The Issue The issue in this case is whether Petitioner, Frank W. Fender, should have received a passing grade on the March 1997 Clinical Chemistry Technologist examination.
Findings Of Fact Petitioner, Frank W. Fender, took the Clinical Chemistry Technologist examination in March 1997 (hereinafter referred to as the "Examination"). The Examination consists of fifty multiple choice questions. The instructions for the Examination specifically informed persons taking the examination that they were to "[a]lways choose the BEST answer." It was determined that Mr. Fender had answered twenty- seven of the Examination questions correctly. Mr. Fender was, therefore, awarded a score of 349. A score of 350 or more was required for a passing score. If Mr. Fender were determined to have answered one more question correctly, he would receive a passing score. Mr. Fender was informed that he had not passed the Examination. By letter dated July 25, 1997, Mr. Fender requested a formal administrative hearing to contest his failing score. In particular, Mr. Fender challenged the determination that he did not answer questions 3, 9, 16, and 21 correctly. Question 3: Question 3 involved obtaining "true serum triglyceride results." Mr. Fender selected answer "D" which was: "measure a blank in which the dye-coupling is omitted." The answer considered correct was "B." The evidence failed to prove that answer "D" was the best answer. While the use of blanks in triglyceride methodologies is correct, "dye-coupling" is not. Therefore, answer "D" is not a correct response. The evidence failed to prove that answer "D" was the best answer for question 3. Question 9: Question 9 asks which enzyme listed in the answers is found to be elevated in the majority of alcoholics. Mr. Fender selected "B," ALT, as the correct response. The evidence failed to prove that answer "B" was the best answer. While ALT may be raised in an alcoholic, it also may not be. GGT is the most sensitive indicator of alcoholism. Even if ALT is normal, GGT will be raised in an alcoholic. The best answer to question 9 was, therefore, "C," GGT. The evidence failed to prove that answer "B" was the best answer to question 9. Question 16: Question 16 asks why one must wait approximately 8 hours to draw a blood sample after administering an oral dose of digoxin. Mr. Fender selected "D" as the correct response. This answer indicates that the reason one must wait is because "all" of the digoxin "will be in the cellular fraction." Mr. Fender's response was not the best response because of the use of the work "all" in the answer he selected. The most digoxin that could be in the cellular fraction is approximately twenty-five percent, because approximately seventy-five percent is excreted through the kidneys. The evidence failed to prove that answer "D" was the best answer to question 16. Question 21: Question 21 asks the best way to test for suspected genetic abnormalities in an unborn fetus. Mr. Fender selected answer "B," "performing L/S ratios" as the best answer. While the evidence proved that L/S ratios will measure immature fetal lungs, this condition results in respiratory distress syndrome. Respiratory distress syndrome is an "acquired" disorder and not a "genetic" abnormality. While an L/S ratio can be used to test for acquired disorders, a "chromosome analysis," answer "C," is used to test for genetic abnormalities. The evidence failed to prove that answer "B" was the best answer to question 21. The evidence failed to prove that Mr. Fender should have received a score higher than 349 on the Examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Health dismissing Frank W. Fender's challenge to the grade awarded to him on the March 1997 Clinical Chemistry Technologist examination. DONE AND ORDERED this * day of March, 1998, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 * day of March, 1998. * Mailed 3/2/98 undated. -ac COPIES FURNISHED: Frank W. Fender 7603 North Laura Street Jacksonville, Florida 32208 Anne Marie Williamson, Esquire Department of Health Office of the General Counsel 1317 Winewood Boulevard Building 6, Room 106 Tallahassee, Florida 32399-0700 Dr. James Howell, Secretary Department of Health 1317 Winewood Boulevard Building 6, Room 306 Tallahassee, Florida 32399-0700 Pete Peterson Department of Health 1317 Winewood Boulevard Building 6, Room 102-E Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building 6 Tallahassee, Florida 32399-0700
The Issue The issue in the case is whether the allegations set forth in the Amended Administrative Complaint filed against the Respondent are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a Florida-licensed registered nurse, holding license number RN 2061632. At all times material to this case, the Respondent resided with her daughter in an unidentified city in Massachusetts. In February 2001, the Respondent sought employment at the Pleasant Manor Health and Rehabilitation Center ("Pleasant Manor"), a facility located in Attleboro, Massachusetts. As part of the employment application process, the Respondent was required to submit a urine sample to a Pleasant Manor employee. The evidence fails to establish that the procedure utilized by the Pleasant Manor employee in collecting the urine specimen was sufficient to preclude contamination of the specimen. Prior to the urine collection procedure, the Pleasant Manor employee did not require that the Respondent wash her hands. The Respondent was taken into a restroom to provide the specimen. The Pleasant Manor employee waited outside the restroom while the Respondent collected the urine sample. The water in the toilet bowl was clear. Hot and cold running water was available in the restroom sink. After the sample was taken, the Respondent remained with the Pleasant Manor employee while the sample was sealed and packaged for transportation to the testing lab. The urine specimen was submitted to a LabCorp testing facility in North Carolina for analysis. The initial LabCorp test on the Respondent's urine specimen produced results indicating the presence of cannabinoids and opiates. The Respondent's urine specimen was subjected to confirmation testing and returned a test result of 31 ng/mL for cannabinoids and 920 ng/mL for opiates/codeine. The evidence establishes that the LabCorp tests were performed according to appropriate standards and practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Nursing, enter a Final Order dismissing the Amended Administrative Complaint filed against Respondent Deborah Ketz. DONE AND ENTERED this 5th day of September, 2002, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM 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 5th day of September, 2002. COPIES FURNISHED: Alexis J. DeCaprio, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265 Suzanne H. Suarez, Esquire 447 3rd Avenue, North Suite 404 St. Petersburg, Florida 33701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Dan Coble, R.N., Ph.D., C.N.A.A. C, B.C. Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Reginald D. Dixon, Esquire Division of Medical Quality Assurance Bureau of Health Care Practitioner Regulation Department of Health 4052 Bald Cypress Way, Bin C65 Tallahassee, Florida 32399-3265
Findings Of Fact Based upon the stipulations of the parties, the testimony of the witness, and the documentary evidence received at the hearing, the following findings of fact are made: The Department is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes. The Respondent is, and has been at all times material to this case, a licensed physician in the State of Florida, license no. ME 0045691. The Respondent was born in the U.S.S.R. in 1926 and graduated with honors from the Moscow Medical Institute in 1951. She also received a PhD degree in medical science and obtained the equivalent of board certification as a surgeon oncologist in that country. While employed in the U.S.S.R., Respondent worked for the state. In 1976, Respondent, who is Jewish, immigrated to Israel where she received that country's board certification in surgery. During her residence in Israel, the Respondent was employed as a surgeon in a state-sponsored clinic. From Israel, the Respondent came to the United States in 1983. Respondent passed the ECFMG and the FLEX examinations in 1984. Subsequently, she became licensed in Florida. Currently, Respondent is neither board certified nor board eligible. Respondent attributes her foreign education and age as the primary reasons she has not achieved certification in this country. Because she is not board certified or eligible for certification, Respondent has sought employment where those criteria are not mandatory. Consequently, since becoming licensed in Florida, she has worked almost exclusively at clinics practicing general medicine. In November, 1987, Respondent began employment with Doctor's Diagnostic and Medical Centers (DDMC). Respondent was one of several doctors employed by DDMC. At all times material to this case, DDMC operated walk-in clinics in New Port Richey and Clearwater, Florida. At the outset of her employment with DDMC, Respondent worked only part-time for approximately 16 to 18 hours per week. Her hours increased over time, and, in July or August of 1988, Respondent went to a full-time schedule. Her initial agreement with DDMC provided that Respondent would be paid based upon the rate of $30.00 per hour worked. At that time, DDMC was involved in a program of providing free Doppler examinations for persons requesting that evaluation. Respondent was aware that DDMC engaged in advertisements to solicit patients. All management or administrative decisions such as advertising, billing, or scheduling employees at DDMC were made by a Dr. Neese, the owner of the facilities, or his designee. Respondent did not participate in management decisions. At some early point in her employment at DDMC, Respondent agreed to provide additional services for the company which had formerly been performed by a technician. More specifically, Respondent agreed to interpret Doppler test results. DDMC provided Doppler testing as part of its preventative medicine program. The purpose of the program was to screen patients for potential further treatment or testing. Doppler, cholesterol, and triglyceride testing are all appropriate preventative medicine approaches to determine a patient's potential need for services. According to Respondent, preventative medicine assists in early detection of potentially harmful illnesses. Doppler tests measure or indicate circulation and cardiac function. In the event a Doppler test evidences some abnormality, further testing such as ultrasound or echocardiogram may be suggested as appropriate follow up. While assigned to the New Port Richey clinic, Respondent provided many Doppler interpretations. For each Doppler test interpreted where the patient returned to DDMC for additional testing, Respondent was to receive $60.00. After reviewing the Doppler, some patients would be examined by Respondent. Respondent would perform a limited examination and take a medical history. If the testing and examination suggested some abnormality, Respondent would advise the patient as to the options available. In the event the Doppler showed no problem, Respondent would not recommend additional testing. Where the patient's Doppler results and additional information suggested a medical basis for additional testing, Respondent advised patients that they could confer with their regular physician, have the testing elsewhere if they would like, or could have the testing done at DDMC. At Dr. Neese's direction Respondent kept a list of the patients for whom she had interpreted the Doppler results and for whom additional testing was to be performed at DDMC. Respondent did not confer with all of the patients on the list. According to Respondent some patients on her list did receive additional testing at DDMC. She had presumed she would be compensated in accordance with her agreement; however, Respondent did not receive compensation for that work. For the period November 11, 1987 to December 31, 1987, Respondent received $5,685.00 in compensation from DDMC.