The Issue The issue posed for decision herein is whether or not the Respondent, a licensed dentist, should be disciplined based on conduct which will be set forth hereinafter in detail allegedly violative of Subsection 464.24(3)(a)(m), Florida Statutes, and Chapter 100-56.637(3) and (4)(a), Florida Administrative Code.
Findings Of Fact Max R. McConnell, D.D.S., is a licensed dentist who holds license No. 2743, and as such is authorized to practice dentistry in the State of Florida under the jurisdiction of Chapter 466, Florida Statutes. During times material, Dr. McConnell, Respondent, was engaged in the practice of dentistry and maintained a dental office located at 3606 South Manhattan Avenue, Tampa, Florida. On April 15, 1977, a representative with the Department of Health and Rehabilitative Services conducted a routine inspection of Petitioner's X-ray equipment. On this occasion, it was discovered that Respondent's X-ray machine, a Weber 6RS/M 6R3967, which is located in the rear room of his dental office, was found to be in noncompliance with the requirements of Chapter 1856, Florida Administrative Code, to-wit, the timer on the machine did not correctly terminate the exposure. Chapter 10D-56.637(3), Florida Administrative Code, provides in pertinent part that: Timers. Means shall be provided to ter- minate the exposure at a preset time inter- val, preset product of current and time, or a preset number of pulses or a preset radiation exposure to the Image receptor. In addition, Termination of exposure shall cause automatic resetting of the timer to its ini- tial setting or to zero. (h) It shall not be possible to make an exposure when the timer is set to a zero or off position if either position is provided. X-ray Control (Exposure Switch) (a) A control shall be incorporated into each x-ray system such that an exposure can be terminated at any time. This switch shall be of the dead-man type. During the April 15, 1977, routine inspection by Petitioner, the Respondent was advised of the nonconformance of the X-ray machine and he agreed to correct the machine within ninety days. Thereafter, during a subsequent inspection on March 9, 1978, the subject machine was again inspected and again found to be in noncompliance because of the faulty timer, and Respondent was mailed a letter dated March 13, 1975, requesting the necessary corrections be completed as soon as possible. Subsequent visits to Respondent's office on October 12, 1978, and April 25, 1979, revealed that the subject X-ray machine was still found not to be in compliance because the timer failed to terminate the exposure as required in Chapter 10D-56.637(3) and (4)(a), Florida Administrative Code. The Respondent testified that the subject machine was merely used by himself as a supplemental machine and that the primary machine which he uses correctly terminates the exposure as required by the foregoing chapter. In this regard, two of Respondent's former dental aides who were employed during the times in question testified that the Respondent does not always operate the machine and, while it may be true that he knows how to operate the machine in such a manner as to correctly terminate the exposure, the two dental aides testified that they are called upon to utilize the machine at times. For this reason, it is concluded that the Respondent continues to operate an X-ray machine in his office which he knows to be in noncompliance with Chapter 10D- 56.637(3) and(4)(a), Florida Administrative Code. I shall so retend.
Recommendation Based on the foregoing Findings of Fact and Conclusions of law, it is hereby, RECOMMENDED: That the Respondent Max R. McConnell, D.D.S., repair the above-described Weber 6R X-ray machine with Serial Number 6R3967, within ten (10) days of the date of the Board's final order or remove such machine from his office within the above-stated period. Additionally, it is recommended that the Respondent, Max R. McConnell, D.D.S., be issued a written reprimed for engaging in the above conduct. RECOMMENDED this 16th day of November, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Max R. McConnell, D.D.S. 3606 South Manhattan Avenue Tampa, Florida ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA FLORIDA BOARD OF DENTISTRY FLORIDA BOARD OF DENTISTRY, Petitioner, vs. CASE NO. 79-1755 MAX McCONNELL, D.D.S., Respondent. /
The Issue Whether the Petitioner committed the violations alleged in the Administrative Complaint, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Health is the state agency responsible for certifying and regulating basic X-ray machine operators in Florida. Sections 468.3001-.312, Florida Statutes. On March 30, 1993, Paul Butler was issued Basic X-ray Machine Operator Certificate Number 7729. The certificate expired December 31, 1994, and Mr. Butler requested renewal by submitting a renewal form and the required fee to the Department on December 20, 1996. Mr. Butler admitted that he knew his certificate expired December 31, 1994, but that he nonetheless took numerous X-rays subsequent to that date. On January 4, 1996, Mr. Butler prepared and submitted an application for employment to Kristie Green, office manager for South Dade Orthopedic Associates. In that application, Mr. Butler signed his name and appended to his name the designation "RMA, CRT." Ms. Green interviewed Mr. Butler, and he provided her with a copy of his certificate that showed an expiration date of December 31, 1995. Ms. Green noted that his certificate had expired four days previously, and Mr. Butler told her he was short of funds and would send in his renewal application when he received his first paycheck. Ms. Green hired Mr. Butler as an X- ray technician and medical assistant. After Mr. Butler repeatedly assured her that he had sent his renewal application to the Department, Ms. Green fired Mr. Butler on June 20, 1996, because he had not obtained a current Basic X-ray Machine Operator certificate. The evidence presented by the Department is sufficient to establish that Mr. Butler took X-rays without having an active certificate, and that he identified himself in his employment application to South Dade Orthopedic Associates as a Certified Radiologic Technologist by using the letters "CRT" after his signature. The evidence presented is also sufficient to permit the inference that Mr. Butler altered his basic X-ray Machine Operator certificate by changing the expiration date from December 31, 1994, to December 31, 1995.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health issue a final order finding that Paul Butler violated Section 468.3101(h), Florida Statutes, by violating Section 468.302(1) and (2) and that he violated Section 468.3101(f). Based on the violations, the Department of Health should impose the following penalties: Suspend Mr. Butler's Basic X-ray Machine Operator certificate for a period of six (6) months; Impose an administrative fine in the amount of Six hundred twenty-five dollars ($625.00); and Condition the reinstatement of Mr. Butler's certificate on his having completed thirty (30) hours of continuing education. DONE AND ENTERED this 12th day of January, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Morton Laitner, Esquire Department of Health 401 Northwest 2nd Avenue Suite N-1014 Miami, Florida 33128 Paul Butler, pro se 30525 Southwest 149th Court Leisure City, Florida 33033 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700 Pete Peterson, General Counsel Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700
The Issue Whether Respondent's license as a physician should be disciplined for the alleged violations set forth in the Administrative Complaint.
