The Issue The issues in this case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, the Respondent was licensed as a psychologist by the State of Florida, Department of Health, Board of Psychology, license number PY 4151, with an address of record at 1870 Aloma Avenue, No. 280, Winter Park, Florida 32789. On September 3, 2006, patient R.F., then a 29-year-old female, arrived at the emergency room (ER) of Winter Park Memorial Hospital (WPMH), with symptoms of severe abdominal pain. She was measured as 66" tall and 97.5 pounds. She required a blood transfusion shortly after her arrival at the ER and was admitted to WPMH with a diagnosis of anorexia and anemia. The patient's hospitalization followed several months of digestive illness and weight loss. Despite receiving medical care from a family practitioner, there was no apparent diagnosis of the illness prior to her admission to WPMH on September 3, 2006. On September 5, 2006, the Respondent received a consultation referral for the patient from her attending physician at WPMH. At the time of the request, hospital staff had been unable to determine a cause for her weight loss and medical condition. On September 6, 2006, the Respondent met with and interviewed the patient in her room at WPMH. During his interview, he asked questions related to memory, eating habits, body image, and depression. As part of his consultation with the patient, the Respondent provided three screening tests to her: the Beck Anxiety Inventory (BAI), the Beck Depression Inventory (BDI) and the Eating Disorder Diagnostic Scale (EDDS). While the patient completed the tests, the Respondent left her hospital room and went to talk with the nursing staff. The nurses notes in the patient's file reported an episode of vomiting by the patient during her admission. At the hearing, the patient acknowledged one episode of vomiting at the hospital. There was no evidence that the vomiting incident was a symptom of an eating disorder or an attempt by the patient to "purge." The nurse’s notes also indicated that the patient's husband had exhibited anger during a hospital visit with the patient, suggesting that there was conflict between the patient and her husband. The Respondent confirmed the information in the nursing notes during his conversation with the nursing staff. The Respondent also discussed the patient with her attending physician at WPMH, who acknowledged that no medical explanation for the weight loss had been identified. After completing his discussions with the nursing and medical staff, the Respondent returned to the patient and assisted her in completing the tests. The Respondent made no attempt to contact the Respondent's family practitioner to obtain medical history or any other information relevant to her symptoms. Believing that discussing the situation with the patient's husband would be unproductive, the Respondent made no attempt to talk with the husband. He also made no attempt to talk to any other member of the patient's family. Following his review of her responses, the Respondent offered a "working" diagnosis of anorexia, depression (NOS), and anxiety disorder (NOS). The Respondent's diagnosis appears to be based, at least in part, on the fact that no other cause for the patient's deteriorated medical condition had been identified at the time he conducted his evaluation. The evaluation of the patient performed by the Respondent at WPMH was insufficient to establish a clinical diagnosis of anorexia. The DSM-IV-TR criteria for establishing a diagnosis of anorexia nervosa include: (a) body weight less than 85 percent of expected, (b) intense fear of gaining weight or with becoming overweight even when underweight, (c) body image distortion and/or related distorted beliefs, and (d) amenorrhea or the absence of at least three consecutive menstrual cycles. There was no credible evidence that the patient exhibited either the second or third criteria for diagnosis of anorexia nervosa at the time of the diagnosis. There was no evidence that the patient exhibited an intense fear of gaining weight or with becoming overweight. To the contrary, the patient clearly expressed concern about her weight loss and her physical condition. There was no evidence that the patient exhibited body image distortion. The patient was aware of her weight loss. Although there was some dispute regarding the extent of weight loss preceding the admission to WPMH, with the patient estimating at 20-to-25 pounds and the mother-in-law estimating as much as 50 pounds, the Respondent had no discussion with the mother-in-law prior to rendering his diagnosis, and there was no indication that the patient's self-report was incorrect. Additionally, although the patient's responses to the screening tools were indicative of elevated anxiety, the responses were insufficient to distinguish between anxiety related to symptoms of physical disease and anxiety resulting from psychological illness. The BAI is useful as a screening measure for the severity of anxiety in adults and evaluates physiological and cognitive symptoms of anxiety. The patient's scores on the BAI suggested the presence of anxiety potentially related to physical illness. The patient's score on the BDI were suggestive of depression potentially related to a physical condition. The EDDS is a brief self-reporting tool for screening anorexia nervosa, bulimia nervosa, and binge-eating disorder, but is not regarded as a diagnostic instrument. The Eating Disorder Examination (EDE), a semi- structured interview, was developed to assess the specific psychopathology of anorexia nervosa and bulimia nervosa. The Respondent did not administer an EDE to the patient. Based on the patient's responses to the screening tests, the Respondent should have continued his evaluation of the patient to confirm his working diagnosis; however, after rendering his working diagnosis, the Respondent conducted no further review and had no intentions of doing so. At the conclusion of his evaluation on September 6, 2007, the Respondent did not anticipate any further interaction with the patient. Although the Respondent's notes indicate that he performed the evaluation, including testing, the records lack detail sufficient to document the Respondent's inquiry and any analysis resulting in his diagnosis. There is no narrative or textual documentation of any discussion between the Respondent and the patient as to the patient's medical history. The Respondent's records fail to reflect any discussion related to the patient's self-image and food other than a score on the EDDS instrument. There is no documentation within the Respondent's records of any discussion related to the use of laxatives other than a score on the EDDS instrument. Although at the hearing, the Respondent opined that the patient was unable to verbalize emotions (alexithymia), the Respondent's records do not document the finding. The Petitioner has asserted that the entire consultation was completed in an hour and 15 minutes and that the patient interview period was not long enough. The Respondent asserted that, due to the type of referral received, he was required by hospital policy to complete his assessment within a 24-hour period. The Respondent also asserted that the patient's medical condition did not permit an extended consultation at WPMH on September 6, 2006. The evidence failed to establish that either hospital policy or the patient's condition precluded the Respondent from conducting additional interviews or tests to confirm his diagnosis. The Respondent communicated his diagnosis to the patient on September 6, 2006, and recommended admission on a voluntary basis into an eating disorder clinic for further evaluation and treatment after discharge from the hospital. The Respondent believed that the patient concurred with his recommendation on that date, and he immediately contacted the hospital case managers to begin the process of arranging her admission to the eating disorder clinic. At the hearing, the patient testified that she did not believe she had an eating disorder or any psychological issue related to her hospitalization at WPMH and that she did not agree with the Respondent's recommendation that she voluntarily enter an eating disorder clinic after discharge. On September 7, 2006, the Respondent was advised by an urgent telephone call from a WPMH nurse that the patient was attempting to leave the hospital against the advice of her