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Department of Professional Regulation, Board of Medicine, enter a final order finding the Respondent guilty of violating Section 458.331(1)(i), Florida Statutes, placing the Respondent on probation for a period of two years, and imposing an administrative fine in the amount of $2500.00. DONE and ENTERED this 24th day of May, 1991, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1991. APPENDIX TO CASE NO. 90-6331 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE DEPARTMENT: Paragraphs 1 through 4 are accepted. With regard to paragraph 5, it is accepted that an individual known to Respondent as Dr. Neese hired her for work at the DDMC and controlled the administration or management of that facility. Otherwise, rejected as irrelevant. Paragraph 6 is accepted as to clinics at New Port Richey and Clearwater which would be the only locations material to this case. With regard to paragraph 7, with the deletion of the words "independent contractor" which are rejected as a conclusion of law, it is accepted. Paragraphs 8 and 9 are accepted. With the deletion of the word "scheme" which is rejected as argumentative, paragraph 10 is accepted. Paragraph 11 is rejected as contrary to the weight of the evidence. With the deletion of the word "scheme" (see comment above), paragraph 12 is accepted. Paragraphs 13 and 14 are rejected as contrary to the weight of the credible evidence. Paragraph 15 is accepted. Paragraphs 16 and 17 are rejected as argumentative or contrary to the weight of credible evidence. Paragraph 18 is accepted. Paragraphs 19 through 21 are rejected as irrelevant or contrary to the weight of the credible evidence. Paragraphs 22 and 23 are accepted. Paragraphs 24 through 30 are rejected as irrelevant, speculative, or contrary to the weight of credible evidence. Paragraph 31 is accepted. Paragraphs 32 and 33 are rejected as argumentative or contrary to the weight of the credible evidence. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: Paragraphs 1 through 5 are accepted. With regard to paragraphs 6 and 7, it is accepted that those paragraphs state Respondent's perception of her situation. This record does not establish, in fact, the basis for her failure to obtain certification, eligibility or hospital privileges. Paragraphs 8 through 10 are accepted. The first sentence of paragraph 11 is rejected as a conclusion of law or irrelevant. The balance of the paragraph is accepted. Paragraphs 12 through 15 are accepted. With the deletion of the last sentence which is rejected as contrary to the weight of the evidence, paragraph 16 is accepted. Respondent was, in fact, aware that some of the patients for whom she had interpreted the Doppler did return to the clinic for additional testing. The first sentence of paragraph 17 is accepted. The remainder of the paragraph is rejected as comment, argument, or contrary to the weight of the evidence. It is accepted that no patient records were admitted into evidence. COPIES TO: Richard A. Grumberg Sr. Medical Atty. DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Grover C. Freeman 4600 West Cypress, Ste. 500 Tampa, FL 33607 Dorothy Faircloth Executive Director DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792 Jack McRay General Counsel DPR 1940 N. Monroe St., Ste. 60 Tallahassee, FL 32399-0792
The Issue The issue is whether Respondent violated paragraph 2(G) of the December 14, 2010, Final Order of the Education Practices Commission ("EPC"), and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner, Commissioner of Education, is the head of the Florida Department of Education, the state agency charged with the ultimate responsibility to investigate and take disciplinary actions against persons who hold a Florida Educator's Certificate and are alleged to have violated specified statutes. The EPC is charged with imposing discipline for violations of sections 1012.795 and 1012.796, Florida Statutes. Respondent holds Florida Educator's Certificate Number 519374 issued by the Department. Respondent's Employment History and Disciplinary History Respondent has been employed in the State of Florida public education system for thirty-one years, twenty-seven of which she has served as a full-time teacher. During the four years in which she was not a teacher, she served as an occupational specialist and career counselor, involved in helping at-risk students find employment and providing guidance regarding academic training for specific careers. She also served as a counselor for Project Hope, a drug rehabilitation program, and as a substitute teacher. She currently is employed as a classroom teacher by Broward County Public Schools. She has received positive job performance evaluations throughout her career. On or about May 14, 2010, Petitioner filed an Administrative Complaint against Respondent, alleging violations of specified Florida Statutes and agency rules, and seeking to impose disciplinary sanctions against Respondent's Certificate. Following an informal hearing on the Administrative Complaint conducted pursuant to sections 120.569 and 120.57(2), the EPC entered a Final Order dated December 14, 2010, placing Respondent on two employment years of probation, subject to specified conditions. The Final Order provides in pertinent part: "2. Upon employment in any public or private position requiring a Florida educator's certificate, Respondent shall be placed on 2 employment years of probation with the conditions that during that period, she shall: . . . G. [n]ot consume, inject or ingest any controlled substance unless prescribed or administered for legitimate medical purposes." To ensure compliance with paragraph 2(G)1 of the Final Order, Respondent is required to submit to random substance abuse testing, as directed by the Recovery Network Program for Educators ("RNP") or her employer.2 Pursuant to the Final Order, Respondent submitted to random substance abuse testing on January 28, 2011. Respondent was notified by letter from the RNP dated February 7, 2011, that she was in violation of the Final Order. The letter stated in pertinent part: "you failed to comply with Paragraph 2(G) of the Final Order, to wit: You consumed, ingested, or injected a controlled substance that was not prescribed by a doctor as evidenced by your drug test on January 28, 2011, that was positive for Cocaine Metabolite." On February 17, 2011, the EPC issued a Notice to Show Cause, requiring Respondent to show cause why a penalty for violating the Final Order should not be imposed. A hearing on the Notice to Show Cause was convened before the EPC on April 8, 2011. At the hearing, Respondent claimed that she had not consumed, injected, or ingested a controlled substance not prescribed or administered for legitimate medical purposes. Respondent's Random Drug Test of January 28, 2011 On January 28, 2011, Respondent reported to Occupational Medicine Centers of America ("OMC"), in Miramar, Florida, to submit to a random drug test as required under the Final Order, paragraph 2(H). Because she had to work that day, Respondent reported to OMC in late afternoon, before 5:00 p.m. Respondent brought a chain of custody form, formally known as a Forensic Drug Testing Chain of Custody Form ("Form"), with her to OMC.3 The Form for Respondent's testing was provided by the RNP or Respondent's employer.4 The Form is multi-layered, with the pages (or "layers") designated for specific recipients ——i.e., the collection laboratory, the testing laboratory, the employer, the medical review officer ("MRO"),5 and the donor. The Form lists "8543245" as the "Specimen ID No." for Respondent's random drug test conducted on January 28, 2011. Because Respondent's employer or the RNP provided the Form for her drug testing, OMC could not, and did not, generate a chain of custody form that could be used in collecting Respondent's specimen. The Form is to be filled out by the person collecting the specimen in accordance with the specific steps set forth on the Form. Step 1 lists the employer's name, address, and identification number, and the MRO's name, address, phone number, and facsimile number. Step 1 requires the specimen collector to fill in the donor's name and social security number or employee identification number; verify the donor's identity; identify the reason for the drug test; identify the type of test to be performed; and provide the collection site name, address, phone number, facsimile number, and collection side code. Step 2 is completed by the collector once the donor has provided the specimen. The collector identifies the type of specimen provided (i.e., split, single, or none provided) on the Form, reads the temperature of the specimen within four minutes of collection, and verifies on the Form whether the temperature is between 90 and 100º Fahrenheit. Step 3 requires the collector to pour the specimen into a bottle, seal the bottle with a tamper-evident label or seal, have the donor initial the seal, and place the specimen bottle in a laboratory bag along with the testing laboratory's copy of the Form. Step 4 requires the collector to certify that "the specimen given to me by the donor identified in the certification section on Copy 2 of this form was collected, labeled, sealed, and released to the Delivery System noted in accordance with applicable requirements." To complete Step 4, the collector must sign and date the form, fill in the time that the specimen was collected, and identify the courier service to which the specimen bottle is released. After the collector completes Steps 1 through 4 of the Form, the donor completes Step 5. Step 5 requires the donor to certify that he or she provided the specimen to the collector and did not adulterate the specimen, that the specimen bottle was sealed with a tamper- evident seal in his or her presence, and that the information and numbers provided on the Form and label affixed to the bottle were correct. Upon arriving at OMC, Respondent was called into the portion of the facility where drug testing is conducted. She provided the Form to OMC's medical assistant, Jackie Scialabba, who was on duty at that time. Scialabba completed Step 1 of the Form, and instructed Respondent to place her belongings in a locker, wash her hands, and provide a urine specimen in the collection cup. While Respondent was in the restroom providing the specimen, Scialabba completed Step 4 of the Form. Specifically, she signed and dated the form, filled in the portion of the Form stating the "Time of Collection" as 4:25 p.m., and checked the box identifying the delivery service courier. Respondent emerged from the restroom and handed Scialabba the specimen to pour into a specimen bottle for sealing and delivery to the testing laboratory. At that time, Scialabba discovered that Respondent had not provided a specimen of sufficient quantity to be tested. Scialabba provided water to Respondent so that she would be able to produce a specimen of sufficient quantity for testing. Respondent waited in the lobby of the facility until she was able to provide another specimen. Scialabba's shift ended at 5:00 p.m. and she left for the day. By the time Respondent was able to provide another specimen, Scialabba was gone. Before she left, Scialabba informed Christin Visbal, also a medical assistant at OMC,6 that Respondent's drug test was incomplete and that Visbal needed to complete the test. Scialabba left the partially completed Form with Visbal. Scialabba testified that Respondent did not complete Step 5 of the Form in her presence. Once Respondent indicated she was able to provide another specimen, Visbal