The Issue At issue in this proceeding is whether Respondent committed the offenses set forth in the Administrative Complaint and, if so, what penalty should be imposed.
Findings Of Fact Respondent's licensure and practice Respondent, Douglas N. Graham, is now, and was at all times material hereto, licensed as a chiropractic physician by the State of Florida, having been issued license number CH 0005483. At all times pertinent, Respondent operated two businesses associated with the practice of chiropractic. The first business, a typical chiropractic practice, was operated under the name Action Chiropractic, and was located in a small office building at 8095 Overseas Highway, Marathon, Florida. The second business, known as Club Hygiene, promoted a hygienic (nutritionally sound) lifestyle based on the consumption of uncooked fruit and vegetables, nuts and seeds. As part of the regime at Club Hygiene, fasting (to detoxify the body) was also promoted as an avenue to better health. Club Hygiene was located in Respondent's two-story home at 105 Bruce Court, Marathon, Florida. The ground floor, where the patients (or guests, as they were referred to at Club Hygiene) resided, consisted of three bedrooms, one bathroom, a small recreation room or area, and a porch for dining. Each bedroom contained two beds, allowing a maximum capacity of six guests. On the second level was Respondent's residence, which he shared with up to three "interns,"3 who cared for the guests. The instant case primarily involves concerns voiced by Petitioner regarding the care of two patients (K. E. and B. D.) at Club Hygiene in 1993. Regarding those concerns, Petitioner questioned whether Respondent's record keeping met minimum standards and whether Respondent's treatment met the prevailing standard of care. The K. E. affair On December 7, 1992, K. E. presented as a walk-in at Respondent's chiropractic clinic, Action Chiropractic, for a free consultation to address whether she could benefit from chiropractic care. At the time, K. E., a female, was 25 years of age (date of birth March 7, 1967), 5'6" tall, and weighed 105 pounds. On presentation, K. E. filled out a case history sheet which detailed her present and past symptoms, as follows: occasional dizziness and headache; occasional pain between shoulders; frequent constipation and difficult digestion, with occasional pain over stomach; occasional colds, ear noises, and sore throat; occasional skin eruptions (rash); occasional frequent urination; and, occasional cramps or backache and vaginal discharge, with frequent irregular menstrual cycle. History further revealed an injury to a "muscle in back" over 5 years previous. Personal habits reflected a light appetite, as well as light use of alcohol and drugs. Exercise and sleep habits were noted as moderate. When asked to describe her major complaints and symptoms, K. E. responded, "They said I had scoliosis when I was young. I'm curious if it still is there." The date symptoms were first noticed was stated to be "middle school." K. E.'s visit with Respondent lasted about twenty minutes, and included a brief spinal check, as well as a discussion regarding diet and nutrition. Respondent apparently told K. E. she would benefit from chiropractic care; however, neither the patient record nor the proof at hearing reveal the results of his examination, diagnosis, prognosis, or any treatment plan. Due to a lack of funds, K. E. declined further chiropractic care. At the time, or shortly thereafter, Respondent offered K. E. the opportunity to become an "intern" at Club Hygiene. The Internship Agreement entered into by Respondent and K. E. on January 18, 1993, provided as follows: The internship will last for a period of . . . 6 months . . . beginning on MONDAY, JANUARY 18TH , 1993 and ending on SUNDAY, JULY 18th , 1993. The company will provide the Intern with room, board, and the opportunity for hands- on, first-hand experience in the day-to-day operation of a hygienic retreat, supervision of fasting patients, and hygienic living. The Intern will provide the Company with their full-time efforts in the operation of the retreat in the manner determined by the company and in fitting with all reasonable rules and guidelines to be enforced by the company . . . . As an inducement to complete the internship, interns were apparently rewarded with a supervised fast at the end of their term. When K. E. joined the staff of Club Hygiene in January 1993, she was one of three interns who cared for the patients (guests). Also on staff, and working under Respondent's supervision, was Tim Trader (referred to as Dr. Trader in these proceedings), a unlicensed naturopathic physician.4 As an intern, K. E. changed the guests' linen, cleaned the guest bathroom, assisted with food preparation and, on a rotating basis with the other interns, dined with the guests. Each morning, K. E. also took the guests' blood pressure, and noted their vital signs. When K. E. began work at the club she was suffering health problems and, more particularly, stomach trouble (difficult digestion and pain) and constipation. To assist her, Respondent recommended various diets, and K. E., at Respondent's recommendation, moved from eating predominantly cooked foods to raw natural foods; however, her stomach troubles persisted, and by April 1993 her weight had dropped to about 92 pounds. In April 1993, on the advise of Dr. Trader and with the concurrence of Respondent, K. E. started a fast, water only, as a means to address her health problems. There is, however, no evidence that K. E. was physically examined prior to fasting, although at some point Respondent apparently suggested that "she had severe problems, including but not limited to, malabsorption syndrome, leaky gut syndrome, potential hiatal hernia and resultant malnutrition." Moreover, apart from the meager patient record of K. E.'s office visit in December 1992, there is no patient record or other documentation (evidencing patient history, symtomatology, examination, diagnosis, prognosis, and treatment) to justify the care (diet and fasting) offered K. E.5 K. E. fasted for two weeks and by the end of the fast her weight was approximately 87 pounds. During the fast, Respondent was frequently out-of-town; however, K. E. was supervised by Dr. Trader, who assured her vital signs were regularly taken.6 Following the fast, K. E.'s health continued to deteriorate, and her weight dropped to approximately 77 pounds. She became concerned and sought to consult with Frank Sabatino, D.C., another "hygienic physician." Ultimately K. E. was seen by Dr. Sabatino, and also a medical doctor; however, their findings are not of record. Moreover, there was no proof offered at hearing regarding the nature of K. E.'s disorder, whether (given the nature of the disorder) a fast was or was not appropriate, whether the fast caused or contributed to any injury, or what subsequent care (if any) K. E. required. As of the date of hearing, to a lay observer, her appearance evidenced good health. To address whether Respondent's treatment met the prevailing standard of care, Petitioner offered the opinions of two chiropractic physicians, Bruce I. Browne, D.C., and Robert S. Butler, Jr., D.C.7 It was Dr. Browne's opinion that the care Respondent offered K. E., including the supervision (albeit not personal) provided for her fasting, met the prevailing standard of care, but that Respondent failed to maintain patient records that justified the course of treatment. Dr. Butler agreed the patient records were inadequate, but was also of the opinion that Respondent's care failed to meet the prevailing standard of care because he authorized a fast without first performing a complete examination to resolve whether K. E.'s condition was appropriate for a fast, or stated otherwise, whether she was physically capable of withstanding the stress of a fast. Respondent admitted, at hearing, that he had not done any examination that would permit him to appropriately treat K. E. Given the proof, it must be concluded that Respondent failed to maintain patient records regarding K. E. that justified her course of treatment. It must also be concluded that by approving a fast without an adequate examination, Respondent's care of K. E. fell below the prevailing standard. The B. D. affair In or about early November 1993, B. D., a male, and resident of the State of Washington, telephoned Respondent to arrange a visit. At the time, according to Respondent, B. D. had been hospitalized for two or three weeks and "wanted out."8 Respondent agreed.9 B. D. arrived at Club Hygiene on November 7, 1993. At the time, he was 37 years of age (date of birth June 5, 1956), 5' 9 1/2" tall, weighted 115 pounds, and was in extremely poor health. He was also HIV positive, and had developed acquired immune deficiency syndrome (AIDS).10 On presentation, as reflected by his case history, B. D. expressed to Respondent the fear or thought that he was dying, and related the following major complaints and symptoms: anal infection, frequent diarrhea, weight loss, inability to assimilate food, fatigue, and loss of energy. At the time, B. D. had been fasting for 1 1/2 days. Examination confirmed the presence of an anal infection (thought to be fungal in origin) oozing clear fluid, and further noted, inter alia, an irritated nose and throat (slight redness), and that the upper cervical and lower lumbar were tender and fixated. Heart was noted to be clear and strong, and the lungs were noted to be clear in all four quadrants. The only recommendation reflected by the patient records relates to the observation concerning the upper cervical and lower lumbar, and reads as follows: "Daily light massage, muscle release, and gentle specific adjustments. P[atien]t concerned about overall health. Monitor closely." B. D. continued his fast (water only) until November 16, 1993 (when he consumed diluted apple and celery juice), and Respondent monitored his progress on a daily basis. (Petitioner's Exhibit 5). The progress notes reflect a weight loss from 115 pounds to 102 1/2 pounds during the course of the fast, but no untoward occurrence. B. D. apparently continued on a juice diet until November 23, 1993, when he was reintroduced to solid food. By that date, B. D.'s weight was noted to have dropped to 100 pounds. On November 24, 1993, B. D.'s blood pressure was noted as 88/62 and his pulse/respiration as 74/20. He was also noted to be fatigued and he rested all day. Between November 24, 1993, and November 28, 1993, the only entry appears to be for November 26, 1993, when B. D.'s blood pressure is noted to be 100/70s. By November 28, 1993, B. D.'s blood pressure was noted to have fallen to 66/50 and his pulse/respiration was noted as 80/20. No entry appears for blood pressure or pulse/respiration on November 29; however, there was an entry that B. D. was "experiencing problem breathing." A morning entry on November 30, 1993, noted "Ronci in all 4 Quads.