Findings Of Fact Petitioner, Department of Health, Board of Medicine (Petitioner), is the state agency charged with regulating the practice of medicine pursuant to Section 20.43, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent, Santo S. Bifulco, M.D. (Respondent), is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued License Number ME 0056868 on February 13, 1990. He has been continuously licensed since February 1990 and has never been disciplined by the Board of Medicine. Respondent, a physiatrist, specializes in physical medicine and rehabilitation. He entered private practice immediately after completing a four-year residency program in physical medicine and rehabilitation. During his residency, Respondent learned and performed electrodiagnostic and neurodiagnostic tests. He was trained in the use of videofluoroscopy, electroencephalogram, needle and surface electromyography, nerve conduction studies, and other electrodiagnostic tests. Respondent performed far above the minimum 200 required for successful completion of the residency program. As a part of his residency, Respondent also had the opportunity to observe and work with chiropractic physicians from the local chiropractic medical school, thereby allowing him to understand the role of chiropractic care and allopathic medicine in the treatment of a patient. Respondent first saw E. C. on December 9, 1991. At the time, he had been practicing physical medicine and rehabilitation for a little more than a year since completion of his residency program. Prior to coming under the care of Respondent, E. C. had been involved in a motor vehicle accident on August 9, 1991. The patient had been treated by both her family physician, Dr. George Harris, and her chiropractic physician, Dr. Richard Thomas, D.C., for the injuries which resulted from the accident. Dr. Harris prescribed medications for E. C. and Dr. Thomas provided and was continuing to provide several modalities for E. C.'s injuries resulting from her motor vehicle accident. Despite ongoing treatment by Dr. Thomas, E. C. was not significantly improving. Because E. C. was not improving under his care, Dr. Thomas referred her to Respondent. The purpose of the referral was for consultation and a second opinion. Respondent was also asked to determine what, if any, medications should be given to the patient and to provide them to the patient if it were appropriate. Respondent was not asked to nor did he assume direct primary care for the patient. Rather, Respondent's role was to provide Dr. Thomas with guidance as to the diagnosis and treatment direction for E. C. In his written report dated November 25, 1991, Dr. Thomas indicated that he was referring the patient to Respondent for further evaluation and for medication that might assist in the improvement of her symptoms. He noted that he would continue to provide palliative care to E. C. until such time as Respondent evaluated her and he had received Respondent's report and recommendation. When E. C. first came under Respondent's care, it was four months after the accident. However, her overall condition had not significantly improved. She had constant headaches, which were extreme and associated with dizziness, a history of high blood pressure, constant cervical pain radiating into her arms, thoracic pain or pain between the shoulder blades, numbness and tingling, and was limited in her physical activities. The pain was interfering with all aspects of her life, including her ability to work and sleep. Respondent performed a physical examination of E. C. on December 9, 1991. On physical examination, Respondent found that E. C.'s neck range of motion was markedly limited and associated with pain; that her lower back range of motion was markedly limited and associated with pain; and that she had positive findings on orthopedic examination, as well as, on neurologic examination. From Respondent’s examination, it appeared that E. C. had suffered injuries from the motor vehicle accident. Moreover, Respondent determined that E. C. was in need of continuing care and because she had not improved, was also in need of further diagnostic studies to evaluate the extent and nature of her injuries and her complaints. E. C. presented as a complicated case due to the length of time that had passed since the motor vehicle accident and the lingering and persistent complaints experienced by E. C. associated with that accident. Respondent’s impression was that E. C. had post- traumatic headaches and injuries to the soft tissues of the neck with radiating pain. Respondent believed that E. C. was involved in what is commonly known as a medical/legal case. Consistent with this belief, Respondent reasonably concluded that his role was to thoroughly evaluate E. C.'s condition by addressing and objectively documenting answers to the questions relative to the cause, extent, and nature of her injuries. Respondent obtained Dr. Thomas’ records to evaluate the care E. C. had been receiving and reviewed E. C.'s X-rays with her on her first visit. Based on his review of the records and his examination of E. C., Respondent believed that the care provided by Dr. Thomas was appropriate for E. C.'s condition and that she would benefit from continued conservative care. However, Respondent felt that for E. C. to reach her maximum potential, additional diagnostic tests could reasonably assist him in arriving at a diagnosis and recommendation for treatment of the patient’s condition. Respondent initially recommended that E. C. undergo diagnostic testing or studies including: nerve conduction studies; a Dermatomal Somatosensory Evoked Potential (DSEP); an electroencephalogram (EEG); a cervical Magnetic Resonance Imaging (MRI); and cinefluoroscopy or videofluoroscopy studies of the cervical spine. These tests were ordered and/or recommended because Respondent reasonably believed that they could assist him in determining the nature and extent of E. C.'s injuries and complaints and arriving at a recommendation for treatment. E. C. subsequently underwent the recommended testing. To assess the discs and other cervical soft tissues, Respondent recommended that E. C. receive imaging studies. Respondent recommended an MRI study of the cervical spine. This study was conducted on December 19, 1991, at the Access Imaging Center. The purpose of the MRI was to evaluate whether E. C. was suffering from a condition that could be treated by surgery. An MRI is a static exam and is the "gold standard" in looking for a herniated disc. E. C.'s MRI was normal, thus, ruling out the possibility of the need for surgical treatment of her condition. To assess ligamentous structures and capsular stability, Respondent also recommended that E. C. receive a videofluoroscopy of the cervical spine or dynamic motion studies. The videofluoroscopy was obtained on December 11, 1991, and was performed at the Tampa Bay Dynamic Imaging Center. The videofluoroscopy was the only test available to observe the movement of the cervical spine through a full range of motion versus the limited views obtained in extension and flexion X-rays, where the patient's neck is seen in a fully extended position, neutral position, and fully flexed position. In E. C.'s case, videofluoroscopy served to confirm the presence of a soft tissue injury. The videofluoroscopy exam revealed hypomobility of the cervical spine at the level of C5-6 and C6-7. This result was consistent with the extension and flexion X-rays of E. C. that had been taken while she was under Dr. Thomas' care. However, Respondent felt the videofluoroscopy was an appropriate diagnostic tool to determine if E. C. had deteriorated since her last exam or had greater instability than was thought to be present from review of the static flexion/extension films. The videofluoroscopy and the MRI allowed Respondent to determine the extent and nature of the patient’s injuries and make recommendations for continuing treatment to her primary physician, Dr. Thomas. Both imaging tests provided useful information in the diagnosis and treatment of the patient’s condition. E. C., who worked as a florist, was experiencing problems working, lifting, and performing many routine activities in her daily life. Because E. C. was not progressing in treatment, Respondent wanted an objective assessment of her strength and ability to lift. Respondent believed that this information would help guide E. C. and Dr. Thomas in advising the patient concerning what she should or should not be lifting. To accomplish this objective, Respondent ordered a N.I.O.S.H. lift test and a Range of Motion test. These tests were performed on December 19, 1991, in Respondent's office. The N.I.O.S.H. lift and Range of Motion tests are components of a battery of tests that make up what is commonly known as a functional capacity evaluation. A functional capacity evaluation is an extensive series of tests to determine a patient’s ability to return to work. By itself, a N.I.O.S.H. lift test is not a functional capacity evaluation and was never intended to be used in that manner by Respondent. Though E. C. had not significantly improved under Dr. Thomas' care, it appeared to Respondent that she had reached a plateau in that her condition was not improving. The N.I.O.S.H. test is appropriate when a patient like E. C. has reached a plateau in her care and is not progressing. It gives the physician information from which to base recommendations on the scope and nature of the activities in which the patient may participate. Furthermore, it helps the physician in designing a strengthening program appropriate to the patient’s physical limitations. It can also provide a baseline for future tests and serial evaluations of the patient’s progress. Respondent was unable to make use of the results from the N.I.O.S.H. test or obtain comparison tests because E. C. failed to return to his office after February 1992. To assess the presence or absence and the extent of any neurologic dysfunction in the upper extremities, Respondent recommended that the