physicians. At the request of the nurse, the Respondent returned to WPMH and met with the patient and her mother-in-law. The mother-in-law was dissatisfied with the hospital's failure to determine a medical cause for the patient's illness. The mother-in-law believed that the WPMH staff was intent on discharging the patient to an eating disorder clinic and was refusing to perform additional diagnostic testing. The mother-in-law had discussed the matter with the family physician and was convinced that leaving the hospital and proceeding through the family physician would result in additional testing. Accordingly, the mother-in-law was encouraging the patient to leave the hospital. The Respondent discussed the situation with the attending physician and received confirmation that no further medical tests were planned. After talking to the attending physician, the Respondent attempted to convince the patient and her mother-in- law that potentially serious medical risks were presented by removing the patient from the hospital at that time. Based on the patient's condition at the time of her arrival to the ER, the Respondent's concern was reasonable. After failing to convince the patient and her mother- in-law that the patient's health was at risk, the Respondent determined that the patient met statutory criteria for an involuntary "Baker Act" commitment to the hospital. The Respondent believed that the patient was leaving the hospital against medical advice, that the patient would not stay in the hospital voluntarily, that the patient was not able to care for herself, and that no appropriate caretaker was available. At the hearing, the patient testified that she was willing to remain at the hospital for further medical testing; however, the evidence suggests that, because no further medical tests were planned, the patient was in the process of leaving WPMH against medical advice. Based on the patient's condition upon her arrival at the ER and the fact that no medical cause or treatment had been identified for her illness, it is reasonable to presume that she was incapable of caring for herself on September 7, 2006. Although the mother-in-law was insistent that she could care for the patient in her home, it is unlikely that adequate care outside a medical setting was available to the patient at that time, given the condition of the patient upon her admission to the ER. The Respondent implemented the Baker Act commitment with the agreement of the patient's attending physician. The Respondent informed the patient and her mother-in-law of the action, and then the Respondent left the hospital. On September 9, 2006, the patient was administered a colonoscopy at WPMH and was subsequently diagnosed with Crohn's disease, a condition for which medical treatment was available. On September 12, 2006, the Respondent had a follow-up consultation with the patient at WPMH. The Baker Act commitment was not renewed. On September 14, 2006, the patient was discharged from WPMH. After the discharge, the patient continued to receive medical treatment for Crohn's disease, and her health began to improve, including reduction of symptoms and appropriate weight gain.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding Patrick Gorman, Psy.D., in violation of Subsections 490.009(1)(r) and 490.009 (1)(w), Florida Statutes (2006), and imposing a penalty as follows: a reprimand and an administrative fine of $1,000. DONE AND ENTERED this 11th day of December, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 11th day of December, 2009.
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.
Findings Of Fact Petitioner is the state agency charged by statute with regulating the practice of medicine in the state of Florida. The Respondent is and at all times material to this case was a licensed physician in the State of Florida, license #ME 0017772, last known address identified as 2665 Cleveland Avenue, Fort Myers, Florida 33901. The Respondent has practiced internal medicine in Fort Myers, Florida since approximately 1980. As a part of his practice, the Respondent has provided medical care to developmentally disabled persons. Generally, developmentally disabled persons are unable to communicate clearly, are unable to provide medical histories, and require extensive assistance with daily living activities. PATIENT #1, "C.P." The Amended Administrative Complaint ("complaint") alleges as follows: that the Respondent treated patient #1 from approximately August 7, 1986 to October 6, 1986; that on October 6, 1986, patient #1 was prescribed Ceclor, an antibiotic, for the treatment for an ulcer of the left knee; that subsequent to the October 6, 1986 visit the Respondent was advised that the ulcer had not improved and that the patient had an elevated temperature; that the patient was thereafter admitted to the hospital under the care of an orthopedic surgeon to whom the patient was referred by the Respondent; and that the patient subsequently expired from causes immaterial to this case. The complaint alleges that the Respondent failed to keep written medical records that justified the course of treatment of the patient, in that the medical records contain no patient history or examination results and that the Respondent's alleged failure to keep said records constitutes a failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions or circumstances. Patient #1 was a developmentally disabled patient, approximately 31 years of age , severely retarded, physically handicapped and afflicted with Down's Syndrome and multiple contractures. She was unable to communicate except by a speech identified as "guttural". According to the Respondent's office visit notes, the patient was treated on August 7, 1986 for dermatitis in the area of her lip and cheek. There is no information regarding the history or duration of the condition. The Respondent believed it to be possibly impetigo and prescribed Erythromycin, an antibiotic administered twice daily, and cleansing with a topical solution. The patient was to return in one week if the situation did not improve. The patient did not return for additional treatment. According to the Respondent's office visit notes, the patient was next treated on September 11, 1986 for an upper respiratory infection, a "cold". The Respondent prescribed Vibramycin. There is no further information contained in the records. According to the Respondent's office visit notes, the patient was next treated on October 6, 1986, again for an upper respiratory infection, and some type of vaginal irritation present, which he assumed was cystitis. At the same examination, the Respondent noted that the patient had an ulceration on her left knee. The Respondent prescribed Ceclor intended to address the infections present. He also directed the caregiver to use hydrogen peroxide and methiolate on the ulceration and to return the patient if the situation did not improve. The records contain no further information. Several days later, the Respondent was informed that the knee ulceration had not improved and the patient was referred to an orthopedic specialist. The patient subsequently expired for causes unrelated to any treatment provided by the Respondent. The medical records kept by the Respondent fail to include any medical history for patient #1. The records further fail to contain any examination results which would justify the course of treatment provided to the patient. However, the evidence fails to clearly establish that the Respondent's failure to keep medical history or examination records constitutes a failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions or circumstances. PATIENT #2, "D.B." The complaint alleges as follows: that the Respondent was patient #2's physician from approximately June 19, 1985 to November 20, 1986; that the patient was treated for chest pain from September 3, 1985 to November 20, 1986; that the Respondent diagnosed the patient as suffering from costochondritis on or about November 20, 1986, and prescribed Darvocet N-100, an analgesic; that the patient expired on or about January 2, 1987; and that a postmortem exam revealed that the patient suffered from obstruction of all coronary arteries. The complaint alleges that, given the history of patient #2's chest pain, the Respondent had an obligation to document an adequate history of examination results indicating diagnosis of the pain's causes, and that the Respondent either failed to perform