Findings Of Fact Background Respondent, Michael Guirgis Sedra, is now and was at all times material hereto a licensed physical therapist in the State of Florida, having been issued license number PT 0004299. During June 1990, respondent was under contract with Professional Health Care Services Agency to provide physical therapy services, and on June 24, 1990, was assigned to Humana Hospital of South Broward (Humana Hospital) to render physical therapy services in the absence of the assigned therapist. On such date, respondent arrived at the hospital at or about 8:00 a.m., and rendered services to approximately 20-24 patients. Included among the patients treated by respondent that day was R. I. (the "patient"), the complaining witness in the instant case. The patient was admitted to Humana Hospital on June 18, 1990, complaining of abdominal pain, primarily in the right lower quadrant radiating towards the back. The patient's initial diagnosis was stated to be abdominal pain, electrolyte imbalance, and diabetes mellitus, and her ultimate diagnosis chrolecystolithiasis, hepatomegaly with fatty infiltration, uncontrolled diabetes mellitus, hypertension, electrolyte imbalance, and degenerative joint disease of the right hip. During the patient's course of treatment at Humana Hospital, her physician entered an order on June 24, 1990, for physical therapy. Pursuant to such order, respondent visited the patient in her room, at some time between 10:00 a.m. and 12:00 p.m., and performed a brief examination. Following such examination, respondent advised the patient that he would return that afternoon to transport her to the physical therapy department to render the treatments ordered by her physician. These would be the first physical therapy treatments ever experienced by the patient. At 2:35 p.m., June 24, 1990, respondent transported the patient, by wheelchair, from her room to the physical therapy department, which was located downstairs and vacant at the time. Once the patient was on the treatment table, lying on her left side, respondent provided hot pack treatment for approximately 20 minutes and an ultrasound with electrical stimulation treatment for approximately six minutes to the patient's right side. The ultrasound treatment combines a form of deep heat with electrical stimulation, which produces a feeling of contraction and relaxation of the area to which it is applied. Here, because the patient's pain was located in the right hip area, such treatment was mostly applied to her sacroiliac joint (the tail bone) and right hip area. Following treatment, respondent returned the patient to her room between 3:00 p.m. and 3:15 p.m. There is no significant dispute regarding the foregoing facts, nor the propriety of the hot pack and ultrasound treatments rendered to the patient. Rather, respondent's evaluation and treatment was deemed not only within the prevailing standards of practice, but "top notch," by petitioner's expert. What is in dispute, however, is whether following the course of such treatments any improprieties occurred or, more specifically, whether respondent sexually assaulted the patient in the physical therapy room. The participants The patient, age 62 at the time in question, was born in Hungary, immigrated to the United States at age 29, and is a naturalized citizen. She resides in Hollywood, Florida, where she shares a home with her son and daughter-in-law, is retired, and has been divorced since 1980. The patient's formal education is limited to the eight years she attained in her native country; she contends she neither reads nor writes the English language; and she speaks the English language in a somewhat accented and broken manner. Her comprehension of the language, based on her testimony at trial and a review of the record, is, however, sound. Notwithstanding, her testimony regarding many material matters was conflicting and lacked candor. The respondent was born in Cairo, Egypt, on January 20, 1954, immigrated to the United States in or about 1982, and is a naturalized citizen. He resides in Lauderhill, Florida, with his wife and two daughters, 5 and 9 years of age, and has been licensed as a physical therapist in the State of Florida since August 1985. But for the pending charges, respondent has never been the subject of disciplinary action. He is articulate, genteel in manner, considered truthful and honest by those who know him, as well as competent, considerate and compassionate. The dispute To support its case, petitioner offered the testimony of the patient, who testified that on Sunday, June 24, 1990, respondent transported her from her room, which was located on the fourth floor of the hospital, to the physical therapy department room, which was located on the first floor. According to petitioner, no one else was present in the area, and as respondent wheeled her into the room he paused momentarily and locked the door. Respondent then assisted the patient onto a physical therapy table, where he positioned her on her left side, placed three pillows between her legs, and then, over the course of the next 20 to 30 minutes, treated her with hot packs and ultrasound with electrical stimulation. Respondent concedes that he transported the patient to the physical therapy room as asserted by the patient, but avers that the area was not empty at the time. According to respondent, the physical therapy department abuts two other departments in the hospital, respiratory and EKG, and at least the respiratory department was staffed that day. Moreover, the physical therapy department is located near the entrance to the hospital, the cafeteria, and the elevators, all of which are subject to public access. As to the remainder of the patient's assertions, respondent denies that the door was locked, or even capable of being locked, and denies that he placed three pillows between the patient's legs. Rather, he avers that he assisted her onto a physical therapy table where he positioned her on her left side, placed one pillow between her legs and two under her head, and then, over the course of the next 30 minutes, treated her with hot packs and ultrasound with electrical stimulation. 