patient undergo nerve conduction studies. E. C. underwent those studies on December 30, 1991, in Respondent's office. The purpose of nerve conduction studies is to objectively evaluate peripheral nerve function. It is an average measure of the time it takes an electrical nerve impulse to travel down a segment of the nerve from the spinal column to a particular muscle group. It also includes a measure of the time it takes an electrical nerve impulse to travel from the point of stimulation up to the brain and back. Respondent’s use of nerve conduction studies to objectively look for pathology of the spine or peripheral nerves was warranted given her continued complaints and failure to improve after four months of conservative care. The nerve conduction studies were interpreted by Respondent as abnormal. However, many physicians would have interpreted the studies as normal because, in part, the latency was less than 30 and the difference was less than three milliseconds when compared to both sides. Nonetheless, it is also recognized that these interpretations are judgment calls by physicians based on several factors. To differentiate between problems with the peripheral nerves from those in the central nervous system, Respondent also recommended a DSEP of the upper extremities. This study was conducted on December 30, 1991, in Respondent's office. The DSEP was a companion exam to the nerve conduction studies and supplemented information learned from those studies. The combined exams assisted Respondent with localization of the source of the patient’s complaints and it was appropriate for the Respondent to have obtained both studies. In 1991, the use of the DSEP was relatively new, but it was a test that held out promise to physicians in helping them objectively quantify the functioning of nerves in all of their segments. Over time, it has been found that the DSEP does not provide any greater information than that gained by use of electromyography combined with imaging studies. However, in 1991, the thinking was different. In addition to the nerve conduction studies and the DSEP, Respondent recommended that E. C. undergo a standard awake or EEG. This test was performed on December 30, 1991, in Respondent's office. The purpose of the EEG was to evaluate the source of the patient’s continued complaints of headaches and of difficulty with sleeping. According to E. C., these problems had persisted for four months. The EEG was an inexpensive tool to evaluate whether E. C. was suffering from an intracranial bleed or from some other pathologic condition unrelated to her soft tissue injuries. Given the intensity and persistence of the headaches, Respondent felt that there was the possibility of trauma having gone undetected; he believed that such trauma could not be ruled out even though the patient had not related a history of having hit her head during the motor vehicle accident. The EEG came back as a normal study, thus, allowing Respondent to rule out more serious causes for the E. C.’s headaches. The results of the diagnostic tests allowed the Respondent to report to her primary treating physician his conclusions concerning the extent of the care to be provided, prescribe medications for E. C., identify the distribution of ligamentous instability, the etiology of her complaints, and her safe lifting capacities. It allowed him to rule out the possibilities of serious intracranial lesion and serious neurologic abnormalities. The data was suggestive of a problem in the thoracic outlet. In February 1992, E. C. returned to Respondent for re- evaluation and discussion concerning her medications. She was still experiencing headaches and was reporting that Dr. Thomas’ care was helping but she was unsure if her overall condition was improving. E. C. also reported a new problem with a burning sensation in the right foot at night, which Respondent had not assessed to be problematic. During this visit, Respondent altered her medications and scheduled her for surface electromyography exam (EMG) of the face and neck. The EMG was performed on February 28, 1992, in Respondent's office. The purpose of the surface EMG was to objectively evaluate whether E. C. had muscle spasms, and if so, the degree, interest and location of the spasms. The surface EMG also confirmed the clinical finding of muscle spasms. From the information gained from the study, Respondent could also objectively assess E. C.’s response to existing treatment and her need for further treatment including potential adjustments to be made to her medications in type and quantity. In 1991 and 1992, the results obtained from the surface EMG were thought to be important in providing care to patients or evaluating the treatment being provided. However, over time, it has been learned that muscle spasm can vary on a daily basis and, thus, the data obtained from the surface EMG may not be the best indicator as to how the patient is progressing in treatment. As physicians have learned more about the usefulness of surface EMG, they have come to rely upon it in biofeedback training. The exam provides the patient with an objective visual representation of muscle spasm, which then allows the clinician to teach the patient to relax the affected area. In E. C.’s case, the surface electromyography allowed Respondent to identify areas of muscle spasm for the purpose of planning her continued care. His use of the test in this manner, given the time period in which it was administered, was not inappropriate. E. C. left Respondent’s care after February 28, 1992, and subsequently came under the care of a neurologist, Dr. Alan Spiegel. Dr. Spiegel, who assisted in the treatment of the patient after she left Respondent’s care, did not have any criticisms of the care she had received from her prior treating physicians. As he formulated his treatment plan, Dr. Spiegel had the benefit of the records from E. C.'s prior physicians, including Respondent’s records. While receiving treatment from Dr. Spiegel, E. C. was still under the care of Dr. Thomas. Dr. Thomas’ role was to provide physical therapy while Dr. Spiegel provided medications to reduce inflammation and spasm. In fact, because she had received prior diagnostic exams, there was no need for Dr. Spiegel to perform any additional tests. Dr. Spiegel placed E. C. at maximum medical improvement on April 20, 1992, and found that there was a significant impairment of her physical condition. She experienced an exacerbation of her condition, received additional treatment, and was again placed at maximum medical improvement on October 9, 1992. At the time of the formal hearing, E. C. was still suffering from the injuries sustained in the motor vehicle accident of August 9, 1991. She continues to experience flare- ups of her condition and continues to receive treatment for her condition. Respondent's use of the diagnostic tests was not exploitative and was medically indicated at the time they were ordered. Respondent’s use of diagnostic tests was reasonably calculated to assist him in reaching a diagnosis and in making recommendations for continued treatment to her primary physician, Dr. Thomas. The tests were also used by her subsequent treating physicians in rendering care to the patient. This avoided the necessity of having the patient undergo further testing. As with many new practitioners, Respondent ordered more diagnostic tests than a more experienced practitioner might have thought necessary under the same circumstances. Moreover, since Respondent was fairly new in the practice, it was not unreasonable for him to have ordered more diagnostic exams than a more experienced practitioner might have ordered under similar conditions and circumstances. However, the fact that Respondent ordered more tests than a more experienced practitioner does not mean that the tests he obtained were not reasonably calculated to assist him in arriving at a diagnosis and recommendation for treatment of E. C.'s condition. Nor do more tests mean that they were not medically indicated. Several practitioners testified at the hearing and in their depositions that the tests were appropriate, particularly in 1991. Reasonable practitioners will differ as to the number and type of tests they will order to arrive at a diagnosis and treatment of a patient’s condition. At the formal hearing and in the written reports submitted into evidence, the opinions of seven physiatrists (Respondent, Dr. Gerber, Dr. Goodgold, Dr. Kelley, Dr. Krimshtein, Dr. Lichtblau, and Dr. Narula), a neurologist (Dr. Spiegel), a psychiatrist (Dr. Sprehe), and a neurosurgeon (Dr. Meriwether) were offered by the parties. Each of the physicians had a different belief as to the tests that he would order to evaluate E. C.'s condition. The Department provides appropriate and comprehensive training to members of the Board of Medicine as required by Section 458.307(4), Florida Statutes. At all times relevant to this proceeding, such training was provided to Board members when they were initially appointed as well as periodically throughout their tenure on the Board. Various methods utilized to implement and accomplish the required training included the following: viewing of appropriate videotapes; attendance at seminars and retreats; regular presentations at Board meetings; and dissemination of newsletters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order in this case dismissing all charges against Respondent. DONE AND ENTERED this 7th day of July, 1999, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 7th day of July, 1999. COPIES FURNISHED: John E. Terrel, Senior Attorney Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Grover Freeman, Esquire Jon M. Pellett, Esquire 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308
The Issue The issue in this case is whether the allegations set forth in the Amended Administrative Complaint filed by the Department of Health, Board of Dentistry (Petitioner), against Miranda Smith, D.D.S. (Respondent), are correct, and, if so, what penalty should be imposed.