such additional tests as would be indicated or failed to keep written medical records that justified the course of treatment of the patient, in that the medical records contain no patient history or examination results. The complaint alleges that such practice constitutes a failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions or circumstances. Patient #2 was a developmentally disabled patient, a very large man "in his 40's", profoundly retarded without physical handicap, with poor communication skills. According to the Respondent's office visit notes, the patient was treated on June 19, 1985 after experiencing symptoms of "superpubic pressure", which the Respondent determined was possibly dyschiria. A urinalysis test resulted in negative results. The Respondent nonetheless prescribed an antibiotic, Septra to address the suspected dyschiria. The patient's caregiver was directed to return the patient for additional treatment if the situation did not improve. The patient did not return for additional treatment. There is no further information contained in the records. According to the Respondent's office visit notes, the patient was next treated on September 3, 1985 after experiencing chest pain. The patient, who was employed, had been the subject of physical aggression by coworkers. At the time of the office visit, the pain was no longer present. According to the records, the Respondent performed an examination of vital signs which were stable, the chest is described as "clear", the heart described as exhibiting a normal sinus rhythm, no edema was observed in the extremities. The Respondent determined that the pain was related to the aggression. No medication was prescribed on that date. According to the Respondent's office visit notes, the patient was treated on April 29, 1986 for testicular trauma, apparently the result of additional physical aggression by coworkers, and for constipation. The Respondent prescribed a laxative and an antacid medication. According to the Respondent's office visit notes, the patient was treated on November 20, 1986 with left anterior chest pain. The patient's vital signs were normal. The Respondent discovered that the patient had some tenderness to the left chest wall upon palpation. The Respondent determined that the pain was a joint inflammation identified as costochondritis and prescribed Darvocet for the pain. He instructed the caregiver to return with the patient if the situation did not improve. The patient did not return. The records contain no further information. The patient expired on or about January 2, 1987. A postmortem exam revealed that the patient suffered from obstruction of all coronary arteries. At no time did the patient exhibit signs of angina, shortness of breath, heart palpation, or weakness. The evidence fails to establish that the patient's death was related to or caused by the arterial obstruction or that the care provided to the patient by the Respondent resulted in or contributed to the patient's death. The evidence fails to establish that the Respondent acted inappropriately in treating the complaint of chest pain. The complaint alleges that the Respondent had an obligation to document an adequate history of examination results indicating diagnosis of the pain's causes, and that the Respondent either failed to perform such additional tests as would be indicated or failed to keep written medical records that justified the course of treatment of the patient, in that the medical records contain no patient history or examination results. The evidence is insufficient to support the allegation. The evidence further fails to establish that the Respondent's practice constitutes a failure to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions or circumstances. As to the Patient #2, the medical records kept by the Respondent fail to include any medical history. The records further fail to contain any examination results which would justify the course of treatment provided to the patient during the visits of June 19, 1985, April 29, 1985 or November 20, 1986. PATIENT #3 "R.J." The complaint alleges as follows: that on October 24, 1983, the Respondent, acting as a consultant to the patient's primary physician, first observed patient #3, (who was on Phenobarbital to control a seizure disorder); that the Respondent became patient #3's physician on May 13, 1986, (at which time the Phenobarbital therapy was continued); that on June 2, 1986, the Respondent diagnosed the patient as suffering from dysuria; that on June 23, 1986, the Respondent diagnosed the patient as suffering from disuria/cystitis; that on both June 2 and June 23, the Respondent prescribed Bactrim to treat the diagnosed illnesses; that on or about October 15, 1986, the Respondent, received to a telephone call from an individual who identified herself as a nurse and stated that the patient was acting somewhat aggressive and rambunctious at the time; that on or about October 15, 1986, the Respondent ordered an electroencephalogram ("EEG") be performed on the patient; that on October 15th or 16th, 1986, without seeing the patient and prior to receipt of the EEG report, the Respondent prescribed Mellaril, a tranquilizer, for the patient; and that the Respondent has no medical record concerning his ordering of the EEG or prescribing the Mellaril. The complaint alleges that the Respondent 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 or circumstances in that the Respondent ordered an EEG and prescribed Mellaril without obtaining an adequate medical history, without performing a physical examination, without adequate medical indication, or maintaining any documentation on the test or treatment. Patient #3 was a developmentally disabled overweight man with poor communication skills and a functional age of five or six years, suffering from seizure disorder. According to the Respondent's office visit notes, on October 24, 1983, the Respondent, acting as a consultant to the patient's primary physician, first observed patient #3, who was on Dilantin to control the seizure disorder. The patient was being treated for gingivitis. The Respondent determined that the patient suffered from a right inguinal lymphadenopathy. The Dilantin was stopped and a Phenobarbitol medication was substituted. Penicillin and additional non-prescription treatment was advised for the gingivitis. As of May 13, 1986, the Respondent began to provide health care to the patient and on that date, performed a routine medical "check up" on the patient. The results of the exam are set forth in the Respondent's records. According to the Respondent's office visit notes, the Respondent treated the patient for dysuria on June 2, 1986. The results of a urinalysis test was positive. The Respondent prescribed Bactrim to treat the illness. On June 23, 1986, the patient was again treated for disuria and cystitis, with additional Bactrim being prescribed. On October 15, 1986, the Respondent received a telephone call from an individual who identified herself as a nurse and stated that Patient #3 was exhibiting aggressive and rambunctious behavior. Based upon the description of behaviors, the Respondent ordered an EEG be performed on the patient. Concurrent with the decision to order the EEG test, the Respondent prescribed Mellaril, a tranquilizer, be administered to the patient. There is no evidence that the Respondent examined the patient following the EEG examination and the administration of the Mellaril. The evidence fails to establish that the Respondent observed or examined the patient between the June 23 office visit and the EEG/Mellaril treatment of mid-October. Although the Respondent's medical records include the results of the EEG, the records fail to justify the decision to order the EEG or prescribe the Mellaril. By ordering an EEG and prescribing Mellaril without examining the patient, the Respondent 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 or circumstances. The medical records fail to include any documentation, including medical history or examination results which would justify the EEG/Mellaril treatment during October, 1986. The Respondent asserts that he was very much aware of the patient's situation and characteristics prior to the October treatment, and that it was not necessary to examine the patient prior to ordering the EEG or Mellaril. The assertion is not supported by evidence which establishes only that the Respondent treated the