-very slight. Breathing extremely labored." Blood pressure was noted as 62/42 and pulse/respiration as 80/28. Respondent's progress notes contain no entries for December 1, 1993. On December 2, 1993, the notes reflect "Breathing labored still." Pulse/respiration was recorded as 80/32; however, no blood pressure reading was noted. There are no entries for December 3, 1993. On December 4, 1993, blood pressure was recorded as 62/44 and pulse/respiration as 92/32. B. D. was noted to be very fatigued. No entries appear on December 5, 1993, and on December 6, 1993, at 5:00 p.m., B. D.'s blood pressure is noted as 62/52 and pulse/respiration as 100/weak. B. D. is again noted as very fatigued, and his weight is recorded as 95 1/4 pounds. No entries appear for December 7, 1993. At 11:08 p.m., December 7, 1993, Monroe County Emergency Services were summoned to Club Hygiene by a 911 telephone call, and they arrived at 11:15 p.m. The EMT's (emergency medical technician's) report reflects that for past medical history they were advised that B. D. was HIV positive, and for chief complaint they were advised "Breathing diff[iculty] - Family states onset 1 w[ee]k, getting progressively worse." At 11:20 p.m., blood pressure was noted as 109/53 and pulse/respiration was noted as 113/40. B. D. was transported to Fishermens Hospital and he was admitted through the emergency room at 11:36 p.m. B. D. remained at Fishermens Hospital until December 20, 1993, when he was transferred to Lower Florida Keys Health System for further studies and treatment. The discharge summary from Fishermens Hospital reveals his course as follows: This is 37 year old male who presents to the Emergency Room with dyspnea, weakness for the past several days, states he has been visiting from the state of Washington with his mother and became ill while in the area. His past medical history is negative for previous hospitalization accept (sic) for surgery for right inguinal hernia he states he was found to be HIV positive seven years ago but has been in good health until recently. Family history is negative for TB, diabetes, cancer, and cardiac disease, he has no known allergies, he is single, he has been a heavy abuser of alcohol in the past until four years ago. In the past he worked as an investment consultant with Japan, he does not smoke, he uses no drugs except an occasional marijuana. He states he knows no known risks for AIDS and does not know how he contacted it.11 Review of systems denies any illness prior to be the past few weeks, prior to this admission, he states he is confused regarding his past medical history and does'nt (sic) know how he became HIV positive. Physical examination revealed emaciated 37 year old male who is on a non rebreather oxygen mask. His skin is warm and dry, pupils are equal and regular and react normally to light in accomidation (sic). Teeth are negative. Tembranic membrane is normal. Neck is subtle there is no cervical adenopathy, thyroid is smooth without enlargement, he has rales in both lungs over the entire parietal with respirations of 36 per minute, no wheezing is heard, his pulse is 92, regular sinus rhythm, there are no murmurs. Abdomen is soft without masses. Heart tenderness, there was no peripheral edema. Penial pulses are present. He is alert, although he is slightly confused regarding his recent medical history. Reflexes were equal, there is no vocal motor weakness. * * * Chest x-ray at the time of admission showed pulmonary edema, possibly non-cardiac follow up chest x-ray showed evidence of diffuse infiltrates involving the right lung and also the left lower lobe consistent with pneumocystis carinii pneumonia with evidence of bilateral pulmonary edema. Follow up chest x-ray showed increased . . . desity in the right lung infiltrate and progression of infiltrates to the left mid and lower lung fields with air bronchograms and air alveolgrams Indicating alveolar infiltrates. EKG abnormal record to the extreme right axis deviation, poor R wave progression, sinus tachycardia. Patient was seen in consultation by Dr. Halterman in the event that his respiratory status required intubation, however he never did require this. * * * He was treated in ICU, he developed a pneumothorax, spontaneous pneumothorax and was seen by Dr. Mankowitz for insertion of a chest tube, because of failure to show improvement arrangements were made for transfer to Key West for further studies and treatment and possible Phentolamine, Phetamadine. His condition upon transfer is poor. Prognosis is poor. FINAL DIAGNOSIS: Respiratory failure, secondary to diffused alveolar infiltrates, probable pneumocystis carinii pneumonia. Spontaneous pneumothorax, adult immune deficiency syndrome. B. D. was admitted to Lower Florida Keys Health System, Key West, Florida, at 2:50 p.m., December 20, 1993. Thereafter, his condition deteriorated, and at 9:17 p.m., December 26, 1993, he was pronounced dead. The death summary notes an admitting and final diagnosis as follows: ADMITTING DIAGNOSIS: Pneumonia FINAL DIAGNOSIS: Pneumonia, HIV infection, respiratory failure, respiratory complications, emphysema, cachexia Cause of death, as stated on the Certificate of Death, was cardiopulmonary failure, as a consequence of pneumonia, due to acquired immune deficiency syndrome (AIDS). To address whether Respondent's care for B. D. met the prevailing standard of care, as well as whether his records conformed to the minimum requirements of law, Petitioner again called upon Doctors Browne and Butler. With regard to the adequacy of Respondent's patient records, Doctors Browne and Butler concur, and observe that with regard to B. D., the patient records failed to conform with the minimum requirements of law (they failed to include a diagnosis or a treatment plan) and, therefore, failed to justify the course of treatment. Given the record, the opinions of Doctors Browne and Butler regarding the inadequacy of Respondent's records, as they relate to B. D., are credited. With regard to whether Respondent's treatment met the prevailing standard of care, Doctors Browne and Butler offer somewhat differing opinions. Dr. Browne was of the opinion that Respondent's treatment met the prevailing standard until November 30, 1993, when B. D.'s breathing was noted to be extremely labored. At that time, according to Dr. Browne, prevailing practice required Respondent, as a chiropractor, to cease treating B. D. and to advise him to seek relief from another practitioner who possessed the requisite skill, knowledge, and facilities to treat his ailment properly. In Dr. Butler's opinion, Respondent should have called for a chest x-ray, and his failure to do so failed to meet the prevailing standard of care.12 Respondent explained his reaction to B. D.'s congestion and labored breathing, as follows: Q. What did you do, you noted he was congested? A. I suggested he go to a hospital. Q. And his response? A. He did not want to go to a hospital. He wanted to wait it out, and I said you can wait at my house. But if you go down hill, you have to go to a hospital. Q. Is that what happened? A. Yeah. He started to become ever so slightly synodic (sic), meaning that he was breathing but he wasn't getting lots. His fingertips were starting to turn blue. * * * Q. Did you discuss with him at this time a need to get additional care? A. I discussed it with him many times, because this was not, this was not in my league. It was not in my scope. It was not - I did not have access to the tools even if I knew how to treat a man at this point. Those are my concerns for Brian. And, finally, I said, Brian, look, you have to trust my judgment, you go to the hospital whether you want to or not. Q. Who called for the ambulance? A. I have no idea. * * * Q. Did you consider the need for an x-ray when you saw Brian's breathing become labored? A. No. Q. Did you make any suggestions to him at the time you noted his breathing had become labored? A. When it became labored? Q. Yes, sir. Not that I'm aware of saying anything to him. No. I don't believe so. (Transcript, pages 174, 175, and 177). Having considered the proof, Dr. Browne's opinion is accepted as most compelling and provides the most complete description of the breadth of Respondent's obligations, as well as the scope of his breach. On the other hand, Dr. Butler's opinion (that the circumstances required a referral for chest x-ray) has not been rejected; however, Respondent's failure to refer for x-ray (when he realized B. D.'s condition was beyond his knowledge or the methods of treatment available to him) is viewed as a failing subsumed within his breach of the prevailing standard which required that Respondent cease treating B. D. and refer him to another physician who possessed the requisite skill, knowledge, and facilities to treat his ailment properly.13
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds the Respondent committed the offenses alleged in Counts I through VI of the Administrative Complaint, and which imposes, as a penalty for such violations, a suspension of licensure for a term of one (1) year, followed by a two (2) year term of probation (subject to such terms as the Board may reasonably impose), and an administrative fine of $1,000. DONE AND ENTERED this 5th day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM J. KENDRICK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of August, 1998.
