Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent Martin Kasner was licensed to practice medicine in the State of Florida having been issued license number ME0031141 on August 24, 1977. At all time pertinent to this proceeding, Respondent maintained an office at 1911 North Andrews Avenue, Wilton Manors, Florida 33311. There is no evidence that Petitioner has ever been the subject of prior disciplinary action by the Petitioner, Department of Professional Regulation, Board of Medicine ("the Board"). On June 7, 1988, Detective Robert Trawinski of the Broward County Sheriff's Office visited Respondent's office in an undercover capacity posing as a new patient identifying himself as Robert Conti. Detective Trawinski had never previously worked in an undercover capacity in a doctor's office. Prior to Detective Trawinski's June 7, 1988 visit to the Respondent's office, Detective Trawinski met with Sergeant Clukey of the narcotics division of the Broward County Sheriff's Office and Mel Waxman, an investigator for the Petitioner. Detective Trawinski was instructed to try to obtain a prescription for Valium from the Respondent without giving any valid medical purpose. Valium or Diazepam is a Schedule IV controlled substance that is not an analgesic, but is a potent tranquilizer and skeletal muscle relaxant which can have adverse effects on sensorium. It is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. Individual patients taking Valium can become dependent on the drug and withdrawal from addiction to the drug can lead to potentially life-threatening health problems. Detective Trawinski was not advised as to all of the potentially acceptable medical purposes for which Valium could be used. He understood his instructions to mean that he should not voice any complaint of pain. Prior to seeing the Respondent during this first visit, Detective Trawinski filled out a medical questionnaire in Respondent's office using the fictitious name Bob Conti. In filling out the questionnaire, Detective Trawinski did not state any specific medical complaints. The patient's blood pressure was taken by a nurse in the office and recorded at 150/84. That reading tends to confirm the patient's subsequent complaint of anxiety. During the June 7, 1988 visit, Detective Trawinski advised Respondent that he was having problems performing sexually and was experiencing some anxiety as a result of job and family problems. Detective Trawinski also advised the Respondent that he had previously obtained prescriptions for Valium from a doctor up north and the drug had helped calm him down. Detective Trawinski advised the Respondent that the Valium he had previously been taking relaxed him and alleviated many of the symptoms of which he was complaining. During this first visit, the Respondent took a limited medical history from the patient including questions regarding possible alternative sources of the patient's complaints such as diabetes and thyroid problems. The patient denied a history of any such possible alternative causes for his symptoms. During the first visit, the Respondent made preliminary overtures towards conducting a physical examination of the patient. However, the detective told the doctor he did not want a physical. Respondent advised the Petitioner that he should consider having a blood work-up, but the Respondent indicated that because the tests were so expensive, the patient could wait until he had the money. At the conclusion of the June 7, 1988 visit, the Respondent issued a prescription to Detective Trawinski for 30 ten milligram Valium tablets with the ability to refill the prescription three times. The patient was advised to take two Valium per day as needed and one at night as a sleeping pill. At the time of the first visit, Detective Trawinski did not know the therapeutic use for Valium and was not advised of the appropriate use for Valium by his superiors. In actuality, a prescription for Valium was not inappropriate for the patient given his high blood pressure, complaints of anxiety and minor sexual dysfunction which could have been related to anxiety. Detective Trawinski returned for a second visit to the Respondent's office seventeen days later on June 24, 1988 at which time the patient's blood pressure was recorded at 164/80 which could reflect anxiety on the part of the patient. During this second visit, the Respondent questioned the patient regarding his appetite and medical history. Detective Trawinski denied a history of thyroid trouble, hayfever, etc. The Respondent conducted a limited physical examination of the patient checking his lungs and his heart rate. During the June 24 visit, Detective Trawinski advised the doctor that, while he still had some anxious moments, the prescription for Valium was helping him. The Respondent asked the patient whether he had any Valium left. The patient responded that he did not have any and also advised the Respondent that he was taking the Valium as directed and was not sharing them with anyone else. At the conclusion of the second visit, the Respondent provided the patient with a prescription for 50 Valium tablets with two refills. While the medical records of Detective Trawinski's first and second visit are sketchy at best, the Valium prescriptions issued on these two occasions do not fall beneath the standard of a reasonably prudent physician under the circumstances. The third visit by Detective Trawinski to Respondent's office took place twelve days later on July 6, 1988. During that visit, the detective advised the Respondent that the reason the Valium were going so quickly was because he was sharing the prescription with his wife. Detective Trawinski attempted to obtain from Respondent a separate prescription for Valium for his wife. Detective Trawinski offered to pay Respondent the amount of an additional office visit if Respondent would issue a prescription in his wife's name. However, Respondent refused to accept the additional money or issue a prescription in the wife's name without seeing her. The Respondent stated that he would need to take a medical history and conduct a physical examination prior to prescribing anything for the patient's wife. The Respondent advised Detective Trawinski that his wife should not be taking prescription drugs without having seen a doctor and that, although the prescription seem to be working for him, it may not necessarily be good for his wife. The Respondent advised the patient that, while his wife could take a few of his Valium until she could make an appointment to see the doctor, an appointment should be made as soon as possible and that no one should take prescription medication without being seen by the doctor. Notwithstanding the cautionary statements to the patient regarding sharing the drug, at the conclusion of the third visit, Respondent increased the patient's prescription for Valium from 50 tablets to 100 tablets with 1 refill. In fact, Respondent originally made out the prescription for 50 tablets. However, after being advised that the patient was sharing the pills with his wife, the prescription was increased to 100 tablets. By increasing the prescription in this manner, the Respondent was excessively prescribing a controlled substance and fell below the standard of care expected in this community of a reasonably prudent similar physician under similar circumstances. On July 13, 1988, Detective Trawinski returned to Respondent's office with Deputy Somerall of the Broward Sheriff's Office posing as his wife, Jeanette Conti. Upon arriving at the doctor's office, Deputy Somerall was weighed and her blood pressure was taken. In addition, the doctor performed a limited physical examination including listening to her heart and lungs with a stethoscope. The Respondent took a limited medical history from Deputy Somerall and she stated that she was suffering from stress and that Valium seemed to relieve it. Deputy Somerall advised the Respondent that she had been taking some of the Valium prescribed for her purported husband. In response to questioning by the Respondent, Deputy Somerall stated that she took the Valium on an as needed basis and it did not cause her to be drowsy and seemed to relieve the stress and anxiety she sometimes experienced towards the end of the visit, the Respondent indicated he would issue a separate prescription for Valium for Deputy Somerall and stated that he did not want her taking pills from her husband without her seeing a doctor first. The Respondent issued a prescription in the name of Jeanette Conti for 30 ten milligram Valium tablets with two refills permitted. During the July 13, 1988 visit, the Respondent inquired of Detective Trawinski whether his prescriptions were holding out. After Detective Trawinski indicated that he needed additional prescriptions, the Respondent issued a new prescription in the name of Bob Conti for 100 ten milligram Valium tablets. No refills were indicated. During this fourth visit, Detective Trawinski told the Respondent that he had tried some Percodan and had enjoyed it. He indicated that the drug had helped him to perform sexually and requested the doctor to issue him a prescription for that drug. Percodan is a Schedule II Controlled Substance which is used to relieve moderate to severe pain. It is an opiate narcotic and can be addictive. At the conclusion of this fourth visit, the Respondent issued a prescription to Detective Trawinski for 30 Percodan tablets. The prescription did not provide for any refills. No valid medical reason was provided for the issuance of the Percodan prescription. While Respondent contends that the patient had previously complained of back pain and a prescription for Percodan was issued for that reason, no competent evidence was presented to establish that Detective Trawinski had ever made a serious complaint about back pain. Therefore, the Respondent fell below the standard of care expected of a reasonably prudent physician in this community by issuing the Percodan prescription. Likewise, the issuance of additional prescriptions for Valium in the name of Bob Conti was excessive when considered together with the previous prescriptions issued. Pharmacists in Broward County will sometimes contact a physician to advise him if a patient is attempting to refill a prescription sooner than it should be refilled. The Respondent was never contacted by any pharmacist or advised that his patients were attempting to refill their prescriptions sooner than they should and there is no indication that the Respondent was ever advised that all of the refills allowed under the prescriptions were obtained by the patient. Patients often overlook the ability to refill a prescription and return to the doctor for a new prescription. The Respondent specifically advised Detective Trawinski during one of the visits that he could get the prescriptions refilled without returning to see the doctor. This statement indicates that the Respondent assumed that the patient had not sought all the refills of the earlier prescriptions. While the Respondent might have assumed that the patient had not sought all the refills provided, the Respondent should have been more cautious about issuing so many prescriptions with refills permitted within such a short period of time. However, at no time was the