Findings Of Fact At all times relevant to this case, the Respondent was a licensed dentist in the State of Florida, holding license no. DN 15873, with an address-of-record at 17020 County Line Road, Spring Hill, Florida 34610, and operating a dental practice identified as "Smiles and Giggles Dentistry." On August 23, 2011, the Respondent performed a dental examination of S.W., a three-year-old female. This was S.W.'s first visit to the Respondent's office. Routine procedures at the Respondent's office included taking radiographs (x-rays) of every new patient. After checking in with the receptionist and waiting for a brief time, S.W. and her mother were called from the reception area by a dental assistant, who accompanied them to a type of x-ray machine called a "Panorex." Patients can remain in a standing position while x-rays are taken with a Panorex, and the images can be produced without requiring the insertion of x-ray film into a patient's mouth. Despite encouragement from her mother and the offer of various enticements by the dental assistant, S.W. refused to stand in the Panorex, and no x-rays were taken. After the attempt to use the Panorex failed, S.W. and her mother were taken into an examination room ("operatory"). Each operatory at the Respondent's practice contained a standard x-ray machine that required the insertion of film into a patient's mouth to produce images. The evidence fails to establish that there was any attempt to obtain images from S.W. using the x-ray machine in the operatory. After S.W. was taken into the operatory and seated, the dental assistant performed a routine cleaning ("prophylaxis") and then left the room. S.W. was cooperative during the prophylaxis. After the prophylaxis was completed, the Respondent entered the room with a different dental assistant and proceeded to perform a comprehensive oral evaluation using routine dental tools. S.W. was cooperative during the examination. The Respondent examined the condition of S.W.'s teeth and verbalized her observations to the dental assistant, who recorded the information by hand into the patient chart. According to the patient chart, the Respondent observed decay in the teeth designated as A, B, I, J, K, L, S and T. After the evaluation was completed, S.W.'s mother was advised that the Respondent had observed "eight cavities" in S.W.'s teeth. The evidence failed to establish whether the mother received the information from the Respondent or from the dental assistant. Thereafter, the dental assistant escorted S.W. and her mother to the "check out" desk, where the mother was advised to schedule a follow-up appointment for dental work related to the Respondent's observations of decay. The follow-up appointment was scheduled for November 17, 2011, and the mother was advised that sedation would be administered at that time. S.W. and her mother then left the Respondent's office. According to the patient chart, the Respondent proposed to treat the observed decay by performing resin-based composite restorations on the teeth. S.W. did not return to the Respondent's office for the follow-up appointment. The Respondent provided no further dental care to S.W. Concerned about the Respondent's evaluation of her child's teeth, S.W.'s mother spoke with a friend who had been employed as a dental assistant, and then decided to seek another opinion regarding the condition of S.W.'s teeth. On or about September 6, 2011, S.W. and her mother went to see Dr. Eva Ackley, a dentist practicing at the Ackley Dental Group, for an evaluation of the child's teeth. Dr. Ackley was aware that S.W.'s mother was seeking a second opinion of the child's dental health. S.W. was cooperative throughout her appointment with Dr. Ackley. S.W. submitted to being x-rayed at Dr. Ackley's office. Dr. Ackley examined the child's teeth and reviewed the x-ray images and observed that, although S.W. had one tooth that required follow-up observation for potential decay, there were no actual cavities requiring treatment. According to S.W.'s mother, the child has been evaluated by two other dentists since 2011, one of whom observed three cavities and the other of whom observed none. According to the mother, neither of the subsequent dentists took x-rays of S.W.'s teeth. At the hearing, the Respondent presented an "expanded functions dental assistant" employed by the Respondent, who testified as to office procedures routinely followed at the Respondent's practice. The witness was not personally involved with S.W. on August 23, 2011. The witness testified that it was sometimes difficult to obtain x-rays from younger patients and that, in such cases, x-ray images would be obtained during a follow-up visit. If required, sedation was administered to calm the patient and obtain the images. The witness testified that during the course of her employment with the Respondent, no restorative treatment had been performed on a patient without x-ray images having been obtained prior to treatment. Her testimony was credible and convincing, and it has been accepted. The witness also testified that, in cases where no x-rays were taken at an initial evaluation, the routine procedure at the Respondent's office was to document the need to obtain x-rays at a follow-up appointment in the patient's file. Although the patient records of S.W.'s evaluation by the Respondent on August 23, 2011, state that the patient "would not do any x-rays," the records do not specify that they were to be taken at the follow-up appointment. The witness testified that the failure to document the need to obtain the x-ray images in the patient records was contrary to routine office procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order dismissing the Amended Administrative Complaint at issue in this case. DONE AND ENTERED this 3rd day of October, 2013, 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 3rd day of October, 2013. COPIES FURNISHED: Susan Foster, Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 Jennifer A. Tschetter, General Counsel Department of Health Bin A-02 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Christopher Claude Torres, Esquire Casey and Torres, LLC Suite 200 1240 Thomasville Road Tallahassee, Florida 32303-8707 Adrienne C. Rodgers, Esquire Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399-3265
The Issue The issue in this case is whether disciplinary action should be taken against Gerald Greenwald, M.D., based upon the alleged violations of Chapter 458, Florida Statutes, as contained in the two Administrative Complaints filed against the Respondent on June 3, 1985.