patient a total of four times prior to October of 1986. As to all three patients, there is no evidence that any patient material to this case was harmed or injured in any manner by medical treatment provided by the Respondent. The Respondent testified that the facilities wherein each developmentally disabled patient resided maintained a complete set of records which included medical histories, that such records remained with each patient's caregiver and were brought to the treatment location when the Respondent provided medical care to the patient. There is no evidence contradicting the Respondent's testimony. The Respondent asserted that he fully examined each patient and would note only those exam results which varied from the norm. The evidence does not support the assertion. The records and the Respondent's testimony establish that in some instances, routine exam results were recorded, and omitted in other cases. The Respondent asserted that, in part because the expert witnesses offered by the Petitioner do not have private office practices and do not provide health care to a number of developmentally disabled patients as part of their practices, the testimony of said expert witnesses should be rejected. Upon review of the testimony and upon consideration of the qualifications, their testimony is credited to the extent the Findings of Fact set forth above rely on such testimony.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a Final Order determining that Kenneth A. Berdick has violated subsections (m), (q) and (t) of Section 458.331(1), Florida Statutes, reprimanding the Respondent, placing the Respondent on probation for a period of three years and imposing an administrative fine of $3,000. DONE and RECOMMENDED this 2nd day of December, 1992, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 2nd day of December, 1992. APPENDIX CASE NO. 90-8100 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 11. Rejected, contrary to evidence which establishes that the presenting complaint was an upper respiratory infection. 13. Rejected, cumulative. 16. Rejected, not supported by greater weight of the evidence which established that the last contact with Respondent occurred on November 20, 1986. 20. Rejected, although it may be expected that legibility of records would be a consideration in this case, there is no evidence that such is the case. The greater weight of evidence established that such results in a subsequent physician contracting the practitioner who wrote the note to obtain additional information. 25-26. Rejected, unnecessary. 27-28. Rejected, irrelevant. 34-40. Rejected, unnecessary. 43. Rejected, cumulative. 49-51. Rejected, unnecessary. Rejected, contrary to credited testimony. Rejected, unnecessary. Respondent The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 4-5. Rejected, immaterial. 12. Rejected, immaterial. 15-18. Rejected, immaterial. 19. Rejected, recitation of testimony not appropriate finding of fact. 21-23. Rejected, recitation of testimony not appropriate finding of fact. 24-26. Rejected, irrelevant. Such practice does not comply with the requirements imposed by law on a licensed physician. Rejected, immaterial. Rejected, unnecessary. The expert opinion was based on qualification as an expert. The law clearly requires the physician to keep such records. Rejected, immaterial. 32-33. Rejected, recitation of testimony not appropriate finding of fact, further not supported by greater weight of credible evidence. Rejected, immaterial. Rejected, not supported by greater weight of evidence. Community standards do not determine whether statute is violated as to requirement that medical records be kept. 36-38. Rejected, recitation of testimony not appropriate finding of fact, further not supported by greater weight of credible evidence. 41. Rejected, recitation of testimony not appropriate finding of fact, further not supported by greater weight of credible evidence. Rejected, irrelevant. Rejected, not supported by greater weight of credible evidence. Rejected, not supported by greater weight of credible evidence. Placement of a prescription in the file does not justify the course of treatment. Rejected, irrelevant. COPIES FURNISHED: Dorothy Faircloth, Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael Blazicek, Esq. Department of Professional Regulation 730 S. Sterling Avenue, #313 Tampa, Florida 33609-4582 Neil Chonin, Esq. 304 Palermo Road Coral Gables, Florida 33134
The Issue The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application. Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
Findings Of Fact Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application]. Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986]. Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5]. At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5]. The order from the Council, dated January 5, 1987, states the following as grounds for denial: The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and (f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code. At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14]. In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52]. In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22]. In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25]. On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32]. His responses continued to be evasive and vague, as characterized by the following exchange: Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services? A Yes. Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records? MR. SIWICA: I'd like a continuing objection to the relevancy. THE HEARING OFFICER: Noted for the record but you may answer the question. THE WITNESS: I have a choice to answer yes or no? THE HEARING OFFICER: You'll be allowed to explain the answer but go ahead and answer the question. THE WITNESS: could you repeat it again, please? BY MS. LANNON: Q Isn't it true that in August of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records? A I don't recall. Q Weren't you in fact suspended for two days in August of that year? A What year was that, please? Q 1983. A I can't recall. Q Were you ever suspended from your job at Florida Hospital? A I took sick days. Q Were you ever suspended from your job at Florida Hospital? MR. SIWICA: I think he's answered that. THE HEARING OFFICER: Wait. No, he hasn't. MR. SIWICA: I'm sorry. THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was. BY MS. LANNON: Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question. A I don't know if it was suspended. I was asked to stay home from my shift and I don't known how many -- it was maybe one day, I think. Q Maybe one day. You don't recall? A No. Q Were you paid for that day? A I don't remember that either. [Tr. 35-37]. His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.] Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified. Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81]. Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62]. Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101] Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108]. Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983. He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement. Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner 1. Adopted in paragraph #12. 2-3. Rejected as immaterial. 4. Incorporated in the finding in paragraph #10. 5-6. Incorporated in the findings in paragraphs #9 and #10. Adopted in paragraph #5. Adopted in paragraph #9. Rejected as immaterial. Adopted in substance in paragraph #6. Adopted in paragraph #1. Adopted in paragraph #7. Respondent 1-2. Adopted in substance in paragraph #1. Adopted in paragraphs #3 and #4. Adopted in paragraphs #2 and #4. Adopted in substance in paragraph #10. Rejected as unsupported by competent evidence. 7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial. Adopted in paragraph #7. Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4. Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred. COPIES FURNISHED: Richard P. Siwica, Esquire EGAN, LEV & SIWICA 918 Lucerne Terrace Orlando, Florida 32806 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue This is a license discipline case in which the Petitioner, by means of a four-count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of his alleged violation of subsections (m), (q), (t), and (nn) of Section 458.331(1), Florida Statutes (2002).