Respondent informed or led to believe that the patient was selling the drugs to others. Although both patients were seen by the doctor and issued prescriptions during the July 13 visit, they were only charged Respondent's typical rate for a single visit, $30.00. On July 19, 1988, both Detective Trawinski and Deputy Somerall returned to the Respondent's office. During this visit, Deputy Somerall advised Respondent she had taken some of the Percodan prescribed for her purported husband and requested a prescription of her own. Deputy Somerall told the Respondent that she was using the drug as an aphrodisiac. Detective Trawinski advised the doctor that he was taking four Percodan per day because it made him feel good. Detective Trawinski advised Respondent that he did not have any Percodan remaining because he had used it during a party with another couple. The Respondent lectured both patients about the dangers of Percodan and told them that the drug was habit forming and should not be taken for recreational purposes. Respondent expressed surprise that the drug was serving as an aphrodisiac for the patients. While Respondent indicated he was reluctant to issue a new prescription for Percodan, he stated that the drug seemed to be providing some benefits to the patients and ultimately issued a prescription in the name of Bob Conti for an additional 30 Percodan tablets. Respondent would not issue a prescription for Percodan in the name of Jeanette Conti. Furthermore, when Detective Trawinski inquired about making an appointment for his brother-in-law to see the Respondent, the Respondent replied that if the intention was to obtain Percodan, he did not want to see the patient. However, he indicated he would be willing to see the brother-in-law if he was simply seeking a prescription for Valium. At no time did the Respondent adequately inform the patients regarding the synergistic effects of the use of Percodan and Valium nor did he adequately explain the risks associated with combining these drugs with alcohol or other substances. Moreover, Respondent failed to explore the possibility that the prescriptions he issued were increasing or exacerbating existing dependency by these Patients on the drugs involved. On July 25, 1988, Detective Trawinski returned to Respondent's office and requested that his prescriptions be renewed. The patient denied any medical complaints and there is no indication that any physical examination was conducted by Respondent. In response to Respondent's inquiries, Detective Trawinski indicated that he was following the Respondent's previous advice and use of the Percodan was "under control." At the conclusion of the July 25 visit, Respondent issued a prescription in the name of Bob Conti for 30 Percodan "for pain" and 50 Valium tablets. One refill was provided for the Valium prescription. No refills were indicated for the Percodan prescription. No valid medical reasons were provided for the prescriptions that were issued following the July 25 visit. There is no evidence indicating any pecuniary gain by the Respondent for writing any of the prescriptions in question. The only remuneration received by Respondent was his typical $30.00 office charge per visit. The written medical records which the Respondent maintained fail to adequately justify the course of treatment of the patients known to Respondent as Bob and Jeanette Conti (collectively referred to as the "Patients"). The records do not reflect repeated evaluation of the persistent symptoms or adequate evaluation and follow-up of the results of medication, either as to effectiveness or possible side effects such as dependency. Respondent's record-keeping with regard to the Patients falls below the acceptable standard. The records fail to include an adequate patient history and initial assessment of the Patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the Patient's background. In several instances, the Respondent's only notation of treatment is a listing of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken, especially with respect to the prescriptions for Percodan. The Respondent's medical records for patient Bob Conti contain a very limited patient history and general background information. For this patient's first two visits, there is a brief notation which includes the patient's blood pressure and weight. On the first three visits, there is a diagnosis of "chronic anxiety" without any further discussion. On the final three visits, only the medication prescribed is noted. The patient's records for these three last visits contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from Bob Conti's medical records the reason that Percodan was prescribed. The Respondent's medical records on the patient Jeanette Conti are similar to those previously described for patient Bob Conti. The office visit notes list no patient complaints or symptoms and no medical diagnosis or comprehensive assessments. While Respondent's counsel suggested that Respondent intended to supplement the medical records with additional information at a later date, no competent evidence was presented to support this claim. The Respondent was examined and tested by a psychiatric expert Dr. Klass. The results of the psychiatric examination indicate that the Respondent is not corrupt, but that he is corruptible, i.e., easily manipulated and overly compliant.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Count One, Three and Four of the Administrative Complaint, dismisses Counts Two and Five, imposes an administrative fine in the amount $5000.00 and suspends Respondent's license for a period of two years followed by a three (3) year term of probation during which time Respondent's prescribing practices should be closely monitored. DONE and ORDERED this 3 day of May, 1990, in Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3 day of May, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 4-33. Subordinate to Findings of Fact 23, 24, 26, 29, 31 and 32. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a finding of fact. This subject matter is covered in Findings of Fact 34-37. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. The first sentence is adopted in substance in Findings of Fact 33. The second sentence is adopted in part in Finding of Fact 27. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 34-37. Rejected as irrelevant. No evidence was presented to establish that the Respondent intended to further supplement the medical records. Rejected as not constituting a finding of fact. Subordinate to Findings of Fact 4-7 and 12. Rejected as a summary of testimony rather than a finding of fact. This subject area is covered in Findings of Fact 6-10. Subordinate to Findings of Fact 16. Rejected as a summary of testimony rather than a finding of fact. This subject area is addressed in Findings of Fact 27. Rejected as irrelevant and because it is merely a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 27. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 16. Subordinate to Findings of Fact 13-15. Subordinate to Findings of Fact 17 - 19. Rejected as constituting argument rather than a finding of fact. This subject area is addressed in Findings of Fact 19. Subordinate to Findings of Fact 20-23, 25, 26, and 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30-33. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument. Rejected as constituting argument. Subordinate to Findings of Fact 38. 30. (SIC) Rejected as constituting argument. COPIES FURNISHED: Joseph Harrison, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 C. Craig Stella, Esquire Attorney at Law 200 S. Andrews Avenue Suite 300 Mercede City Center Fort Lauderdale, Florida 33301 Kenneth E. Easely General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30 and Chapters 455 and 458, Florida Statutes. Respondent is a licensed physician in the State of Florida and holds license number ME 0043566. Respondent has never been the subject of a previous complaint from the Department of Professional Regulation (now the Department of Business and Professional Regulation). No patient involved in this proceeding incurred injury as a result of any procedure performed by Respondent or as a result of any medical record kept by Respondent, nor did any patient claim injury or make a complaint against Respondent. Respondent derived no financial gain from any act or omission alleged in the administrative complaint. All events pertaining to this proceeding occurred in 1987 or 1988. Prior to February 8, 1988, the effective date of Chapter 88-1, Laws of Florida, Section 458.331(1), Florida Statutes provided, in pertinent part, as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, and test results. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Section 25 of Chapter 88-1, Florida Statutes, became effective February 8, 1988, and amended the pertinent provisions of Section 458.311(1), Florida Statutes, to read as follows: The following acts shall constitute grounds for which the disciplinary action specified in subsection (2) may be taken. * * * (m) Failing to keep written medical records justifying the course of treatment of the patient, including, but not limited to, patient histories, examination results, test results, records of drugs prescribed, dispensed, or administered, and reports of consultations and hospitalizations. * * * (t) Gross or repeated malpractice or the failure to practice medicine with that level of care, skill, and treatment which is acceptable under similar conditions and circumstances. The board shall give great weight to the provisions of s. 768.45 when enforcing this paragraph. As used in this paragraph, "repeated malpractice" includes, but is not limited to, three or more claims for medical malpractice within the previous 5-year period resulting in judgment or settlement and which incidents involved negligent conduct by the physician. As used in this paragraph, "gross malpractice" or "the failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances", shall not be construed to require more than one instance, event, or act. Nothing in this paragraph shall be construed to require that a physician be incompetent to practice medicine in order to be disciplined pursuant to this paragraph. At the times pertinent to this proceeding, Petitioner had adopted no rules pertaining to the keeping of records by a licensed physician. Imperial Point Medical Center (Imperial Point) is a hospital located in Broward County, Florida. Unless otherwise indicated, all hospital records referred to in this matter are from Imperial Point. PATIENT #1 (C.S.) On August 8, 1988, Respondent performed an upper endoscopy on Patient #1, a male, who was 44 years old at the time of the procedure. This procedure was performed at Imperial Point on an outpatient basis. An upper endoscopy is the viewing of the mouth, the pharynx, the esophagus, the stomach and portions of the duodenum with a fiber optic instrument that allows direct visualization of the lining of these structures and allows therapeutic maneuvers. The records kept of this procedure performed on Patient #1 on August 8, 1988, include an outpatient hospital record entitled "Operative Report". The description of the procedure portion of this report includes the following: ". . . The gastric