Findings Of Fact Based upon the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence at the hearing, the following facts are found. Respondent is, and has been at all times material hereto, a licensed physician in the State of Florida having been issued license number ME 0015097. Respondent's last known address is Dadeland Medical Building, 7400 North Kendall Drive, Miami, Florida 33156. In the yellow pages effective as of May 10, 1984, in Miami, Florida, Respondent placed an advertisement wherein Respondent advertised the "Dadeland Dermatology Center," which is located at 7400 Kendall Drive, in Miami, Florida. Despite the fact that Respondent practices medicine at the Dadeland Dermatology Center, the advertisement placed by Respondent in the Miami, Florida, yellow pages and in effect on May 10, 1984, does not anywhere list Respondent's name. In December of 1978, Respondent applied pursuant to the fictitious name statute with the Secretary of State of the State of Florida to do business under the name of "Dadeland Dermatology Center." In the yellow pages for the City of Miami, Florida, effective as of May 10, 1984, Respondent also placed an advertisement under the heading "Physicians & Surgeons - M.D. - Dermatology (Skin)" under the name Gerald Greenwald, M.D., P.A. In the advertisement, Respondent advertised that Respondent provided Silicone and Collagen implants. The Silicone and Collagen implant therapy was advertised among a list of several other conditions/treatments which Respondent dealt with in his practice. The specific phrase "Silicone & Collagen implants" was italicized and set forth in larger type and in capital letters. The above-described advertisements for "Gerald Greenwald, M.D., P.A." and for "Dadeland Dermatology Center" were contained on the same page of the City of Miami, Florida, yellow pages, in effect on May 10, 1984. Pursuant to Respondent's instructions, any member of the public who called his office, pursuant to either advertisement, was immediately informed that they were calling the office of Gerald Greenwald, M.D. Despite the fact that Respondent advertises that he provides Silicone and Collagen implants in his practice, Respondent has never purchased Collagen, has never used Collagen in his practice, and has never participated in the training program sponsored by the manufacturer and distributor of Collagen. Further, despite his statements to patients that he can obtain Collagen, Respondent has never had any intention of using Collagen because he is convinced that it is an inferior product when compared to medical grade Silicone. Collagen is a purified form of cow skin that is used to stimulate the formation of scar tissue, which then raises the surface underneath which it is injected. It is used for removing and softening wrinkles and lines. Collagen is a foreign substance and as such can cause allergic reactions, as well as exacerbation of certain diseases. Because it can cause allergic reactions, Collagen may be used only after appropriate allergy reaction skin testing has been performed. Silicone is a chemical that is commonly present in the form of sand. Medical grade Silicone has been used in injectable form to correct lines, wrinkles, and depressions in the body. The primary problems which occur with administration of Silicone are the problems of lumps and bumps caused by improper administration of the substance, which should only be injected in very small or "pin head" amounts. Before providing Collagen therapy, allergy testing is necessary, as previously described above. A small amount of Collagen is injected under the skin and examined closely for a period of three days and then re-examined after one month. If no reaction occurs, Collagen may be injected in the patient for purposes of removal of facial wrinkles and lines. It is, of course, necessary to have Collagen available in order to provide the allergy testing because the substance is used in the allergy tests. Zyderm Corporation is the only corporation that manufactures Collagen for distribution in the United States. Respondent has never ordered Collagen from Zyderm Corporation and has never participated in the training program for Collagen provided by Zyderm Corporation. Furthermore, Respondent has never had in his office the Collagen necessary to perform allergy testing on those patients seeking Collagen treatments. If a Miami, Florida, physician were to place an order for Collagen with Zyderm Corporation, it would take between four to seven days to obtain the substance. Collagen therapy is not a permanent treatment. Repeated injections will be required as the Collagen is absorbed by the body. Silicone, on the other hand, is more permanent. Because Collagen is not a permanent treatment, for the most part permanent problems will not result from improper administration of the substance. If Silicone is improperly administered, lumps and bumps and sagging may occur. Respondent is of the opinion that Collagen is much inferior to Silicone and that intelligent people, when informed about the merits of Silicone and the deficiencies of Collagen, will invariably choose Silicone. It is false, deceptive, and misleading for a physician to advertise that he provides both Collagen and Silicone implants when he does not have Collagen readily available but would have to order the substance, resulting in a delay of between four to seven days, and the physician does have Silicone readily available. It is also false, deceptive, and misleading for a physician to advertise that he provides both Collagen and Silicone implants when he has never had any intention of using Collagen because he has never taken any training in the use of Collagen and thinks it is an inferior product. During the summer of 1984, DPR investigator Diane Robie, pursuant to Respondent's advertisement, telephoned the Respondent to discuss the possibility of having Collagen treatment for the lines around her eyes. Investigator Robie was informed on the telephone, prior to her visit to Respondent's office, that Respondent preferred the use of Silicone to Collagen because it was more effective and less expensive. When investigator Robie visited Respondent's office, the Respondent discussed the relative advantages and disadvantages of both Silicone and Collagen. While the Respondent did not exert any undue pressure on investigator Robie to make a decision about whether or not she would decide to be treated, Respondent made it clear that he thought that if she chose to be treated, the treatment should be Silicone. During investigator Robie's visit, the Respondent also told her that if she still wished to have Collagen treatments, Respondent could obtain Collagen for her. Investigator Robie left the Respondent's office and did not arrange for any further appointments. Investigator Robie did not pursue what the Respondent's course of conduct would have been if she had persisted in her request for Collagen treatment. At all times material hereto, Respondent was the owner of an insurance policy taken out on Paula Greenwald, Respondent's ex-wife, which would pay $1.09 million in proceeds in the event of Paula Greenwald's death. Respondent also had a $3.5 million insurance policy on himself for the care of his children in the event of Respondent's death. In 1983, Respondent went through divorce proceedings terminating his marriage to Paula Greenwald. At the time of the divorce, there were six children ranging from seven to seventeen years of age. The divorce proceedings brought out a great deal of acrimony on both sides. After the divorce, Mrs. Greenwald was to have custody of the children and Respondent perceived that Mrs. Greenwald was, on a number of occasions, denying Respondent's visitation rights. Due to those disputes and disputes about other matters, the relationship between Respondent and Mrs. Greenwald became severely deteriorated after the divorce, continually worsening until about September of 1984. In approximately September of 1984, Mrs. Greenwald sent Respondent a card which contained an anonymous death threat. There was no evidence presented to establish that this death threat was acted upon. At a time prior to September 15, 1984, the Metro-Dade County Organized Crime Bureau received information from an Eastern Airlines employee named Mr. Armstrong, indicating that Respondent was trying to put out a contract for the death of Mrs. Greenwald. Mr. Armstrong obtained the information which he provided to the Metro-Dade County Organized Crime Bureau from another Eastern Airlines employee, Thomas Young. No one from the Metro-Dade County Organized Crime Bureau ever discussed the information directly with Mr. Young until after the arrest of the Respondent. Acting on the information received from Mr. Armstrong, Detective Paul Ohanesian went to the Respondent's office undercover posing as a patient, Paul DeSantis, on or about September 15, 1984. Ohanesian had sun spots on his back and used this as the reason for visiting Respondent's office. On the same day as Ohanesian's first visit, the Respondent became engaged to be married. When the Respondent's first wife heard about the engagement, she threatened to hurt Respondent like he had never been hurt before, and also threatened to break up his relationship with his fiancée. During the course of the office visit which occurred on or about September 15, 1984, Respondent examined Ohanesian's (DeSantis') back, diagnosed his condition, prescribed medication for the condition, and suggested that Ohanesian (DeSantis) return in one week. At the outset of the office visit which occurred on or about