Findings Of Fact At all times material hereto, Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0867041. At all times material hereto, Respondent was employed by American Nursing Service, Fort Lauderdale, Florida, and was assigned to work at Broward General Medical Center, Fort Lauderdale, Florida. On July 30-31, 1989, Respondent worked both the 3:00 p.m. to 11:00 p.m. and the 11:00 p.m. to 7:00 a.m. shifts at Broward General Medical Center. She was responsible for 20 patients on that double shift. An hour or two before her double shift ended, she checked the I.V. of a patient near the end of the hall. The I.V. was not running, and Respondent attempted to get it running again by re-positioning the I.V. several times. She then went to the medication room and obtained a syringe to use to flush the I.V. to get it operating again. When she returned to the patient's room, the I.V. was running and Respondent tucked the syringe inside her bra. The syringe was still packaged and unopened. She then continued with her nursing duties. At 7:00 a.m. on July 31, while Respondent was "giving report" to the oncoming nursing shift and making her entries on the charts of the patients for whom she had cared during the double shift she was just concluding, one of the other nurses noticed the syringe underneath Respondent's clothing. That other nurse immediately reported the syringe to her own head nurse who immediately reported the syringe to the staffing coordinator. The head nurse and the staffing coordinator went to where Respondent was still completing the nurse's notes on the charts of the patients and took her into an office where they confronted her regarding the syringe. They implied that she had a drug problem and offered their assistance. Respondent denied having a drug problem and offered to be tested. They refused her offer to test her for the presence of drugs. Instead, they sent her off the hospital premises although she had not yet completed making her entries on the patient's charts. Hospital personnel then went through Respondent's patients' charts and found some "errors." A month later an investigator for the Department of Professional Regulation requested that Respondent submit to a drug test on one day's notice. She complied with that request. She asked the investigator to go with her to Broward General Medical Center so that she could complete the charts on the patients that she had not been permitted to complete before being sent away from the hospital. Her request was denied. At some subsequent time, the Department of Professional Regulation requested that Respondent submit to a psychological evaluation. She did so at her own expense and provided the Department with the results of that evaluation. Respondent has had no prior or subsequent administrative complaints filed against her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty and dismissing the Second Amended Administrative Complaint with prejudice. RECOMMENDED this 18th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT 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 18th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1775 Respondent's proposed findings of fact numbered 1-3, 6, and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed finding of fact numbered 5 has been rejected as being subordinate. COPIES FURNISHED: Jack McRay, General Counsel Department of CProfessional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation/Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Roberta Fenner, Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christopher Knox, Esquire 4801 S. University Drive, #302 W. Box 291207 Davie, Florida 33329-1207
The Issue This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of alleged violations of paragraphs (i), (m), (n), (r), and of Section 460.413(1), Florida Statutes, as set forth in a five-count Administrative Complaint.
Findings Of Fact The Respondent is a licensed chiropractic physician, having been issued license number CH 0002560. He has been so licensed at all times material to this proceeding. On or about March 4, 1994, patient L. M. was involved in a motor vehicle accident. On November 7, 1994, patient L. M. presented to the Respondent with the following ten major complaints: frequent headaches, neck pain, black stool, upper- back pain, mid-back pain, lower-back pain, painful feet, bilateral thigh pain, bilateral knee pain, and bilateral calf pain. The Respondent presented his fee schedule to patient L. M. and the patient signed a copy of the fee schedule. The fee schedule stated, among other things, that missed appointments would be charged to the patient. The patient was a nursing assistant who had been treating herself at home with hot water and Tylenol. On November 7, 1994, the Respondent took a surgical and medical history, a history of the March 4, 1994, accident, a history of the onset of symptoms, and a history of the home care the patient had been attempting. The Respondent reviewed the nature of the patient's pain and how each area of her body was affected by her activities. The Respondent decided to perform physical, orthopedic, and neurological examinations of the patient. He also decided to obtain x-rays of her pelvis, of the lumbar, dorsal, and cervical areas of her spine, and of both of her knees. On November 8, 1994, the Respondent saw the patient again, at which time he began an examination of the patient by noting her height and weight, making a structural visual evaluation, checking her motor coordination, performing a cardiovascular examination, measuring her extremities, performing a sensory examination, and checking her reflexes. On November 8, 1994, the Respondent also took x-rays of the patient and read the x-rays that same day. The x-rays revealed subluxations. Based on the information he had obtained up to that point, the Respondent elected to commence treatment to the patient's lumbar spine. On November 8, 1994, he adjusted the patient's lumbar spine and also applied ultra sound and low voltage to the patient's lumbar spine. Where there are many complaints involving several areas of the patient's body, it is not unusual for a chiropractic physician to begin treatment prior to the completion of the full examination. It is not a deviation from the appropriate standard of care for a chiropractic physician to begin treatment prior to the completion of the full examination under such circumstances. Under the circumstances presented by the patient in this case, it was reasonable for the Respondent to commence treatment to her lower back on November 8, 1994, and to complete the examination the following day. On November 9, 1994, the Respondent did range of motion measurements and performed various orthopedic tests. He also performed a series of muscle tests. Based on the information he received on November 7, 8, and 9, 1994, the Respondent developed a treatment plan and treatment goals. His treatment plan called for adjustment to subluxated vertebrae and knees, ultrasound for tissue repair, low voltage muscle stipulation for spasm, traction to decrease intersegmental joint irritation, and acupressure for stimulation of the acupuncture points. He also proposed to brace the knees and the lumbar spine. The Respondent noted in his records that his treatment goals were to stabilize the patient's condition, increase range of motion, promote tissue repair, decrease spasm, and reduce subluxation. The Respondent also recorded a treatment frequency plan which provided for daily treatment for the first one or two weeks, followed by three weeks of treatment at a frequency of three times per week. The frequency plan was to be reevaluated at the end of one month. The Respondent's records provide a reasonable rationale for the services provided to the patient on November 7, 8, and 9, 1994. The course of treatment of the subject patient consisted of chiropractic adjustments and physiotherapeutic modalities such as low voltage, ultrasound, and traction. Chiropractic adjustment is performed to promote the reduction of subluxations, to increase the healing processes within the body, to increase the normal transmission of nerve impulses, and to reduce spasm. Ultrasound is administered to affect tissue where two dissimilar tissues come together. Low voltage stimulation is designed to relax tissue. All of the treatments administered by the Respondent were designed to meet the treatment goals he had previously established. Such treatments were consistent with a therapeutic outcome. The Respondent's course of treatment was appropriate for the various complaints and symptoms presented by the subject patient. The x-rays taken by the Respondent were appropriate under the circumstances presented by the subject patient. Justification for those x-rays is contained in the patient records. On December 16, 1994, the patient was involved in a second motor vehicle accident. The Respondent's records contain a history regarding the second accident. The Respondent obtained a copy of the accident report regarding the second accident. He also obtained x-ray reports from the hospital to which the patient was taken after the second accident. The Respondent noted in the patient records that he was going to continue with the same course of treatment following the second accident. That was a reasonable course of action under the circumstances of this case. Following the second motor vehicle accident, the Respondent concluded there was reason to suspect that the patient had a herniated disc. This conclusion was based on the chronicity of the patient and the acuteness of her problems. Accordingly, the Respondent ordered an MRI. The Respondent's patient records document a reasonable basis for the tests he ordered for the patient. The testing was reasonably calculated to assist in arriving at a diagnosis and treatment plan for the patient. The Respondent's patient records are legible in all material details. The few instances of illegible words do not materially affect an understanding of what is written in the records. The Respondent's patient records are sufficient to meet the record-keeping requirements of the rules that were in effect at the time the records were created. On or about November 7, 1994, the Respondent billed the patient's insurance company for a detailed one-hour consultation. On or about November 8, 1994, the Respondent billed the patient's insurance company for a half-hour consultation, a spinal adjustment, and two therapeutic modalities. On or about November 8, 1994, the Respondent also billed the patient's insurance company for skull, neck, thoracic, lumbar, left and right knee, and pelvic x-rays. On or about November 9, 1994, the Respondent billed the patient's insurance company for completion of the detailed physical, orthopedic, and neurological examination. Each time the patient visited the Respondent's office, the Respondent billed for an office visit. On numerous occasions, the Respondent billed the patient's insurance company for an office visit and for manipulations on the same day. On or about December 6, 1994, the Respondent billed the patient's insurance company for an office visit and for a re-examination. On or about January 3, 1995, the Respondent billed the patient's insurance company for an intermediate office visit and a consultation. On or about January 18, 1995, the Respondent billed the patient's insurance company for multiple vertebral segment manipulations. The Respondent has his own unique billing system in place. He does not use the current procedural terminology codes that are generally used by other chiropractic physicians in their billing.
Recommendation On the basis of all of the foregoing it is RECOMMENDED that a Final Order be issued in this case dismissing all counts of the Administrative Complaint. DONE AND ENTERED this 19th day of December, 1997, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1997.