Findings Of Fact The Respondent, Mark K. Sachs, M.D., is presently a physician licensed to practice medicine in the State of Florida, and he has been so licensed at all times material to this proceeding. His license number is ME 49598. His address of record is 11440 North Kendall Drive, Suite 206, Miami, Florida 33176. A legend drug is a drug for which a prescription is required. At all times material to this proceeding, Phentermine has been a legend drug which has been approved by the FDA for the treatment of obesity. It is not safe for a person to self- prescribe Phentermine. Phentermine works through the central nervous system as an appetite suppressant. Phentermine has numerous side effects including tachycardia, a fast heart rate; palpitations; diarrhea; altered sensorium; agitation; restlessness; sleep disorder; and/or tremors. Phentermine is contraindicated for patients who have high-blood pressure; patients with underlying cardiovascular diseases, including peripheral vascular disease; patients suffering from hyperthyroidism; and patients with glaucoma. Prior to prescribing Phentermine, a reasonably prudent physician would perform a routine physical examination of the patient. Such an examination would include at least the following: obtaining the patient’s height and weight; confirming the patient’s BMI (Body Mass Index); checking the patient’s blood pressure; looking into the patient's eyes; listening to the patient’s carotid arteries; palpating the patient’s thyroid; and osculating the patient’s heart for any abnormal heart sounds. A reasonably prudent physician would also include an examination of the patient's pulse, feet, and abdomen, as well as a basic neurological exam. When prescribing Phentermine, a reasonably prudent physician would also develop and document a treatment plan for the patient. Such a plan would include follow-up with the patient to monitor any possible side effects or any possible complications. At some time on or prior to August 7, 2002, Patient H.Y. filled out a web site order form and questionnaire. The medication ordered by Patient H. Y. was described on the order form as "Phentermine (yellow) 30mg - 90 caps." At the bottom of the order form there was a statement to the effect that Patient H.Y.'s credit card would be billed by Impact Health Care, Inc. The order form had a number of boxes in which the person placing the order was asked to provide personal information or provide "yes" or "no" answers. The information provided by Patient H.Y. included the following: (a) her email address, full name, and day time and evening telephone numbers; (b) details regarding the credit card to which the order would be billed, (c) a billing address, (d) a shipping address, and (e) answers to several questions in the section of the form described as "Medical Questionnaire." The information provided in the "Medical Questionnaire" portion of the form included: (a) her date of birth; (b) her sex; (c) a question regarding high blood pressure (response: no); (d) an agreement not to take any over-the-counter medicines without approval from her pharmacist (agreed); (e) an agreement to monitor her blood pressure at least once every 14 days and to stop taking the medication immediately if the blood pressure is over 140/90 (agreed); (f) agreement to not take the medication if the person was pregnant, breast feeding, or trying to get pregnant (agreed); (g) answers to questions involving any current medical conditions, all medication currently taken, all medications intending to be taken while on this program, all allergies, any surgeries, anything in patient’s medical history the patient deems relevant (all answered “none”); (h) patient’s height of 5 feet, 3 inches, and weight of 173 pounds; (i) the answer “yes” to a statement that the patient has read, understood, and agreed to the patient responsibility statement and the informed consent; and (j) the answer “no” to receiving two special offers. On or about August 7, 2002, the Respondent wrote a prescription to Patient H.Y. for a total of 90 capsules of Phentermine 30 mg.2 During the course of the investigation that led to the filing of the Administrative Complaint in this case, prior legal counsel for the Respondent provided the Department's investigator with more documents from the Respondent's medical records than the two documents identified as Joint Exhibits 2 and 3 in this case. The Department does not know one way or the other whether the documents it received from the Respondent's prior legal counsel comprise the entirety of the Respondent's medical record of his treatment of Patient H.Y.3
Recommendation Based on the foregoing, it is RECOMMENDED that a Final Order be issued in this dismissing all charges in all four counts of the Administrative Complaint by reason of the insufficiency of the evidence. DONE AND ENTERED this 3rd day of October, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 3rd day of October, 2005.
The Issue The issue to be decided is whether disciplinary action should be taken against the Respondent's license as a medical doctor for the alleged violations of Chapter 458, Florida Statutes (1983), as set forth in the Administrative Complaints?
Findings Of Fact The Respondent is licensed as a medical doctor with the State of Florida, Board of Medical Examiners. The license, Number 28366, was first issued on February 11, 1976. The Respondent was licensed at all times relevant to this proceeding. October 5, 1983 Complaint. On or about July 7, 1982, the State Attorney of the Eleventh Judicial Circuit filed a ten (10) count Information against the Respondent. In the information it was alleged that the Respondent knowingly and unlawfully filed, attempted to file or aided and abetted in the filing of claims for services to recipients of state or federally funded assistance program benefits (the Florida Medicaid Program) in violation of Section 409.325, Florida Statutes. The services, according to the Information, were never rendered. On April 18, 1983, the State of Florida nolle prossed Counts 3 and 4 of the Information. On June 30, 1983, the State nolle prossed Counts 1, 2, 5, 7 and 9. The same day, the Respondent withdrew his original plea and plead guilt to the remaining counts: 6, 8 and 10 of the Information. As a result of the Respondent's guilty plea, he was found guilty on counts 6, 8 and 10 and adjudication was withheld. The Respondent was placed on probation for one (1) year and was required to repay $3,500.00 to the Florida Medicaid Program. The Respondent completed his probation, which was terminated early by the court, and made restitution to the Florida Medicaid Program. The Respondent stipulated that he plead guilty to Counts 6, 8 and 10 of the Information, that adjudication ways withheld and that the case was disposed of in the manner described above. According to the Respondent, he plead guilty on the advice of this counsel and as a matter of convenience (to himself and not "to all parties" as suggested by the Respondent in his proposed findings of fact). He did so despite his belief that he was not guilty. The Respondent's proposed finding of fact that his attorney never advised him that he could be in violation of Section 458.331(1)(c), Florida Statutes, irrelevant. July 27, 1983 Complaint. On March 24, 1981, the Respondent saw Ana Gonzalez as a patient in his office. Ms. Gonzalez was thirteen years old at the time of her first visit (Ms. Gonzalez's date of birth was incorrectly listed as "8-7-82" in the Respondent's records). Ms. Gonzalez, according to the Respondent's record of Ms. Gonzalez's visits (hereinafter referred to as the "Patient Records") complained of "pain of mild intensity on lower left quadrand [sic], inradiating [sic] to right lower quadrant and left lumbar fossa." The Patient Records, which were all in the same handwriting, 1/ also indicate that Ms. Gonzalez had low back pain, dark urine which looked like blood and a fever of 100.4 degrees. A physical examination of Ms. Gonzalez found nothing abnormal except pain in both lower quadrants of the abdomen and the left lumbar fossa of the back. The Respondent made a probable diagnosis of pyelonephritis and ordered a SMAC 26, a Complete Blood Count ("C.B.C."), an urinalysis, an E.K.G. and a chest x-ray. The Petitioner has proposed a finding of