be at approximately 23½-to-24 weeks’ gestation, the last week of the second trimester. He confirmed by sonogram that the gestation period was 24 weeks. On March 26, 2004, Dr. Kachinas began the induction of labor ordering the insertion of ten Laminaria, which are osomotic cervical dilators which cause the cervix to open and allow easier emptying of the uterus. Dr. Kachinas’ records do not show that B.S.’s medical history was taken prior to the insertion of the Laminaria. However, Dr. Kachinas did take a medical history of B.S. at the time of her admission to Doctors Hospital, and the history is recorded in the medical records. Prior to the insertion of the Laminaria, Dr. Kachinas’ records do show that a limited physical examination of B.S. was done. The Laminaria Insertion report shows that B.S.’s baseline blood pressure, temperature, and pulse were taken and recorded. There was no expert testimony of what other physical examination should have been done. Dr. Kachinas injected the fetus with Digoxin, which is injected directly into the fetus to stop the fetal heartbeat, causing an Intrauterine Fetal Demise (IUFD). The injection of the Digoxin was not documented in B.S.’s medical records. B.S. was then released from Premier. On March 27, 2004, B.S. returned to Premier. Prior to removing the Laminaria, Dr. Kachinas did an ultrasound and determined that there was still fetal heart activity and fetal movements. Dr. Kachinas continued the labor induction procedure by removing the Laminaria and administering Cytotec and high dosages of Pitocin. When the Laminaria were removed, there was a rupture of membranes with a loss of essentially all the amniotic fluid. Sometime during the afternoon of March 27, 2004, Dr. Kachinas did another ultrasound and determined that there was no fetal heart activity. Based on the length of time from the Digoxin injection to the ultrasound showing no fetal heart activity, the loss of amniotic fluid, and the administering of medication to cause contractions, Dr. Kachinas determined that the Digoxin injection was not the cause of death. On March 27, 2004, at approximately 6:30 p.m., Dr. Kachinas transferred B.S. to Doctors Hospital and had her admitted to the hospital for failure to progress with the induction of labor procedure. While at the hospital, B.S. continued to experience pain. On March 28, 2004, Dr. Kachinas performed the following procedures on B.S.: mini-laparotomy, hysterotomy, removal of products of conception, and a modified Pomeroy bilateral tubal ligation. In his description of the procedures, he stated that the fetal demise was at least of 48 hours duration. However, Dr. Kachinas’ records do not reflect the time of the fetal demise. Jorge Gomez, M.D., Petitioner’s expert witness, credibly testified that a physician is required to document the time of the fetal demise. In the hospital records following B.S.’s surgery, Dr. Kachinas listed the post-operative diagnosis as a failure to induce labor, an intrauterine fetal demise, a thin umbilical cord, and asymmetric intrauterine growth retardation, a condition in which the fetus is smaller than expected for the number of weeks of pregnancy. An autopsy was performed on the fetus. A surgical pathology report was also issued. The pathology report showed mild infarcts on the maternal side. On the fetal death certificate, Dr. Kachinas listed the immediate causes for the IUFD as a possible cord incident and multiple placental infarctions. Dr. Kachinas did not document the elective termination or the Digoxin injection on the fetal death certificate. Dr. Gomez disagrees with the reasons for IUFD given on the death certificate. His credible reading of the pathology report does not indicate that the infarcts were severe enough to have contributed to the fetal demise. His credible reading of the pathology report does not indicate that there was any evidence of a cord incident. Dr. Gomez is of the opinion that the cause of death should have been listed as elective termination. Dr. Gomez’ opinion is credited. However, Dr. Gomez did not give an opinion on whether the fetal demise was caused by the injection of Digoxin. DOAH CASE NO. 09-4680PL On December 13, 2005, K.M. was seen by Walter J. Morales, M.D., at Florida Perinatal Associates, which specializes in internal fetal medicine. Dr. Morales performed an ultrasound on K.M., who was pregnant with twins as a result of in vitro fertilization. The ultrasound revealed that the twins were fraternal, meaning that each twin had a separate placenta and a separate sac. One of the twins, Twin A, had an anomaly called a cystic hygroma, which results from an obstruction, causing the lymphatic fluid, which normally drains into the juglar vein, to accumulate in the neck area. Approximately 50 percent of the fetuses which have this anomaly in the first trimester also have a chromosomal anomaly, such as Down syndrome. The decision was made to have K.M. return to Florida Perinatal Associates in three weeks for further evaluation. On January 3, 2006, Edgard Ramos-Santos, M.D., a partner of Dr. Morales, performed another ultrasound on K.M. Dr. Ramos-Santos found that Twin A, a male, had a cystic hydroma, a thickening of the nuchal fold2, and shortened femur and humerus. These findings are soft markers for abnormal chromosomes. The ultrasound also revealed a possible heart defect. At the time of the ultrasound, Twin A was cephalic bottom, meaning that Twin A was positioned lowest in the uterus. Dr. Ramos-Santos also performed an amniocentesis on Twin A on the same date as the ultrasound. The amniocentesis showed that Twin A had an abnormal chromosome pattern compatible with trisomy 21 or Down syndrome. Both ultrasounds showed that Twin B, a female, appeared to be normal. At the request of K.M., no amniocentesis was performed on Twin B on January 3, 2006. At the time of the ultrasound performed on January 3, 2006, the presentation of Twin B was cephalic right. The findings of the January 3, 2006, ultrasound were discussed with K.M. and her husband. On January 9, 2006, Dr. Ramos-Santos discussed the results of the amniocentesis with K.M.’s husband. It was decided that a selective feticide would be performed on Twin A. Selective feticide is a procedure in which a solution of potassium hydroxide is injected into the fetus’ heart to make the heart stop beating. K.M. was referred to Dr. Kachinas at Premier for the selective feticide. On January 10, 2006, Roberta Bruce, a nurse at Florida Perinatal Associates, sent to Premier by facsimile transmission the January 3, 2006, ultrasound report for K.M. and K.M.’s insurance information. The cover page for the facsimile transmission included a note from Ms. Bruce, which stated: “* FYI Fetus have different gender. The male is the affected one.” The standard of care as specified in Section 766.102, Florida Statutes (2005), requires a physician performing a selective feticide to correctly identify the affected fetus. Dr. Kachinas did not correctly identify Twin A prior to performing the selective feticide and performed the procedure on Twin B, the normal fetus. Dr. Kachinas performed an ultrasound on K.M., but failed to identify the correct position of Twin A in relation to K.M. The ultrasound done on January 3, 2006, by Dr. Ramos-Santos showed that Twin A was located at the bottom and Twin B was located to the right of K.M. In his progress notes, Dr. Kachinas placed Twin A on the right and Twin B on the left. Although it is possible for twins to shift positions, it is not probable that the twins shifted from left to right. Dr. Kachinas performed an ultrasound, but failed to identify that Twin A was the fetus with multiple anomalies. Although the standard of care required Dr. Kachinas to do a Level 2 ultrasound evaluation, a Level 1 ultrasound evaluation would have identified the cystic hygroma, the shortened long bones, and the sex of Twin A. Dr. Kachinas failed to perform an adequate ultrasound evaluation by failing to identify the anomalies and the gender of Twin A. Dr. Kachinas’ notes do not show whether Twin A or Twin B had anomalies. His notes did not identify the sex of each of the twins. His notes did not document the attempts that Dr. Kachinas made to identify the anomalies such as a recording of the length of the long bones or any examination made to identify the sex of each of the twins. On January 24, 2006, K.M. returned to Florida Perinatal Associates for another consultation. Dr. Morales performed another ultrasound, which revealed that Twin A, who had the anomalies, was still viable. The ultrasound revealed the continued presence of a cystic hygroma, the thickening of the nuchal fold, shortened extremities, and a congenital heart defect. The ultrasound also showed that the viable twin was male. The presentation of Twin A was shown by the ultrasound as cephalic bottom.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4678PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2002), by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent physician as being acceptable under similar conditions and circumstances; finding that Dr. Kachinas did not violate Subsection 458.331(1)(m), Florida Statutes (2002); imposing an administrative fine of $2,500; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4679PL that a final order be entered finding that Dr. Kachinas did not violate Subsections 456.072(1)(l) and 458.331(1)(t), Florida Statutes (2003); finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2003); imposing an administrative fine of $1,000; and placing Dr. Kachinas on probation for one year. Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED as to DOAH Case No. 09-4680PL that a final order be entered finding that Dr. Kachinas violated Subsection 458.331(1)(t), Florida Statutes (2005), by committing gross medical malpractice; finding that Dr. Kachinas violated Subsection 458.331(1)(m), Florida Statutes (2005); imposing an administrative fine of $2,000 and placing him on probation for one year for the violation of Subsection 458.331(1)(m), Florida Statutes (2005); and revoking his license for the violation of Subsection 458.331(1)(t), Florida Statutes (2005). DONE AND ENTERED this 26th day of January, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 26th day of January, 2010.