September 15, 1984, Ohanesian told Dr. Greenwald that "(a) couple of guys down at the Union down at Eastern Airlines sent me (Ohanesian) here." During the course of the first office visit, Ohanesian said, "they said that ah, you had some expensive marital problems." This initiated a conversation between Respondent and Ohanesian about Respondent's marital problems. After some discussions, Ohanesian made the statement "(s)ounds to me like it's time to get rid of her." Respondent responded as follows: Greenwald - You can't deal with it Ohanesian - Yeah Greenwald - It's a. . . She 's nuts Ohanesian - Yeah Greenwald - She's nuts Greenwald - And I like, ya know, if I had the ability Ohanesian - Ya Greenwald - To commit the perfect crime I'd kill her. She deserves to be dead Ohanesian - Well Greenwald - She's a one of the few truly evil. . . Ohanesian - Ya Greenwald - People I know. But what the hell Ohanesian - Hey, sometimes there's people That will do it for you though Greenwald - Yeah but the first one they're gonna come in on look to is me. Respondent then proceeded to tell Ohanesian that if someone would kill Respondent's ex-wife and then come to Respondent a month or two later, Respondent would give the person $50,000. Respondent told Ohanesian that he (Respondent) could not make a contract because the police and the FBI would look to Respondent. Respondent informed Ohanesian that he had told Mrs. Greenwald that if Respondent thought he could get away with it, Respondent would have his wife killed. Then Respondent again told Ohanesian that if someone killed his wife and came to him afterwards, it would be worth a lot of money to Respondent. Nothing further of significance occurred during the first office visit dated September 15, 1984, which is described above. No contract was entered into. However, Ohanesian, still known to Respondent as Paul DeSantis, was directed to return to Respondent's office and an appointment was scheduled for September 22, 1984. On or about September 22, 1984, Ohanesian returned to Respondent's office still using the name Paul DeSantis. Respondent examined Ohanesian and again prescribed medication. During the course of the office visit which occurred on or about September 22, 1984, Respondent initiated a conversation about his marital problems and informed Ohanesian that he (Respondent) had received a death threat from Mrs. Greenwald. In response, Ohanesian asked Respondent if he was still serious about having Mrs. Greenwald killed. The conversation continued as follows: Greenwald - Ya know, I can't tell you that I'm serious . . . Ohanesian - Ya - Greenwald - . . . because that would be conspiracy. I don't know if you're a cop or private, ya know, I don't know that stuff. Ohanesian - Ya, ya Greenwald - Ah, but it would certainly ah, behoove the world and be of great financial benefit to me if she were gone. Then Respondent proceeded to tell Ohanesian that his wife and her friend liked to jog at Coral Reef Park at six in the morning. Respondent described the location of the park. Respondent gave Ohanesian a description of Mrs. Greenwald's vehicle. Respondent provided Ohanesian with his wife's address and a description of Respondent's wife and her friend. During the course of the above-described conversation, the method of payment came up as follows: Ohanesian - Yeah. Well, that's all right Okay, ahm. If I give a, you a post office box, ya know, if something should happen. Greenwald - Uh hum Ohanesian - Just send it in the post office box, if you can just jot it down for yourself. Okay, it's gonna go to J and M Greenwald - Uh hum Ohanesian - Box 523816. That's in Miami, 33152. Okay, well ah, I'll guess you know anyways. So, you won't need much proof. Greenwald - Whataya mean? Ohanesian - Ahm, if she dies you won't need much proof. Greenwald - No, no, I certainly won't. Ahm, Respondent, in the course of the same conversation also stated: Greenwald - So I'm not in a conspiracy. Ahm, I'm telling you like I've probably told fifty people . . . Ohanesian - Uh hum Greenwald - . . . that the world would be better better off without her. And I would be grateful. Ohanesian - Right Greenwald - And it's as simple as that. Nothing occurred during the second office visit to establish a clear-cut contract. At the conclusion of the office visit, Respondent told Ohanesian that in ten days his (Ohanesian's) spots would be gone and the treatment would be finished. Respondent did not direct Ohanesian to return to his office for another visit after September 22, 1984. On or about September 26, 1984, Ohanesian returned to Respondent's office still using the undercover name Paul DeSantis. Ohanesian told Respondent that people were always getting run over by stolen cars. Then Ohanesian asked for expense money to run over Mrs. Greenwald. The conversation was as follows: Ohanesian - Like kids that steal cars then run over joggers all the time. I can't put out any of my own money, you know? So, we need some expense money. Is there going to be any way we can do, work something out here? Greenwald - How much expense money do you need? Ohanesian - Uh! Greenwald - And how do I know you're not a cop? Ohanesian - I'm not, Doc. You know this isn't the movies, you know? What am I going to do? I mean, well? Greenwald - All right, How much expense money? Ohanesian - I'm talking about eight hundred dollars. Greenwald - Eight hundred bucks. You got a look at her? Ohanesian - I got a good look at her, she looked at me. Greenwald - All right, how do you make sure that, uh, that uh, she's run over? Ohanesian - Well, she's going to get run over real good, I mean, you know? She's going to be jogging. She didn't jog Monday and uh, I'm just going to run her over. Run the shit off of her, and that's going to be the end of it. * * * Ohanesian - When can you get me some money? Greenwald - Uhm! Greenwald - You got no recorders or microphones? Ohanesian - No, shit no, shit the only thing is the gun Greenwald - Take it, there. At that time, Respondent gave Ohanesian $800 cash out of Respondent's wallet. After discussing expenses, Respondent and Ohanesian talked about payment of the fifty thousand dollars as follows: Ohanesian - Uhm, when I'm gone, okay, I know you're scared, just send it in this envelope, okay? Greenwald - How much money do I send in? Ohanesian - After it's over? Greenwald - Yeah Ohanesian - Fifty thousand we talked about, less whatever you're going to pay me now Greenwald - All right now. Fifty thousand Ohanesian - Uh huh Greenwald - It's fine. It's a lot of money, but it's fine. I want you to know that it is from insurance that I have Ohanesian - Okay Greenwald - I don't have fifty grand that I could give you now Ohanesian - No, I don't want, we made an agreement when I first came in here. You send it after it's over with. Did you say a month? Greenwald - Whenever I get... Ohanesian - Okay Greenwald - ... the insurance check. Ohanesian and Respondent then talked about Mrs. Greenwald's schedule for the week in question. On his patient records for DeSantis, dated September 26, 1984, Respondent wrote "Improving. Finish above. . ." At the time Respondent paid the $800 cash to Ohanesian (DeSantis) it was Respondent's intent to hire Ohanesian to kill Respondent's ex-wife, Paula Greenwald, and Respondent believed that he had hired someone to accomplish that purpose. This action of hiring someone with the motive of and for the purpose of causing the death of another person demonstrates that Respondent is a person who is extremely cruel, callous, and unfeeling. Those characteristics can affect clinical judgments and therefore relate to the ability to practice medicine. Further, the act of soliciting a patient to commit murder is poor medical judgment. On or about September 27, 1984, Respondent was arrested for solicitation to commit first degree murder. John Collins, a sergeant with the Metro-Dade Organized Crime Bureau, was one of the arresting officers. Sergeant Collins, upon arresting Respondent, advised Respondent only that he was under arrest for solicitation to commit murder. No further information was provided. Respondent was not advised of his Miranda rights because no questioning was to be pursued at that time. Respondent then asked Sergeant Collins if "she" was dead. On or about October 16, 1984, under case number 84- 22607, an information was filed against Respondent in the Eleventh Judicial Circuit Court in and for Dade County, Florida, alleging that Respondent between September 14 and 28, 1984, did unlawfully and feloniously solicit Paul Ohanesian to commit murder in the first degree, and in the course of such solicitation did command, encourage, hire or request Paul Ohanesian to kill Paula Greenwald, and to effect her death with premeditated design. On or about January 23, 1985, Respondent pleaded nolo contendere to charges of solicitation to commit murder in the Circuit Court for Dade County. On or about January 23, 1985, the court accepted Respondent's plea of nolo contendere to charges of solicitation to commit murder. On or about January 23, 1985, a sentencing hearing was held in Case Number 84-22607, before the Circuit Court in Dade County, Florida. As a result of the sentencing hearing, Respondent was placed on probation for a period of ten (10) years. As a special condition of probation, Respondent was to perform 5,000 hours of community service over a ten-year period, by performing 500 hours of community service per year for specified organizations. Additionally, as a special condition of probation, Respondent was to obtain a psychiatric evaluation from one of three specified physicians.