portion was infiltrated with 1:1,000 adrenaline . . ." Adrenaline, also known as epinephrine, is a vasoconstrictor that can be used to control minor bleeding and oozing. It is used regularly in gastroenterology to treat actively bleeding lesions or ulcers with evidence of recent bleeding prior to performing a more permanent type of hemostasis. Dr. Goldberg testified that epinephrine was usually injected into these areas by a needle. Dr. Goldberg was of the opinion that epinephrine should not be used in cases of trivial bleeding or oozing or after routine biopsies unless there is an imminent danger of a significant arterial bleed. The testimony of Dr. Cerda and Dr. Singh established that spraying epinephrine over an area that is subject to bleeding is a precautionary technique some gastroenterologists follow. Dr. Singh and Dr. Cerda have both either used this technique, or have observed its use by other physicians. The expert witnesses agreed that the injection by needle of epinephrine into the gastric wall would be a procedure that falls below an established standard of care. There was a dispute among the expert witnesses as to how the term "infiltrated" should be interpreted. Petitioner contends that the term "infiltrated" is synonymous with the term "injected", and that the medical records should be construed to mean that Respondent injected the gastric wall with a needle, and therefore practiced below the standard of care. This contention is consistent with the testimony of Dr. Goldberg. Respondent asserts that the medical record should be construed to mean that Respondent sprayed the gastric wall as a precautionary measure. This contention is consistent with the testimony of the expert witnesses who testified on behalf of the Respondent. This dispute is resolved by finding that the term "infiltrated" does not have the same meaning as the term "injected" and does not prove that Respondent injected Patient #1's gastric wall with a needle. This conclusion is based, in part, on the definition of the term "infiltrate" and on the context in which epinephrine is sometimes administered by gastroenterologists during this type procedure. According to The American Heritage Dictionary of the English Language, the term "infiltrate" means to pass a liquid or a gas into something through its interstices or to permeate with a liquid or gas passed through interstices. Dorland's Illustrated Medical Dictionary, Twenty Sixth Edition (Dorland) has a similar definition of the term "infiltrate". According to Dorland, an "interstice" is small interval, space, or gap in a tissue or structure. According to Dorland, the term permeate means to penetrate or pass through, as through a filter. Also according to Dorland, the term inject means the act of forcing a liquid into a part, as into the subcutaneous, the vascular tree, or an organ. Based on these definitions, it is found that the use of the term "infiltrate" is more consistent with the practice of spraying epinephrine onto the gastric wall, and that the use of the term "infiltrate" does not prove that Respondent injected the epinephrine into the gastric wall with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #1 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. A pathology report dated August 8, 1988 contained in the medical file provided a pathological diagnosis as follows: "esophageal brushings: no evidence of malignancy." Brushings are the result of passing a small brush through the biopsy channel of an endoscope, rubbing it over an area of concern that might have either a malignancy or a fungal infection, taking the brush out of the scope, wiping it on a microscopic slide, and sending the slide to the pathologist for cytological examination. The reference to the "esophageal brushings" in the pathology report was error. The brushings taken from Patient #1 during the procedure on August 8, 1988, came from the stomach, a fact obvious to all of the expert witnesses in light of the operative report and operative drawing made by Respondent. Because Petitioner failed to prove that Respondent took esophageal brushings from Patient #1, its charge that he failed to properly document his reasons for doing so must also fail. 1/ Petitioner proved that Respondent's medical records, including his office notes as to Patient #1 failed to contain an adequate medical history for Patient #1 and failed to reflect the findings of any physical examination of Patient #1 by Respondent. Petitioner further proved that such failures fall below an established standard of care as alleged in Count Two of the Amended Administrative Complaint. PATIENT #2 (R.B.) Patient #2 was a 70 year old male seen by Respondent for a consultation because of the patient's history of hematemesis, which is the vomiting of blood. Respondent prepared a formal consultation note dated September 25, 1988. The consultation note contains a description of the patient's condition, references a rectal exam, which was positive for blood, and indicates that a physical examination of the patient was made. Respondent again saw the patient on September 27, 1988 and performed an upper endoscopy. Dr. Goldberg was critical of the medical records kept by Respondent as to this procedure and was of the opinion that the medical records were inadequate. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedure. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records pertaining to this patient were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. The records kept of this procedure reflect that Respondent "infiltrated" Patient #2 with epinephrine. This is the identical dispute over the meaning of the term "infiltrated" that pertained to Patient #1 as discussed above. For the reasons given in resolving the dispute as it pertains to Patient #1, it is found that the term "infiltrated" does not have the same meaning as the term "injected" and that the use of the term does not prove that Respondent administered the epinephrine by injecting Patient #2 with a needle. It is found that Petitioner failed to prove that the use of epinephrine was improper or that the manner in which Respondent used the epinephrine during the subject procedure was improper. Since Petitioner failed to prove that Respondent injected Patient #2 with epinephrine, its charge that Respondent failed to document his reasons for doing so must also fail. PATIENT #3 (B.B.) Patient #3, a 65 year old female was admitted to Imperial Point with chest pains by her physician, a Dr. Fanfan. Patient #3 had a history of cancer which included the prior surgical removal of a tumor. On October 3, 1988, Respondent performed a colonoscopy of Patient #3. A colonoscopy is an examination of the colon from the anus to the ileocecal valve using a fiber optic instrument. A colonoscopy is indicated to evaluate abnormal X-rays, changes in bowel habits, evidence of bleeding, suspicions of inflammation, tumors, or polyps. Respondent adequately performed the procedure on Patient #3. The colonoscopy detected that Patient #3 had polyps. Subsequent laboratory results established that these were hyperplastic polyps that required no follow-up. Had the polyp been an adenomatous polyp, which is a true neoplasm with malignant potential, a follow-up for recolonoscopy would have been appropriate in one year. Prior to receiving the pathology reports, on the polyp, Respondent recommended a six month follow-up for the patient. This follow-up recommendation was appropriate at the time it was made. Petitioner failed to prove that the recommendation that a follow-up be performed was below an established standard of care. Petitioner failed to prove that the recommendation that the follow-up for this patient with a history of cancer be in six months as opposed to one year fell below an established standard of care. The barium enema for this patient was originally scheduled by the attending physician, Dr. Fanfan. Dr. Fanfan clearly wrote a note on the same day following Respondent's report of the colonoscopy that the barium enema was pending, yet the attending physician did not cancel the barium enema. There is no disagreement among the experts that the barium enema was unnecessary in light of the findings of the colonoscopy. It is medically unnecessary and inappropriate for both tests to be performed on the same day. Dr. Goldberg was of the opinion that Respondent was responsible for the patient once he began his consultation and that Respondent should have canceled the barium enema. Dr. Cerda, Dr. Eberly and Dr. Singh were of the opinion that the attending physician was responsible for scheduling the barium enema and that the attending physician or the radiologist should have canceled the barium enema. Dr. Eberly testified that as the primary care physician, the admitting physician is the "captain of the ship" and has the responsibility to make final determinations with respect to tests of this nature. Because of the conflicting testimony from equally credible expert witnesses, it is found that Petitioner failed to prove that Respondent violated an established standard of care by not cancelling Patient #3's enema. Dr. Goldberg was of the opinion that Respondent's medical records pertaining to Patient #3 were inadequate. He had several criticisms of the records. Dr. Goldberg opined that there should have been a formal consultation note on Patient #3's chart that included past history, present illness, review of systems, allergies, pertinent laboratories, a thorough organ specific or system examination, an impression, an adequate discussion of the consultant's impression and the consultant's plans. He opined that the indications for Patient #3's procedure were inadequately dictated on the procedure notes and that Respondent's history pertaining to Patient #3 was inadequate because there was no pertinent review of systems or past history, no mention of the previous tumor, no mention of allergies, and an extremely scant examination. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of this patient's medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #4 (E.K.) On October 4, 1988, Patient #4, a 92 year-old female, was admitted to the hospital with an acute onset of vomiting, dehydration, and abdominal pain. Respondent was asked by Patient #4's attending physician to evaluate Patient #4 for a potential small bowel obstruction following an X-ray that was consistent with a small bowel obstruction. Respondent performed an upper endoscopy on Patient #4 on October 7, 1988. An obstruction of the intestines is a blockage in the large or small intestine. The bowel behind the blockage may become inflated with fluid or air and may be seen on X-ray. The obstruction may result from a variety of abnormalities. Dr. Goldberg was of the opinion that the upper endoscopy was contra- indicated and potentially dangerous to the patient because of the X-ray indicating a complete bowel obstruction. Dr. Goldberg was also of the opinion that an upper endoscopy should be used only under compelling circumstances if there is a partial bowel obstruction. Dr. Goldberg was of the opinion that Respondent did the right tests on Patient #4, but in the wrong order since he did not first rule out an obstruction. Prior to performing the upper endoscopy Respondent monitored the patient for several days. During that time period, examinations indicated that the patient was having bowel movements. Both the attending physician's notes, Respondent's notes, and the nurse's notes indicate positive bowel signs on October 5 and 6, indicating that there was not a complete bowel obstruction. Respondent ordered a Golytely preparation administered to the patient, which usually consists of one or two liters of non-absorbable solution that basically washes the bowel out. That preparation would have been improper with a complete bowel obstruction. Dr. Goldberg was of the opinion that the use of a Golytely prep in this patient was a gross judgment error. Dr. Singh was of the opinion that there was no contra-indication for using the preparation in this situation. Petitioner failed to prove that Patient #4 had a complete bowel obstruction or that the procedure, including the use of the Golytely preparation, violated an established standard of care. It is found that Respondent was acting within the scope of his discretion as the consulting physician to order the administration of the Golytely preparation and to perform the upper endoscopy. On October 11, 1988, Respondent performed a colonoscopy on Patient #4. Respondent stated on the operative report that the colonoscopy was indicated because of diverticulitis. Diverticulitis was not mentioned in any of Respondent's notes concerning Patient #4, and there was no notation as to the reasons Respondent thought the patient had diverticulitis. Although Respondent failed to document why he felt that diverticulitis was an appropriate indication for the colonoscope, there is no dispute that a colonoscope was, in fact, indicated. Further, the colonoscope established that the pretest diagnosis of possible diverticulitis was not incorrect. The colonoscopy revealed areas of colitis, and the pathology report noted an ulcer with acute and chronic inflammation. Respondent's experts testified that they were of the opinion that Respondent violated no established standard by listing diverticulitis as an indication for the colonoscopy. It is found that Petitioner failed to prove that Respondent practiced below an established level in listing diverticulitis as an indication for the colonoscope. During the colonoscopy, Respondent found several mildly bleeding areas and infiltrated Patient #4 with epinephrine. For the reasons discussed pertaining to Patient #4, it is found that Petitioner failed to prove that Respondent violated an established standard of care in administering epinephrine to Patient #4. Dr. Goldberg was of the opinion that Respondent's handwritten consultation report was inadequate. Dr. Goldberg bases his conclusion on the following observations. The report was difficult to read and failed to include any significant historical events concerning Patient #4. In his consultation report, the Respondent failed to note anything about having done a rectal examination on this patient, whether or not the abdomen was distended, and whether there were active or inactive bowel sounds. Dr. Goldberg was of the opinion that these findings would help to distinguish between an obstruction and an ileus or paralysis of the bowel. Dr. Goldberg was also of the opinion that the patient's records of the upper endoscopy performed October 7, 1998, fail to reveal any significant findings. Other, equally credible expert witnesses were of the opinion that the medical records were adequate. It is found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. While it may be concluded that Respondent's medical records could be improved, Petitioner failed to prove that the medical records fell below an established standard of acceptability. PATIENT #5 (J.T.) Patient #5, an 89 year-old male, was admitted to Imperial Point with a history of peptic ulcer disease and arthritis. This patient was seen by Respondent on a consulting basis. The patient was vomiting blood and Respondent was asked to see the patient to determine the source of the bleeding. Respondent performed an upper endoscopy on October 13, 1988, and found a significant outlet obstruction. On October 17, 1988, a G.I. series was performed and a repeat upper endoscopy and pyloric dilatation was performed. The procedures performed by Respondent were properly indicated and had a beneficial result to the patient. Back-to-back pyloric dilatations were appropriate and clinical judgment was properly exercised. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the upper endoscopy of October 13, 1988, in that Respondent's operative report failed to document Respondent's findings in detail. Dr. Goldberg testified that an essential endoscopy report that physicians are trained to do should include the following: indications for the procedure, medication used to sedate the patient, identification of instrument used, description of the anatomical landmarks and their condition as visualized by the physician passing the endoscope, the removal of the scope, the physician's impressions and what the physician plans to do about those impressions, how the patient tolerated the procedure and what the patient's condition was after the procedure, and that the patient was sent to the recovery area. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to the procedures performed on this patient on October 17, 1988, in that Respondent's operative report did not document Respondent's findings in detail and did not indicate if the scope was passed through Patient #5's dilated pylorus into the duodenum. In Respondent's impressions on the second endoscopy, he noted pyloric stenosis and duodenal ulcer. In his procedure note Respondent does not mention whether he passed the scope into the duodenum or how he knew there was a duodenal ulcer. Dr. Goldberg was of the opinion that Respondent did not properly document what he did. On October 18, 1988, Respondent performed a repeat pyloric dilation on Patient #5. Dr. Goldberg was of the opinion that Respondent failed to record the reasons for the second procedure and to document his findings. Dr. Goldberg was of the opinion that the third endoscopy note did not adequately detail the examinations of the esophagus and stomach. Dr. Goldberg was of the opinion that every procedure note stands alone, and that if a physician does an endoscopy on day one and repeats it on day two, the physician still must make that report complete because it is not always going to be part of a document. Dr. Goldberg was of the opinion that Respondent's records did not stand alone. Dr. Goldberg was of the opinion that Respondent's handwritten consultation note was sketchy and should have contained a history of allergies because of the need to give the patient medications for sedation. Dr. Goldberg's criticisms of Respondent's medical records do not prove that the medical records kept by Respondent were inadequate as measured by an established standard. Other, equally credible expert witnesses were of the opinion that the medical records provided sufficient information to document the procedures and that the records were adequate. While it may be concluded that Respondent's medical records could be improved, it is found that Petitioner failed to prove that the medical records were inadequate. It is further found that Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #6 (D.Y.) From October 19, 1988, until October 22, 1988, Respondent was consulting physician to Patient #6, a 72 year-old male, who was admitted to Imperial Point with rectal bleeding. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records pertaining to Patient #6 because a formal consultation note was lacking. The medical records which were reviewed by Dr. Goldberg were incomplete when reviewed by him. A specific reference is made to a consultation note that is not contained in the hospital records. Respondent established that other medical records were missing from the hospital records. In light of the specific reference to the consultation note, it is found that the absence of this consultation note from the hospital records is insufficient to prove that there existed no consultation note. On October 20, 1988, Respondent performed an colonoscopy on this patient and a biopsy was taken in the segmental descending colon area. The colonoscopy could not be completed because the colonoscopy could not pass to the patient's cecum. The following recommendation was made by Respondent (the original is in all capital letters): IN VIEW OF NOT REACHING TO THE CECUM, THE PATIENT WOULD NEED BE (this is an abbreviation for barium enema) AND ALSO IF EVERYTHING IS NEGATIVE, RECOLONOSCOPY IN ONE YEAR AND IF THERE ARE ANY CHANGES IN THE BIOPSY OF THE POLYP, THEN ACCORDINGLY WILL PLAN. On October 21, 1988, the follow-up barium enema was performed by Dr. Nicholas M. Arfaras, a radiologist. The radiology report reflected the following finding: "Also in the sigmoid there is an approximately 1 cm. rounded filling defect identified near the junction with the descending colon. This is felt to be secondary to a polyp." The possible polyp detected by the barium enema should have been followed up. However, it was not established that Respondent was consulted by the attending physician about the results of the barium enema. Dr. Lipton, as the attending physician, would have had the responsibility for following up the recommendations made by Respondent and for bringing Respondent or another gastroenterologist in for further consultations following the barium enema if Dr. Lipton had believed it necessary to do so. This patient was discharged from Imperial Point by Dr. Lipton on October 22, 1988. The final page of the discharge summary for this patient reflected the following notation: "Condition was improved. The patient is to have a follow up in one week in the office with Dr. Lipton and with Dr. Gupta in two weeks." The evidence presented in this proceeding, including Respondent's office notes, does not reflect that Respondent had any involvement with this patient after October 21, 1988, until 1990, when he performed on the patient at North Broward Medical Center a procedure described as a "multiple colonoscopy with multiple biopsies and cauterization." This procedure in 1990 revealed multiple polyps. The polyp removed on colonoscopy in 1988 was an adenomatous polyp, a polyp with significant malignant potential. This patient needed a follow-up colonoscopy in one year. Respondent was the consulting physician and recommended reevaluation of the patient in one year. Follow-up care was not the responsibility of Respondent, but of the treating physician. Dr. Goldberg was of the opinion that Respondent failed to keep adequate written medical records in that Respondent failed to adequately document the indications for the colonoscopy performed on Patient #6 and why the colonoscope could not be passed to Patient #6's cecum. Dr. Goldberg opined that a physician doing a colonoscopy needs to tell why he did not get to the cecum so that the next physician colonoscoping this patient can take appropriate precautions. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above. PATIENT #7 (C.R.) Respondent was a consulting physician to Patient #7, a 64 year old male who was hospitalized with rectal bleeding. Respondent saw this patient because of a possible colonic fistula, which is a connection with any piece of the intestine and some other structure. Respondent recommended a barium small bowel X-ray and a barium enema, both appropriate clinical recommendations. On November 11, 1987, Respondent performed a colonoscopy on Patient #7. Petitioner contends that Respondent failed to keep adequate written medical records pertaining to the aforementioned procedure in that Respondent failed to document an adequate history as an indication of Patient #7's colonoscopy. This contention is rejected based on the testimony of Dr. Singh. The medical records provide adequate justification for the procedure. Dr. Goldberg was critical of Respondent's records pertaining to this patient and considered the records inadequate. He was of the opinion that the records should have better detailed his findings and should have recorded any follow-up plans for a repeat colonoscopy on the patient. Other, equally credible expert witnesses were of the opinion that the medical records were adequate and provided sufficient information to document the procedures that were performed. Petitioner failed to prove that the medical records were inadequate. Petitioner failed to prove the standard by which the adequacy of medical records are to be judged, other than the pertinent statutory standards set forth above.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner enter a final order which finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, by failing to provide a history or physical examination for Patient #1 as alleged in Count Two, which reprimands Respondent for that violation, and which imposes an administrative fine in the amount of $250.00 against the Respondent for that violation. It is further recommended that all other charges against Respondent contained in the Amended Administrative Complaint be dismissed. DONE AND ENTERED this 12th day of October, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1993.
Findings Of Fact Findings based on stipulation Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 459, Florida Statutes. Respondent is, and has been at all times material hereto, licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001228. Respondent's last known address is 577 N.E. 107th Street, Miami, Florida 33161. Findings based on evidence at hearing On November 5, 1990, patient N. S. initially presented to the Respondent's office for a physical examination for the purpose of obtaining health insurance with Blue Cross & Blue Shield of Florida. During the course of the initial visit, when the Respondent became aware of where N. S. and her mother lived, it was obvious to him that N. S. lived in an expensive residential area and was probably a person of substantial financial means. Patient N. S. subsequently presented to the Respondent and received treatment from him for a variety of complaints on the following dates: November 14 and 27, 1990; December 10 and 20, 1990, January 7, 23, and 28, 1991, March 5, 1991, and April 15, 1991. Patient N. S. paid for all of the treatments and laboratory tests on the dates the treatments and tests took place. At the request of the Respondent, the checks written by patient N. S. to pay for services provided by the Respondent were made out to "cash." One day in early January of 1991, the Respondent contacted the patient N. S. by telephone at her home and asked her to loan him $8,000.00 or $8,500.00. The Respondent told the patient N. S. he needed the money because he was three months behind in making payments on the mortgage on his office-house, and because the mortgage was going to be foreclosed if he failed to pay the past due amounts in the next couple of days. In the course of this conversation the Respondent also remarked to N. S. that he would not be able to help her get well if the mortgage were to be foreclosed and he were to lose his office. Patient N. S. initially refused to loan any money to the Respondent. During the course of the next two days, the Respondent made numerous repeated pleas to N. S. for a loan. Ultimately, N. S. agreed to loan the Respondent a total of $1,000.00. The loan was to be repaid within sixty days and was without interest. On January 11, 1991, patient N. S. wrote a personal check to the Respondent in the amount of $1,000.00. Thereafter, the Respondent cashed the check. The patient N. S. made the $1,000.00 loan to the Respondent because she wanted the Respondent to be able to continue to treat her and not have his office repossessed. The Respondent did not timely repay the $1,000.00 loan. Shortly after the due date, the patient N. S. asked the Respondent on several occasions to repay the loan. On April 15, 1991, the patient N. S. sent a certified letter to the Respondent requesting repayment of the loan. On July 2, 1991, the patient N. S. sent the Respondent another certified letter requesting repayment of the loan and advising the Respondent that if the loan was not repaid by July 12, 1991, she intended to send complaints to the Department of Professional Regulation and to the Internal Revenue Service. During March and April of 1991, the Respondent was ill. Towards the end of April the Respondent was hospitalized and underwent surgery. The surgery was followed by several weeks of recuperation. During this period the Respondent had very little income and it was not possible for him to repay the loan to the patient N. S. On July 24, 1991, the patient N. S. sent yet another certified letter to the Respondent. In the letter of July 24, 1991, the patient N. S. requested that the Respondent provide her with various specified documents related to his treatment of her, including "my complete medical records." The patient N. S. sent a copy of the July 24, 1991, letter to the Department of Professional Regulation. On that same day, the patient N. S. signed and mailed to the Department of Professional Regulation a Uniform Complaint Form complaining about the Respondent. On August 29, 1991, the Sunshine Messenger Service delivered to the patient N. S. a letter from the Respondent dated August 28, 1991, which read as follows: Enclosed is the sum of $1000 in return for the check you loaned to me. I'm sorry that it took as long as this date to return same. Your request for your records, etc. are being copied and will be mailed very soon. Sorry for the delay. Hope you are in good health. The letter was accompanied by two postal money orders payable to the patient N. S., each in the amount of $500.00. On September 16, 1991, Petitioner's investigator Schaublin spoke by telephone with the Respondent and at that time advised him of the Complaint that had been filed against him by his patient N. S. Investigator Schaublin advised the Respondent that two principal issues were being investigated: (1) his request and receipt of a loan that was not timely repaid, and (2) his failure to provide medical records requested by the patient. During the telephone conversation of September 16, 1991, the Respondent agreed to meet with the investigator at the investigator's office on September 25, 1991, and to bring with him at that time the medical records of the patient N. S. On September 25, 1991, the Respondent went to the investigator's office and delivered to the investigator a set of medical records for the patient N. S. The records appeared to be facially complete. The investigator handed the Respondent a subpoena for the records at the time the records were delivered to the investigator. At some time between the Respondent's receipt of the July 24, 1991, request for records and his delivery of records to the investigator on September 25, 1991, the Respondent discovered that two pages were missing from the records of the patient N. S. The missing pages consisted of the Respondent's progress notes regarding the treatment of the patient N. S. The Respondent conducted an extensive, but unsuccessful, search for the two missing pages. Upon concluding that he was unlikely to find the missing pages, the Respondent contacted an attorney and requested advice as to what he should do under the circumstances. The attorney advised the Respondent that he should do the best he could to reconstruct the missing records from his memory and from whatever other information was still available. The Respondent did his best to follow the advice he had received from the attorney. In an effort to verify dates, the Respondent called the pharmacy to which he had called in prescriptions for the patient N. S. With the information he had at hand, and based on his memory of his treatment of the patient N. S., the Respondent reconstructed the two missing pages of progress notes. In the process of reconstructing the progress notes, the Respondent made some inadvertent mistakes regarding the dates on which certain office visits took place. Other than the mistakes as to some of the dates, the reconstructed records accurately and sufficiently describe the Respondent's treatment of the patient N. S. The Respondent's records of his treatment of the patient N. S. do not contain a notation that the progress notes are reconstructed notes. When the Respondent delivered medical records to the Petitioner's investigator on September 25, 1991, he did not tell the investigator that two pages of the records had been reconstructed. Upon review of the medical records delivered by the Respondent, the investigator noted that some of the dates in the progress notes did not match dates with other documents in the investigator's possession and also noted that the progress notes looked like they had all been written at the same time. On September 27, 1991, the investigator contacted the Respondent by telephone and brought these apparent irregularities to the Respondent's attention. During the telephone conversation of September 27, 1991, the Respondent told the investigator that he had reconstructed the progress notes after being unable to find the missing notes. This was the first time the Respondent had mentioned to the Petitioner that the subject medical records contained two reconstructed pages. On October 4, 1995, the Respondent sent copies of his records to the patient N. S., along with a letter addressed to the patient N. S. The letter read as follows: Sorry for the delay in mailing your records. I have diligently looked thru your file and in the office and at home for the medical records missing that are the two written pages that I have reconstructed to the best of my ability as to dates. The billing ledger was also in the chart and has not been found. In order to recreate the bills for tax purposes, I could help you if I had the dates and amounts from photocopies of the cancelled checks. The Respondent did not destroy any medical records regarding the patient N. S. The Respondent did not falsify or attempt to falsify any medical records of the patient N. S. The documents of which official recognition has been taken reveal that the Respondent has been the subject of prior disciplinary action by the Petitioner. The most significant instances of prior disciplinary action were DPR Case No. 0052390, in which the Respondent stipulated to the imposition of disciplinary action on the basis of violations related to the improper prescription of controlled substances, and DPR Case No. 89-008659, in which the Respondent stipulated to the imposition of disciplinary action on the basis of a violation related to exploitation of a patient for financial gain by borrowing money from a patient. At the time of the Respondent's treatment of the patient N. S., the Respondent was still serving the term of probation imposed in DPR Case No. 0052390.