called Respondent back into the testing facility. Both Visbal and Respondent stated that they were the only people present in the testing facility at that time.7 Visbal had Respondent her wash her hands, gave her the specimen collection cup, and instructed her regarding providing the specimen. At that time, Respondent provided a urine specimen of sufficient quantity to meet the testing requirements. Visbal checked the temperature of the specimen as required on Step 2 of the Form, and completed the portion of Step 2 requiring verification that the specimen temperature was between 90 and 100º Fahrenheit.8 Visbal poured the urine into a specimen bottle, sealed the bottle with a tamper-evident seal, and had Respondent initial the seal. Respondent then completed Step 5 of the Form, which constituted her certification that the specimen bottle was sealed with a tamper-evident seal in her presence.9 Visbal placed the sealed urine specimen and the testing laboratory's copy of the Form in a bag, and sealed the bag. Visbal provided Respondent with the donor copy of the Form. Respondent collected her belongings from the locker and left the facility. Because Scialabba had prematurely completed Step 4 of the Form while attempting to collect Respondent's specimen before she left work for the day, Visbal was unable to complete Step 4. However, Visbal provided a sworn statement and testified at hearing regarding the substance of the certification in Step 4——specifically, that the urine specimen given to her by Respondent was collected, labeled, sealed, and released to the delivery service10 in accordance with applicable requirements. The evidence establishes, and the undersigned determines, that Visbal correctly followed the established protocol in collecting, labeling, sealing, and releasing the specimen to the courier in accordance with the applicable chain of custody requirements. Accordingly, the chain of custody for Respondent's urine specimen was maintained. Scialabba's paperwork error did not compromise the chain of custody for Respondent's urine specimen. On February 7, 2011, FirstLab provided a document titled "Participant Call Test Edit" to the RNP, showing a positive test result for cocaine metabolite. The document bears "Specimen ID No. 8543245"——the same specimen identification number as was listed on the Form that Respondent brought to OMC on January 28, 2011, for use in her drug test that day. Respondent does not dispute that the tested specimen yielded a positive test result for cocaine metabolite. She maintains that she did not produce the tested specimen. Respondent's Subsequent Random Drug Test Results Since January 28, 2011, Respondent has been randomly tested for drug use each month. Respondent's drug test results have been negative every time that she has been tested since the January 28, 2011 test——nine times as of the hearing date. Respondent served a subpoena duces tecum on FirstLab in August 2011, seeking to obtain all documents related to Respondent's random drug test results, including the negative test results. The subpoena provided the correct spelling of Respondent's full name but did not list her social security number, employee identification number, date of birth, address, or school system by which she is employed. Instead of producing Respondent's test results, FirstLab produced test results for another teacher having a similar name who is employed by Miami- Dade County Public Schools.11 Ultimate Facts Regarding Alleged Violation and Penalty For the reasons set forth above, the undersigned determines that the chain of custody for Respondent's urine specimen was maintained. The evidence does not support an inference that Respondent's specimen was tampered with, tainted, or otherwise compromised in the collection, sealing, labeling, or delivery process. Therefore, either Respondent had cocaine metabolite in her system when she donated the urine specimen on January 28, 2011, or the testing laboratory or MRO made a mistake in testing or reporting the test results of her urine specimen. Respondent maintains it is the latter, but did not present any persuasive evidence to support her position. To that point, FirstLab's error in producing the wrong person's records in response to Respondent's subpoena does not provide a sufficient basis to infer that in this case, FirstLab reported another person's drug test result instead of Respondent's. It shows only that FirstLab makes mistakes when not provided sufficiently specific information about the person whose records are being subpoenaed. Accordingly, the undersigned finds that Petitioner has demonstrated, by clear and convincing evidence, that Respondent, in violation of paragraph 2(G) of the Final Order, consumed, injected, or ingested a controlled substance not prescribed or administered for a legitimate medical purpose, as revealed by the random drug test to which Respondent submitted on January 28, 2011. However, there is no evidence in the record showing that Respondent's violation of the Final Order presented any danger, or caused physical or mental harm to any students or to the public. Nor is there any evidence that the violation caused any actual damage, physical or otherwise, or that Respondent benefited from the violation. To the contrary, the sole evidence shows that Respondent is a good teacher who has performed well as a public school employee for thirty-one years. There is no evidence that the violation has in any way impaired her performance of her duties as a classroom teacher. Moreover, the sole evidence regarding Respondent's subsequent random drug test results shows that Respondent is now complying with the Final Order, and apparently has complied ever since her January 28, 2011, test. This evidences Respondent's contrition and her recognition of the seriousness of this matter. At hearing, Petitioner elicited testimony from Respondent regarding her criminal history, and an excerpt of the transcript of the EPC hearing, during which her criminal history was discussed, was admitted into evidence.12 However, her criminal history and alleged failure to report that history were the basis for the EPC's Final Order imposing penalties against Respondent, including the probation that she now is charged with violating. Respondent already has been penalized by the EPC on these bases, and they are not relevant to this proceeding. As justification for the penalty it seeks, Petitioner asserts that Respondent "never accepts responsibility for her own behavior, but blames others for her miscreant deeds." However, the evidence does not support this position. With respect to the hearing before the EPC that resulted in issuance of the Final Order, Respondent offered a plausible explanation for not having previously reported her criminal history on her Florida Educator's Certificate applications——specifically, that when she filled out the previous certification application forms, she did not realize that the form required the reporting of all prior criminal history, including offenses for which adjudication had been withheld. Indeed, when she filled out an updated version of the application form that apparently was clearer regarding criminal history disclosure requirements, she reported all prior offenses.13 Respondent acknowledged responsibility for her actions more than once during the EPC hearing. Moreover, the undersigned finds credible Respondent's testimony that she understood she was to be drug tested on a monthly basis as a condition of her probation.14 To the extent Respondent may have been incorrect regarding this detail, that mistake is more likely attributable to confusion (which is understandable under the circumstances) rather than lack of truthfulness on her part.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Education Practices Commission enter a Final Order determining that Respondent violated the December 14, 2011, Final Order of the Education Practices Commission, and suspending Respondent's Florida Educator's Certificate for a period of six consecutive calendar months, followed by two years of probation. DONE AND ENTERED this 17th day of November, 2011, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 17th day of November, 2011.
Findings Of Fact Respondent Anila Poonai began her medical education in her native land, India, and, in 1960, she received a medical degree from Bombay University. After an internship in Bombay, she spent three months in training in the United Kingdom, before travelling to Georgetown, Guyana, to become a resident medical officer at the public hospital there. After two years in Guyana, she returned to England where, in 1964, she passed a post-graduate examination. As a result of a residency in obstetrics and gynecology and a satisfactory showing on the requisite examinations, she became a member, in 1969, of the Royal College of Obstetrics and Gynecology. All told, respondent has spent six years as a resident in obstetrics and gynecology. From England, she travelled to the University of the West Indies in Kingston, Jamaica. At the University of the West Indies, she was senior registrar in obstetrics and gynecology and, for six months, acting lecturer in obstetrics and gynecology. In 1973, she and her husband, who is a general surgeon, moved to Cleveland, Ohio. Respondent has not sought certification by the American College of Obstetrics and Gynecology. She testified that the American College of Obstetrics and Gynecology recognized her membership in the Royal College of Obstetrics and Gynecology as an equivalent certification. Until moving to Port St. Joe, she worked as a house physician in St. Alexis and Hillcrest hospitals in Cleveland. Respondent and her husband moved to Florida at the invitation of the Board of Trustees of the Municipal Hospital of Port St. Joe. The Board wanted to upgrade the Hospital. Almost from the time of their arrival, respondent and her husband found themselves at the center of controversy. Respondent's husband testified that, when he and respondent began work at the Municipal Hospital of Port St. Joe, in August of 1976, norms of practice at the Hospital were "miles below standard" and that the medicine practiced by other physicians in the community was "about 25 years" out of date. Whether true or false, this view, and its blunt articulation, may account for the friction respondent and her husband experienced in their relationships with some of the nurses and physicians with whom they came into contact. Being the only such specialist on the staff, respondent was named chief of obstetrics and gynecology at the Municipal Hospital of Port St. Joe. In this capacity, she ordered drugs and other obstetric and gynecologic supplies for the Hospital. Chief of staff at the Hospital, from 1961, until the spring of 1977, was John Wayne Hendrix, who has practiced medicine in Port St. Joe for some three decades. During Dr. Hendrix' tenure as chief of staff, Dr. Orr of Wewahitchka, a general practitioner, was granted "courtesy privileges" at the Municipal Hospital of Port St. Joe. At all pertinent times, Hospital bylaws forbade a physician to whom only courtesy privileges had been granted, to attend a delivery, except under the supervision of the chief of obstetrics and gynecology. On March 27, 1977, in violation of the Hospital's bylaws, Dr. Orr attempted, for the first and only time, to deliver a baby in the Municipal Hospital of Port St. Joe. When Gloria Pippin, R.N., arrived to begin the 3 to 11 shift, Dr. Orr's patient was already in labor. At 9:30 that night, the patient's cervix was fully dilated; at 9:45 she was taken to the delivery room. At 11:00 Dr. Orr "did a saddle block," i.e., he administered a spinal anesthetic. Five minutes later he had finished an episiotomy. At quarter past eleven, he used Tucker-McClain forceps in an effort to extract the baby. That failing, he tried long Simpson forcens at 