fact that the chest x-ray and the E.K.G. were not referred to in the Patient Records. This proposed finding is incorrect. The Respondent did, however, order a kidney, urethra and bladder x-ray ("K.U.B.") which was not recorded in the Patient Records. The Respondent also prescribed an antibiotic. The results of the E.K.G. and the chest x-ray are not noted in the Patient Records; nor does the E.K.G. print-out include any findings. The SMAC 26 showed nothing abnormal. The C.B.C. also showed nothing abnormal and the K.U.B. was negative. Finally, the urinalysis showed that the patient's urine was yellow, clear and contained no blood. The charges for the first visit were $30.00 for the examination, $182.00 for the SMAC 26 (charged at $7.00 per 26 procedures), $6.00 for the urinalysis, $10.00 for the C.B.C., $40.00 for the chest x-ray and $40.00 for the E.K.G. No charge was made for the K.U.B. The patient was next seen by the Respondent on March 31, 1981 (erroneously reported as March 31, 1982 in the Patient Records). The Petitioner's proposed finding of fact that the Patient Records were kept in the same pen is therefore incorrect. The Patient Records indicate the following: "The patient is feeling a little better of pain. No fever. Persist urine dark." The Patient Records do not indicate that Ms. Gonzalez was examined on this visit. The Respondent continued the antibiotic and ordered the following tests: a C.B.C., a K.U.B. and an intravenous pyelogram ("I.V.P."). The I.V.P. was reported as negative in the Patient Records. The C.B.C. again found no abnormalities. The K.U.B., as testified to by the Respondent, was also negative. The Respondent testified that he ordered another K.U.B. on this visit because he again found blood in the patient's urine and because he believed that you can never tell when a test will result in a positive finding. The Petitioner has proposed the following finding of fact with regard to the March 31, 1981 visit: Again, the tests results obtained from the laboratory show that the urine is not discolored and that the urine does not contain blood, in contradiction with the handwritten medical record of the Respondent. Although this proposed finding is correct with regard to tests performed on the March 24, 1981 visit, no urine test was performed on the March 31, 1981 visit. The charges for the March 31, 1981, visit included $30.00 for the examination, $10.00 for the C.B.C., $40.00 for the K.U.B. and $80.00 for the I.V.P. The third visit by Ms. Gonzalez was on April 7, 1981. On this visit, Ms. Gonzalez was feeling much better (the "pain was very mild"), but the Respondent determined there was still blood in her urine. The Patient Records again do not indicate the results of any physical examination. The Respondent ordered an urinalysis which found that her urine was yellow. Although the Respondent testified in his deposition that the Patient Records for the April 7, 1981 visit were complete, billing records show that a charge for an I.V.P. was made for April 7, 1981 which was not recorded in the Patient Records. The Respondent admitted in his deposition that no I.V.P. was performed and stated that the charge for $80.00 was a mistake. The Respondent stated that he did perform a K.U.B. or I.V.P. on this visit because it was too soon after the last K.U.B. and I.V.P. tests. Instead of an I.V.P., the Respondent testified in his deposition that Ms. Gonzalez received physiotherapy for which she should have been charged only $20.00. The physiotherapy was ordered because of the patient's complaints of lower back pain and consisted of heat treatment/ultrasound. Petitioner, in its proposed findings of fact, indicates that the Respondent took Ms. Gonzalez, off the antibiotic he had prescribed earlier at the April 7, 1981 visit, citing "(Depo., page 20)." This proposed finding is not supported by the record. Other charges for the April 7, 1981, visit included $30.00 for the examination and $6.00 for the urinalysis. The next visit by Ms. Gonzalez was on April 14, 1981. The Patient Records do not indicate Ms. Gonzalez's condition or that an examination was performed. The Patient Records only indicate that the Respondent suggested hospitalization of Ms. Gonzalez so that more tests could be made and that her father refused. The Respondent ordered a K.U.B. (which was negative) and a SMAC 26 (which found no abnormalities). The antibiotic was also changed. The charges for this visit included $30.00 for the visit, $40.00 for the K.U.B. and $182.00 ($7.00 per 26 procedures) for the SMAC 26. Again the bill included a charge of $80.00 for an I.V.P. which, according to the Respondent, was a mistake in billing. The Respondent actually performed physiotherapy which should have resulted in a $20.00 charge. The final visit occurred on April 20, 1981. The Patient Records for this visit indicated the following: I insisted some UROLOGY must consultate this patient and she refused to see another Doctor and culture and sensitivity. She says she does not want to go to the rest room. She decides pick up the urine. I decide another I.V.P. because persist a mild hematuria [blood]. Mr. Gonzalez again refused to admit his daughter to a hospital as suggested by Respondent. The Respondent recommended hospitalization because his tests were not finding anything and he therefore wanted to run a kidney scan. There is no indication in the Patient Records as to whether an examination was performed. The Respondent ordered a K.U.B., an I.V.P. and a C.B.C. The results of these tests are not recorded in the Patient Records but the Respondent has testified that they were negative. On this visit the Respondent indicated his diagnosis was pyelonephritis, which he described as "kidney infection." Charges for this visit were $30.00 for the examination, $40.00 for the K.U.B., $80.00 for the I.V.P. and $10.00 for the C.B.C. Pyelonephritis is an inflammatory reaction of the kidney involving the kidney tissue and the pelvis of the kidney. It is usually accompanied by severe toxicity, a temperature for a child the age of Ms. Gonzalez of 104 to 105 degrees and extreme chills. It is a serious infection. The diagnosis of pyelonephritis on March 24, 1981 and April 20, 1981, by the Respondent was not medically justified. Ms. Gonzalez did not have any of the symptoms normally associated with pyelonephritis. The results of all of the tests performed by the laboratory 2/ and the Respondent were negative. Laboratory test results conclusively showed that Ms. Gonzalez's urine was yellow, and contained no blood. Additionally, the Respondent should have performed a urine culture, a blood culture and a sensitivity test before concluding that the patient was suffering from pyelonephritis. The cultures would have determined if there was an organism present and, if so, what type. The sensitivity test would have shown what the organism was sensitive to. None of these tests were performed. Most of the tests ordered by the Respondent were also not medically justified. The only tests which were clearly medically justified were the SMAC 26, C.B.C. and the urinalysis ordered on March 24, 1981. Most of the remaining tests were not medically justified as hereinafter discussed. The E.K.G. performed by the Respondent on March 24, 1981, was not medically justified. The Respondent indicated that he ordered an E.K.G. because he was looking for valvular problems with Ms. Gonzalez's heart. An E.K.G., however, only, shows the electrical activity of the heart. The Respondent also testified that the E.K.G. was performed because he suspected a kidney problem. According to the Respondent, if there was a problem with Ms. Gonzalez's kidneys, it could have affected her E.K.G., especially in light of her age. No problem was found according to the Respondent. The chest x-ray performed on the March 24, 1981 visit was not medically justified. This test resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her. The Respondent, based upon his deposition testimony, believes that a chest x-ray should be taken of anyone who comes to his office as a patient and has insurance. With regard to Ms. Gonzalez, he indicated that her parents requested the chest x-ray but admitted there was no medical cause for her to receive a chest x-ray. The K.U.B. tests performed on March 24, 1981, March 31, 1981, April 14, 