Conclusions Based on the foregoing findings of fact and on the applicable legal principles, the following conclusions of law are made. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. See Section 120.57(1), Florida Statutes, and Section 455.225(4), Florida Statutes. The Board of Medical Examiners is empowered to revoke or suspend the license of, or otherwise discipline, any physician who violates any of the following provisions of Section 458.331(1), Florida statutes: Being convicted or 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. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter; False, deceptive or misleading advertising; Advertising, practicing or attempting to practice under a name other than one's own; Failing to perform any statutory or legal obligation placed upon a licensed physician; and Making deceptive, untrue or fraudulent representations in the practice of medicine or employing a trick or scheme in the practice of medicine when such trick or scheme fails to conform to the generally prevailing standards of treatment in the medical community. Petitioner has the burden of proof in this license discipline case and must prove clearly and convincingly that the alleged violations of the above-cited statutory provisions occurred. Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981); Robinson v. Florida Board of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984); and Sneij v. Department of Professional Regulation, 454 So.2d 795 (Fla. 3d DCA 1984). Conclusions regarding charges in DPR Case No. 0048232 Count One of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(e), Florida Statutes, by "[a]dvertising, practicing, or attempting to practice under a name other than his own." There is sufficient competent substantial evidence to establish that Respondent violated Section 458.331(1)(e), Florida Statutes, by advertising under the name Dadeland Dermatology Center, a name other than his own. Respondent in mitigation offered evidence that the Dade County Medical Association did not find unethical behavior in Respondent's advertising. This evidence does not negate, but only mitigates the violation of Section 458.331(1)(e), Florida Statutes. Count Two of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(d), Florida Statutes, which prohibits false, deceptive, or misleading advertising. There is sufficient competent substantial evidence to establish that the Respondent violated Section 458.331(1)(d), Florida Statutes, by advertising in a false, deceptive, or misleading manner that Respondent provided Collagen and Silicone treatments, when in fact the Respondent has never used Collagen in his practice, has never been trained in the use of Collagen, has never ordered Collagen, has never had any Collagen at his office, believes Collagen is an inferior product, and has no present intention of using Collagen. It is clearly false, deceptive, and misleading for the Respondent to advertise the availability of both Collagen and Silicone treatments when in fact the Collagen treatments are not available at Respondent's office and he has no intention of making them available. Count Three of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(u), Florida Statutes, by Performing any procedure or prescribing any therapy which, by the prevailing standards of medical practice in the community, would constitute experimentation on a human subject, without first obtaining full, informed, and written consent. Counsel for the Department voluntarily dismissed the charges in this count at the commencement of the hearing. Accordingly, Count Three of the Administrative Complaint in DPR Case No. 0048232 should be dismissed. Count Four of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(t), Florida Statutes, by Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. Counsel for the Department voluntarily dismissed the charges in this count at the commencement of the hearing. Accordingly, Count Four of the Administrative Complaint in DPR Case No. 0048232 should be dismissed. Count Five of the Administrative Complaint in DPR Case No. 0048232 charges the Respondent with a violation of Section 458.331(1)(1), Florida Statutes, by Making deceptive, untrue, or fraudulent representations in the practice of medicine or 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. There is sufficient competent substantial evidence to establish that Respondent violated Section 458.331(1)(1), Florida Statutes, by making deceptive, untrue, or fraudulent representations that Respondent provided Collagen implants in his practice. Essentially, Respondent is advertising that he provides both Collagen and Silicone treatments, when this is not true, and in fact is deceptive in nature. Conclusions regarding charges in DPR Case No. 0052038 Count One of the Administrative Complaint in DPR Case No. 0052038 charges the Respondent with a violation of Section 458.311(1)(c), Florida Statutes, by Being convicted or 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. Any plea of nolo contendere shall be considered a conviction for purposes of this chapter. The manner in which the last sentence of the above-quoted statutory provision is to be construed and applied was addressed as follows in Ayala v. Department of Professional Regulation, 478 50.2d 1116 (Fla. 1st DCA 1985): We find that Section 458.331(1)(c) is clearly constitutional by construing the word "shall" in the last sentence of that subsection as permissive rather than mandatory in meaning. Rich v. Ryals, 212 So.2d 641, 643. As so construed, the Board of Medical Examiners may presumptively consider the nolo contendere plea as evidence of a conviction for purposes of chapter 458; however, in accordance with the Supreme Court's opinion in The Florida Bar v. Lancaster, 448 So.2d 1019, the Board must allow appellant the opportunity to rebut this presumption and assert his innocence of the underlying criminal charges by explaining the reasons and circumstances surrounding his plea of nolo contendere, and thereby attempt to convince the Board that he is not guilty of a crime in violation of the provisions of section 458.331(1)(c). The Board must consider this evidence in deciding appellant's guilt or innocence for purposes of the disciplinary charges. Such explanation may, of course, always be considered in mitigation of punishment if appellant should be adjudicated guilty by the Board. At the hearing in this case, the Respondent was allowed an opportunity to rebut the presumption which arises from his nolo contendere plea. Respondent availed himself of the opportunity and attempted to explain the reasons and circumstances surrounding his plea of nolo contendere and attempted to convince the Hearing Officer that he is not guilty of a crime in violation of the provisions of Section 458.331(1)(c), Florida Statutes. As is obvious from the findings of fact earlier in this Recommended Order, the Respondent's efforts in this regard were unsuccessful. After careful consideration of the Respondent's explanations, I have found them to be lacking in persuasiveness when considered in light of the other evidence of the Respondent's guilt of the criminal charge of solicitation of the first degree murder of his ex-wife. Section 777.04(2), Florida Statutes, reads as follows in pertinent part: Whoever solicits another to commit an offense prohibited by law and in the course of such solicitation commands, encourages, hires, or requests another person to engage in specific conduct which would constitute such offense or an attempt to commit such offense commits the offense of criminal solicitation . . . Upon consideration of the totality of the evidence in this case, there is an abundance of competent substantial evidence that the Respondent encouraged and hired Paul Ohanesian to murder Respondent's ex-wife and that Respondent did so with the motive of and for the purpose of causing the death of his ex-wife. Respondent's explanations with regard to his having had some other motive or purpose are simply unconvincing. Count Two of the Administrative Complaint in DPR Case No. 0052038 charges the Respondent with a violation of Section 458.331(1)(h), Florida Statutes, by "[f]ailing to perform any statutory or legal obligation placed upon a licensed physician." In this regard, the Respondent is alleged to have failed to comply with or to have violated the provisions of Section 455.227(1)(a), Florida Statutes, which provides for disciplinary action where "[t]he licensee has been convicted of a felony which relates to the practice of his profession." For the following reasons this charge must be dismissed. First, while Section 455.227(1)(a), Florida Statutes, authorizes disciplinary action upon conviction of certain felonies, Section 455.227(1)(a) does not impose any statutory or legal obligation upon a licensed physician (or upon any other licensee). Section 455.227(1)(a) may provide a separate basis for discipline against a licensed physician (or other licensee), but because it does not impose any duty or obligation on licensed physicians, there can be no failure to perform anything required by Section 455.227(1)(a) which could constitute the basis of a violation of Section 458.331(1)(h), Florida Statutes. Second, even if the Respondent had been charged directly with a violation of Section 455.227(1)(a) [which he was not], such a charge would fail on the facts in this case because Section 455.227(1)(a), Florida Statutes, is limited by its terms to licensees who have been "convicted," and does not contain the broadening language of Section 458.331(1)(c), Florida Statutes, which encompasses situations in which adjudication has been withheld or in which a plea of nolo contendere has been made. Therefore, no violation of Section 458.331(1)(h), Florida Statutes, can be found, and Count Two of the Administrative Complaint in DPR Case No. 0052038 must be dismissed. Conclusions regarding the appropriate penalty With regard to the violation of Section 458.331(1)(e), Florida Statutes, by advertising under a name other than his own, even though the Dade County Medical Association found nothing wrong with the Respondent 'a advertising, the fact remains that the language of the statutory prohibition is simple and clear and the Respondent should have been aware of it. Respondent did mitigate the harm caused by the improper advertising by advising all who called that they had called Respondent's office. Accordingly, for the violation of Section 458.331(1)(e), Florida Statutes, I recommend issuance of a reprimand and an administrative fine in the amount of $250. With regard to the violation of Section 458.331(1)(d) and (1), Florida Statutes, by false, deceptive, or misleading advertising and by deceptive, untrue, or fraudulent misrepresentations, I recommend an administrative fine of $1,000. With regard to the violation of Section 458.331(1)(c), Florida Statutes, by being found guilty of a crime which directly relates to the ability to practice medicine, due to the particularly heinous nature of the Respondent's crime, I recommend that Respondent's license to practice medicine be revoked.