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Counts Two, Three, Four, Five, and Six of the Administrative Complaint; Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint; and Imposing a penalty consisting of all of the following: (a) an administrative fine in the amount of one thousand dollars ($1,000.00), (b) suspension of the Respondent's license for a period of ninety (90) days, (c) placing the Respondent on probation for a period of one (1) year following the suspension, and (d) restricting the Respondent's practice by prohibiting him from entering into any financial arrangements with patients other than those arrangements reasonably necessary to assure payment for osteopathic medical services provided by the Respondent. DONE AND ENTERED this 6th day of March 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March 1996. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 10: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as irrelevant. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraphs 16 through 20: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 21: First sentence accepted in substance. Second sentence rejected as subordinate and unnecessary details. Paragraph 22: Rejected as irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in part and rejected in part. Accepted that the Respondent and N. S. had a physician-patient relationship during the relevant time period. The notion that the Respondent and N. S. also had a business venture relationship is rejected as contrary to the greater weight of the evidence. N. S. made suggestions to the Respondent as to how he could improve his practice, but there was no joint business venture relationship. Paragraph 4: First sentence accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence; there was no business relationship. Paragraph 5: Accepted in substance. Paragraphs 6 and 7: Rejected as subordinate and unnecessary details. Paragraphs 8 through 12: Accepted in substance. Paragraph 13: Accepted in substance, with the exception of the second sentence and the last sentence. The second sentence is rejected as not supported by persuasive competent substantial evidence. The last sentence is rejected as subordinate and unnecessary details. Paragraph 14: Accepted in substance. COPIES FURNISHED: Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Doddo, Esquire 100 Southeast 12th Street Fort Lauderdale, Florida 33316 William H. Buckhalt, Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of charges set forth in a three-count Administrative Complaint. The Administrative Complaint charges the Respondent with violations of paragraphs (m), (q), and (t) of Section 458.331(1) Florida Statutes.1
Findings Of Fact At all times material to this case, the Respondent, Donald A. Tobkin, M.D., has been licensed, and continues to be licensed, to practice medicine in the State of Florida. His license number is 30942.5 Sometime during the month of December 2004, the Police Department of Hollywood, Florida, (HPD) received information from a confidential informant that the Respondent was soliciting drug-prescribing business and was writing inappropriate and excessive prescriptions for controlled substances. On the basis of that information, the HPD initiated an undercover operation to investigate the information received from the confidential informant. As part of the undercover investigation, on the evening of January 20, 2005, at approximately 9:56pm, an HPD female detective named Nicole Coffin made a telephone call to the Respondent's telephone. The Respondent answered the telephone and identified himself by name. Detective Coffin pretended to be a person named Melissa Beech. She pretended to be a person who was seeking to obtain OxyContin, which is a Schedule II controlled substance. During the entire undercover investigation, Detective Coffin pretended to be a drug-seeker while interacting with the Respondent. On the telephone she told the Respondent that she wanted a prescription for OxyContin and also told the Respondent that a girl somewhere on Federal Highway had given her the Respondent's card and had told her she could call the Respondent if she needed a prescription. Detective Coffin, in her role as Melissa Beech, did not initially describe any medical complaint to the Respondent; she just said she wanted a prescription for OxyContin. In response to the request for a prescription for OxyContin, the Respondent told the make-believe drug-seeker that he could provide the requested prescription, but that they would have to have a "medical reason" for such a prescription. The Respondent then asked the make-believe drug-seeker if she had ever been in an automobile accident. The make-believe drug-seeker answered "yes," because that is the answer she thought would provide a basis for a "medical reason." The Respondent then proceeded to ask the make-believe drug-seeker a long series of leading questions which, if answered "yes," could provide the appearance of a "medical reason" for the requested prescription for OxyContin. This series of questions was for the purpose of establishing a contrived "medical reason" for the prescription sought by the make-believe drug-seeker. There never was, and there never appeared to be, any real "medical reason" for the prescription sought by the make-believe drug-seeker. The sole purpose for the many questions asked by the Respondent, and for the Respondent's written notations related to those questions, was to create the illusion, or the false impression, that there was a "medical reason' for the prescription when, in fact, there was no such reason. The detective who was pretending to be a drug-seeker answered "yes" to all of the leading questions asked by the Respondent. She answered "yes," even when that was not a truthful answer, because she was trying to give the answers she thought the Respondent wanted to hear.6 The Respondent's leading questions included questions asking about such things as whether the make-believe drug-seeker had ever had an automobile accident, whether she had suffered a herniated disk as a result of that accident, whether she had had an MRI, whether she had had any subsequent accidents, whether she had tried any other drugs to relieve pain, whether she had used Oxycontin in the past, and whether in the past the Oxycontin had relieved her pain. During the course of the first telephone conversation between Detective Coffin and the Respondent a number of significant matters were not discussed. The Respondent did not discuss the possibility of surgical treatments to treat the back pain described in response to the Respondent's questions. The Respondent did not discuss the necessity of reviewing the MRI or X-rays that supposedly would confirm the "herniated disc" he had inquired about. The Respondent did not discuss the necessity of obtaining future MRIs, X-rays, or other diagnostic tests to evaluate the "severe back pain" supposedly described by Detective Coffin in her role as Melissa Beech. The Respondent did not mention that she would need to have any follow-up visits with the Respondent. During the course of the first conversation between Detective Coffin and the Respondent, she told the Respondent that she had previously been obtaining Oxycontin "off the street" and that she was seeking a prescription from the Respondent because her street source had "dried up." She also told him that she had previously taken Valium and Percocet. During the course of the first telephone conversation Detective Coffin, pretending to be a drug-seeker, told the Respondent that she suffered from back pain as a result of the make-believe automobile accidents. She did not say that she was currently experiencing pain at the time of that telephone conversation. During the first telephone conversation the Respondent did not ask the make-believe drug-seeker any questions about her menstrual cycle, about whether she was pregnant, or about whether she had had any prior pregnancies or had ever had any children. However, in his written notes the Respondent included notations that purport to be answers to those unasked questions. Similarly, the Respondent did not ask the make-believe drug-seeker any questions about her consumption of alcohol, but included in his notes notations that purport to memorialize the answer to that unasked question. The Respondent's "history" notes also report that he warned the make-believe drug-seeker that OxyContin tablets should not be crushed or broken, even though he did not include any such warning in his telephone conversation with the make-believe drug-seeker. During the first telephone conversation, Detective Coffin was never asked about, and never provided any information about, whether other physicians had either prescribed OxyContin for her or had refused to prescribe OxyContin for her. The only prior sources of OxyContin she mentioned to the Respondent were non-prescription illegal sources on the street. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan for addiction. The Respondent never discussed with Detective Coffin the possibility or necessity of a more structured medical treatment plan to treat a complaint of "severe pain." During the course of the first telephone conversation, the Respondent agreed to provide a prescription to the make- believe drug-seeker for a total of sixty-two 80-milligram OxyContin tablets. It was agreed that the make-believe drug- seeker would pay $100.00 for the first prescription and that the Respondent would provide similar prescriptions in the future for $50.00 per prescription. Towards the end of the first telephone conversation the Respondent told the make-believe drug-seeker that he had another matter to attend to and that she should call him later to arrange the time and place for the two of them to meet later that same evening. During the course of the first telephone conversation, which lasted for approximately 14 minutes, the Respondent made written notes of the answers given by the make-believe drug-seeker. Those notes were prepared in such a manner as to resemble the types of notes customarily made by physicians who are making a medical record of information elicited from a patient. A number of the details recorded in the Respondent's notes of the first telephone conversation were inconsistent with the information provided by the make-believe drug-seeker. Specifically, those notes contained a significant amount of information that was never uttered by the make-believe drug- seeker. The fictitious and false history details memorialized in the Respondent's notes are intentional falsehoods. Later that evening, at approximately 12:20am on January 21, 2005, Detective Coffin, still pretending to be the drug-seeking person named Melissa Beech, placed a second telephone call to the Respondent. She spoke with the Respondent for about three minutes on this occasion. Most of the second conversation consisted of providing the Respondent with information about the location where Detective Coffin would