Findings Of Fact At all times relevant hereto Thomas P. Elliott was licensed in Florida as an osteopathic physician having been first licensed in Florida in 1977 and issued Certificate No. 0003751. He graduated from an accredited osteopathic school of medicine in Kirksville, Missouri in 1952 and was duly licensed in Missouri where he practiced for some 23 years before entering the U.S. Air Force medical corps for two years. He was assigned to Tyndall AFB in Panama City, Florida. Upon his release from the USAF and licensure in Florida, he moved to Largo, Florida in 1977 where he set up a general practice as an osteopathic physician. Jack Bianco was first seen by Respondent on 12/19/B3 complaining of constant back pain. Examination and x-rays showed the degeneration of lower spine which could result in some pain. Bianco gave a history of an accident while in the military in 1966 which required extensive surgery and use of a brace for several years. Respondent acknowledged that if a patient said he had pain, he was given the benefit of the doubt. Although Bianco had received treatment at VA facilities those records were never asked for nor obtained by Respondent. Bianco stated he was allergic to Codeine and refused prescriptions for anti-inflammatory drugs. On this initial visit he was treated by manipulation, high frequency pulse and given a prescription for Dilaudid. Bianco remained a patient of Respondent until September 1984. At each visit, which occurred at approximately one week intervals, Bianco was treated with manipulation, high frequency pulse therapy and issued a prescription for Dilaudid. During the nine months Bianco was a patient he was given prescriptions for 374 Dilaudid, 4 mg. Dilaudid is the brand name for Hydromorphone Hydrochlorite. It is the strongest form of morphine available for oral ingestion and is a Class II controlled substance because of its highly addictive attributes. Extended use of Dilaudid (beyond two or three weeks) is generally deemed suitable only for terminally ill patients suffering from a painful malady such as cancer. Respondent recognized that Bianco was coming for treatment principally to get Dilaudid but he nevertheless continued to prescribe Dilaudid and never referred Bianco to a drug treatment facility. In March 1984, Respondent reduced the number of Dilaudid prescribed at one time to 8 but in July 1984 increased the number to 10. Respondent testified he attempted to take Bianco off the Dilaudid and Bianco did not return for treatment after receiving his last prescription from Respondent September 6, 1984. However, as noted below, Bianco's records (and others) were seized by the Sheriff's Office September 11, 1984. Records maintained by Respondent on Bianco fail to record results of the treatment given. On nearly every visit the same treatment was given followed by the prescription for Dilaudid. Although Respondent testified + + + + shown on the patient record showed that response to the treatment was first class, there is no record that Bianco's condition was improving, remaining constant or getting worse, or that any effort was made to change the medication to a less addictive drug. Respondent was never registered to participate in a detoxification program. Without such registration it is illegal for a practitioner to prescribe maintenance drugs to an addict. Between 1979 and 1984, Respondent also treated Stanley Berry, Lawrence Brainard, Cheryl Morelli, Michael Morelli; Donald Murray, Nicholas Spano, Linda Valentine, Paul Broussard, Lee Coryell, Arthur Gray, Sherri Gray, Raine Troupe, Bruce Flood, Debora Bolte, Leon Clifford, Gail Outlaw, William Ellmore, Horace Maybee, William Noble, Irene Morelli and Ernest Pingatore, as alleged in the Administrative Complaint. All of these patients complained of pain, generally back pain, on the first visit. Most reported having been involved in an earlier accident and reinjuring the back recently. The examinations given by Respondent consisted of checking the x-rays if the patient presented one to see if there was any skeletal problem that could cause pain. Otherwise he would palpate the patient to find a potential cause of pain. On these initial visits and throughout the period the patient was treated by Respondent, vital signs (blood pressure, temperature and pulse) were rarely, if ever, taken by Respondent or anyone else at his office. Most of these patients were given manipulation, heat or high pulse frequency treatment and prescriptions for Dilaudid on the first visit. Those who presented records showing they had been given Demerol or Percodan were usually given prescriptions for Demerol or Percodan and a muscle relaxant. Both Demerol and Percodan are Class II controlled substances. These patients' charts, like the chart on Bianco, failed to record what, if any, progress was made as the treatment progressed. Petitioner's expert witnesses, who reviewed the patient records and testified in these proceedings, could not decipher some of the notations made by Respondent on these charts as he used abbreviations, pluses, etc. While it would be very important for a doctor to read the patient record of a patient who had been treated by another physician, there is no specific format or specified abbreviations for maintaining patient records. All of these patients were given prescriptions for Class II drugs with inadequate documentation to justify the use of such drugs in the patient records. They were also given these prescriptions for a much longer time than was indicated for the physical symptoms which could easily lead to addiction, assuming the patient was not already addicted. Many of these patients were referred to Respondent by other patients above named. Those patients with the same surnames were from the same family, generally husband and wife. Respondent testified he gave no significance to the fact that he was prescribing large quantities of Class II drugs to two members of the same family. Frequently drug addicts refer other addicts to a doctor from whom the referrer is able to obtain drugs. Some of these patients were recognized as addicts by Respondent. Nevertheless, he would discuss their dependency with them, continue to prescribe controlled substances for them and never referred any of his patients to a detoxification center. Some of Respondent's patients listed above were given prescriptions for sufficient quantities of Schedule II drugs that they disposed of these drugs on the street. Approximately of those patients above noted were arrested by police for drug related offenses. These practices constitute prescribing controlled substances not in the course of Respondent's professional practice. Donald Murray was a patient of Respondent's from July 1979 through July 1984. During this period he received 198 prescriptions for Dilaudid, 240 prescriptions for Percodan, 16 prescriptions for Tuinol, as well as prescriptions for Tylox and Desoxyn (for narcolepsy). No entry in the patient record justified a diagnosis of narcolepsy for this patient. During the 28-day period between May 18, 1982 and June 28, 1982, Murray was given prescriptions for 72 Dilaudid, 4 mg. and 74, Percodan. In April 1983, Murray was given prescriptions by Respondent for 240 Percodan in less than a 30-day period. Respondent testified Murray needed the drugs to maintain his law practice. Nicholas Spano was a patient of Respondent from July 10, 1980 until September 7, 1984. Between July 19, 1982 and September 7, 1984, Spano received prescriptions for more than 2700 Percodan and prescriptions for 424 Tylox, another Class II drug. At the time these prescriptions were given to Spano, Respondent was aware of a psychiatric report by Dr. Joye dated 3/23/81 that Spano was believed to have a narcotic dependence on Percodan, of Joye's recommendation to discontinue Percodan, and of a report by Dr. Adams dated March 31, 1981 that Spano had been a chronic user of Percodan. In 1982, Detective William Logan in the vice and narcotic squad of the Pinellas County Sheriff's Office contacted Respondent regarding a forged prescription to one of his patients. At that meeting they discussed how not to get involved with drugs. Subsequent thereto Logan received complaints from pharmacies in Largo regarding what appeared to the pharmacist as excess prescriptions for narcotics written by Respondent and an investigation was commenced. On March 6, 1984, Respondent telephoned Logan to say he had read that two of his patients had been arrested, viz. Raine Troupe and Bruce Flood. Respondent acknowledged to Logan that he knew these men were addicts and that he was taking them off slowly. Respondent also admitted having other patients who were questionable. By this time Respondent had become a suspect in the criminal investigation and further telephone calls from Respondent were not returned by Logan. Respondent's office was searched on September 11, 1984, pursuant to a subpoena and patient records of the 23 patients above noted were seized. Respondent was subsequently brought to trial in Circuit Court in and for Pinellas County, entered a plea of nole contendere, and on August 25, 1985, adjudication of guilt of unlawful delivery of controlled substance was withheld, Respondent was placed on probation for three years, ordered to pay certain costs, and prohibited from prescribing Schedule II drugs.
The Issue The issues in this case are whether Respondent violated sections 460.413(1)(m), 460.413(1)(ff), 460.413(1)(n), and 460.413(1)(r), Florida Statutes (2006),1/ and Florida Administrative Code Rule 64B2-17.0065, and, if so, what discipline should be imposed.