Recommendation Consistent with all of the foregoing, it is recommended that the Board of Medical Examiners issue a Final Order in this case to the following effect: Finding the Respondent guilty of the violations charged in Counts, One, Two, and Five of the Administrative Complaint in DPR Case No. 0048232; Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint in DPR Case No. 0052038; Reprimanding the Respondent for the violation of advertising under a name other than his own; Imposing a total of $1,250 in administrative fines against the Respondent; Revoking the Respondent's license to practice medicine; and Dismissing Counts Three and Four of the Administrative Complaint in DPR Case No. 0048232 and dismissing Count Two of the Administrative Complaint in DPR Case No. 0052038. DONE AND ORDERED this 10th of April, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esq. Senior Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Lawrence E. Besser, Esq. SAMEK AND BESSER 1925 Brickell Suite #D-207 Miami, Florida 33129 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on each of the findings of fact proposed by each of the parties. Rulings on findings proposed by the Petitioner The paragraphs referred to below are to the numbered paragraphs of the proposed findings of fact which appear at pages 3 through 13 of the Petitioner's Proposed Recommended Order. The substance of all of the findings proposed in the following paragraphs has been accepted. Some editorial modifications have been made in the interests of clarity and accuracy, as well as when integrating similar proposals by the Respondent: 1, 2, 3, 4, 5, 6. 7. 8, 9, 10, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 30, 31, 32. Paragraph 11: The findings in this paragraph are accepted with the exception of the language in parentheses, which is rejected as not supported by competent substantial evidence. Paragraph 18: Accepted in substance with unnecessary details deleted. Paragraph 29: The last sentence of this paragraph is rejected as irrelevant. The remainder of this paragraph is accepted. Rulings on findings proposed by the Respondent The paragraphs referred to below are to the numbered paragraphs of the proposed findings of fact which appeared at the following pages of the Respondent's Proposed Recommended Order: 1, 2, 3, 4, 5, 6, 16 and 17, 19 and 20. Inasmuch as the paragraphs of Respondent's proposed findings are numbered in three series of numbers in which many numbers are repeated, I have also included page reference below in the interest of clarity (Findings proposed at pages 1 through 6) Paragraph 1: Accepted in substance, with deletion of some irrelevant details. Paragraph 2: Accepted in substance, with deletion of some irrelevant details. Paragraph 3: Rejected because not supported by competent substantial evidence. Paragraphs 4, 5, and 6: T he substance of these paragraphs has been accepted with the deletion of certain editorial material. Paragraph 7: Rejected as constituting either a cumulative rehash of previous findings or as argument about the significance of the findings. Paragraphs 8 and 9: The substance of these paragraphs has been accepted with the deletion of certain editorial material. Paragraph 10: Rejected as constituting an irrelevant opinion or a conclusion of law rather than a finding of fact. Paragraph 11: Accepted in substance. Paragraphs 12, 13, 14, and 15: Accepted in substance. Paragraph 16: Rejected as contrary to the greater weight of the persuasive evidence. (See other findings regarding the guilt of the Respondent. In making my findings of fact regarding Respondent's intent, motive, and purpose, I have specifically rejected as unpersuasive and unworthy of belief Respondent's testimony that he knew that Ohanesian was not a "hit man," that he believed that Ohanesian was a private detective sent by Respondent's ex-wife, that he had no intention of causing his wife's death, and that his sole reason for paying $800 to Ohanesian was to "send a message" to his ex-wife so she would believe he was serious about having her killed even though he was not.) Paragraphs 17 and 18: Accepted in substance. Paragraph 19: Rejected as contrary to the greater weight of the persuasive evidence. (See other findings regarding the guilt of the Respondent.) Paragraph 20: Accepted in substance. Paragraph 21: Rejected in part as irrelevant and in part as contrary to the greater weight of the persuasive evidence. Paragraph 22: Rejected as contrary to the greater weight of the persuasive evidence. (See other findings regarding the guilt of the Respondent.) Paragraph 23: Rejected because it constitutes a summary of testimony and argument about the testimony and does not constitute a proposed finding of fact. Paragraph 24: Rejected in part because it constitutes a summary of the testimony and opinion rather than a proposed finding of fact. Rejected primarily because it is inconsistent with the greater weight of the persuasive evidence, including some of Dr. Jacobson's testimony on cross-examination. Paragraph 25: Rejected in part because it is irrelevant. Rejected primarily because the opinions of the Board of Directors of the Dade County Medical Association are not warranted on the basis of the persuasive evidence in this record. Paragraph 26: Rejected as contrary to the greater weight of the persuasive evidence. (Findings proposed at pages 16 and 17) Paragraphs 1, 2, 3, and 5: Accepted in substance. Paragraphs 4, 6, and 7: Although essentially correct statements, these paragraphs are rejected as findings because they are irrelevant to the issues in this case. (Findings proposed at pages 19 and 20) Paragraph 1: The substance of the first sentence is accepted. The second sentence is rejected as contrary to the greater weight of the persuasive evidence or as not supported by persuasive competent substantial evidence. Paragraph 2: Accepted in substance. Paragraph 3: The first sentence of this paragraph is accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence and not supported by competent substantial evidence. Paragraphs 4, 5, 6, and 7: Accepted in substance. Paragraph 8: Accepted in substance with some additional clarification regarding the emphasis placed on the benefits of silicone. Paragraph 9: Accepted in substance. Paragraph 10: Rejected as not supported by persuasive competent substantial evidence. (See other findings on this subject.)
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Sections 466.028(1)(y) and (m), issuing a reprimand, imposing a fine of $6,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO. RECOMMENDED this 1st day of August, 1995, in Tallahassee, Florida. DANIEL MANRY 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 1st day of August 1995.