11:25 and Kielland forceps at ten minutes before midnight, March 27, 1977. The baby's head was too big for the mother's pelvis. Five minutes later, Ms. Pippin telephoned respondent, at Dr. Orr's request. Respondent expressed dismay that Dr. Orr had been permitted to begin, and asked Ms. Pippin to notify Dr. Hendrix of the situation. She herself telephoned Gerald Sullivan, the chairman of the Hospital's Board of Trustees. Afterwards, she and her husband, Dr. Parmanand Vijay Poonai, went to the Hospital. They arrived at approximately 12:40. Dr. Hendrix, who had considerable experience in performing Ceasarean sections, preceded them to the Hospital. By the time the Drs. Poonai reached the hospital, arrangements had been made for Dr. Orr's patient to be transferred to Panama City's Bay Memorial Hospital. At quarter past midnight, when Dr. Hendrix arrived at the hospital, the mother's blood pressure was 134/78. Ten minutes before she left in the ambulance, her blood pressure was 137/98 and her pulse was 112. At that time, the fetal pulse was 156. At 1:20 a.m., an ambulance left the Municipal Hospital of Port St. Joe for Panama City. When they reached Bay Memorial Hospital, the mother's vital signs and the infant's heart beat were within normal limits. Dr. Stephen Smith, the obstetrician who performed a Caesarean section upon the patient's arrival in Panama City, was the man of the hour. Mother and baby did well. For many years, it has been common to send women in labor to Panama City from Port St. Joe, and hundreds have made the trip. It takes a half hour to an hour to drive from the Port St. Joe hospital to the Panama City hospital. The longer a woman in the condition Dr. Orr's patient was in continues in labor, the greater are the chances of injury or death to the fetus and even to the mother. At no time did Dr. Hendrix telephone respondent on the night of the 27th or morning of the 28th. Neither Dr. Hendrix nor Dr. Orr ever asked respondent for assistance with Dr. Orr's patient. When respondent and her husband arrived at the Hospital early on the morning of March 28, 1977, neither Dr. Hendrix nor Dr. Orr spoke to either of them. Dr. Hendrix refused to speak to them, even though respondent addressed him and asked him specifically about Dr. Orr's patient. Both respondent and her husband remained at the Hospital until after the ambulance left for Panama City. It is unethical for one physician to intervene in the care of a patient whose treatment is being actively managed by another physician, unless requested. It may also be dangerous. On January 16, 1978, Dr. P. V. Poonai saw Beverly R. Bass in his office. Ms. Bass, who was born on December 15, 1951, told Dr. P. V. Poonai that a Dr. Vasquez of Port St. Joe (of whose wife Ms. Bass was a cousin) and other physicians had recommended a hysterectomy; that she had been passing blood clots for the preceding four months; that she had epigastric pain; that her most recent menstrual period was December 19, 1977; that she had two daughters and a son by three different men; that she wanted no more children; and that she wanted a hysterectomy both to prevent conception and to stop her bleeding. After examining her and finding an ovarian cyst and a slightly bulky uterus, Dr. P. V. Poonai prescribed hospitalization for a series of gastrointestinal X-rays to investigate the possibility of an ulcer, and for an obstetric and gynecologic consultation with respondent. On January 18, 1978, Ms. Bass entered the Municipal Hospital of Port St. Joe. An electrocardiogram was done. Dr. J. B. Harbison prepared a report of the X-rays taken as prescribed by Dr. P. V. Poonai. Respondent met Ms. Bass for the first time, in the Hospital, on January 19, 1978. She took Ms. Bass' history and examined her under general anesthesia, finding a left ovarian cyst, a normal cervix and a bulky anteverted uterus. Respondent recommended a dilatation and curettage (d & c) for diagnostic and therapeutic purposes, and, on the same day, Ms. Bass signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a d & c. The following day, January 20, 1978, respondent did perform a routine d & c. Afterwards, the curettings resulting from the procedure were transmitted to a pathologist. After examining this material, the pathologist prepared a tissue report, and stated, as the pathological diagnosis: SECRETORY PHASE, DYSFUNCTIONAL BLEEDING. NO EVIDENCE OF POLYPS, PREGNANCY OR MALIGNANCY OBSERVED IN THE SPECIMEN SUBMITTED. FRAGMENT OF ENDOCERVIX WITH SQUAMOUS METAPLASIA, ACUTE AND CHRONIC INFLAMATION. Petitioner's exhibit No. 2. On January 21, 1978, Ms. Bass left the hospital, with a final diagnosis of dysfunctional bleeding. Before discharging Ms. Bass, respondent instructed her to refrain from sexual intercourse and from douches for four to six weeks. Eight to ten days after her discharge, Ms. Bass resumed sexual intercourse. On February 2, 1978, respondent saw Ms. Bass at her office and discussed the pathologist's tissue report with her. She related to Ms. Bass her clinical impression of uterine fibroids and prescribed Orthonovum, a birth control pill, as an additional means of forestalling dysfunctional bleeding. On February 2, Ms. Bass reported no bleeding subsequent to the d & c. Respondent did not ask and Ms. Bass did not volunteer that she had failed to follow instructions to abstain from sexual intercourse. Although the birth control pills respondent prescribed were to be taken daily, Ms. Bass did not take one every day. Respondent next saw Ms. Bass on February 13, 1978, when her only complaint was of an upper respiratory tract infection. On March 4, 1978, Ms. Bass returned to respondent's office complaining of heavy breakthrough bleeding, and reported that she was passing blood clots. Respondent examined her and suggested a hysterectomy. Ms. Bass asked if she could enter the hospital on March 12, 1978, saying she could make arrangements for her children by then. Respondent administered no pregnancy test to Ms. Bass on March 4, 1978, or at any time thereafter. She thought none was necessary because she believed that Ms. Bass had followed her instructions. Respondent does not knowingly perform abortions, even for therapeutic purposes, on account of religious scruples. A d & c elicits inflamatory responses hostile to fertilization. Even when a pregnancy has begun, no pregnancy test will be positive before 41 days have elapsed since the last menstrual period. Some hospitals, like Jackson Memorial in Miami, require pregnancy tests before surgery as a matter of routine, but the Municipal Hospital of Port St. Joe had no such policy. On March 12, 1978, Ms. Bass was admitted to the Municipal Hospital of Port St. Joe. The following day respondent performed a hysterectomy and an incidental appendectomy. An appendectomy ordinarily accompanies this procedure. Respondent's pre-operative diagnosis was "menorrhagia and fibroid uterus," and her postoperative diagnosis, on March 13, 1978, was unchanged. This was the same condition specified on the form consent to diagnostic and treatment procedures which Ms. Bass signed on March 12, 1978, authorizing respondent to perform a hysterectomy. Ordinarily, a surgeon performing a hysterectomy removes the uterus intact, as respondent did in the case of Beverly Bass. After its removal but while still intact, Ms. Bass' uterus yielded no additional information pertinent to the diagnosis of her condition. The uterus was sent to a pathologist. After examining the uterus, the pathologist prepared a tissue report and stated, as the pathological diagnosis: APPENDIX WITH FIBROUS OBLITERATION (DISTAL) AND FOCAL FIBROUS ADHESIONS. LUTEAL CYST OF LEFT OVARY, BENIGN. PARATUBAL CYST, BENIGN, RIGHT. ENLARGED UTERUS (205 GMS) WITH: ENDOMETRIUM: CHANGES RELATED TO PREGNANCY (HYPERSECRETORY GLANDS AND DECIDUAL REACTION). ACUTE ENDOMETRITIS. ANGULAR IMPLANT OF PLACENTA ASSOCIATED WITH UNDERLYING NECROSIS AND ACUTE INFLAMMATION OF DECIDUA, ACCOMPANIED BY HEMATOMAS. CHORION-AMNIONITIS, ACUTE, NECROTISING ASSOCIATED WITH NECROSIS OF GROUPS OF CHORION VILLI. EMBRYO, APPROXIMATELY 4-6 WEEKS OLD. FLUID BLOOD PRESENT IN UTERINE CAVITY. MYOMETRIUM: HYPERTROPHY (FUNCTIONAL). CERVIX: ACUTE AND CHRONIC CERVICITIS ASSOCIATED WITH SQUAMOUS METAPLASIA OF THE ENDOCERVICAL LINING, FOCAL. SQUAMOUS CELL HYPERPLASIA OF ECTOCERVIX, BENIGN. MUCUS CYSTS. When the pathologist opened the uterus, he found an enlarged cavity partly occupied by a ruptured ovisac. Extruded through the perforation, hanging outside of the ovisac from the umbilical cord, was an embryo 1.8 centimeters long. The placenta, which was acutely inflamed, adhered to the fundus at a right angle. Uterine rupture is inevitable if an angular pregnancy continues, but it is possible for an angular pregnancy to go to term, just as it is possible for a fetus to live after the ovisac has burst. In Ms. Bass' case, however, the embryo was probably non-viable at the time of the hysterectomy. The pathologist's report arrived while Ms. Bass was still in the hospital. Because respondent was upset on reading it, she asked Dr. P. V. Poonai to tell Ms. Bass what the pathologist had learned. Dr. P. V. Poonai did tell Ms. Bass, at which time she confirmed that she had engaged in sexual intercourse shortly after the d & c. Confusing an incipient pregnancy with a fibroid uterus is an occasional mistake any physician could make. An isolated mistake of this kind does not constitute a deviation from acceptable medical practice. The most conservative approach is to wait for two months after the patient has stopped taking birth control pills, before performing a "semi-elective" procedure, and to administer a pregnancy test beforehand. Several physicians testified, however, that they would not have ordered a pregnancy test before performing a hysterectomy in the circumstances of Ms. Bass' case. Respondent did not prepare the summary sheet at the end of Ms. Bass' stay after her March 12, 1978, admission, Chart No. 23622. Petitioner's exhibit No. 2A. The summary sheet that was prepared is not signed by anybody. When respondent asked for the chart in order to prepare a summary sheet, the Hospital's records custodian advised her that it was not with the other charts. When Beverly D. Stover was about three and a half months pregnant, she began seeing respondent. She saw her every month until November, when she began seeing her every two weeks. On her first visit, she told respondent she wanted to be sterilized after the birth of the child she was carrying, her second. At respondent's request, Mrs. Stover brought her husband to respondent's office, about six weeks before the baby was born. The three of them discussed Mrs. Stover's planned sterilization. On November 22, 1977, both Mr. and Mrs. Stover signed a form request for sterilization witnessed by two persons who were not called to testify at the hearing. On November 30, 1977, Mrs. Stover was admitted to the Municipal Hospital of Port St. Joe. On the day of her admission, she signed a form consent to diagnostic and treatment procedures authorizing respondent to perform a bilateral tubal transection and ligation, and both she and her husband signed another form request for sterilization. At the time of the signing of the last two documents, Mrs. Stover told Sarah Maddux, the nurse who gave her the forms to sign, that she did not want to be sterilized unless her baby was normal. Ms. Maddux never relayed this oral reservation to respondent. It is impossible to tell, at the time of birth, whether an infant has a sense of smell, whether it is intellectually impaired, or whether it can see or hear. At 1:50 on the afternoon of November 30, 1977, Mrs. Stover was delivered of a daughter, Katrina. Respondent examined the eight pound two ounce infant for two minutes. She put her fingers in the infant's mouth, cleared a passage for air, and checked for a cleft palate. The child started