The Issue The issues are whether Respondent deviated from the applicable standard of care, failed to keep medical records justifying the course of treatment, improperly delegated professional responsibilities, or prescribed, dispensed or administered controlled substances other than in the course of his professional practice; and, if so, what penalty should be imposed.
Findings Of Fact Respondent is a licensed physician in Florida, holding license number 59702. He has been licensed in Florida since 1991. Respondent is Board-certified in obstetrics and gynecology. His last certification was in November 2009. Respondent received his bachelor of science degree from the University of North Carolina at Chapel Hill in 1978. He received his doctor of medicine degree from Meharry Medical College in Nashville in 1982. He performed a surgical internship from 1982-83 with the Madigan Army Medical Center in Tacoma, an obstetrics and gynecology residency from 1987-91 at the Harbor Hospital Center in Baltimore, and a maternal fetal medicine fellowship from 1991-93 at the University of South Florida. During the residency, Respondent completed a six-week rotation in the mental evaluation, diagnosis, and treatment of transgendered patients. The training took place on the campus of Johns Hopkins University, which was one of the first medical schools to offer training in the diagnosis and treatment of transgendered patients. During this rotation, Respondent assumed responsibility for the care of about 30 patients, a little over half transitioning from female to male. From 1991-93, Respondent performed obstetrics and gynecology at several medical facilities in Florida, Maine, and Missouri. From 1993-96, Respondent was the Chief of Perinatology, Healthy Start Program, at the D.C. General Hospital/Howard University in Washington. In 1996, Respondent started the Orlando Women's Center (OWC) in Orlando, which he still owns and operates. He opened a second women's clinic in Orlando the following year. Respondent also participated in the starting of women's clinics in Ocala in 1998, Fort Lauderdale in April 1999, and Tampa in October 1999. In October 1996, about six months after opening, OWC hired M. W. as a medical assistant. She had nearly completed the coursework to become a licensed practical nurse, but at no time material to this case was she ever a licensed health care provider. M. W. was employed by OWC until 1999. M. W. was a diligent employee. Her initial duties were answering the telephone and working in the lab. However, her enthusiasm, intelligence, dedication, and discretion earned M. W. a promotion. In January 1997, Respondent promoted M. W. to a trusted position in which she would care for patients undergoing abortions during the second trimester of pregnancy. Working conditions required M. W. to be on-call nearly all of the time, as certain patients demanded to be admitted during nights or weekends to preserve confidentiality. The work was stressful because some patients bore fetuses with abnormalities, and protestors regularly demonstrated outside the clinic. M. W.'s new duties allowed Respondent himself to observe her work and determine that M. W. had the psychological stability to perform her job well. M. W. demonstrated her trustworthiness by dealing with patients' valuables, opening and closing the clinic, ordering supplies and stocking five surgical rooms, and drawing controlled substances for administration by Respondent. At the end of 1997, Respondent promoted M. W. to ordering and stocking the clinic's medical supplies, which include controlled substances. For Schedule II drugs, which includes narcotics, and Schedule III drugs, which includes steroids, M. W. had to fill out a DEA Form 222, using Respondent's DEA number to place the order. When OWC received Schedule III drugs, M. W. matched the order with the shipment. She then recorded the information in the OWC drug log. M. W. would place the drugs in a locked cabinet, if they were not needed for immediate use in the clinic. After nearly one year of ordering supplies, toward the end of 1998, M. W. approached Respondent to discuss a personal matter. At this point, the material disputes between the parties emerge. Respondent testified that M. W. discussed with him the possibility of undergoing transgender therapy, as well as treatment for an injured shoulder. According to Petitioner, M. W. discussed with Respondent the possibility of using anabolic steroids to improve her bodybuilding and weightlifting. The parties do not dispute that M. W. had participated in bodybuilding and weightlifting for several years prior to her employment with OWC. The Administrative Law Judge credits Petitioner's version of the purpose of treatment. Respondent testified that M. W. told him that she had thought about changing genders for several years. She did not like or want her breasts. She did not like the shape of her hips and thighs. She had decided that she did not want children and did not want to undergo menstruation. Although M. W. may have told Respondent that she did not like her body shape, she did not tell him that she wanted to change into a man. As discussed below, M. W. is not available to confirm or deny Respondent's version of events, and Respondent does not have any medical records documenting his care and treatment of M. W. Assigning a secondary reason for the treatment--healing a long-injured shoulder--is an awkward fit with Respondent's version of events, given the unlikelihood that someone considering a decision as major as changing genders would bother assigning a secondary reason for the decision. This secondary reason for the treatment is a better fit with Petitioner's version of events, although treatment of an injured shoulder was, at most, a very minor factor in the steroid treatment because the reconstructed medical records, discussed below, mention strength and bodybuilding, not recovery from a shoulder injury. The most important reason to credit Petitioner's version of the purpose of the steroid treatment over Respondent's version is that Petitioner's version conforms to Respondent's initial description of the purpose of the treatment. In other words, this is not a case of Respondent's word against contrary inferences drawn by Petitioner; this is a case of Respondent's later word against Respondent's earlier word. The parties do not dispute that, after the initial meeting to discuss the personal matter, Respondent agreed to allow M. W. to order anabolic steroids using his DEA number and at the discounted price charged to OWC. The drugs that Respondent expressly allowed M. W. to order--and which he prescribed for her--were Winstrol and, a short while later, depo-testosterone. Respondent prescribed for M. W. Winstrol orally at the rate of 2 mg per day, increasing to 10 mg per day at the end of six weeks, and depo-testosterone by intramuscular injection, which Respondent administered initially at the rate of 50 mg every two weeks, increasing to 200 mg every two weeks. The parties do not contest that, in early summer 2009, M. W. ordered through OWC sufficient Winstrol and Deca-Durabolin for her weightlifting father and brother, with whom she lived, to complete one six-week bodybuilding cycle each with these two anabolic steroids. For her brother, the evidence establishes that M. W. ordered through OWC additional Winstrol and sufficient depo-testosterone for him to complete a second six- week cycle. The evidence is undisputed that M. W. administered the injections of Deca-Durabolin and depo-testosterone to her brother, Deca-Durabolin to her father, and Deca-Durabolin to herself. M. W. probably took additional Winstrol at home. The evidence is also clear that, in addition to ordering the Winstrol and depo-testosterone in quantities in excess of the amount that she was authorized to order and Deca-Durabolin without any authority whatsoever, M. W. also ordered--without