Findings Of Fact The Department is the state agency charged with regulating the practice of chiropractic medicine in Florida, pursuant to section 20.43 and chapters 456 and 460, Florida Statutes. Dr. Christian was at all times material to the violations alleged in the Administrative Complaint a licensed chiropractic physician in the State of Florida, having been issued license number 5756 on or about February 4, 1998. At all times material to the violations alleged in the Administrative Complaint, Dr. Christian, Dr. Davidson, and Dr. Kalin were employees of Comprehensive Physician Services, Incorporated (CPS). Dr. Christian was the sole stockholder of CPS. On April 17, 2006, M.M. was involved in an automobile accident when the car, in which she was a front-seat passenger, hit a tree on the passenger side. The window next to M.M. shattered and M.M. received lacerations to the right temple area of her head. M.M. was transferred by ambulance to the emergency room at Northside Hospital. While in the emergency room, a CT scan was performed on M.M.'s head. The CT evaluation was normal. The lacerations were sutured, and M.M. was discharged from the emergency room. On or about April 26, 2006, M.M. presented to CPS for treatment of injuries due to the automobile accident on April 17, 2006. M.M., who was a minor at the time, was accompanied by her mother to CPS. M.M.'s complaints were headaches; neck pain and stiffness; mid-back pain and stiffness; lower back pain and stiffness; difficulty sleeping due to pain; and difficulty with concentration. She indicated that, on a scale of one to ten, with ten being the most, the stiffness in her neck and middle back was a five. On examination, Dr. Christian found that M.M. had cervical and thoracic tenderness. In his initial report, Dr. Christian noted the hyperabduction tests were positive, and there was "left side reduced pulse/paresthesia due thoracic outlet compression consistent with compression from seat belt trauma." However, the test results contained in the medical records show that there are negative findings on the hyperabduction tests. When questioned about the discrepancy, Dr. Christian testified that the positive findings were a result of the grip/pinch test that he performed. He indicated that he made a mistake in his initial report and that the report should have stated right side reduced pulse. He could not explain how the grip/pinch test would lead him to conclude that there was a reduced pulse because M.M.'s pulse would not be measured during a grip/pinch test nor could he explain how he could learn from a grip/pinch test that there was paresthesia. Later, he testified that the difference in the results was not due to the grip/pinch test, but was a result of a second hyperabduction test that he performed prior to the grip/pinch test. Dr. Christian's testimony is not credited. Dr. Christian's practice is to have an assistant come into the examination room during the testing. As he performs the test, he tells the assistant the results of the test, and the assistant will record the test results. The medical records do not show a second hyperabduction test being recorded by an assistant. Therefore, the examination results are contrary to the results stated in the initial report for April 26, 2006. In his examination records of April 26, 2006, Dr. Christian noted that there was "R [circled] Visual Acuity Diff." M.M.'s mother was present during the examination and observed Dr. Christian testing M.M.'s vision on April 26, 2006. Dr. Christian testified that he first tested M.M.'s vision on May 24, 2011. His testimony is not credited. Dr. Christian's practice is to put findings of the previous chiropractic examination on the report of the examination that he is currently conducting so that a comparison could be made. The examination report of April 26, 2006, and May 24, 2006, are the same with the exception of notations on the May 24, 2006, report of 5/23 near the present complaints section and the section where areas of muscle spasms on the spine are noted. In his follow-up report dated May 24, 2006, Dr. Christian wrote: "Certainly today I see evidence of her continuing to have some alterations of visual acuity . . .". Dr. Christian testified that he had incorrectly included the term "continuing" in this statement. Dr. Christian's testimony is not credited. His statement that the alterations of visual acuity were continuing comports with M.M.'s mother's testimony that the first visual testing was done on April 26, 2006, and the examination report of April 26, 2006. Based on the examination reports for April 26, 2006, and May 24, 2006, there is no indication of what tests Dr. Christian used to test M.M.'s vision nor is there any indication of the exact nature of the problem with the right eye. Dr. Christian's initial report does not mention the visual acuity difference. His follow-up report of May 24, 2006, does not indicate the difference that M.M. is experiencing with her right eye. In his examination records of June 14, 2006, and July 25, 2006, Dr. Christian notes: " R [circled] side vision distance diff." In his final report of July 25, 2006, Dr. Christian noted as a current symptom, "[r]ight sided visual alteration with peripheral." He listed as a diagnostic impression: "Concussion with residual affecting peripheral visual field on the right, persistent." However, contrary to his final report, Dr. Christian testified at final hearing that M.M.'s problem with her peripheral vision had improved. On April 26, 2006, Dr. Christian's treatment plan included the following treatment for M.M. three times a week for four weeks: intersegmental traction, hot pack, and neuromuscular release for the full spine; inferential, alternating cervical to dorsal and dorsal to lumbar; full spine massage; and full spine aqua treatment. The therapist assistant was to determine which treatment modalities and areas to treat at each treatment session. Dr. Christian signed each of the daily treatment notes. On April 26, 2006, Dr. Christian referred M.M. to Dr. Kalin. According to Dr. Christian, Dr. Kalin had experience in emergency rooms treating patients who had sustained trauma. Dr. Christian wanted Dr. Kalin to look at the two lacerations that M.M. had sustained. However, there were no outward signs of infection of the lacerations, and the lacerations had healed. Dr. Christian also wanted to determine if there was any post concussion symptoms. Dr. Kalin evaluated M.M. on May 1, 2006. His initial diagnosis was that she had a "cervical musculoskeletal ligamentous strain" and a "[s]ubacute lumbosacral musculoskeletal ligamentous strain." His examination did not reveal any abnormality with M.M.'s vision. He did find that the lacerations may leave permanent scarring. In his interim report dated May 24, 2006, Dr. Christian stated: "Dr. Kalin was not able to mention the fact that she [M.M.] struck her head or had laceration and dizziness with nausea and vomiting following the impact." This statement is contrary to what Dr. Kalin stated in his report. Dr. Christian further noted in his report that he would follow- up with Dr. Kalin to see if Dr. Kalin had an addendum as to whether there is additional follow-up for post-concussion symptomology. In his report of May 1, 2006, Dr. Kalin did not make any findings of a concussion or post-concussion syndrome. On May 25, 2006, a staff member of CPS sent the following request to Dr. Kalin: Dr. Kalin, Dr. Christian asked if you could please make an addendum [sic] to your report on [M.M.] for her concussion-post concussion syndrome. Thanks! Kimberly Dr. Kalin replied: "pt had no symptoms of headache or memory/concentration when I saw her." No mention was made in Dr. Christian's interim report dated May 25, 2006, that Dr. Kalin did not find any evidence of post-concussion syndrome. On May 1, 2006, Dr. Christian wrote a prescription for hydrotherapy for M.M. for three times a week for four weeks. M.M. received treatment at CPS on May 1, 2006. M.M. indicated to the therapist that on a scale of one to ten that she rated her low back pain and low back stiffness as a four and her neck stiffness as a five. The therapist noted that there was cervical and lumbar tenderness. M.M.'s treatment on May 1, 2006, consisted of hot therapy and hydrotherapy to the cervical, thoracic, lumbar, and sacral areas, and intersegmental traction to the cervical, thoracic, and lumbar areas. X-rays of M.M.'s cervical and lumbar spine were ordered. The radiologist who read the X-rays had the impression that M.M. had a cervical muscle spasm and a lumbar muscle spasm. On May 4, 2006, M.M. received treatment at CPS. She rated her neck stiffness and low back stiffness as a three. There was no notation of any tenderness by the therapist. M.M. received the following treatment in the thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, and hydrotherapy. On May 4, 2006, ultrasound studies were performed on M.M. by Charles W. Hirt, M.D. (Dr. Hirt). Dr. Hirt's impression was that there were findings that showed evidence of a left- sided thoracic outlet syndrome. On May 9, 2006, M.M. returned to CPS for treatment. She rated her neck stiffness and lower back stiffness as a two. The therapist noted that there was tenderness in the cervical and lumbar areas. M.M. was given hot therapy, intersegmental traction, and trigger point therapy in her cervical, thoracic, and lumbar areas. She received myofascial release, massage, and hydrotherapy in her cervical, thoracic, lumbar, and sacral areas. On May 16, 2006, M.M. was treated at CPS. She rated her neck stiffness as a one and her low back stiffness as a two. The therapist noted tenderness in the lumbar area. The treatment to M.M.'s cervical, thoracic, lumbar, and sacral areas included intersegmental traction, trigger point therapy, myofascial release, and massage. She was given interferential treatment to her lumbar and sacral areas and hot therapy to her cervical, thoracic, and lumbar areas. On May 18, 2006, M.M. presented for treatment at CPS. She rated her neck and low back stiffness as a one. The therapist did not note any tenderness. M.M. received the following treatment in her cervical, thoracic, lumbar, and sacral areas: hot therapy, intersegmental traction, trigger point therapy, myofascial release, and massage. On May 23, 2006, M.M. went to CPS for treatment. She rated her lower back stiffness as zero. The therapist noted tenderness in the cervical, thoracic, and lumbar areas. M.M. was given a massage and myofascial release in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment and trigger point therapy in her lumbar and sacral areas and hot therapy and intersegmental traction in her thoracic, lumbar, and sacral areas. On May 24, 2006, Dr. Christian did a follow-up examination of M.M. M.M. rated the neck and lower back stiffness as zero. Dr. Christian noted in his follow-up report that all the symptoms that he had noted in his initial report of April 26, 2006, had improved. His follow-up report stated: "Cerebellar function tests, as far as assessed are abnormal with a positive Rhomberg test for possible concussion." His follow- up report also stated: "Certainly today, I see evidence of her continuing to have some alterations of visual acuity and a positive Rhomberg, which would be consistent with post concussion syndrome." On May 25, 2006, M.M. returned to CPS for further treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical and lumbar areas. M.M. was treated with myofascial release and massage in her cervical, thoracic, lumbar, and sacral areas. She received trigger point therapy in her lumbar and sacral areas and inferential treatment in her thoracic area. She also received intersegmental traction in her thoracic, lumbar, and sacral areas. M.M. received treatment at CPS on May 30, 2006. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. Hydrotherapy, hot therapy, and intersegmental traction were provided to M.M. in her cervical, thoracic, lumbar, and sacral areas. She received inferential treatment in her lumbar and sacral areas. On June 13, 2006, M.M. again returned to CPS for treatment. She rated her neck and low back stiffness as zero. The therapist noted tenderness in M.M.'s cervical, thoracic, and lumbar areas. M.M. received intersegmental traction, myofascial release, and massage in her cervical, thoracic, lumbar, and sacral areas. M.M. was given hot therapy in her thoracic, lumbar, and sacral areas. She received trigger point therapy in her cervical and thoracic areas. On June 14, 2006, M.M. presented at CPS for a follow- up visit with Dr. Christian. She rated her neck and low back stiffness as zero. He reduced her treatment to one per week for the next four to five weeks. In his examination record of June 14, 2006, Dr. Christian noted: " R [circled] side vision distance diff." On June 20, 2006, M.M. returned to CPS for treatment. Again, she rated her neck and low back stiffness as zero. The therapist did not note any tenderness. M.M. was given hot therapy and intersegmental traction for her thoracic, lumbar, and sacral areas. She was given hydrotherapy for her cervical, thoracic, lumbar, and sacral areas. On June 22, 2006, ultrasound studies were done on M.M. by Dr. Hirt. His impression was that she likely had thoracic outlet syndrome on the left side. On May 24, 2006, Dr. Christian referred M.M. to Dr. Davidson for a second opinion for post concussion. Dr. Davidson examined M.M. on June 27, 2006. In his report dated June 27, 2006, Dr. Davidson concluded that she had had a mild concussion, a cervical strain, and a lumbosacral strain. He recommended that her soft tissue therapy be discontinued. Dr. Davidson did not find any abnormalities in M.M.'s vision. On July 25, 2006, M.M. was examined by Dr. Christian. M.M. rated her neck and low back stiffness as zero. Dr. Christian noted the following in his final report dated July 25, 2006. If the patient's symptoms of altered visual field persist and evaluation by an ophthalmologist or a neuro-ophthalmologist may be appropriate. If she begins to have any difficulty with sleep, mood swings, feelings of dizziness or persistent headaches a neuro-psychiatric evaluation for continued post concussion deficits may be appropriate. Dr. Christian discharged M.M. on July 25, 2006, and M.M. was to return for treatment on an as needed basis. Dr. Christian's initial report dated April 26, 2006; interim report dated May 24, 2006; follow-up report dated June 14, 2006; and final report dated July 25, 2006, were dictated by Dr. Christian. The reports were being mailed to someone or some entity based on the note at the end of each report, which stated: "DICTATED BUT NOT PROOFREAD TO AVOID DELAY IN MAILING." At the closing of each report, Dr. Christian stated: "If I can be of further assistance in this regard, please do not hesitate to contact me." It is not clear to whom the reports were directed, but it is clear that the reports were meant to convey the examination, evaluation, and treatment of M.M. to the reader of the report. These reports did not accurately report the examination results of M.M. in at least two instances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Dr. Christian violated sections 460.413(1)(m) and 460.413(1)(ff) and rule 64B2-17.0065; finding that Dr. Christian did not violate sections 460.413(1)(n) and 460.413(1)(r); imposing an administrative fine of $2,500; placing Dr. Christian on probation for one year; and requiring Dr. Christian to attend a continuing education course on record-keeping. DONE AND ENTERED this 15th day of November, 2011, in Tallahassee, Leon County, Florida. S SUSAN BELYEU KIRKLAND Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of November, 2011.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Robb E. Ross was a licensed physician engaged in the practice of family medicine as a sole practitioner. He was licensed to practice medicine in the State of Florida in 1966 and holds license number 12433. He was board certified in family practice in 1970. Respondent also holds a license as a pharmacist. Respondent treated patient N.B. from September of 1970 through October of 1986. She initially presented as a new patient moving into the area, aged 61, for maintenance of her general physical medical care, primarily relating to her mild depression that she had for years following a mastectomy. While believing that patient N.B. had previously been under the care of a psychiatrist or psychologist, respondent never requested her prior medical records. Patient N.B. informed the respondent that she had been taking Biphetamine, a steroid amphetamine that is no longer produced, for the past ten years. Respondent continued patient N.B. in that treatment modality for over ten years, as well as treating her for other complaints. At some point, he did attempt to titrate her from Biphetamine, but she did not function as well with a substitute drug. When the drug Biphetamine was phased out of the market in either 1980 or 1982, respondent prescribed Dexedrine to patient N.B. and continued to do so approximately every six months. Respondent maintained her on Dexedrine due to her mild depression and the fact that she had been on amphetamines for many, many years. He was reluctant to take her off Dexedrine for fear that she could become overtly depressed. Since she did well with Dexedrine, respondent maintained her on that regiment due to the adverse side effects of other compounds utilized to control depression. The respondent's medical records for patient N.B. contain virtually no patient history or background information. For each patient visit, there is a brief notation which includes N.B.'s temperature, blood pressure and weight and also a reason for the visit. The reason noted on the records are either "check- up" or a brief statement of the patient's complaint on that particular day. The medication prescribed is noted, though very difficult to read. While the symptom or patient complaint is often noted, the patient records contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from N.B.'s medical records the reason that Dexedrine was prescribed for this patient. While N.B. complained of tiredness, she did not suffer from narcolepsy. Patient G.B. was under respondent's care from August of 1979 through May of 1985. He initially presented, at age 56, with problems relating to emphysema, lung collapse, exhaustion, impotency and aches and pains. Respondent prescribed various medications for him, including Nitroglycerin for chest pains. Respondent felt that due to his age and his complaints, patient G.B. had some type of arteriosclerosis. Patient G.B. frequently complained of being weak, exhausted and having no endurance or energy. For this reason, respondent prescribed Dexedrine for him on March 30, 1984. Other medications to increase his energy were tried before this and after this time. Nothing appeared to give him any relief. After determining that patient G.B. "liked his medicine too much," respondent terminated his treatment of him. The respondent's medical records for patient G.B. are brief and difficult to decipher. Again, the patient's temperature, blood pressure and weight are recorded for each visit, and there is a brief statement of the patient's complaint. There is no statement indicating a medical diagnosis or a treatment plan. The medications prescribed at each visit are written on the records, but are difficult to read. D.M. was a patient under respondent's care from December of 1976 until his death, at age 84, in March of 1986. He initially presented with stomach problems and subsequently had a host of other medical problems, surgeries and hospitalizations throughout the years. This patient was given so many different medications for his various physical problems that respondent did not always write each of them down on his records after each office visit. It appears from respondent's medical records that he first started patient D.M. on Dexedrine in January of 1984. At that time, D.M.'s chief complaint was "dizziness, falling, no pep." Respondent maintained D.M. on Dexedrine or an amphetamine type of compound from that period until his death, primarily because of his weakness, dizziness, falling down and low blood pressure. Other specialists were consulted regarding D.M.'s fainting and falling episodes, caused by postural hypotension, and were unable to remedy the problem. Respondent was of the opinion that the administration of Dexedrine enabled patient D.M. to function more properly and that it worked better than anything else. Patient D.M. expired in March of 1986. Respondent listed the cause of death as "cardiac arrest." The respondent's medical records on patient D.M. are typical of those previously described for patients N.B. and G.B. The office visit notes list patient complaints or symptoms and no medical diagnosis or comprehensive assessments. There are indications in the record that D.M. complained of chest pains in 1983, 1984 and 1985. The medications prescribed indicate the presence of cardiac disease. Respondent's record-keeping with regard to patients N.B., G.B. and D.M. are below an acceptable standard of care. They 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. The respondent's only notation of treatment is a listing, and a partial listing in the case of D.M., of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken. Dextroamphedimine sulfate, also known as Dexedrine, is a sympathomimetic amine drug and is designated as a Schedule II controlled substance pursuant to Chapter 893, Florida Statutes. Commonly, it is referred to as "speed" or an "upper." It is addictive and highly abusive. While individual patients react differently to Dexedrine, its consumption can cause psychosis, marked elevations of blood pressure and marked rhythmic disturbances. As such, its use is contraindicated in patients with coronary disease. In addition, because Dexedrine is an "upper" and makes a patient "feel good," it can mask a true physical condition and prevent the patient from being treated for the physical ailment he is experiencing. A patient should not be relieved of pain without first knowing what is causing the pain. In Florida, Dexedrine may only be prescribed, administered or dispensed to treat specifically enumerated diseases, conditions or symptoms. Section 458.331(1)(cc), Florida Statutes. Neither respondent's medical records nor his testimony indicate that patients N.B., G.B. and/or D.M. suffered from the conditions, symptoms or diseases which warranted the statutorily approved and limited use of Dexedrine. Respondent was not aware that there were statutory limitations for the use of Dexedrine. He is aware of the possible dangers of amphetamines and he prescribes Dexedrine as a treatment of last resort when he believes it will help the patient. Respondent further testified that his medical record-keeping is adequate to enable him, as a sole practitioner, to treat his patients, though he admits that his medical records could be improved.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(I), subparagraphs (cc),(q),(t) and (n), Florida Statutes, and that the following penalties be imposed: an administrative fine in the total amount of $2,000.00, and probation for a period of twelve (12) months, with the following conditions: (a) that respondent complete continuing medical education courses or seminars in the areas of medical record-keeping and the dangers and authorized use of compounds designated as Schedule II controlled substances, and (b) that respondent submit to the Board on a monthly basis the medical records of those patients for whom a Schedule II controlled substance is prescribed or administered during the probationary period. Respectfully submitted and entered this 2nd day of September, 1987, in Tallahassee, Florida. DIANE D. TREMOR, 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 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3483 The proposed findings of fact submitted by counsel for the parties have been carefully considered. To the extent that the proposed factual findings are not included in this Recommended Order, they are rejected for the following reasons: Petitioner: The 48 proposed findings of fact submitted by the petitioner consist of summaries or recitations of the testimony of the witnesses presented by the petitioner in this proceeding. While the summaries and/or recitations constitute an accurate representation of the testimony received by those witnesses at the hearing, and are thus accepted, they do not constitute proper factual findings by themselves. Instead, they (along with the testimony presented by the respondent) form the basis for the findings of fact in this Recommended Order. Respondent: Page 4, Paragraph 1 The reference to 30 years is rejected as contrary to the evidence. COPIES FURNISHED: David E Bryant, Esquire Alpert, Josey, Grilli, Paris and Bryant 100 South Ashley Drive Suite 2000 Tampa, Florida 33602 David J. Wollinka, Esquire P. O. Box 3649 Holiday, Florida 33590 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 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