crying. Respondent observed good muscle tone. Respondent clamped, then cut the umbilical cord. She inspected the baby all over, noticed puffiness on the child's back, which she attributed to the trauma of birth, and noticed that the baby's anal opening was smaller than normal, but was not alarmed. She thought she had seen even smaller such openings which had not affected function. Respondent placed Katrina on her mother's stomach, and asked Mrs. Stover whether she was ready for surgery. When Mrs. Stover answered affirmatively, at 1:55, anesthesia was administered, at respondent's direction. A nurse took the baby from respondent for cleaning. In contemporaneous notes, the nurse described the baby as apparently normal. In fact, Katrina had an imperforate anus or anoperitoneal fistula, and a lipoma on the sacral area of her back. These conditions were discovered a few hours later by a nurse in the Hospital nursery. The nurse brought both problems to the attention of Dr. Shirley R. Simpson, a physician who had been on the staff of the Municipal Hospital of Port St. Joe for approximately ten years and who happened to be in the Hospital at the time. Respondent had left Port St. Joe to meet her husband at the airport in Panama City. Examining Katrina at the nurse's request, Dr. Simpson mistook the lipoma for a meningomyocele. Dr. Simpson took no further action in the case, other than leaving word with the nurse for respondent to call her, until she furnished the Board of Medical Examiners Katrina's hospital chart. By that time, somebody had forged an entry in the nurse's notes for 1:50 P.M. on November 30, 1977, viz., "Appears to have NO rectal orifice-Dr. A. Poonai notified." Petitioner's exhibit No. 4. After her return from Panama City, on December 1, 1977, respondent correctly diagnosed the lipoma. At respondent's request, Dr. P. V. Poonai examined Katrina. After obtaining consent, Dr. P. V. Poonai, used surgical implements, when the baby was 16 hours old, to remove the obstruction which had prevented the expulsion of all but the merest drop of meconium during the first 16 hours of the baby's life. Although this emergency procedure solved the immediate problem and allowed the baby to defecate, further surgery has been necessary to move the anal opening to its norman site posterior of the dimple where Dr. P. V. Poonai made his incision. An imperforate anus occurs once in 5,000 births. The imperforation may or may not be visible, depending on its location. In the past five years, three infants with this problem have been born in Panama City. In each instance, the examining pediatrician did not discover the imperforation, which came to light some hours after birth, on account of the baby's failure to expel its first stool. In Katrina's case, however, the abnormality could be seen and its existence could be confirmed by an attempt to probe. The lipoma on Katrina's back measured less than four by five centimeters in area. It was a soft, skin-colored mass of benign, fatty tissue, which a pediatric surgeon has since removed. The trauma of birth sometimes causes edemas that resemble lipomas. No harm befell Katrina as a result of respondent's failure to diagnose either her lipoma or her anal abnormality at birth. Beverly Stover continued as a patient of respondent for some time after Katrina's birth. Respondent first saw a certain patient on September 19, 1977. This patient, who was born on June 1, 1907, suffered from diabetes mellitus and congestive heart failure, among other things. Two months earlier she had had a second pacemaker inserted. On her first visit to respondent, the patient complained of pain in her chest and of dysuria. She said she had difficulty retaining urine, but that she was unable to empty her bladder completely. In examining her, respondent discovered a moderate cystocele, which is a herniation of the bladder into the vagina. Respondent admitted her into the Municipal Hospital of Port St. Joe for treatment of her congestive heart failure, the cause of the chest pain. Congestive heart failure is not a disease of which people are cured, but it is a condition that may grow better or worse. When this patient's condition improved, respondent sent her home. Respondent saw her again in her office on October 3, 1977, when she complained of paroxysmal dyspnea and swollen feet. Respondent diagnosed superimposed congestive cardiac failure and prescribed a diuretic. On November 18, 1977, respondent admitted her to the hospital because symptoms like those she had complained of during the office visit persisted. On November 22, 1977, she was discharged. A similar episode resulted in rehospitalization from January 10, 1978, through January 19, 1978. The patient entered the hospital again, on February 12, 1978, with congestive cardiac failure. She complained about nocturnal incontinence and asked respondent to correct her bladder problem. At this time, respondent described the cystocele as large. After medical care which petitioner's own witness described as excellent, the patient's condition stabilized. Respondent testified that, in her judgment, the patient's general condition just before surgery was as good as it was likely ever to be. Nine days after she admitted the patient, respondent effected a repair of the cystocele by performing an anterior colporrhapy under local anesthetic. This procedure requires unusual surgical skill, and most surgeons do not attempt it. The repair of a cystocele is a therapeutic measure. In the absence of treatment, urine is likely to stagnate in the herniated portion of the bladder, and become a source of possibly serious infections. All surgical techniques for repairing cystoceles, other than the one employed by respondent, require general anesthesia. The risk from anesthesia to which respondent's patient was subjected was very moderate compared to the risk from general anesthesia. It was the same risk a person faces whose mouth is numbed by local anesthesia before a tooth is filled. Respondent had performed this operation 20 or 30 times before, and had performed it on her own mother, who was 75 years old and suffered from myocardial ischemia at the time. Sometimes, although decreasingly in recent years, a physician may employ a pessary as treatment for a cystocele. A pessary is a rubber or plastic solid that can be inserted in the vagina as a support for the intruding bladder. This is only a temporary measure, however, and involves a high risk of infection, which is the principal danger the cystocele itself poses. Respondent testified that her prescription for temporary relief was bed rest, since lying flat relieves the pressure that forces part of the bladder into the vagina. Respondent first saw another patient, the 29 year old mother of three children, on December 23, 1976. This patient was in the Municipal Hospital of Port St. Joe at the time, for a hemorrhoidectomy, and respondent was called in because the patient had complained of profuse, irregular and painful vaginal bleeding over a period of several years, and particularly during the preceding nine months to a year. The patient was anemic, according to tests run two days earlier. In July of 1976, the patient had been hospitalized on account of pelvic sepsis and bleeding. At that time, Dr. Simpson told her she would need a hysterectomy in the near future. She had been hospitalized for the same reasons in 1975. Respondent ordered a pap smear and an X-ray to locate a coil that had been inserted into the patient's uterus, as a contraceptive measure. When she recovered from the hemorrhoidectomy, the patient was discharged. After three weeks of severe menorrhagia, including two final days of heavy clotting, the patient was readmitted, on January 24, 1977, to the Municipal Hospital of Port St. Joe. Respondent had earlier prescribed iron pills. Perhaps as a result, the patient was no longer anemic. Respondent observed the patient's uterus "enlarged to about 10 weeks size with [what she thought was] fibroids. Petitioner's exhibit No. 6. Respondent ordered no pregnancy test. When an intrauterine device is in place, excessive vaginal bleeding is inconsistent with a viable pregnancy. An intrauterine device not only irritates the wall of the uterus, making conception unlikely, but also operates to abort incipient pregnancies, in the event of conception. With the intrauterine device still in place, on January 26, 1977, respondent performed a total abdominal hysterectomy and an incidental appendectomy, with conservation of both ovaries. Afterwards, the appendix, part of the cervix, and the uterus were sent to a pathologist. The pathologist examined these materials, and, on January 31, 1977, prepared a tissue report, in which he stated as the pathological diagnosis: APPENDIX WITH SEROSAL FIBROSIS, FOCAL (INCIDENTAL). ENDOMETRIUM: DECIDUA WITH EXTENSIVE NECROSIS ASSOCIATED WITH CHORIONIC VILLI (PREGNANCY) WHICH ARE LARGELY NON-VIABLE. SECRETORY ENDOMETRIUM WITH ACUTE AND CHRONIC ENDOMETRITIS. MYOMETRIUM: HYPERTROPHY, POSTERIOR. CERVIX: CHRONIC ENDOCERVICITIS AND MUCUS CYSTS. SLIGHTLY HYPERTROPHIC UTERUS (95 GRAMS). The pathologist found no evidence of fibroids. This demonstrates that respordent's clinical diagnosis of fibroids was inaccurate. One of the pathologists who routinely examined tissue removed by surgeons in the Municipal Hospital of Port St. Joe, Dr. Garcia-Rios, also routinely examined tissue removed by surgeons in other hospitals. Whenever a tissue report indicated disagreement between a clinical diagnosis and the pathological diagnosis, Dr. Garcia-Rios designated the tissue report "Code 3." The frequency of Code 3 tissue reports did not differ as between specimens removed by respondent and specimens Dr. Garcia-Rios examined which had been removed by other surgeons, taken as a group. From the presence of morphologically viable chorionic villi, the pathologist concluded that the patient had been pregnant. From pathological findings alone, he was unable to determine whether the pregnancy had terminated weeks or months earlier; or whether an ongoing microscopic pregnancy was interrupted by the hysterectomy. (Clinical evidence-excessive bleeding-ruled out the possibility of a viable pregnancy.) The pathologist's findings were consistent with, but did not conclusively establish the existence of, a placental polyp. Placental polyps may cause prolonged bleeding. Before surgery, respondent discussed three options with this patient: removal of the intrauterine device, removal of the intrauterine device followed by a d & c, and hysterectomy. The patient said that the presence or absence of an intrauterine device had made no difference in her bleeding problem in the past. She also told respondent that she wanted no more children, and that she wanted prompt, definitive treatment for her bleeding. After listening to explanations from respondent about the available options, the patient chose a hysterectomy. Respondent did not tell her that a hysterectomy was the only way to correct her problem. The patient testified that she has had no problems since her surgery; and that, knowing what the pathologist's tissue report subsequently revealed, she would make the same choice again, at least if it would not involve her as a witness in legal proceedings. Respondent initialled a summary sheet in the patient's chart, which stated the patient's final diagnosis as, inter alia, "FIBROID UTERUS [and] MENORRHAGIA." This final diagnosis fails to take the pathologist's tissue report into account, even though the tissue report routinely becomes part of the chart and presumably was available to respondent at the time she initialled the summary sheet. Respondent testified that she initialled this summary sheet as one of a group of documents, and that she did not read it beforehand. Any discrepancy between the tissue report and the final diagnosis would have been apparent to a knowledgeable