authorization--Xanax, an anti-anxiety drug, and Soma, a muscle relaxant, possibly for her own use. Petitioner contends that Respondent knew or reasonably should have known of these unauthorized orders, but the evidence that Respondent knew is nonexistent, and the evidence that he should have known is insubstantial. There is little, if any, dispute that, unknown to Respondent, M. W. was using cocaine and heroin--by her own admission since early 1998. In late July 1999, Respondent was informed that M. W. had passed out at work. When Respondent spoke with her about this incident, M. W. admitted to the use of cocaine and heroin, most recently a couple of weeks earlier. Respondent immediately withdrew his authorization of M. W. to order supplies and medications for OWC and immediately discontinued further steroid treatment. Acting as M. W.'s employer, not physician, Respondent ordered M. W. to submit to a drug screen for Demerol, which had been missing from OWC,2 Valium, and cocaine. Three weeks later, he received the results, which were positive for cocaine. After giving M. W. an opportunity to discontinue illegal drug use, Respondent ordered M. W. to submit to another drug screen for Demerol, Valium, fentanyl, cocaine, and heroin, and the report, received in late August, was positive for cocaine and Valium. On September 22, 1999, M. W. was found dead in her home by her father. The first law enforcement officers responding to the 911 call reported that they had found a lifeless male dressed in woman's panties; this mistaken observation was based on M. W.'s muscularization and shadowy presence of facial hair. A homicide detective conducting an initial investigation found large quantities of syringes and prescription drugs, mostly steroids, in M. W.'s bedroom. He also found shipping labels and receipts with the names of OWC and Respondent. The parties have stipulated that the death was unrelated to steroid use. M. W.'s death was classified as a natural death. She was 30 years old. In resolving the major factual dispute--i.e., the purpose of the treatment--the Administrative Law Judge has assigned considerable weight to Respondent's earlier responses to law enforcement and regulatory inquiries. In these responses, Respondent never mentioned transgender treatment or gender identity disorder, but instead admitted that the treatment was to enhance athletic performance and to facilitate bodybuilding. In a written reconstruction of the medical records done prior to the commencement of this case, Respondent stated that he was "unable to locate [M. W.'s] chart so I will reconstruct her chart from memory. Last time chart was seen was June [19]99 which was given to [her]." The reconstructed chart shows three office visits: November 7, 1998, March 20, 1999, and June 26, 1999. None of the reconstructed notes mentions anything about lab work being ordered, the results of any lab work, or anything about an injured shoulder and whether it was healing. The entry for November 7 starts: "[Patient] request being placed on testosterone for body building. States she . . . is considering Pro-Wrestling." The notes indicate blood pressure of 118 over 64, pulse of 72, and nothing remarkable from a basic physical examination. The notes state: "Wants to body build; requests steroids." The notes report that Respondent prescribed Winstrol in 2 mg doses and explained the side effects, and Respondent was going to allow M. W. to order her steroid medication from the clinic's vendors. This entry concludes with a note for a followup visit in three months. The entry for March 20, 1999, states that M. W. had no complaints, reported getting stronger, and was happy with "bench," meaning bench-pressing, a form of weightlifting. This note states that M. W. denied experiencing any side-effects and wanted to add a second steroid: "Request to add Depo- Testosterone." The entry for June 26, 1999, notes that M. W. "feels good about herself and her outlook on life is much improved" and is "continuing to [increase] strength [with] weights." This note contains findings of a physical exam, including blood pressure of 124 over 78 and pulse of 72, and the note concludes that M. W. was doing well and Respondent planned to continue the same steroid regime. The other time that Respondent discussed the purpose of the treatment was when he was interviewed by a law enforcement officer on March 10, 2000, in the presence of Respondent's attorney. Respondent did not say anything about transgender treatment or gender identity disorder, and he was evasive when asked if he were M. W.'s physician. When asked if M. W. were ever a patient or just an employee, Respondent responded by referring to the incident when she passed out at work: "She now when you say she would ah the only time when she and I were upstairs that day. . . . And when she had the overdose." The law enforcement officer asked, "And that's like in August [1999]?" Respondent replied, "Yeah. The question was and I and I still haven't been able to define that because she asked me not to tell anybody about her problem with her drug habits and this type of scenario. So the question is whether or not she was a, whether or not honestly she was a patient of mine at that particular point in time."3 Shortly after this exchange, the law enforcement officer asked Respondent if the steroids that Respondent allowed M. W. to order through the OWC were for competitive purposes, such as weightlifting. Respondent replied, "we had a discussion about her wanting to . . . make it so that her, that she could work out harder because she was having some problems with her shoulders and these type of things "4 These reconstructed records and statements to a law enforcement officer were not casual statements uttered in an informal setting. This was information that Respondent provided to assist in the investigation of the circumstances surrounding the death of this 30-year-old woman. Except for mention of a shoulder injury in the last-cited statement--an effort by Respondent to convert the treatment objective from pure enhancement of athletic performance to a mix of enhancement of athletic performance and therapy for some undiagnosed shoulder injury--the information consistently implies that the treatment objective was to improve M. W.'s efforts in bodybuilding and weightlifting. And the mention of the shoulder injury suggests only that its healing was subordinate to the weightlifting and bodybuilding. The failure of the reconstructed records to contain any diagnostic information or progress reports on the injured shoulder precludes a finding that the treatment objective was to heal a shoulder injury. Respondent testified about the importance of confidentiality for his patients, especially M. W., as she was undergoing "gender transformation." But patient confidentiality is not an end in itself; it is a means to assuring that the patient will trust the physician with all relevant information necessary for diagnosis and treatment. Respondent implied that the requirement of patient confidentiality somehow trumped the duty not to affirmatively frustrate investigations into the death of his employee and patient. This makes no sense. Respondent's strained "explanation" for creating a misleading set of medical records yields to the simpler explanation that Respondent told the truth in these reconstructed records and in the police interview: Respondent was treating M. W. with steroids for bodybuilding and wrestling, not for gender transformation and not for an injured shoulder. These findings are supported by the fact that the first drug that Respondent prescribed M. W. was Winstrol. The anabolic effect of a steroid promotes muscularization, and the androgenic effect of a steroid promotes masculinization. Because Winstrol produces more anabolic than androgenic effect, it was long favored by females who wanted to produce muscle mass, such as for bodybuilding, without