be waiting for him and information about where the Respondent should park when he arrived. Law enforcement officers of the HPD attempted to record both of the telephone conversations between the Respondent and Detective Coffin. Both of those attempts were unsuccessful. There is no recording of either of the telephone conversations. Sometime later that evening, during the early morning hours of January 21, 2005, the Respondent met the make-believe drug-seeker at the motel or efficiency apartment. He entered the room where the make-believe drug-seeker was pretending to be staying. Prior to his arrival, two cameras had been concealed in the room by the HPD police officers. During the entire time the Respondent was in the room the two cameras were attempting to record everything he said and everything he did, as well as everything said or done by the detective pretending to be the drug-seeking person named Melissa Beech. After entering the room, the Respondent spoke with the make-believe drug-seeker and asked her additional questions related to her request for a prescription for OxyContin. He made some written notes that purported to be summaries of her answers. During the course of the meeting with the make-believe drug-seeker the Respondent provided her with a document titled "Patient's Acknowledgement," which she signed, but did not read. That document contained information about the patient-physician relationship, about what was expected of the patient, and also memorialized the patient's informed consent to the treatment she was requesting from the Respondent. The Respondent also conducted a brief physical examination of the make-believe patient and made written notes that purported to be a memorialization of what he had observed during the course of his examination. The Respondent's examination of the make-believe drug-seeker included the following: check of pulse and blood pressure, check of reflex responses at several joints, and check of chest sounds with stethoscope. The Respondent performed a deep tendon reflex test on Detective Coffin by striking her wrists, elbows, and knees with a medical hammer. Detective Coffin's feet remained on the floor during this test. A deep tendon reflex test cannot be performed properly with the subject's feet touching the floor. Such a test performed in such a manner will not produce reliable results. The Respondent indicated in his written notes that he had examined Detective Coffin's head, eyes, ears, nose, and throat. However, the Respondent did not perform any examination at all of Detective Coffin's head, ears, nose, or throat. The Respondent perhaps performed a partial examination of Detective Coffin's eyes, but did not perform an adequate examination of her eyes. The Respondent indicated in his written notes that Detective Coffin's pupils were equal, round, and reactive to light and accommodation. However, the Respondent did not conduct any examination of Detective Coffin's eyes that was sufficient to support a conclusion that they were equal, round, and reactive to light and accommodation. The Respondent included in his written notes that Detective Coffin's chest and lungs were clear to auscultation and percussion. The Respondent did not examine Detective Coffin in a manner that could determine whether her chest and lungs were clear to auscultation and percussion. Therefore, the Respondent did not have any basis for writing that the detective's chest and lungs were clear to auscultation and percussion. The Respondent included in his written notes an observation that Detective Coffin's abdomen was soft. The Respondent never touched or otherwise examined Detective Coffin's abdomen. The Respondent had no factual basis for writing that Detective Coffin's abdomen was soft. In his written notes the Respondent indicated that Detective Coffin experienced pain upon lifting her leg thirty degrees. Detective Coffin never raised either leg in the Respondent's presence and never complained of pain in his presence. There was no factual basis for the subject notation. The Respondent never conducted a Rhomberg examination on Detective Coffin, but he included in his written notes an observation that a Rhomberg test was negative. There was no factual basis for such a notation. The Respondent included in his written notes an observation that he had examined Detective Coffin's gait. However, the Respondent never performed an adequate and sufficient examination of Detective Coffin's gait. The Respondent did not conduct a range of motion test of Detective Coffin. The Respondent never asked Detective Coffin to lift her leg towards her chest. Nor did he ask her to touch her toes. The Respondent never asked her to manipulate her body in any way. At no time during the encounter between Detective Coffin and the Respondent did Detective Coffin state that she was experiencing pain. At no time during that encounter did she behave or move in any manner that would suggest she was experiencing pain. To the contrary, Detective Coffin crossed and uncrossed her legs, alternatively slouched and sat up straight in her chair, and made other movements that would indicate to a reasonable prudent physician that she was not experiencing any pain at all. The Respondent never discussed with Detective Coffin the necessity of obtaining further MRIs, X-rays, or other forms of diagnostic testing. He never discussed any need to obtain and review any prior medical records. The Respondent never asked Detective Coffin to sign a medical records release document that would have authorized the Respondent to obtain prior medical records. The Respondent's written notations regarding his examination of the make-believe drug-seeker contain false information because, among other things, the notations contain the results of tests and examinations the Respondent did not perform. Such false notations are intentional falsehoods. The Respondent never discussed with Detective Coffin the need for a follow-up appointment. The Respondent never asked Detective Coffin for any form of identification. Under the circumstances presented in this case, a reasonable prudent physician would have performed a range of motion test and a leg-raising test, neither of which were performed by the Respondent. Under the circumstances presented in this case, a reasonably prudent physician would have established a treatment plan that would have included a schedule for follow-up visits, a review of prior medical records, and plans for future diagnostic tests. The Respondent did not establish any type of treatment plan. The prescription provided to Detective Coffin was inappropriate, unjustified, and excessive because the physical examination was inadequate, the medical record was falsified, and the patient never exhibited any sign of being in pain. Under the circumstances presented in this case, the Respondent's act of providing a prescription to a total stranger with no medical justification for doing so was an action taken other than in the course of the Respondent's professional practice. Ultimately, the Respondent wrote and delivered a prescription to the make-believe patient. The prescription was for sixty-two 80-milligram tablets of OxyContin. This was a 31- day supply if the OxyContin was taken as directed; one tablet every 12 hours. The Respondent wrote several warnings at the bottom of the prescription document. The warnings included such things as the fact that OxyContin impairs driving ability and may cause drowsiness, loss of balance, and/or loss of coordination. The Respondent also wrote on the prescription: "Must swallow whole and do not crush or break." Other law enforcement officers of the HPD were listening to and observing the events inside the room. Shortly after the Respondent handed the prescription to the make-believe patient and received the one hundred dollars from her, other law enforcement officers rushed into the room, arrested the Respondent, and seized various items of the Respondent's personal property, including the medical record he had been preparing regarding his care and treatment of the make-believe patient. With regard to obtaining information about the characteristics of, and the proper use of, specific drugs, medical doctors customarily rely on the information contained in the Physician Desk Reference (PDR) and on the information contained in the manufacturer's package insert that often accompanies a drug. The package insert for OxyContin includes the following information: (Following an initial caption reading WARNING) OxyContin Tablets are a controlled-release oral formulation of oxycodone hydrochloride indicated for the management of moderate to severe pain when a continuous, around-the- clock analgesic is needed for an extended period of time. * * * (Following caption reading CLINICAL PHARMACOLOGY) Oxycodone is a pure agonist opioid whose principal therapeutic action is analgesia. *** With pure opioid agonist analgesics, there is no defined maximum dose; the ceiling to analgesic effectiveness is imposed only by side effects, the more serious of which may include somnolence and respiratory depression. * * * As with all opioids, the minimum effective plasma concentration for analgesia will vary widely among patients, especially among patients who have been previously treated with potent agonist opioids. As a result, patients must be treated with individualized titration of dosage to the desired effect. The minimum effective analgesic concentration of oxycodone for any individual patient may increase over time due to an increase in pain, the development of a new pain syndrome and/or the development of analgesic tolerance. * * * OxyContin Tablets are associated with typical opioid-related adverse experiences. There is a general relationship between increasing oxycodone plasma concentration and increasing frequency of dose-related opioid adverse experiences such as nausea, vomiting, CNS effects, and respiratory depression. In opioid-tolerant patients, the situation is altered by the development of tolerance to opioid-related side effects, and the relationship is not clinically relevant. As with all opioids, the dose must be individualized . . . because the effective analgesic dose for some patients will be too high to be tolerated by other patients. (Following caption reading WARNINGS) OxyContin 80 mg and 160 mg Tablets ARE FOR USE IN OPIOID-TOLERANT PATIENTS ONLY. These tablet strengths may cause fatal respiratory depression when administered to patients not previously exposed to opioids. * * * Concerns about abuse, addiction, and diversion should not prevent the proper management of pain. The development of addiction to opioid analgesics in properly managed patients with pain has been reported to be rare. However, data are not available to establish the true incidence of addiction in chronic pain patients.
Recommendation On the basis of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case to the following effect: Dismissing Counts One and Two of the Administrative Complaint; Concluding that the Respondent is guilty of having violated Section 458.331(1)(q), Florida Statutes, as charged in Count Three of the Administrative Complaint; and Imposing a penalty consisting of an administrative fine in the amount of ten thousand dollars ($10,000.00) and the revocation of the Respondent's license to practice medicine. DONE AND ENTERED this 26th day of June, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2006.