reader. Without the tissue report, respondent would not necessarily have known that the pathologist's findings had demonstrated the error of her diagnosis of fibroid uterus. After controversy about this case arose, respondent caused an addendum to be prepared and incorporated into the chart, on August 16, 1978, and amended the discharge diagnosis to state, inter alia: "Menorrhagia, Chronic endometritis [and] Hypertrophy of the myometrium." This diagnosis is consistent both with respondent's clinical findings and with the pathologist's tissue report. In stating her amended discharge diagnosis, respondent took the tissue report, which had been incorporated into the chart, into account. This amended discharge diagnosis was not shown to be erroneous. On August 11, 1976, respondent saw Linda Whitfield for the first time. She came as a patient to respondent's office and related that her last menstrual period had taken place on June 26, 1976. Respondent examined her, observed a uterus of six weeks' size, and diagnosed early pregnancy. Respondent next saw Mrs. Whitfield in the emergency room of the Municipal Hospital of Port St. Joe on August 27, 1976, when her uterus looked to be of eight weeks' size. There Mrs. Whitfield told respondent that, while driving a tractor earlier in the day, she had experienced abdominal cramps and fairly heavy bleeding. Mrs. Whitfield did not report and respondent did not observe the passage of a fetus. Respondent diagnosed a threatened abortion (miscarriage) admitted Mrs. Whitfield to the Hospital, ordered bed rest, ordered that Mrs. Whitfield's urine be tested for the presence of chorionic gonadotropin, and prescribed an intramuscular injection of two cubic centimeters (cc.) of Depo-Provera (Upjohn's registered trademark for sterile medroxyprogesterone acetate suspension, U.S.P.). Although respondent did not specify the strength, she had ordered the Hospital's entire supply of Depo-Provera, and knew that the only strength on hand was 100 milligrams per milliliter. Depo-Provera is a synthetic progestational agent in an oily base. It has been commercially available for approximately 15 years. The 1971 Physicians' Desk Reference (PDR) reported that daily doses were indicated in the event of a threatened miscarriage. The 1972 PDR reported pregnancy as a contraindication for the use of Depo-Provera. (In 1972, respondent lived in Jamacia.) The 1976 PDR and the 1977 PDR, however, contain neither indications nor contraindications for Depo-Provera, in the event of pregnancy. The 1979 PDR reports pregnancy as a contraindication for the use of Depo-Provera. The phrase "missed abortion" describes the situation where a non- viable fetus remains in its mother's uterus. "Missed abortion" was named as a contraindication for Depo-Provera in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield. The contraindication of Depo-Provera for missed abortion reflected the view, generally shared in the medical community for many years but now rejected, that Depo-Provera acts to prevent uterine contractions and so make fetal expulsion less likely. The only indication stated in the literature that accompanied each vial of Depo-Provera, at the time respondent prescribed it for Mrs. Whitfield, was "[a]djunctive therapy and palliative treatment of inoperable, recurrent, and metastatic endometrial carcinoma." Petitioner's exhibit No. 12B. Also on petitioner's exhibit No. 12B, under the heading "ADVERSE REACTIONS," is the statement: There is inferential evidence supporting the existence of an association between the administration of progestins early in pregnancy and the occurence of congenital malformations (see also WARNINGS). The referenced warning stated that "[u]sage in pregnancy is not recommended because of data indicating a possible association between administration of progestins early in pregnancy and congenital heart defects in the offspring." Petitioner's exhibit No. 12B. Mrs. Whitfield bled, off and on, during her first stay in the Hospital under respondent's care, until two or three days before her discharge. Because Mrs. Whitfield was bleeding on August 28, 1976, respondent prescribed an intra- muscular injection of one cc. of Depo-Provera. Altogether, respondent prescribed 1100 milligrams of Depo-Provera for Mrs. Whitfield over a 16 day period. She ordered administrations of two cc. doses of Depo-Provera on September 2, 1976, on September 4, 1976, on September 7, 1976, and on September 11, 1976, the day Mrs. Whitfield was discharged. At that time, respondent was hopeful that the pregnancy had been saved. At the time respondent prescribed Depo-Provera for Mrs. Whitfield, she believed she was aware of the inferential evidence referred to in the adverse reaction portion of petitioner's exhibit No. 12B. The evidence of which respondent was aware was the result of a retrospective study involving 10,000 mothers who took various hormonal substances during pregnancy and 10,000 mothers who did not. The number of deformed children born to mothers who had taken the hormonal substances exceeded by two percent the number of deformed children born to the mothers who had not. At the time she prescribed Depo-Provera for Mrs. Whitfield, respondent was one of a considerable number of physicians who believed that this drug could supply a hormonal deficiency that a woman faced with a threatened abortion (miscarriage) might lack, and which might be causing premature uterine contractions. Respondent weighed Depo-Provera's possibly teratogenic effect against its possibly ameliorative effect and made a conscientious professional judgment to prescribe Depo-Provera for Mrs. Whitfield. The 1971 PDR specifies a dosage of 50 milligrams day for threatened abortion, as long as symptoms persist. No dosages for threatened abortion are specified in the 1976 PDR, the 1977 PDR or on petitioner's exhibit No. 12B, the literature that accompanied each vial of Depo-Provera. When used to treat "inoperable, recurrent and metastatic endometrial carcinoma," Depo-Provera is prescribed in doses of 100 to 1000 milligrams at intervals of one week to one month. No evidence adduced at the hearing suggested that Depo-Provera has any known or suspected toxic effect on the mother, regardless of the dosage. Nor was it shown to have been scientifically established that Depo-Provera has had an adverse effect on any fetus, when administered to the mother, regardless of the dosage. It is no longer used in the case of threatened miscarriages because recent evidence suggests that it is inefficacious for this purpose. Outside of the United States, Depo-Provera is used as a contraceptive. While Mrs. Whitfield was in the Hospital, on August 29, 1976, respondent ordered a blood serum test to determine the level of chorionic gonadotropin. The results of this test, which respondent saw for the first time on September 16, 1976, were 6,554 milliunits of chorionic gonadotropine per milligram of test fluid. On September 16, 1976, Mrs. Whitfield came to respondent's office and complained of additional bleeding. At that time, a two minute slide test for pregnancy was performed, with negative results. Respondent examined Mrs. Whitfield and concluded that her pregnancy had miscarried despite the efforts to preserve it. She was admitted to the Municipal Hospital of Port St. Joe on September 17, 1976, with the diagnosis of "incomplete abortion," which was changed to "missed abortion," as the pre-operative diagnosis. On the day of her admission, additional pregnancy tests were ordered. A two minute test was negative, but a two hour test was positive. Every pregnancy test is fallible to some extent. These test results did not alter respondent's clinical judgment that the pregnancy had miscarried. A pregnancy test of a urine specimen can yield positive results from four days to two weeks after a pregnancy ends, and sometimes even later. It was undisputed that a result on a blood serum test for chorionic gonadotropin of 6,554 milliunits per milliliter virtually rules out a viable pregnancy of two or three months' duration, although the level may fall that low after the fifth month of a normal pregnancy. At eight to ten weeks, normal levels range from 46,000 to 60,000 milliunits per milliliter. Respondent performed a routine d & c on September 18, 1976. Fifteen grams of the resultant curettings were transmitted to a pathologist who reported "products of conception," but no embryo. Port St. Joe is not a prosperous town. At the time of the hearing, respondent and her husband were the only physicians in Port St. Joe who accepted patients on medicaid. Respondent has admitted patients approximately 500 times to the Municipal Hospital of Port St. Joe. During her time in Port St. Joe, respondent has treated numerous medicaid patients, and has delivered 249 babies. In one instance there was a neonatal fatality. This record compares favorably with a national average on the order of 12 neonatal fatalities per 1,000 births. Respondent has three articles in respectable technical journals to her credit, including two in "Obstetrics and Gynecology." On one she collaborated with her husband. They received 168 requests for reprints from interested persons in some 15 countries. The other article in "Obstetrics and Gynecology" she co-authored describes the first documented full-term pregnancy of a woman with diabetes mellitus, Addison's disease, and hyperthyroidism. The patient described in the article was under respondent's care for the duration of her pregnancy, which eventuated in a normal delivery.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss counts one, two, four, five and six of the administrative complaint. That petitioner reprimand respondent for her failure to diagnose the imperforation at the time of birth, in violation of Section 458.1201(1)(m), Florida Statutes (1978 Supp.), as alleged in count three of the administrative complaint. That, in all other respects, petitioner dismiss count three of the administrative complaint. DONE and ENTERED this 15th day of November, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Clifford L. Davis, Esquire 197 South Bronough Street Tallahassee, Florida 32301 J. Ben Watkins, Esquire Post Office Drawer 1814 Tallahassee, Florida 32302 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF MEDICAL EXAMINERS IN RE: The License to Practice Medicine as a Physician of: CASE NO. 79-1144 ANILA POONAI, M.D. License No. 27070 /
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 In re: Case No. 94-0083 Whether disciplinary action should be taken against the Respondent's license to practice psychology, by violating of Section 490.009(2)(s), Florida Statutes, by undertaking activities for which the licensee is not qualified by training, experience, or licensure. As to DOAH Case No. 96-00819 Whether disciplinary action should be taken against Respondent's license to practice psychology by violating Section 490.009(2)(s), Florida Statutes, by having failed to meet the minimum standards of performance in professional activities when measured against generally prevailing peer performance, including the undertaking of activities for which the licensee is not qualified by training or experience (2 counts). Whether Respondent violated Section 490.009(2)(q), Florida Statutes, by violating provisions of Chapter 490, Chapter 455, or any rules adopted pursuant thereto. Whether Respondent violated Section 490.009(2)(v), by failing to maintain in confidence a communication made by a patient or client in the context of such services, except by written permission or in the face of a clear and immediate probability of bodily harm to the patient or client or to others. Whether Respondent violated Section 490.009(2)(m), Florida Statutes, by soliciting patients or clients personally, or through an agent, through the use of fraud, intimidation, undue influence, or a form of overreaching or vexatious conduct.