masculinization. Initiating treatment with Winstrol and following with depo- testosterone is a conventional example of the cyclical use of steroids for muscularization, not masculinization. One of Respondent's expert witnesses made an interesting observation based on the misidentification of the gender of the body of M. W. by the first responders. He testified that, if Respondent had been ordering the anabolic steroids for weightlifting and bodybuilding, M. W. must have been seriously dissatisfied with the masculinization that she had undergone. However, this observation overlooks the fact that M. W., without Respondent's knowledge, had administered to herself unknown quantities of the prescribed anabolic steroids and Deca-Durabolin. Like Winstrol, Deca-Durabolin is more anabolic, or muscle-making, than androgenic, or masculinizing-- which is consistent with M. W.'s intent to enhance her athletic performance and bodybuilding, not change her gender. Although the first responders observed some facial hair, in addition to muscularization, nothing in the record suggests that M. W. could take all of these anabolic steroids in unknown quantities without experiencing some masculinization, or that she expected no such masculinization side effects. Under these circumstances, M. W. could not legitimately have confronted Respondent over the incidental masculinization that she had experienced, while self-administered steroids whose main effect was muscularization, without running the risk that he would detect her unauthorized ordering of steroids. As noted above, there are no available medical records. Respondent testified that he gave M. W.'s medical chart and drug log "VIP" treatment to preserve confidentiality: Respondent allowed M. W. to keep her medical records and the drug log pertaining to her medications. Each time M. W. presented to Respondent, such as for an injection, she brought with her these files, according to Respondent. Petitioner contends that these records never existed, and, therefore, Respondent failed to document that he monitored the effects of the anabolic steroids that he ordered for M. W. The Administrative Law Judge credits Petitioner's version of the situation regarding medical records. At the hearing, Respondent characterized as a mere "sampling" the medical records that he had initially called a reconstruction. He implied that the reconstructed medical records were illustrative of what the records originally contained. This probably explains how he could reconstruct blood pressure readings of 118 over 64 and 126 over 78 taken six and nearly twelve months prior to the reconstruction of the records. Likely, he recalled that the values were normal and inserted these readings merely to illustrate his recollection. However, as noted above, these reconstructed records are significant for their omission of any similar illustrative reconstructions of an SBC for blood chemistry, SMAC 18 for electrolytes and kidney and liver function, and lipids for cholesterol and triglycerides. This lab work is essential, at the start of a course of treatment with anabolic steroids and periodically during treatment, to ensure the safety of any patient, especially when orally ingested anabolics--here, Winstrol--are administered, due to the possibility of liver damage. Respondent testified at the hearing that the lab results were normal, but, unlike his addition of illustrative, normal values for blood pressure and pulse, Respondent never added illustrative, normal values for this lab work. This is because he never ordered such lab work. These lab tests are common in a variety of circumstances, so they did not require the "VIP treatment" that Respondent claimed was required for the transgender treatment plan. However, Respondent never produced medical records or even lab paperwork, such as test results or invoices, documenting that these tests had been done. Also, if such records had existed and Respondent had allowed M. W. to keep them, one obvious place for them would have been in M. W.'s room at her home, but Respondent never sent anyone there to look for them after her death. As to the Standard of Care allegations, Petitioner has thus proved first, that Respondent prescribed steroids for M. W. both for muscle building (not to treat an injured muscle) and for enhancement of athletic performance; and, second, that Respondent did not order lab work to monitor the effects of the steroids that he prescribed for M. W. The evidence fails to establish that Respondent ever undertook the treatment of M. W.'s drug addiction (despite his statement to the contrary, which has been discredited). The evidence fails to establish the circumstances out of which a duty to treat could have arisen, especially within the brief time frame between Respondent's discovery of her drug problems and her death. Any evidence relevant to the remaining allegations within Count One involves the employer-employee relationship, not the physician-patient relationship, between Respondent and M. W. As to the medical records violation, Petitioner has proved that Respondent's medical records failed to adequately document the monitoring of the effects of anabolic steroids that Respondent prescribed for M. W. The evidence establishes the necessity of lab work, at the start and during steroid treatment, to ensure the safety of the patient. Without this lab work, documented in the medical records, the course of steroid treatment is not justified. The evidence fails to establish that Respondent delegated responsibilities to a person whom Respondent knew or reasonably should have known was not qualified by training, experience, or licensure to administered controlled substances to patients. Drug addiction is not a deficit in training, experience, or licensure. Even if drug addiction fell within one of these statutory categories, the evidence fails to establish any improprieties in M. W.'s administration of controlled substances to patients, and, even if the evidence proved such improprieties, the evidence fails to establish that Respondent knew of M. W.'s drug addiction at a point to have timely relieved her of her duties, or that Respondent reasonably should have known of M. W.'s drug addiction in time to do anything about it. To the contrary, Respondent's termination of these responsibilities of M. W. appears to have been timely. Petitioner has proved that Respondent prescribed and administered controlled substances--i.e., anabolic steroids--for muscle building, not the treatment of an injured muscle, and for enhanced athletic performance. Respondent has previously been disciplined. By Final Order entered on December 18, 2007, in DOAH Case No. 06-4288PL, the Board of Medicine imposed one year's suspension, a $10,000 fine, and three years' probation for failing to perform a third- trimester abortion in a hospital and failing to obtain the written certifications of two physicians of the necessity for the procedure; committing an associated medical-records violation; and committing a Standard of Care violation for failing to perform a third-trimester abortion in a hospital. Respondent's acts and omissions occurred in 2005. The Fifth District Court of Appeal affirmed the Final Order in Pendergraft v. Department of Health, Board of Medicine, 19 So. 3d 392 (Fla. 5th DCA 2009). By Final Order entered on January 28, 2010, in DOAH Case No. 08-4197PL, the Board of Medicine imposed two years' suspension, a $20,000 fine, and three years' probation for committing a Standard of Care violation for failing to a advise subsequent treating physicians that he had removed a portion of a patient's fetus and an associated medical-records violation. Respondent's acts and omissions occurred in 2006. Although Respondent has been disciplined prior to this recommended order, the acts and omissions in this case took place several years prior to the acts and omissions in the two cases described immediately above.