Findings Of Fact At all times pertinent to the allegations contained herein, the Respondent, Dr. Julius A. Okuboye, was a medical doctor licensed by and in the State of Florida. In the first of six cases upon which Petitioner bases its case, the patient was receiving medical treatment for a fracture of the right femur, (thigh bone), at Gateway Community Hospital in St. Petersburg, Florida during the period November 21, 1982 and January 13, 1983. Petitioner contends Respondent failed to properly perform the surgical procedure; failed to properly consider alternative courses of treatment; and failed to keep adequate medical records justifying the course of treatment taken. Respondent reduced the bone fracture here by using a metal plate running lengthwise along the bone in an attempt to brace the fracture by securing it to the bone with, initially, screws. The plate used by the Respondent was too short for the procedure in that it did not extend beyond the upper limits of the fracture by that distance considered by some to be appropriate. Petitioner's first expert felt the use of the plate which was too short and the screws used to affix it, which were too short, was improper practice. In his opinion, the procedure followed by the Respondent herein required the patient to undergo three separate operations rather than one, which unnecessarily exposed this elderly patient to infection and the risk of anesthesia on three separate occasions. Petitioner's other expert believes that because the Respondent used a plate which was too short for the fracture involved, it was necessary for him to go back in and fix the plate with Parham bands considered by many in the field to be an old-fashioned practice. These bands, when used, tend to devitalize the tissue. He believes that once having used them, however, Respondent should have used more screws to affix the plate and the bands. In addition, the plate did not fix the smaller bone fragments at the bottom of the fracture. Both experts state Respondent should have considered reducing the fracture by the use of traction and bed rest as an alternative to surgery. On the other hand, Respondent's experts disagreed with Petitioner's experts. One, Dr. Weiss, indicated that Respondent had two choices: (1) a prolonged traction and immobilization which, itself, poses a great risk for an elderly patient, or (2) the surgical fixation which was chosen. Here, the reduction was good but the plate was too short. Dr. Weiss contends, as was urged by Respondent, that this was beyond his control and while it would have been better to use a longer plate, the Respondent used the correct procedure and the fact that a second and third operation was necessary, was beyond his control. His choice to do them was appropriate. The other expert, Dr. Bodden, pointed out that even though the smaller plate was used, there is no assurance a larger plate would have precluded the second and third operations. He believes that in light of all of the medical problems presented in this case and since the ideal plate was not available, Respondent's choice was prudent. The length of the plate was improper but in the opinion of Dr. Bodden, the patient's bone structure contributed to the breakage after the plate was installed. Further, the use of Parham bands was not inappropriate. They have been used for many years and are still widely accepted and used. In fact, he uses them himself. Prior to the surgery, Respondent contacted the operating room charge nurse to determine if the proper plates were available, and was assured by her that a full set of plates was available for the surgery. It was only after entering the operating arena, opening the incision into the patient's leg, and thereafter opening the sterilized and sealed package containing the plates that it was determined the proper plate was not present. Absent a showing to the contrary, it is found it would have been improper to open the plate package in advance of surgery to check since such a procedure would have destroyed the sterile nature of the package. In light of the above, Respondent's actions were appropriate. As to the issue of the adequacy of Respondent's medical records on other patients, an analysis of the records showed that no discharge summary was prepared by the Respondent nor were progress notes kept by him on December 22, 23, 25, and thereafter for several weeks on an irregular basis. It may be that Respondent was not the primary physician and only the consultant, but the records fail to show who was the responsible physician and who was ultimately responsible for the patient. A consultant should always reflect in the patient records who he is and in what capacity he has seen the patient as well as his area of expertise and the actions he has taken. Here, the Respondent's failure to do so, notwithstanding some expert evidence to the contrary, renders the records kept by him inadequate. In the case of the patient who was treated by the Respondent as a consultant on a fracture of the left hip at Gateway Community Hospital between October 27, and November 10, 1983, Petitioner's experts have no quarrel with the orthopedic treatment rendered the patient by Respondent. However, Respondent failed to make proper entries in the patient's medical records and the notes therein were made by an internist. Respondent saw the patient on only four of the nine days the patient was hospitalized and in the opinion of the expert, proper practice requires a doctor, or his substitute in the absence of the doctor, to see the patient each day. It may be that this practice, which is generally accepted as appropriate throughout the medical community, is somewhat less significant in the field of orthopedic surgery. Respondent's expert indicated he did not feel constrained to see his patients each day subsequent to surgery so long as he was kept aware of the patients' conditions. While he makes progress notes, he does not dictate discharge summaries or any of the other records since these are prepared by residents based on the notes he has put in the file. The medical records for this patient show no progress notes by the Respondent on November 1, 3, 4, and 5, 1983, during which time the patient was in the hospital under the Respondent's care. In one expert's opinion, the missing of three consecutive day's progress notes renders the records below standard. Respondent indicates he saw the patient frequently right after the surgery, but once he was satisfied that her orthopedic problems were progressing satisfactorily, did not see her during the time she was being treated for medical problems unrelated to the orthopedic surgery by an internist. He did write medical notes on the first five postoperative days at the conclusion of which his postoperative care for the orthopedic surgery was completed. Were it not for her unrelated medical problems, the patient would have been released and he did see her once, (Nov.2) prior to her discharge after her medical problem had been resolved. On the basis of all the testimony, it is found that in this case, Dr. Okuboye did not fail to keep proper medical records. Respondent also saw a patient for a fracture of the left lateral malleolus, (the protuberance on both sides of the ankle joint), and is alleged to have failed to timely perform an examination of the patient; failed to have timely provided treatment; and failed to have performed a complete examination. In this case, Petitioner's expert pointed out that the chart kept by the Respondent failed to show any reference to a knee injury which was disclosed on post-treatment X-rays evaluated by him. Respondent is also alleged to have failed to have cleaned and irrigated the wound which was a part of the injury, and that he administered only an intramuscular injection of antibiotics. In the opinion of the witness, it makes no difference if there was an infection or not. It is, in his opinion; a bad practice to not debride and clean the wound. Further, he was concerned that the patient records kept by the Respondent did not reflect whether the Respondent responded to the emergency room at the time he prescribed the treatment or not. From the review of the records, he could not tell. Review of the case records by Respondent's expert showed there was no open fracture which required debridement or specific cleaning. The wound was a small abrasion. As a general rule, an injury should be more than 1/2 inch in size or have some bone showing in order to require debridement, (removal of foreign material and dead or damaged tissue). If those conditions are present, proper procedure is to clean the wound and to provide antibiotics, which the Respondent did, and the treatment recommended by him met appropriate standards. This is the better point of view. As to the records kept by the Respondent, a note regarding the action taken here was dictated by Respondent two days after the patient was discharged. The patient records show a postoperative X-ray was taken by Respondent but there is no indication in the record showing that surgery was done. The patient was admitted through the emergency room and was sent to the floor even before the Respondent was contacted. As a result, Respondent did not see the patient in the emergency room. The ER notes prepared by someone else refer to an abrasion and an approximately 1/4 inch tear in the skin. The injury was cleaned in the ER and the patient was sent to the floor after which the Respondent was advised by telephone there was a "questionable" fracture of the ankle. In response, Respondent gave orders for immobilization of the wound and administration of antibiotics. The following day, when Respondent saw the patient, he could see no open wound nor could he find evidence of a fracture. As a result, he discontinued the prescription for antibiotics and discharged the patient who, it should be noted, did not sustain an infection and who did well in his recuperation. Respondent indicates he had been told by the family physician who admitted the patient and the nurses on the floor, with whom he discussed the patient, that there was no open wound sustained by this patient. On the basis of this information, Respondent prescribed the questioned course of treatment and it would appear it was appropriate and well within standards. Between November 12, and November 22, 1983, Respondent acted as surgical consultant regarding a patient being treated at Gateway Community Hospital for a metatarsal fracture. Respondent performed an open reduction and internal fixation of the fracture and Petitioner now claims that Respondent failed to keep adequate medical records justifying the course of that patient's treatment. In that case, Petitioner does not claim improper treatment by the Respondent. However, one expert for Petitioner could not determine with any degree of certainty whether or not the procedure was required because of the absence of pre- operative X-rays and because of the inadequacy of the records for him to look at. The other Petitioner expert agreed that the Respondent took adequate care of the patient but because of the absence of postoperative film, the taking of which is a general practice within the medical community, he was not able to determine, nor would the Respondent be able to determine, whether the surgeon missed anything in performing the surgery. Respondent's evidence unequivocally contradicted the testimony of both Petitioner's experts. There were X-rays taken prior to the procedure by Respondent which showed a fracture of the outside metatarsus, (long foot bone). He proposed outpatient surgery of one day and reduced the fracture, inserting two pins as security. The postoperative X-rays show proper reduction. In