1981 and April 20, 1981 and the I.V.P. tests performed on March 31, 1981 and April 20, 1981 were not medically justified. These tests also resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her; especially the I.V.P. test which has six to seven times the radiation level of a K.U.B. The I.V.P. was also a dangerous procedure because it is an invasion procedure (the introduction of a foreign substance to the body). Even the Respondent must have realized the possible problem with the I.V.P. since he indicated that this test was not performed on April 7, 1981, because it was too soon after the test performed on March 31, 1981. The second SMAC 26 test, performed on April 14, 1981 was not medically justified. The test, according to the Respondent, was performed because the blood in Ms. Gonzalez's urine persisted. The evidence clearly shows that there was no blood in her urine, however. A SMAC 26 is a single laboratory procedure whereby one blood sample is divided into 26 parts (or some other number of parts) which are diagnosed or read by a machine at the same time. It is not 26 separate tests; it is a single automated test. The method by which the Respondent billed for the SMAC 26 tests performed on March 24, 1981 and April 14, 1981, (charging $7.00 for each of 26 tests) was not justified. The Respondent billed for the S4AC 26, which gas performed by Central Medical Laboratory, because he believed that the insurance company would pay what he hoped to receive for the test: $60.00-$80.00. If he had only billed $60.00 for the test he stated that he would only have received $6.00 to $10.00 from the insurance company. The Petitioner has proposed a finding that the SMAC 26 billing was "outrageously high." The evidence supports a finding that the charge was excessive. Finally, the C.B.C. tests of March 31 1981 and April `20, 1981 and the physiotherapy performed on April 7, 1981 and April 14, 1981 were not medically justified. Dr. Handwerker's testimony was consistent with the findings in this Recommended Order with regard to the lack of medical justification for most of the tests. The Respondent stated that he agreed in part and disagreed in part with Dr. Handwerker's testimony. When asked to identify those areas of Dr. Handwerker's testimony he disagreed with, the Respondent unsuccessfully attempted to rebut Dr. Handwerker's testimony with regard to the E.K.G. and chest x-ray and with the fact that the tests were repeated to often. 3/ The Respondent did not attempt to rebut any other part of Dr. Handwerker's testimony, which was based upon his examination of the Patient Records and the Respondent's deposition (she did not examine Ms. Gonzalez). Based upon the foregoing, it is clear that the Respondent failed to practice medicine in conformance with the generally accepted and prevailing standards of medicine in the medical community. The Respondent also failed to, practice medicine with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions. The father of Ms. Gonzalez testified on behalf of the Respondent. Mr. Gonzalez stated that he was satisfied with the Respondent's medical care of the Gonzalez family and that he would continue to retain the Respondent. Letters submitted by the Respondent also indicated that friends, associates and his pastor believe the Respondent is honest, experienced, qualified and of high moral and ethical standards. Although the Respondent testified that he had done the best he could do for Ms. Gonzalez, the unrebutted testimony supports a conclusion that his best was not good enough. Finally, the Respondent's testimony to the effect that he had not intended to exercise influence over Ms. Gonzalez or to deceive her in his medical treatment of her is not believable in light of the facts.
Recommendation Based on the foregoing Findings of Fact and Conclusions RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(c), Florida Statutes (1983), by being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. It is further RECOMMENDED: That Respondents be found guilty of violating Section 458.331(1)(l), Florida Statutes (1983), by employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(o), Florida Statutes (1983), by exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of himself, as a licensee. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1983), by failing to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. It is further RECOMMENDED: That the Respondent's medical license be suspended for a period of one (1) year and that the Respondent be placed on probation for a period of three (3) years, upon reinstatement of his license, subject to such conditions and terms of monitoring and continuing medical education as may then be prescribed by the Board of Medical Examiners. DONE and ORDERED this 22nd day of February, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1985.
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of subsections (m), (q), and (t) of Section 458.331(1) Florida Statutes.
Findings Of Fact At all times material to this case, the Respondent, Anthony Glenn Rogers, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is ME 0062034. Dr. Rogers is a pain management specialist. Dr. Rogers is certified by the American Board of Anesthesia and the American Academy of Pain Management. On October 20, 1998, Patient N. A. presented to the Respondent with complaints of chronic back pain following two motor vehicle accidents and three back surgeries. At that time Patient N. A. was an adult female approximately 32 years of age. Immediately prior to her presentation to the Respondent she had been treated for a period of approximately five months by Dr. Robert E. Lentz who, at that time, also specialized in pain management in the same geographic community as the Respondent.2 In May of 1998, Dr. Lentz's initial treatment plan for the Patient N. A. was as follows: There is no surgical procedure indicated nor is there any blocks indicated for this patient at this time. Medications will be the patient's mainstay of therapy. Therefore at this time we will renew her prescriptions with the following changes we will try to reduce the amount of Dilaudid for breakthrough pain by increasing her MS Contin from 60 mg. q.d. to 60 mg. b.i.d and the Dilaudid remaining for breakthrough pain. The patient will phone in a few days to update her progress on the new medication regimen. When the Patient N. A. first presented to the Respondent, she was taking the following medications in an effort to relieve her chronic back pain: MS Contin, Dilaudid, Effexor, and Klonopin. Prior to her treatment by Dr. Lentz and by the Respondent, the Patient N. A. had been treated for many years by physicians in the state where she previously resided. That treatment had included three back surgeries and numerous other invasive procedures for the purpose of trying to relieve her chronic back pain. Some of those prior invasive procedures had produced life threatening consequences. None of the prior invasive procedures had produced any beneficial effects. By the time the Patient N. A. presented to the Respondent, she was strongly opposed to any further surgical or other invasive procedures. Her opposition was based on her prior experiences which indicated that such procedures could be risky, could be painful, and in the past had not provided her with any benefit. The Respondent's records of Patient N. A.'s first visit to his office indicate that he performed a physical examination of the patient, but the records do not document a complete physical examination. The documentation issue aside, the Respondent's initial physical examination of Patient N. A. was sufficient and appropriate under the circumstances. The history memorialized in the Respondent's records of his initial consultation with Patient N. A. was sufficient and appropriate. In the care and treatment of a patient who presents with the history, signs, and symptoms, presented by the Patient N. A. on her initial presentation, the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances requires that the initial physical examination of the patient include a neurological or reflex assessment and a range of motion examination. The Respondent's medical records of the initial presentation of the Patient N. A. do not include a notation that the Respondent conducted a