Recommendation It is RECOMMENDED that the Board of Medicine enter a Final Order finding Respondent guilty of violations of Section 458.331(1)(m), (t), and (q), Florida Statutes (1998), and suspending his license for one year followed by three years' probation, imposing a fine of $10,000, and assessing costs as provided by law. DONE AND ENTERED this 8th day of June, 2010, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 8th day of June, 2010.
The Issue Respondent is charged in Count I of the Administrative Complaint with failure to properly examine, diagnose, and treat the patient Lynne McMurry; failure to keep adequate written medical records regarding treatment; providing treatment to the patient which was neither necessary nor justified; and failing to properly inform the patient of Respondent's medical diagnosis and by so doing violating Section 458.331(1)(t), Florida Statutes, in that she failed 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. Upon the same factual allegations, Count II alleges violation of Section 458.331(1)(o), exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain. Upon the same factual allegations, Count III charges violation of Section 458.331(1)(1) by making deceptive, untrue, or fraudulent representations in the practice of medicine or by employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(n) by failing to keep written medical records justifying the course of treatment of a patient. Upon the same factual allegations, Count IV charges a violation of Section 458.331(1)(i) by making or filing a report the Respondent knows to have been false.
Findings Of Fact No evidence was adduced at formal hearing to prove up the threshold issue of jurisdiction by licensure. No prehearing stipulation of the parties established paragraph 2 of the Administrative Complaint alleging that at all times material hereto Respondent was a licensed physician in the state of Florida, having been issued license number ME0037967. No requests for admission within the record establish this essential allegation as fact. No answers to interrogatories to establish this fact were read into evidence at the hearing. Respondent saw Lynne McMurry on four occasions. Respondent saw this 113 pound 39 year old female on April 17, 1984, and took a complete medical history. On April 24, 1984, Respondent's notes reflect that Respondent recorded McMurry's blood pressure and glucose level and did a urinalysis. They also reflect that vitamin B-complex was prescribed. There is no indication within the notes of whether this vitamin was administered orally, intramuscularly, or otherwise. However, it appears from the testimony that both experts assumed the B complex was administered by injection on that date. The notes reveal that on May 8, 1984, Respondent performed a lesion removal (described in testimony as the excision of a mole) and recorded test scores for urine, glucose, hematocrit, and hemoglobin. It may be inferred that the tests were done in Respondent's office on blood and urine samples provided by Ms. McMurry. According to Respondent's notes, she again saw McMurry on May 22, 1984, recorded her weight as reduced to 110 pounds, and again prescribed vitamin B-complex. Attached to these notes are copies of the test results recorded plus a breast thermography done on April 24, 1984, and one testing panoramic dated April 17, 1984. No notes were recorded by Respondent for April 17, 1984, beyond the medical history previously mentioned. Insurance claims for these treatments were made by Respondent based on diagnoses of "fibrocystic breast disease" and "hypotension." Petitioner's witness, Dr. Stanley L. Weiss, an osteopathic physician, has concentrated much of his study, practice, and writing in the Respondent's field of bariatric medicine (weight control and eating disorders) and his deposition (P-1) has been accepted as the opinion of an expert witness in review of medical records and medical matters. Dr. Weiss' background includes the policing of medical insurance claim fraud through the Florida Blue Shield Review Committee. Respondent's witness, Dr. Lionel R. Blackman, medical physician and past Medical Director of Lakes Hospital, Lake Worth, Florida, has many years of reviewing physicians' and hospital records, both in hospital peer reviews and in offices where usually only one physician reviews his or her own notes. He testified orally on behalf of Respondent. Dr. Blackman is also accepted as similarly qualified to render expert testimony on review of medical records and on medical matters. Dr. Weiss' criticism of Respondent's notes was solely related to his perception that they fail to contain sufficient information. He specifically found no malpractice in the treatment given, the records kept, or the claims made, but was concerned with the scarcity of what he felt would be adequate progress notes in the chart if another doctor had to review them. He conceded that a comprehensive history and physical examination form had been filled out on April 17, 1984, but expressed concern due to the appearance of several different handwritings on that physical examination form, as though a nurse, physician's assistant, and/or the Respondent herself had partially completed the form. He objected to lack of documentation for the necessity of multiple diagnostic procedures without additional comment within the notes covering actual physical evaluation, patient response to therapy, what therapy had been, and what the future plan of therapy would be. Reviewing the same notes of Respondent, Dr. Blackman considered them sufficient for office practice. He assumed from the notes that the patient being treated was a basically healthy patient without pathology, since no pathology was noted. Under these conditions, he further assumed that the B-complex prescription was used as a general tonic. He stated that one was required to assume Ms. Murry was generally sound because one could not assume a treatment for vitamin deficiency had been undertaken since B-complex vitamin .deficiency is exceedingly rare. He testified as one experienced in reviewing office notes that for office notes, the proper standard is that negative findings need not always be recorded. In short, Dr. Weiss found the notes less than adequate, unsatisfactory, and below common standards, and Dr. Blackman found them adequate, satisfactory, and meeting common standards for office notes. Without conceding any inadequacy of her records, Respondent explained that at the time the various notes had been made, her standard procedure was to personally do the patient history and physical examination while a physician's assistant transcribed the notes from her dictation during her personal "hands- on" examination. Since the complaint was filed, she has discovered everything she orally dictated was not written down by the single assistant she employed in 1984 and since them she has hired two better-trained assistants and has instituted a personal review of each chart at the close of each day's examinations. Respondent has an excellent reputation in the local medical community of West Palm Beach and has served on a number of community service teaching and writing projects. Last year she obtained 98 continuing medical education credits. Although never specifically stated, the undersigned infers all or most of these hours impinge on improving Respondent's record keeping skills. There is no suggestion from any source that the Respondent's diagnoses were in error or that the B-complex did or even could have produced an undesirable result in the patient, Lynne McMurry. Nothing within this record supports the allegations of violations as charged in Counts I, II, III, or V.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is, RECOMMENDED that the Board of Medical Examiners enter a Final Order dismissing with prejudice all Counts against Respondent. DONE and RECOMMENDED this 24th day of April, 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 24th day of April, 1987. COPIES FURNISHED: Dorothy Faircloth, Executive Director Florida Board of Medicine 130 North Monroe Street Tallahassee, Florida 32301 H. Scott Hecker, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Deborah J. Miller, Esquire 2100 Ponce de Leon Boulevard Suite 1201 Coral Gables, Florida 33134 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph A. Sole, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issues in this case relate to whether Respondent is guilty of charges that Petitioner has brought against him under Sections 458.331(1)(t), (q), and (m), Florida Statutes, based on allegations that in treating a young patient, Respondent failed to practice medicine with the requisite level of care; inappropriately prescribed excessive quantities of medications; and failed to keep medical records that justified his treatment decisions.