Findings Of Fact as to Case No. 94-0083 Respondent is a psychologist, licensed in the State of Florida with license number PY 0002281. Respondent does not hold a license in Florida as a health care provider. Psychologists are involved in health psychology and behavioral medicine. Psychologists frequently treat disorders such as obesity, smoking, hypertension, coronary prone behavior patterns, cancer, and chronic pain. It is appropriate for a psychologist to be involved with the treatment of these disorders, as a psychologist. It is not routine for a psychologist to act as a physician's assistant. Respondent was the owner and Director of Associated Health Professionals (AHP) which operated in the 1980's and early 1990's in Maitland, Florida. It provided interdisciplinary health care to patients, including general medical, psychological services and an allergy clinic. In an allergy practice, the physician is the only person who orders allergy tests, determines which tests need to be performed, reviews test results, determines the course of treatment, and determines which medications to prescribe. Hormones such as testosterone, estrogen, and progesterone always require a prescription by a physician. As a psychologist, Respondent ran a specialized allergy clinic, yet he failed to hire physicians with special training in allergies. The Respondent functioned in multiple roles by acting as a medical assistant to the physicians in the allergy clinic and by providing therapy. Patients frequently reported to AHP on weekends for allergy testing, glucose tolerance tests, EKGs, and blood work. If the tests were not ordered during the week, Respondent ordered them to be performed on the weekends. AHP sent blood work to an outside laboratory. When test results came in, they were given to the medical director. Respondent also reviewed them if they were allergy related. Staff meetings were held at AHP once or twice weekly in order to discuss current patients or administrative business. Respondent typically conducted these meetings. The medical director did not instruct the technicians regarding the treatment of each patient. The treatments were dictated by protocols which had been put into place by a Dr. Hoover, a prior Medical Director at AHP. Once allergy testing was performed, treatment was dictated by these protocols. Once a patient was established and treatment was begun, the staff just followed protocol. They did not confer with the doctor after each patient visit. If there were no physicians on duty at AHP on Saturdays, the clinic had a phone number of a physician who was on call for them. Jack H. Van de Car, D.O. is an osteopathic physician who held the position of Medical Director at AHP for approximately 16 months from December 1987, through May 1989. Dr. Van de Car provided medical supervision of the allergy clinic. However, there were treatment protocols in place for the allergy clinic when he arrived at AHP. Dr. Van de Car's training in allergy consists of seminars, six weeks of training during medical school in 1963, and general medical practice. Only in unusual cases would Respondent or Dr. Van de Car alter the "standard" treatment plan dictated by the protocols. Dr. Van de Car would examine allergy patients and then refer them to the allergy lab. He did not test patients for allergies. Respondent was the Director in charge of AHP. He was in the allergy lab on a daily basis. Respondent and Dr. Van de Car reviewed allergy test result summaries. Dr. Van de Car did not review results of all allergy tests which were performed in the clinic. Respondent would interpret allergy test results and offer suggestions as to how they should be interpreted. A form, signed by Dr. Van de Car, appoints Respondent as Dr. Van de Car's medical assistant. This form would entitle Respondent to perform the enumerated procedures at Dr. Van de Car's direction while in the allergy lab. Dr. Van de Car was the only person at AHP licensed to issue prescriptions. On two occasions, Dr. Van de Car found that prescriptions had been renewed in his absence by Respondent. Despite the fact that these were not new prescriptions, Dr. Van de Car was concerned because he would not have renewed them himself but would have chosen to try a new prescription. Dr. Van de Car met with the Respondent and asked him not to repeat that procedure again. Respondent performed procedures which were not ordered by Dr. Van de Car and which would not have been ordered by him. Dr. Van de Car discontinued his practice at AHP in May 1989, and was replaced by William Rick, who he believed to be licensed in Florida as a physician. Andrew Feldman, D.O. was hired by Respondent as the Medical Director for AHP sometime in 1990 and remained until the summer of 1992. Dr. Felman had no rotation in allergy and no internship. He had taken approximately four to five courses in allergy in medical school. Dr. Felman is certified in Family Practice. Dr. Feldman normally did not report to the clinic on Saturdays. Respondent was not appointed as Dr. Feldman's medical assistant in the allergy lab. Respondent continued to work in the allergy lab on a regular basis. Solomon Klotz, M.D., is a physician specializing in allergy and clinical immunology. He has practiced in Florida since 1945. Dr. Klotz trained Respondent in immunology and allergies and at one time permitted Respondent to perform a study on "end point titration" in his clinic. However, Dr. Klotz was not comfortable with this method of treatment as he was unable to determine honestly if the treatment was producing a purely placebo effect or whether it was truly scientific. When Dr. Klotz's son, a physician, and Stephen Rosenburg, M.D., an associate in the practice, both expressed discomfort with Respondent's study, Dr. Klotz discontinued the study. Dr. Klotz himself ceased utilizing end point titration as a treatment method in favor of more proven methods. Lawrence Siegel, M.D., Ph.D., is an allergy physician who has been licensed in Florida since 1981. He has a Ph.D. in biochemistry and immunology. Dr. Siegel is board certified in pediatrics, allergy and immunology, and diagnostic laboratory immunology. He maintains a private practice which is devoted entirely to allergy patients. Dr. Siegel testified as an expert in the practice of medicine and allergy and immunology. Dr. Siegel reviewed Respondent's chart for Scott Donley. Dr. Siegel recounts Scott Donley was treated at AHP using the method known as "end point titration." In this method, after a patient has had initial testing to determine what he or she is allergic to, the person doing the testing takes every single individual allergen the person was tested for and tries to determine at what point the test changes from positive to negative. This technique is no longer used by most Florida allergists, as it involves a lot of testing and needles. In 1981, the American Academy of Allergy published a statement regarding end point titration. It stated that end point titration has no plausible or immunologic basis when used as a method of treatment and diagnosis of allergic disease. Four controlled clinical studies showed this method to be ineffective. The use of end point titration is not commonly used in the State of Florida, but its use is not below the standard of care for patients in Florida. Even if a person worked under the supervision of an allergist, that person could not legally practice medicine, order tests, or interpret them. The performance of a skin test can be left to the medical technician, but the interpretation should be done by a physician and noted in the chart. Scott Donley was first presented to Associated Health Professionals (AHP) in 1988 during his senior year of high school for treatment of allergies. Scott was a golfer, and was having a problem with allergies on the golf course. At the time, he was the #1 seed on his high school golf team. Scott's mother, Patricia Donely, was referred to the Respondent and the clinic by the owner of a health food store in Deland, Florida. At his first appointment, Scott was seen by Jack Van de Car, D.O. who gathered a patient history and performed a physical examination. Dr. Van de Car examined Scott at this time and referred him to the allergy clinic. After his first appointment, Scott saw Dr. Van de Car for chiropractic manipulations and electric stimulation treatment. He also prescribed medication for allergy, pain, and muscle relaxants. Generally, Scott saw the AHP staff and Respondent. On a typical day, Respondent would come into the room, review Scott's chart for the previous day, and dictate the day's treatment. It was Respondent who discussed Scott's allergy treatment with him. It was Respondent who corresponded with Patricia Donley regarding her son's treatment. If she had questions, Respondent would answer them for her. Respondent was the primary treating health care provider of Scott Donley. Scott underwent a series of procedures known as "end point testing" or "end point titration." He tested positive on 132 out of 136 allergens. Scott was placed on a very strict diet and was given vitamins and injections of progesterone, testosterone and estrogen. He was also instructed to take Vitamin E. Scott's diet prohibited him from eating regular bread. He ate millet bread and millet muffins. Scott lost 35 pounds due to his change in diet. At one point, the Respondent advised Mrs. Donley to wash Scott's food in bleach; however, she refused. At first, Scott presented to AHP on what would be considered a normal appointment schedule. When his condition did not improve, Scott and his parents suggested to Respondent that Scott withdraw from his senior year of high school in order to report to AHP on a daily basis for testing. Scott withdrew from school. For a period of four or five months, Scott reported to AHP six days a week for eight hours a day in order to undergo end point testing. Occasionally Scott was hooked up to a black box referred to as "the Lollapalooza." This was a black box with clips which attached to Scott's earlobes. Electrical current was administered through the clips. Soon Scott was taught how to inject himself. Scott was ordered to give himself multiple injections daily. On at least two occasions, Scott suffered allergic reactions which required the insertion of an I.V. On one of these occasions, Scott's father, Mark Donley, was summoned to AHP. Mr. Donley was told that Scott had reacted to one of his medications and that they were flushing out his system. Mr. Donley witnessed Respondent inserting an I.V. into his son's arm and giving instructions to Kelly Luther, the nurse. Scott came to AHP on Saturdays for more end point testing. On occasion, Scott also received massage therapy from the Respondent. Scott's condition deteriorated over time. Scott described his condition as a general weakening. Scott began to experience arthritis-like symptoms, with stiffness in the mornings and swelling in his hands. Scott was forced to wear a mask on the golf course due to his allergic reactions. During this period of time, Scott sought psychotherapy from the Respondent, on an occasional basis, due to the severe diet and changes in his social life. When Scott's condition began to worsen, Mrs. Donley expressed an interest in getting a second opinion. Respondent did not encourage her to do so. Scott remained a patient at AHP from November 1988, until December 1989. When Scott's condition still did not improve, Scott was taken to Shands Hospital in Gainesville, Florida for an evaluation. The physician at Shands diagnosed Scott as being free of disease. He ceased Scott's medications and vitamins and took him off of the special diet. Respondent criticized Shands Hospital in a letter to Patricia Donely. Scott's physical condition gradually improved and he is currently employed as an Assistant Golf Professional in Jacksonville, Florida. Respondent's treatment records for Scott Donley were predominately medical. There were no treatment goals or plans, nor any progress notes of therapy. There should have been two patient records, one for medical treatment and one for psychotherapy. Billing records indicate physician visits were performed, but the record does not contain any physician notes. Scott's allergy treatment at AHP was below the standard of care in the State of Florida. There was very little physician involvement in the case. There was no physician examination at each patient visit. There was insufficient physician documentation as to testing and treatment performed between doctor's visits. There was no evaluation of whether the treatment was or was not working, just more and more testing. There was no discernible treatment plan or goals. Respondent denies diagnosing treatment for Scott Donley and denies ever prescribing medication for patients. He also states that he never started a psychotherapy chart on Scott Donley. His denial of diagnosing treatment for Scott Donley is not credible. Respondent practiced beyond the scope of his license as a psychologist in his treatment of Scott Donley.