neurological or reflex assessment or a range of motion examination on that occasion, even though the Respondent performed such assessments and examinations during the patient's initial visit. The Respondent initially diagnosed Patient N. A.'s condition as "chronic lower back pain, failed back syndrome." This was a sufficient diagnosis, especially in view of the patient's long history of treatment for the same condition.3 The Respondent's initial plan of treatment for Patient N. A. was to obtain the patient's old medical records, discuss epidural adhesionolysis, and to follow up in one week. He prescribed Oxycontin, 80 mg. (three tablets, three times a day) and Dilaudid, 4 mg., for breakthrough pain. During the course of the next eighteen months,4 the Patient N. A. continued to see the Respondent for care and treatment of her "chronic low back pain, failed back syndrome." During that period of time, she saw the Respondent an average of about twice a month. During that period of time the Respondent continued to prescribe Oxycontin and Dilaudid for her. He also prescribed other medicines from time to time in his efforts to relieve her chronic pain. At all times material to this case, the Patient N. A. was enrolled in a Humana HMO. The Respondent was not a participating provider with that HMO. The Respondent was not the "primary physician" for the Patient N. A. in her HMO plan. At the time the Patient N. A. first went to see the Respondent, she was experiencing some difficulties in her relationship with her HMO and for a period of several months she did not have a "primary physician." Shortly after he began the care and treatment of the Patient N. A., the Respondent felt that it would be beneficial to the care and treatment of the patient for her to have an MRI examination. Because the Patient N. A. did not have a "primary physician" at that time, the Respondent contacted the HMO in an effort to persuade them to authorize an MRI examination for the Patient N. A. The Respondent's efforts in this regard were unsuccessful because the HMO did not want to discuss any substantive issues with him since he was not one of their participating physicians. Eventually, the Respondent was able to have the Patient N. A. admitted to a hospital via the emergency room and during the course of that admission was able to arrange for the patient to receive an MRI examination. On January 22, 1999, the Respondent increased Patient N.A.'s prescription of Oxycontin, 80 mg., to four tablets, three times a day. The Respondent also continued to prescribe Dilaudid for the patient to take for breakthrough pain. The Respondent did not document a physical examination on that date. On April 13, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., to five tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On June 11, 1999, the Respondent doubled Patient N. A.'s prescription of Oxycontin, 80 mg., from five tablets, three times a day, to ten tablets three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On June 28, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., to eleven tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On August 2, 1999, the Respondent increased Patient N. A.'s prescription of Oxycontin, 80 mg., from eleven tablets, three times a day, to thirteen tablets, three times a day. The Respondent's medical records for that date did not document a physical examination on that date. On September 2, 1999, Patient N. A. presented to the Respondent with complaints of continued pain and headaches. The Respondent increased her prescription of Oxycontin, 80 mg., from thirteen tablets, three times a day, to twenty tablets, three times a day, and he also gave her prescriptions for Oxyfast liquid and Fioricet for her headaches. The Respondent's medical records for that date did not document a physical examination on that date. Other dates on which the Respondent increased Patient N. A.'s prescriptions without adequately documenting a physical examination were November 23, 1998, and April 26, 1999. Also, on December 30, 1999, at which time the Patient N. A. presented with a complaint of a new injury to her lower back and left leg, the Respondent's medical records do not adequately document a physical examination on that date. The level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances requires, at a minimum, that under the circumstances described in paragraphs 12 through 18, above, the physician must conduct at least a focussed physical examination of the patient and must include in the patient's medical records a description of the types of physical examinations conducted and the results of such examinations. In order to achieve the level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, in the care and treatment of a patient such as the Patient N. A., the physician should conduct at least a focused physical examination of the patient before increasing the patient's pain medications. Such a physical examination should also be conducted where there is a significant change in the patient's condition. This type of focused physical examination could include such matters as observation of the patient, palpation, range of motion tests for the back and legs, reflex tests, strength tests, sensation tests, and observation of the patient's gait. The Respondent is still providing care and treatment for the Patient N. A. The patient seems to be satisfied with the care she is receiving from the Respondent and also seems to be very appreciative of the efforts the Respondent has made on her behalf. She is also appreciative of the fact that the Respondent has provided some of his services to her without seeking compensation for his services. In the course of his professional career, the Respondent has not had a patient who presented a case as complicated as that presented by the Patient N. A. Cases of this level of complexity are very rare; so rare that in an entire career of a physician specializing in pain management it is unlikely that the physician would see more than two or three such cases. During the course of his care and treatment of the Patient N. A., the Respondent discussed with her just about every procedure that was available to attempt to relieve her chronic back pain. The Patient N. A. was opposed to any form of invasive procedure and hoped to be able to achieve relief from her pain through the use of medicines. During the course of his care and treatment of the Patient A. N., the Respondent never felt there were any secondary gain issues or diversion issues. During the course of his care and treatment of the Patient N. A., the Respondent knew that she was also seeing a psychiatrist at the same time and that she was receiving prescriptions from the psychiatrist. On a number of occasions the Respondent and the Patient N. A. discussed her psychiatric care, and on one or two occasions the Respondent spoke directly to her treating psychiatrist. During the course of his care and treatment of the Patient N. A., the Respondent recommended that the patient be seen by an orthopedic surgeon. However, he could not refer her to an orthopedic surgeon because he was not a Humana HMO provider and the Humana HMO did not honor or recognize his referrals.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Count One of the Administrative Complaint for insufficient evidence to establish a violation of Section 458.331(1)(t), Florida Statutes; Concluding that the Respondent is guilty of having violated Section 458.331(1)(m), Florida Statutes, in some of the ways charged in Count Two of the Administrative Complaint; Dismissing Count Three of the Administrative Complaint for insufficient evidence to establish a violation of Section 458.331(1)(q), Florida Statutes; and, Imposing a penalty on the Respondent consisting of the following: (1) a requirement that the Respondent pay, within 180 days of the issuance of the final order in this case, an administrative fine in the amount of $1,000.00, and (2) a requirement that the Respondent complete, within 180 days of the issuance of the final order in this case, the FMA records- keeping course, or some similar course regarding the proper preparation of medical records. DONE AND ENTERED this 21st day of February, 2003, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 21st day of February, 2003.