Findings Of Fact The evidence presented at final hearing established the facts that follow. Dr. Heller is a Florida-licensed physician who holds license number ME 0036675. A family practitioner in the small, rural community of Okeechobee, Florida, Dr. Heller is board- certified by the American Board of Family Practice. Dr. Heller's Treatment of J.B. On Monday, August 31, 1998, a mother brought her son J.B., then age five, to Dr. Heller's office. This visit was the first of six to Dr. Heller that J.B. and his mother would make over the next six weeks; five of those visits would take place in the 17 days from August 31 to September 16, 1998. This case is about Dr. Heller's treatment of J.B. First Week In taking J.B.'s medical history on August 31, 1998, Dr. Heller learned that from before the age of two the boy had presented behavioral problems and been difficult to control. When he was three years old, J.B. had been treated at a psychiatric hospital. Now J.B. was having difficulty paying attention in school, experiencing mood swings, and becoming easily irritated; he had been violent at home, too. Dr. Heller discussed with J.B.'s mother the medications J.B. was currently taking, as well as the medications that J.B. had tried in the past, to determine whether those medications had been effective in controlling J.B.'s behavior. Dr. Heller learned that J.B. was currently taking ten milligrams of Adderall in the morning.1 He noted that although the Adderall was not particularly effective, J.B.'s behavior worsened when the Adderall wore off. Additionally, J.B.'s mother had stopped giving her son his afternoon dose of Adderall because the medicine apparently suppressed his appetite, and he would not eat when taking it. J.B.'s mother also informed Dr. Heller that J.B. had taken Risperdal in the past, and this drug had helped a great deal.2 She believed he had taken 0.5 milligrams of Risperdal twice a day. J.B. had never taken Prozac.3 During the visit, Dr. Heller talked with J.B. and observed his behavior. Pertinent parts of this discussion and evaluation are included in the doctor's notes. Dr. Heller recorded that J.B. was thin and extremely hyperactive. The child would not sit still for any length of time. J.B. also had difficulty speaking clearly, and his mother confirmed that he had speech and language delays. Dr. Heller wrote that J.B.'s reaction to any criticism was to want to hit someone. After interviewing J.B.'s mother and examining J.B., Dr. Heller diagnosed J.B. preliminarily with several behavioral and mental health problems, namely, attention-deficit hyperactivity disorder ("ADHD"), problems with violence, depression, rejection sensitivity, and possible dysthymia. He believed that J.B. might be bipolar and had concerns about the patient's low weight, which appeared to have been caused by Adderall. He thought that the boy might have some combination of hearing, speech, and language problems as well. To control J.B.'s violent behavior, Dr. Heller started J.B. on 0.5 milligrams of Risperdal, twice a day, the same dose his mother recalled he had taken previously. Although Risperdal is often used as an anti-psychotic agent, it is also helpful in controlling violent behavior. Dr. Heller continued J.B. on the same amount of Adderall that the boy was already taking, to improve his attention in class; prescribed Prozac for J.B., ten milligrams daily for five days to be followed by ten milligrams daily for five more days, to treat the child's depression and mood swings; and instructed J.B.'s mother to bring the boy back after eight days for another examination. On Wednesday, September 2, 1998, J.B. developed a mild dystonic reaction for which he was treated with Benadryl at a local hospital's emergency room and sent home. An unwanted but tolerable side effect of certain drugs, a dystonic reaction is an involuntary, potentially dangerous, sometimes painful contraction of the muscles, usually affecting the upper neck but occasionally striking other parts of the body. Risperdal most likely had caused J.B.'s reaction. Based on the symptoms commonly associated with dystonic reactions——not to mention that J.B. was taken to the emergency room——the event must have frightened the boy and his family. There is no evidence, however, that J.B. was either in pain or in danger from this distressing side effect. When Dr. Heller was informed that day of his patient's condition and emergency treatment therefor, he scheduled an office visit with the child for the next day. On September 3, 1998, J.B.'s mother brought J.B. to Dr. Heller's office as recommended to discuss the dystonic reaction. Despite Risperdal's side effect, the drug was working well, J.B.'s mother reported, and the patient "look[ed] much better" to Dr. Heller. He also noted that the "[c]hild like[d] taking Prozac, [which was] helping him a lot." Dr. Heller decided to continue the boy on these medicines plus the Adderall at the same dosages, and to add Cogentin, 0.5 milligrams twice a day, to control the dystonic reactions.4 Later that afternoon, J.B. returned to Dr. Heller's office complaining of weakness and nosebleeds. In response, Dr. Heller reduced J.B.'s morning dose of Risperdal to 0.25 milligrams and prescribed neosynephrine for the nose bleeds. Second Week Informed by telephone a few days later, on Sunday, September 6, 1998, that J.B.'s nosebleeds had re-occurred, Dr. Heller again advised using neosynephrine and applying pressure——neither of which had yet been tried. Dr. Heller saw J.B. in his office the following Wednesday, September 9, 1998. He observed that the child seemed better behaved and had shown some improvement on Risperdal. During this visit, J.B.'s mother suggested that her son try Ritalin instead of Adderall, telling Dr. Heller that J.B. had done better with Ritalin in the past. Acting on this information, Dr. Heller prescribed slow-release Ritalin, 20 milligrams twice a day, in the place of Adderall. Because J.B. had not suffered another dystonic reaction——evidently the Cogentin was doing its job——Dr. Heller continued J.B. on Cogentin at 0.5 milligrams, twice a day, and instructed the boy to resume taking the originally-prescribed amount of Risperdal: 0.5 milligrams twice a day. He also directed that J.B.'s Prozac be increased to 20 milligrams daily. Dr. Heller asked J.B.'s mother to bring him back to the office in two weeks. Third Week Five days later, on Monday, September 14, 1998, Dr. Heller saw J.B. again. His mother reported that J.B. was doing much better in school——apparently the Ritalin was helping——but he remained angry with and "hateful” to her at home. J.B. himself told Dr. Heller that his mother "irritate[d]” him. Armed with this data, Dr. Heller increased J.B.'s evening dose of Risperdal from 0.5 milligrams to 1.5 milligrams, continuing him on 0.5 milligrams of the drug in the morning. Dr. Heller also increased J.B.'s morning dose of Ritalin from 20 milligrams to 40 milligrams, while keeping the second dose constant at 20 milligrams. He continued J.B. on the same dosages of Prozac and Cogentin. Finally, Dr. Heller recommended family counseling and requested to see the boy again in two days. When Dr. Heller next examined J.B. on Wednesday, September 16, 1998, the patient's mother reported that J.B. was doing better in school on the higher morning dose of Ritalin but was still having problems at home. Dr. Heller observed that the boy was poorly behaved but under control. He decided to stay the course and continue J.B. on the present combination of medicines, at existing dosages, with instructions to return after one month. Fourth and Fifth Weeks J.B. was not brought to Dr. Heller's office during the weeks of September 20 and September 27, 1998. Sixth Week Dr. Heller saw J.B. again on Monday, October 5, 1998. At this time, J.B. was reportedly doing well in school but not at home, where, according to his mother, J.B. expressed "[l]ots of anger towards [his] father"——to the point that she feared the father's visit at Christmas. J.B. had stopped taking his evening dose of Risperdal. The boy was still having some nosebleeds, and he had a rapid heartbeat. His psychological and behavioral