The Issue The basic issue in this proceeding is whether Petitioner's application for certification as a respiratory therapy technician should be granted. More specifically, the issue is whether Jack Mallan, Jr., submitted false information on, or in support of his application and, if so, whether that is sufficient basis to deny his application. Despite confusion throughout the proceeding, the basis for Mr. Mallan's termination from employment at Florida Hospital was also at issue. This matter is addressed in more detail below.
Findings Of Fact Jack Mallan, Jr., submitted his application for certification as a respiratory therapy technician through endorsement in September 1985. His application stated that he was employed as a graduate therapist at Florida Hospital in Orlando, Florida, from 1980-1984. His response checked the answer "no", to question #6 on the form, "Have you ever been terminated, disciplined, or allowed to resign from an employment setting where you were employed to deliver respiratory care services?" [Petitioner's exhibit #4, Application]. Sometime later, apparently in the course of the Board of Medical Examiners' routine investigation, it was disclosed by Florida Hospital that Jack Mallan was terminated in November 1986, for misconduct and falsification of patient records and that, prior to the termination, he had been "written up" several times regarding problems he had with patients. [Petitioner's exhibit #4, letter dated July 30, 1986]. Mallan was informed that he must make a personal appearance before the Advisory Council on respiratory care and he did appear on October 1, 1986. [Petitioner's exhibit #4, letters dated September 10, 1986, and September 24, 1986; Petitioner's exhibit #5]. At his appearance, Mallan denied having falsified patients records and claimed that the basis for the termination was "a travesty". He conceded that he erred in his answer on the application and, at one point in the proceeding, apologized for writing the wrong answer and said that he was embarrassed and was hoping it wouldn't be discovered. The Council voted to deny his application. [Petitioner's exhibit #5]. The order from the Council, dated January 5, 1987, states the following as grounds for denial: The applicant submitted false information on, or in support of, his application for licensure. See Section 468.365(1)(a), (d), and (f), Florida Statutes; Section 468.354(5), Florida Statutes; and Rule 21M-37.02(2), Florida Administrative Code. At the final hearing in this proceeding, Mr. Mallan continued to deny that he ever falsified patient's records. [Tr. 14]. In support of this, he presented the testimony of Catherine "Kitty" Arnold, the charge nurse on the floor where Jack Mallan worked in 1983. While she heard that he was fired, she denied hearing complaints from any patients about Mr. Mallan. She also told Mallan's supervisor, Jim Richardson, before the termination, that she had not heard any complaints. [Tr. 52]. In support of his professional qualifications and fitness to practice, Mr. Mallan presented an employee performance review from Winter Park Hospital dated February 13, 1986. For every factor on the rating form, he was rated "very good", the highest rating, by his supervisor, Avery Smith. Mr. Smith also appeared before the Advisory Council on Mallan's behalf. Mallan was employed as a therapist at Winter Park Hospital from February 1985, until October 1986, when the council voted to deny his certificate. He was granted leave from his employer in order to pursue remedies to obtain the certificate. [Petitioner's exhibits #3, #5, and #6; Tr. 21-22]. In response to his attorney's question, "... why did you not go into detail about why you left the employ of Florida Hospital?", Mallan explained that he felt the "alleged termination at Florida Hospital" was unjust and untrue, that he did not want to spread lies about himself and was afraid for his future career. [Tr. 25]. On cross-examination, he refused to admit that he was "terminated" from employment by Florida Hospital, but later conceded that he did not leave the employment voluntarily and was accused of wrongdoing. [Tr. 31, 32]. His responses continued to be evasive and vague, as characterized by the following exchange: Q [By Ms. Lannon] Were you ever disciplined at Florida Hospital prior to this occasion while you were employed there to deliver respiratory care services? A Yes. Q Isn't it true that in fact in August of that very same year, you were disciplined for allegedly falsifying patient records? MR. SIWICA: I'd like a continuing objection to the relevancy. THE HEARING OFFICER: Noted for the record but you may answer the question. THE WITNESS: I have a choice to answer yes or no? THE HEARING OFFICER: You'll be allowed to explain the answer but go ahead and answer the question. THE WITNESS: could you repeat it again, please? BY MS. LANNON: Q Isn't it true that in August of the same year, the year that you were terminated, you were disci- plined based on an accusation or an allegation that you had falsified a patient's records? A I don't recall. Q Weren't you in fact suspended for two days in August of that year? A What year was that, please? Q 1983. A I can't recall. Q Were you ever suspended from your job at Florida Hospital? A I took sick days. Q Were you ever suspended from your job at Florida Hospital? MR. SIWICA: I think he's answered that. THE HEARING OFFICER: Wait. No, he hasn't. MR. SIWICA: I'm sorry. THE WITNESS: There was an incident. They told me to stay home. I can't remember when it was. BY MS. LANNON: Q Well, that wasn't ever. Were you ever suspended? I wasn't asking you to remember when it was with that question. A I don't know if it was suspended. I was asked to stay home from my shift and I don't known how many -- it was maybe one day, I think. Q Maybe one day. You don't recall? A No. Q Were you paid for that day? A I don't remember that either. [Tr. 35-37]. His personnel record reflects a two-day suspension in August 1983 for charting treatment that the patient denied having received, and for rudeness to a patient. [Respondent's exhibit #1, Memo dated August 30, 1983, Discussion reports dated August 22, 1983, and August 20, 1983.] Irv Hamilton was associate director of personnel at Florida Hospital in 1983. In a meeting with Jack Mallen he discussed the basis for termination. Mallen was observed sitting at the nurses' station when he was supposed to be coaching a patient in therapy and recording vital signs. After investigating, his supervisor, Jim Richardson, concluded that the record of treatment made by Mallan was falsified. Hamilton also reviewed and briefly investigated Jim Richardson's recommendation for termination. While the nurses and patient denied talking with Richardson about the November incident, Hamilton affirmed the recommendation for termination. He felt that Mallan had contacted the witnesses after their initial statements to Richardson. He also concluded, based on Mallan's alleged admissions that he was in the nurses' station rather than in the patient's room for part of the therapy, that it would have been impossible for the treatment to have been properly administered. [Petitioner's exhibit #2; Tr. 59, 60, 73, 75, 81]. Hamilton confirmed from his own recollection that Mallan was suspended in August 1983 for falsification of patient records. [Tr. 62]. Jim Richardson insisted that the nurse and patient had changed their story, that the nurse had indicated to him on the date of the incident that she heard of a patient's complaint. Further, when he approached the patient, she first said she didn't want to get anyone in trouble, but then said that the therapist who gave her treatment that night simply gave her the apparatus with medicine, left the room and returned after she finished the treatment to pick it up. [Tr. 98-101] Mr. Richardson personally observed Mallan in the nurses' station but did not confront him at the time, nor was Richardson close enough to see exactly what Mallan was doing. [Tr. 104, 106-108]. Circumstantial evidence and hearsay in this proceeding is insufficient to establish conclusively that Mr. Mallan falsified records in November 1983. He clearly, knowingly and deliberately falsified his application for certification. Even after appearing before the Council and hearing the concern about the need to be forthright, he remained very defensive and evasive throughout the final hearing. He feigned ignorance of the details of an incident in August 1983, when that incident was referenced on a special performance evaluation dated October 16, 1983. That evaluation, completed by his supervisor, Jim Richardson, rated him well above average and commended him for excellent effort in improvement. Notably, the first page of that evaluation was submitted and received as Petitioner's exhibit #1. The first page contains the rating factors and very positive levels of achievement selected by the supervisor as applicable. The second and subsequent pages are found in the personnel file, Respondent's exhibit #1. Those pages include a signature page with reference to an attached sheet. The typewritten attachments include general comments which reference past problems, including the August incident, and the commendation for improvement. Jack Mallan obtained an Associates Degree in respiratory therapy from Valencia Community College in 1981. He received a "respiratory care technicians" certification from the National Board of Respiratory Care on March 16, 1985. [Tr. 9]. His qualifications as to training and experience are not in question in this proceeding.
Recommendation Based upon the foregoing, it is hereby RECOMMENDED: That a final order be entered DENYING Petitioner's application for certification as a respiratory therapy technician. DONE AND ORDERED this 17th day of August, 1987, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-0618 The following constitute my specific rulings on the findings of fact proposed by the parties. Petitioner 1. Adopted in paragraph #12. 2-3. Rejected as immaterial. 4. Incorporated in the finding in paragraph #10. 5-6. Incorporated in the findings in paragraphs #9 and #10. Adopted in paragraph #5. Adopted in paragraph #9. Rejected as immaterial. Adopted in substance in paragraph #6. Adopted in paragraph #1. Adopted in paragraph #7. Respondent 1-2. Adopted in substance in paragraph #1. Adopted in paragraphs #3 and #4. Adopted in paragraphs #2 and #4. Adopted in substance in paragraph #10. Rejected as unsupported by competent evidence. 7-8. Adopted in part in paragraph #9, otherwise rejected as immaterial. Adopted in paragraph #7. Rejected as unnecessary, except the last sentence, which is adopted in paragraph #4. Adopted in part in paragraph #11. While the Florida Hospital witnesses were credible and adequately explained the basis for termination, their testimony was insufficient to establish conclusively that the falsification occurred. COPIES FURNISHED: Richard P. Siwica, Esquire EGAN, LEV & SIWICA 918 Lucerne Terrace Orlando, Florida 32806 M. Catherine Lannon, Esquire Assistant Attorney General Suite 1601, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