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board find the Respondent guilty of violating Section 490.009(2)(s), Florida Statutes (1 count), in regard to DOAH Case No. 94-0083; not guilty as to Counts I and III in DOAH Case No. 96-0819; guilty of violating Sections 490.009(2)(q), Florida Statutes, Section 490.009(2)(v) Florida Statutes, and Section 490.009(2)(m), Florida Statutes (Counts II, IV and V) in Case No. 96-0819. It is further RECOMMENDED, as punishment therefore: The license of George Von Hilsheimer, Ph.D., be suspended for a period of six months followed by a period of probation of one year; that he pay an administrative fine of $2,000, pay the costs of the prosecution of this matter, and that the Board impose such other and necessary conditions on Respondent's probation as they deem necessary and appropriate. DONE AND ENTERED this 18th day of December, 1997, at Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 18th day of December, 1997. COPIES FURNISHED: Joseph Alexander Scarlett, III, Esquire 208 West Howry Avenue DeLand, Florida 32720 Nancy M. Snurkowski, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dr. Kaye Howerton, Executive Director Agency for Health Care Administration Board of Psychology Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue for consideration in this case is whether Respondent's license as a physician in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Medicine (Board) was the state agency in Florida responsible for the licensing of physicians and the regulation of the medical profession in this state. Respondent was licensed as a physician in Florida, holding license number ME 0037873. On August 8, 1994, Respondent was practicing medicine at her office located at 175 U.S. Highway 17 North in Bartow, Florida. On that date, A.H., a 33-year-old female, came to Respondent's office complaining of irregular vaginal bleeding. Respondent took a complete medical history from A.H., determining that she was sexually active and had not had a Papanicolaou (PAP) smear in ten years. Respondent also did a complete physical examination of A.H., including a pelvic examination, and took a PAP smear for forwarding to the laboratory. As a result of this examination, Respondent determined that A.H. had harsh breath, and observed that she had a friable cervix with a heavy, yellowish discharge which indicated to Respondent the possibility of infection. Cervitis is an inflammation of the cervix which is very common in sexually active women. To treat the infection, Respondent gave A.H. a prescription for Ampicillin, an anti-biotic, and an anti-biotic vaginal cream. The PAP smear taken by Respondent on that visit was sent to the laboratory, Allied Clinical Laboratories in St. Petersburg, for analysis. The lab report, dated August 17, 1994, revealed that though the specimen taken was satisfactory, it was limited by the amount of blood it contained which obscured the cells and because of the absence of an endocervical component. Nonetheless, the lab concluded that the sample showed an epithelial cell abnormality and atypical squamous cells of undetermined significance. Noteworthy, however, is the comment that the cellular changes might be associated with human papilloma virus, a virus which is known to be related to cervical cancer. Respondent did not tell A.H. she had the papilloma virus, but only that she might have it. Infections by the human papilloma virus are, according to Respondent, fairly common, but it is not known to be treatable. In the opinion of Dr. Roberts, Respondent's expert, who did not see the patient but who reviewed the medical records, it is most likely that A.H. had cancer at the time of the PAP smear. When Respondent read the lab report she had her receptionist prepare a letter to A.H., which Respondent signed, requesting that the patient make an appointment to come into the office to discuss the abnormal results of the test. This letter was dated September 5, 1994. A.H. came to Respondent's office on September 12, 1994, at which time Respondent explained what the results of the PAP smear reading were and gave her a pamphlet on the subject which is used in programs conducted by the American Medical Association. Respondent also explained to A.H. what the human papilloma virus is and what it can do. She gave A.H. samples of a vaginal cream, Zovrax, used to treat genital herpes. Though Zovrax is not marketed as a treatment for the papilloma virus, after consultation with colleagues, Respondent concluded that since both were infectious viruses of the genital tract, the Zovrax would not hurt A.H. and, conceivably, could help her. When A.H. came to Respondent's office on September 12, 1994, she told Respondent that she no longer had a vaginal discharge. Based on that representation, Respondent concluded that the infection was cured though she did not do a pelvic examination of the patient to verify her conclusion. The patient also reported that she had no vaginal bleeding, either, or other complaints. Therefore, since the purpose of that visit was to brief the patient on the results of the PAP smear, without any complaint by the patient Respondent saw no reason to do an examination. At that time, Respondent was aware that A.H. had seen Dr. Monreal for a pelvic ultra-sound examination. Respondent could not recall at hearing if she had the results of that procedure at the time of the patient's September 12, 1994, visit. However, the records reflect that on September 26, 1994, the ultra-sound results were phoned to the patient, and a yearly check-up recommended. Dr. Roberts is of the opinion that this action was appropriate. On November 7, 1994, just about three months after the first PAP smear was taken, A.H. again came to Respondent's office for a repeat of the test. At this time, Respondent did a pelvic examination of A.H. and took a PAP smear, but again, because the patient was bleeding, she felt it would be useless to send it to the lab. It was her opinion at the time that the bleeding would prevent a meaningful and accurate reading. Medical expert opinion agrees. Because of this, therefore, Respondent told the patient she would not send the specimen to the lab for analysis. She advised the patient to wait until the bleeding stopped, expected to be only a few days, and then come in for a new smear. However, Respondent did not schedule another appointment for this at that time because she did not know when the patient would stop bleeding. Nonetheless, Respondent, on several occasions thereafter, requested her nurse to call A.H. and ask her to come in. Respondent claims this was done, but does not know when or how often. The fact remains that the patient, A.H., did not come back, and Respondent did not hear from the patient again until her claim alleging medical malpractice was filed. According to Dr. Rothman, the Board's expert, the lab report of the PAP smear done on August 4, 1994, was an incomplete evaluation. Nonetheless, he found Respondent's actions up to the time she did the examination and prescribed the anti-biotics to be within standards. The use of anti- biotics is an appropriate response to inflammation. Also prudent was Respondent's September 5, 1994, letter to A.H. asking her to come into the office to discuss the abnormal results of the PAP smear. Regarding the September 12, 1994, visit, Dr. Rothman notes that no PAP smear was done on that visit. Based on the patient's condition and her prior medical record, Dr. Rothman is of the opinion it would have been appropriate for Respondent to do another one. However, he does not consider the failure to do so to be a violation of the standard of care in the community because Respondent did have the patient come in for a follow-up PAP smear in early November, 1994, just about three months after the first. This is an appropriate period. However, Dr. Rothman, who opined that Respondent's actions through September 26, 1994, met standards, felt otherwise regarding her actions on November 7, 1994. He contends that Respondent had an obligation to follow-up on the patient's abnormal PAP smear and the continued bleeding by doing another PAP smear, by doing a biopsy, and/or by arranging for culdoscopy, and by placing adequate documentation in the records as to what her intentions were. The medical records are devoid of any showing of affirmative action by Respondent to complete a diagnosis and implement treatment. Nevertheless, Respondent's decision to defer further action pending the ability to obtain a proper PAP smear was found by Dr. Rothman to be well within standards even though he was unable, from the records, to determine what efforts Respondent made to get the patient back into the office. However, he admits that lack of record is not that important. A physician cannot force a patient to return for treatment or diagnosis. Dr. Roberts, the Board-certified physician testifying on behalf of Respondent, reviewed Respondent's records pertaining to A.H. and concluded that Respondent's treatment of this patient met standards. In his opinion, the patient was properly examined and proper initial tests were done, proper disposition of the abnormal PAP smear was made, and the patient's bleeding was properly treated. Dr. Roberts agrees with Respondent's decision not to send the bloody PAP smear taken on November 7, 1994, for analysis. He agrees with Respondent's telling the patient to come back and with her reliance on her staff to do the follow- up. In his opinion, it is perfectly proper for a physician to rely on a support team if the physician has reason to believe the team is responsible. He can see nothing in Respondent's conduct on November 7, 1994, which did not meet standards. There is, however, nothing in Respondent's medical records for this patient which memorializes Respondent's direction to her staff or that the follow-up calls were made. These entries should have been made. Further, the records do not provide entry support for several assumptions Dr. Roberts made in his determination that Respondent's actions were within standards. These were that Respondent told A.H. that her attempted PAP smear on November 7, 1994, was unsuccessful; that it was the intent of Respondent to repeat a PAP smear in the near future; that Respondent told A.H. to return when she was no longer bleeding. The failure of the records to contain this information relating to these assumptions renders them insufficient. As was previously found, Dr. Roberts is of the opinion that A.H. had cancer at the times she was seen by Respondent. However, none of the symptoms shown by the patient, considering her age and only an abnormal PAP smear, are red flags which should have indicated to Respondent that the patient had cancer. He believes her management of this patient, including her decision not to send in the November 7, 1994, PAP smear for analysis, was appropriate and within standards. Respondent indicates she has retired from the active practice of medicine and is not practicing at the present time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Medicine enter a final order finding Martha N. M. Pilapil not guilty of practice below standards but guilty of a failure to keep adequate medical records regarding her patient A.H.; imposing an administrative fine of $1,000; and placing her license on probation for a period of three years under such terms and conditions as deemed appropriate by the Board. DONE AND ENTERED this 15th day of February, 2001, in Tallahassee, Leon County, Florida. ___________________________________ ARNOLD H. POLLOCK 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) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2001. COPIES FURNISHED: Bruce A. Campbell, Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 William B. Taylor, IV, Esquire Macfarlane Ferguson 400 North Tampa Street Suite 2300 Tampa, Florida 33602 Tanya Williams, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