problems continued, although his violent behavior was under control. J.B.'s mother gave Dr. Heller a note from Mrs. Glenda McBride, J.B.'s teacher, in which Mrs. McBride had conveyed her concerns about J.B.'s failure to eat at school and his depressive behavior. To stimulate J.B.'s appetite, Dr. Heller prescribed Sinequan——which is an antidepressant that, as a side effect, can increase the user's appetite——at a dose of 25 milligrams, twice a day. He asked to see J.B. in three weeks. As it happened, however, the October 5, 1998, visit was J.B.'s last to Dr. Heller's office. Around that time, the Florida Department of Children and Families ("DCF") became involved, apparently at the instance of J.B.'s older brother, a prison inmate who had accused their mother of overmedicating the boy. The record is empty of substantial competent evidence concerning DCF's investigation, findings, or interventions, if any. What is clear, however, is that J.B.'s physician-patient relationship with Dr. Heller abruptly ended. At hearing, J.B.'s kindergarten teacher recounted an out-of-court statement by the boy's mother informing her that J.B. had been taken off all medications except Ritalin effective October 6, 1998. After that date, according to Mrs. McBride, the child improved visibly in the classroom, where she had the opportunity to observe him until the end of January 1999, when J.B. moved away. The trier accepts Mrs. McBride's testimony as far as it goes——which is not as far as the Department would take it. Specifically, neither Mrs. McBride's testimony nor any other evidence clearly and convincingly establishes that Dr. Heller's treatment of J.B. either failed, was deleterious, or would not have brought about an improvement in J.B.'s condition similar to that witnessed by Mrs. McBride if J.B. had remained in Dr. Heller's care beyond October 5, 1998. For one thing, Mrs. McBride's second-hand testimony regarding the purported change in J.B.'s mix of medicines as of October 6, 1998, is not, by itself, clear and convincing evidence of that fact; and, there was no persuasive direct evidence——e.g. the testimony of J.B.'s next treating physician——to corroborate her account or to explain what subsequent care and treatment, if any, were rendered. For another, there are any number of reasons unrelated to medical care that could have caused or contributed to J.B.'s improvement which are not excluded by or inconsistent with the evidence in the record.5 In sum, the trier expressly does not find, and affirmatively rejects any inference, that DCF "rescued" J.B. from Dr. Heller. The Charges In Count One of its Administrative Complaint, the Department accused Dr. Heller of failing to practice medicine with the requisite degree of care and skill, in violation of Section 458.331(1)(t), Florida Statutes, in four specific respects: (a) inappropriately prescribing excessive doses of medicine to J.B.; (b) failing to take a baseline electrocardiogram ("EKG”) for J.B.; (c) failing to consult a family therapist or counselor for J.B.; and (d) failing to note in J.B.'s medical records information regarding the mental status examination of J.B. or any observations of his behavior in the office. At hearing, however, the Department withdrew the allegation that Dr. Heller had negligently failed to order an EKG. Further, the Department's own expert testified that Dr. Heller's alleged failure to consult with a family therapist was not a breach of the standard of care; needless to say, Dr. Heller's experts agreed. Thus, the alleged negligent acts described in (a) and (d) above are the ones that remain in dispute.6 In Count Two, the Department charged Dr. Heller with prescribing legend drugs other than in the course of his professional practice, in violation of Section 458.331(1)(q), Florida Statutes, based on the following allegations: On or about August 31 and September 9, 1998, [Dr. Heller] ordered an automatic 10 mg. increase in Patient J.B.'s Prosac [sic] prescription without allowing an appropriate amount of time for the medicine to take effect On or about September 14, 1998, [Dr. Heller] increased Patient J.B.'s morning dose of Ritalin from 20 mg. to 40 mg. in one jump; From on or about August 31, 1998 to on or about September 14, 1998, [Dr. Heller] increased Patient J.B.'s dose of Risperdal to a total of 2 mg. a day despite the fact that Patient J.B. suffered an earlier dystonic reaction; On or about October 5, 1998, [Dr. Heller] prescribed Sinnequan [sic] to Patient J.B. in an effort to increase his appetite despite the fact that Patient J.B. was already suffering from the side effects of his other medications; From on or about August 31, 1998 to on or about October 8, 1998, [Dr. Heller] prescribed excessive doses of multiple medications without regard for the interactions and side effects of the high doses on Patient J.B. At hearing, the Department withdrew the allegation, set forth in (a) above, regarding the purportedly excessive increase in J.B.'s Prozac. The Department alleged in Count Three of its Administrative Complaint that Dr. Heller had violated Section 458.331(1)(m), Florida Statutes, by failing to keep medical records that justified the following alleged misconduct: (a) his prescribing of excessive doses and multiple medications to J.B.; (b) his failure to take a baseline EKG for J.B.; (c) his failure to consult a family therapist; and (d) his failure to note in J.B.'s medical records information regarding the mental status examination of J.B. or any observations of the patient's behavior in the office. For the reasons set forth in paragraph 23 above, the records dispute has boiled down to the alleged deficiencies described in the foregoing clauses (a) and (d). The Standard of Care At hearing, the Department agreed that the standard of care against which Dr. Heller's conduct must be measured is that level of care, skill, and treatment which is recognized by a reasonably prudent family practitioner as being acceptable under similar conditions and circumstances. The Department disavowed any intent to hold Dr. Heller to the standard of care governing psychiatrists. In its proposed recommended order, however, the Department has asserted that Dr. Heller provided psychiatric treatment to J.B., and that, consequently, a board-certified child psychiatrist should be considered a "similar health care provider.” This contention is somewhat, if not entirely, inconsistent with the stipulation at hearing regarding the applicable standard of care; at the very least, it muddies the water. The greater weight of the evidence shows that mental illnesses and behavioral problems such as J.B.'s are conditions that reasonably fall within the discipline of family practice, and that specialists such as Dr. Heller may appropriately diagnose and treat the mentally ill without thereby engaging in the specialized practice of psychiatry.7 As a matter of fact, therefore, the relevant standard of care in this case is that applicable to small-town family practitioners. The evidence regarding the appropriate standard of care is in conflict. The Department's expert, Dr. Morteza Nadjafi, is a board-certified child psychiatrist who practices in the large city of Orlando, Florida. Based primarily on the medical records that Dr. Heller prepared and without having discussed the case with Dr. Heller himself, Dr. Nadjafi found much to criticize in Dr. Heller's treatment of J.B. Broadly speaking, it is Dr. Nadjafi's opinion that, in caring for——and in documenting his treatment of——J.B., Dr. Heller repeatedly fell short of the minimal standard of care for any physician, irrespective of specialty. On the other hand, Dr. Heller's experts opined that Respondent treated J.B. with the requisite level of care expected of a reasonably prudent family practitioner. They were: Dr. Joseph Talley, author of a textbook entitled Family Practitioner's Guide to the Treatment of Depressive Illnesses that was favorably reviewed in the New England Journal of Medicine, a board-certified family practitioner who regularly treats mentally ill patients in the small North Carolina town where he works; and Dr. David Rooney, a board-certified psychiatrist who