fact, there are several sets of postoperative films and those taken after the holding pins placed in the fracture were removed show good reduction and full healing. Respondent discharged the patient from orthopedic care after surgery for release the next day if approved by the referring, physician, Dr. Lew. However, Dr. Lew kept the patient in the hospital one or two days after that for a reason not related to the orthopedic surgery done by Respondent. This would tend to explain the reason for there being no follow-up progress notes on the two days following the operative report done by Respondent on November 23. The failure to keep adequate notes adversely affects the entire care team not just the attending physician, as without adequate notes, the team cannot tell what is going on with the patient. The entire care is summarized in the progress notes and the failure to make notes on time leaves a hole. That cannot be said to have been the case here, however, since the orthopedic treatment of the patient was completed with the dictation of the operative report and the patient was discharged by Respondent. The patient's retention in the hospital for several days more was by another physician on a matter totally unrelated to the Respondent's treatment and Respondent had no responsibility to keep records on that portion of the patient's hospitalization. It cannot be said, then, that Respondent's records were inappropriate in this case. Respondent is also alleged to have improperly failed to perform a procedure of open reduction and internal fixation of an ankle fracture on a patient treated by him at Gateway Hospital between January 20, and January 25, 1983. In this case, Petitioner's expert questions whether the inner bone was properly reduced. X-rays taken subsequent to the procedure, show the reduction left a big gap and an irregular joint and the doctor feels the procedure, as it was done, was below standards. The other Petitioner expert concurs. There were two fractures. The smaller, did not need to be fixed since it was less than 1/3 of the ankle area and medical opinion indicates that fractures of less than 1/3 of the area should not be fixed. The other was fixed improperly in that Respondent should have used a tension band instead of a screw. If he had done so, there would have been a better fixation. Respondent's expert disagrees, pointing out that the postoperative X- rays show the position of the bones as placed by the Respondent, was quite acceptable. The failure to get an anatomic, (as developed by nature), reduction is not indicative of substandard care. It is sometimes not possible to put bones back the way they were prior to the fracture. In the instant case, when the operation and casting were done, the results were acceptable. The doctor concludes this was a very difficult operation to do and under the circumstances, the Respondent's performance met the standards within the community. Respondent's other expert agrees. This was an extremely difficult fracture of three sections of an ankle. Admittedly, Respondent's work resulted in a slight bone irregularity. A smooth reduction would be ideal, but it is unlikely that an anatomic reduction could be had in this case. No matter how skilled the work, a fracture of this kind is likely to result in some arthritis, and the failure to use a tension band, as suggested by one of Petitioner's experts, as opposed to a screw as chosen by the Respondent is a matter of choice. Neither gives better results and the Respondent's choice here, in these circumstances, was reasonable. Between December 18 and December 27, 1984, Respondent performed an open reduction and internal fixation of a fractured right hip. Petitioner alleges that Respondent performed a surgical procedure which was unnecessary, failed to properly perform the surgical procedure done, and failed to keep adequate medical records justifying the patient's treatment. In this case, Respondent inserted a Jewett nail, a non-collapsing nail, into the bone. The bone collapsed and drove the nail up into the end of the bone in an inappropriate manner. One of Petitioner's experts took issue with Respondent's use of the Jewett nail calling it an outdated device. In his opinion, the Respondent did not plan properly to have the appropriate device on hand when it was needed. His opinion is supported by that of the other Petitioner expert who pointed out that the procedure resulted in an inadequate fixation. He contends the Respondent should have used a collapsible nail and that Respondent's technique of cutting the bone after the collapse was inappropriate and resulted in a shortening of the leg. He believes this procedure was improper and falls below medical standards in the community. He was also of the opinion that Respondent's record keeping in this case was inadequate. Petitioner's expert in medical records found several problems with Respondent's records on this patient. The initial note was dictated after surgery instead of when the consult was first done. No progress notes were in the file for those days when the patient was not seen by the Respondent. There was no showing that the patient was seen by someone left in charge by Respondent in his absence. Since medical records provide a history of the case and allow the follow-on staff to provide continuation of care, the evidence showed Respondent's records in this case were below standard. Respondent's witness, Dr. Weiss, does not believe that the use of the Jewett nail is necessarily inappropriate. The fact that the Jewett nail did not work out for the Respondent in this case and required follow-up surgery, is not necessarily indicative of improper treatment. Studies of similar fractures in elderly patients show that 70% had some deviation and many similar cases show penetration of the head of the bone by the nail such as was the case here. While there are newer nails used by many orthopedic surgeons, the Jewett nail is still appropriate. The physician can avoid penetration at the time of the insertion and Respondent did so, but penetration cannot always be avoided after surgery when weight is placed on the limb. Respondent's other expert who reviewed this case stated that the fixed nail used by Respondent, if properly used, gives equally good results as the newer collapsible nail. Cutting of the bone is a well known and appropriate procedure in cases where necessary, as here. In evaluating the testimony of the experts, it should be noted that neither of the Board's experts interviewed Respondent or in any way discussed with him his professional reasons for doing what he did. Their opinions given here as expert testimony were based on evaluation of records and X-rays only whereas the opinions of Respondent's experts were based on review of the same documentation and also on interviews with Respondent who was questioned and who expounded on his medical rationale. Having analyzed the procedure done by the Respondent here and having evaluated the testimony of all witnesses, it is found that the procedure as followed by Respondent did not fall below the appropriate medical standards within the community. However, the allegation regarding Respondent's failure to keep proper medical records has been established. Respondent is a native of Nigeria, who took his medical training in England, graduating from Kings College Medical school in 1961. He interned in the United States at Bridgeport Hospital, served his residency and as a research fellow in Canada, and returned to the United States for a two year general surgery and three year orthopedic surgery residency at Albert Einstein Medical Center in New York. Respondent came to Florida in 1973 and has been in private practice as a sole practitioner since that time. He is Board eligible in orthopedic surgery and certified in neurological and orthopedic surgery by the American College of Neurological and Orthopedic surgery, not to be confused with the American Board of Orthopedic Surgery. He is also a member of the Royal College of Surgeons. At one time, Respondent practiced at Gateway Hospital in St. Petersburg where all the cases involved in the proceeding came up and where he was involved in legal action involving a matter he had handled. Respondent won that case but nonetheless, had to sue the hospital to recover his expenses. When Gateway Hospital was sold to Humana, he was again involved in litigation with the hospital to retain his privilege to practice there. Thereafter, he was called before the hospital committee regarding the instant cases in a staff privilege matter and as a result, the hospital referred them to the Department of Professional Regulation. Respondent believes two factions in the medical community seek his dismissal and the revocation of his license. He presented a detailed litany of grievances against various members of the hospital staff and others who, he contends, are engaged in a program to destroy him professionally and remove him from the practice of medicine. Since his medical privileges at the hospital have been rescinded, he can no longer accept referrals in orthopedic surgery from other members of the staff at Gateway and as a result, referrals that would ordinarily go to him, are now going to other, more favored members of the staff who retain surgical privileges. He contends his troubles, which culminated in this hearing, are both economically and racially motivated, and also involve an effort to rid the hospital of foreign trained physicians. There is no evidence to corroborate Respondent's charges and , therefore, the decision regarding his standard of practice and his record keeping must be based on the professional evidence presented at this hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent, Julius A. Okuboye, be reprimanded. RECOMMENDED this 23rd day of February, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearings 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 23rd day of February, 1988. Appendix to Recommended Order In Case No. 86-1048 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed Findings of Fact submitted by the parties to this case. For the Petitioner Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the weight of the evidence. Rejected as contra to the weight of the evidence. Accepted to the extent that Respondent's reduction was not anatomic but rejected to the extent "it possibly could have been better treated in a cast." Rejected as contra to the weight of the evidence. Rejected as to all but last sentence which is irrelevant since the latter portion of the hospitalization discussed here was after patient had been discharged by Respondent and did not relate to orthopedic treatment. Accepted and incorporated herein. 14-16. Rejected as contra to the weight of the evidence. 17&18. Accepted and incorporated herein. 19. Rejected as contra to the weight of the evidence. 20-21. Rejected as contra to the weight of the evidence. 22. Accepted as to certain records and rejected as to others as discussed in the body of the Recommended Order. For the Respondent Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. First sentence rejected as a restatement of Petitioner's position. Remainder accepted and incorporated. First sentence rejected as above. Last sentence accepted and incorporated. Remainder rejected as a restatement of the evidence. First sentence rejected as above. Second sentence rejected as a restatement of evidence. Third through Sixth sentences accepted and incorporated. seventh rejected as a restatement of Petitioner's position. Eighth and Ninth sentences accepted and incorporated. First sentence rejected as above. second sentence accepted. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. First sentence rejected as above. Remainder accepted and incorporated. Accepted and incorporated. Rejected as to some cases, accepted as to others as defined in the Findings of Fact herein. COPIES FURNISHED: David E. Bryant, Esquire Suite 2000, Ashley Tower 100 South Ashley Drive Tampa, Florida 33602 Glenn M. Woodworth, Esquire Woodworth and Dugan, Chartered Wittner Centre West 5999 Central Avenue Suite 103 St. Petersburg, Florida 33710 Dorothy Faircloth Executive Director Department of Professional Regulation Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750