presently specializes in treating adults and geriatric patients, whose background includes a one-year, post- graduate internship in family practice that was followed by about a year's employment as a family practitioner in a rural community in Iowa. As the trier of fact and arbiter of credibility, the Administrative Law Judge must resolve the evidential conflict regarding the acceptable degree of care and Dr. Heller's failure or success in practicing with it. Accordingly, the trier has carefully considered the substance and foundations of the several experts' opinions as well as their respective demeanors, testimonial inconsistencies, and possible biases, ultimately determining the appropriate weight to be given each witness's testimony. On balance, all factors considered, the trier believes that Dr. Heller's witnesses painted a more accurate picture of the relevant standard of care.8 Of the three experts, Dr. Talley's testimony was the most persuasive because his specialty, community, and practice are the most similar to Dr. Heller's. Ultimate Factual Determinations In treating J.B., Dr. Heller did not fail 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. To the contrary, Dr. Heller's care and treatment of a difficult patient more likely than not exceeded the relevant standard of care and probably reflected above-average skill for a family practitioner in a small town where there is (according to the Department's expert) no local psychiatrist. The Department failed to adduce clear and convincing evidence that Dr. Heller prescribed drugs to J.B. inappropriately or in excessive or inappropriate quantities, either negligently in violation of the applicable standard of care or (it follows from the foregoing) in amounts that no reasonable physician could justify as medically appropriate. If the Department had proved the latter clearly and convincingly, then the trier would have been allowed to presume that the doctor had prescribed drugs outside the course of his medical practice in violation of Section 458.331(1)(q), Florida Statutes. As it is, however, the greater weight of the evidence shows that Dr. Heller prescribed drugs for J.B. in appropriate quantities, for medically justifiable purposes. Further, the evidence is overwhelming——indeed, is clear and convincing——that Dr. Heller's treatment of J.B. took place in the course of his professional practice. Dr. Heller's medical records pertaining to J.B. were legible; they properly identified the responsible physician (Dr. Heller) by name and professional title; and, as a preponderance of evidence demonstrates, they justified the course of treatment that Dr. Heller rendered to J.B. Dr. Heller not only exercised reasonable care under the circumstances in preparing these records, but also he obeyed the statutory directives regarding record-keeping set forth in Section 458.331(1)(m), Florida Statutes. The Department's evidence to the contrary is not clear and convincing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the Department having failed to prove the charges brought against Dr. Heller by clear and convincing evidence, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the Administrative Complaint. DONE AND ENTERED this 12th day of June, 2001, in Tallahassee, Leon County, Florida. JOHN G. VAN LANINGHAM 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 12th day of June, 2001.
Findings Of Fact Respondent, Stella Mae Browning Brumley, has been a registered nurse in Florida since 1954 and worked at the Sunland Development Center in Ft. Myers for approximately 10 years before she was dismissed in June, 1975 by the hospital authorities. During the period March-May, 1975 Mrs. Brumley entered on the clinic log that she had administered tannic acid, 20 percent solution, to approximately 14 "clients of the center who had suffered minor cuts, abrasions etc. At the time this medication was administered the standing orders did not provide for use of this medication and there was no doctor's order for this treatment to be given to any of the "clients" so treated. Tannic acid was supplied to the medicine cabinets in each of the cottages where the clients reside and was available for use by the "parents" although all of the Petitioner's witnesses testified that a doctor's order was required before thee use of tannic acid was authorized. Dr. Murray, present Medical Director at Sunland, introduced the use of tannic acid at Sunland but never put it on the standing orders. He considers tannic acid to be an effective medication for minor abrasions. There are standing orders for treating minor skin irritations and rash but there is nothing in the standing orders providing specifically for treatment of abrasions (TR p 44, 47). Webster's New Collegiate Dictionary shows another sense of the word, abrasion, to be irritation. Cottage parents generally considered that medications made available in the medicine cabinets and not kept locked, such as tannic acid, were there for use in first aid treatment, and frequently used same assuming it was authorized by standing orders. On or about February 27, 1975, Manuel Horton, a client at Sunland received ant bites which resulted in his being taken to the clinic. The doctor ordered treatment with furacil and entered same on clinic chart. No copy of the orders or the medication was sent to the cottage. Later that evening Respondent was called to the cottage to administer to Horton. He had scratched himself in several places deeply enough to draw blood. After ascertaining that no record of treatment ordered was in the cottage Mrs. Brumley called the nurse'supervisor on duty in the clinic to discuss treatment but she did not go across the road to the clinic to look at the clinic chart. Mrs. Miller, the supervisor on duty in the clinic, was partially supervisor of the cottage nurses and Mrs. Brumley testified she considered Mrs. Miller to be so because she was a grade higher. Mrs. Miller advised that she had caladryl available if someone could come for it. Mrs. Brumley testified that calomine was received and Horton was treated with calomine. She entered on his chart that he was treated with caladryl. Furasin, which was ordered by the doctor, is an antibiotic while caladryl, a combination of benedryl and calamine, is an antihistimatic. During a period when pin worms were prevalent Povan was ordered administered to all employees as well as the clients. In the initial planning stages Mrs. Brumley was asked to administer the treatment in the cottages in the evening but she demurred. Later it was decided that the treatment would be given only during the day hours. Mrs. Brumley understood the time limitation on treatment during day hours applied only to the children and on the evening of April 15, 16, and 17 she administered Povan to employees in the cottages. On February 14, 1975 Kenneth Skogland and Linda Sallak, clients at Sunland, were administered Visteril by Respondent Brumley. At the time Thorozine was the authorized sedative when a child became unruly. No doctor's orders for substitution of Visteril for Thorozine was entered. Respondent contends that during a conversation with Dr. Murray he suggested the substitution of Visteril for Thorozine and she considered that to be authorization for the substitution. Visteril is both an antihistamine and a sedative. Dr. Miller denied he ever said that Visteril could be substituted for Thorozine. In March, 1972 Respondent entered on the medical records that bread, butter, and cotton was administered to a patient who had swallowed pins. At the hearing Mrs. Brumley acknowledged that she had administered the cotton sandwich but its use had been authorized by a doctor at Sunland who is now deceased. No record of such an order was found. Mrs. Brumley's testimony that she and the prescribing doctor had discussed the cotton sandwich with the Medical Director at the time gas disputed by the Medical Director at the hearing. He had no recollection of such conversation although he recalled the incident where the patient was so treated. No adverse effects resulted from this treatment and the pins were eliminated by the patient without surgery being required.