1/ Following the treatments, the patient avers that the respondent sexually assaulted her before returning her to her room. Respondent denies such assertion, contends that no improprieties occurred, and that following the conclusion of the treatments he returned her to her room. Where the truth lies is, at best, elusive. 2/ The patient's description at hearing, concerning respondent's sexual assault and her reactions, when compared to previous statements she had given (respondent's exhibits 1, 3, and 8), is a gross exaggeration, and conflicts in material respects with prior recountings, which she either denies or rejects. Juxtaposed with such uncertain proof, the proof offered on behalf of the respondent was consistent and appeared worthy of belief. Under such circumstances, it cannot be concluded, with the requisite degree of certainty required by law, which version accurately reflects what transpired on the day in question or that any offense was committed. 3/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered dismissing the administrative complaint. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of June 1993. WILLIAM J. KENDRICK 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 22nd day of June 1993.
The Issue The issue presented is whether Respondent is guilty of the allegations contained in the Amended Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against Respondent, if any.
Findings Of Fact At all times material hereto, Respondent has been a licensed physician in the State of Florida, having been issued license number ME 007919. Respondent is an orthopedic surgeon, practicing in Hallandale, Florida. Respondent first met N. L. on March 6, 1985, when she came to him for treatment of injuries which she received in a motor vehicle accident on March 2, 1985. N. L. began receiving physical therapy in Respondent's office and was examined by Respondent on a regular basis. The primary medication given to N. L. by Respondent was B-12 IM. On a number of occasions, Respondent gave N. L. a prescription for valium (Diazepam). Diazepam is a Schedule IV controlled substance as defined by Chapter 893, Florida Statutes. Respondent made a notation in N. L.'s records whenever he gave her a prescription for medication and whenever he gave her a sample of medication which he had received from manufacturers' representatives. Although subsequently released from active treatment, N. L. continued to return to Respondent's office for treatment and therapy due to continued complaints and due to episodes of exacerbation of the injuries which she had previously received. Respondent saw N. L. as a patient for the last time on February 20, 1987. Respondent gave her no prescriptions for valium subsequent to that date. Thereafter, Respondent did see N. L. socially. She was a friend of his children and dated one of his sons. She was a guest in Respondent's home on a number of occasions. On occasion, she accompanied his sons when they came to Respondent's office. On several occasions, she flew with Respondent in his airplane. N. L. was never drunk or "stoned" when she was in Respondent's presence. Respondent never saw any evidence that N. L. was an alcohol and/or drug abuser. On or about July 25, 1989, N. L. died as a result of a car accident. Some Diazepam was found in her blood at the time of her death. Her blood also revealed a high alcohol content. Respondent kept his blank prescription pads in more than one location in his office. He kept some in his desk and kept some in a cabinet in the hallway across from the examining rooms. According to the records of Eckerd Drug Store, on May 18, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled in increments on May 18 and May 19 by the pharmacists working at Eckerd. According to the records of Eckerd Drug Store, on June 13, 1989, someone had a prescription for valium filled. That prescription appeared to be signed by Respondent. It was issued in an alias used by N. L. and reflected N. L.'s home address. That prescription was filled on June 13, 1989, was refilled on June 27, 1989, and was refilled on July 18, 1989, by the pharmacists working at Eckerd. Although the signature on the two prescriptions described above is similar to Respondent's, Respondent did not sign or issue those prescriptions to N. L. C. F. is a 28-year-old female who slipped and fell in her apartment on August 23, 1989. She sought medical treatment immediately following her fall. She then retained an attorney to represent her in the civil litigation she would be filing as a result of her fall, and that attorney referred her to Respondent for treatment and physical therapy. Respondent's first contact with C. F. occurred on her first visit to his office on August 31, 1989. At that time, Respondent performed a full physical examination on C. F. and started her on a course of physical therapy. It was not Respondent's practice to see each patient every time that patient came in for physical therapy. Rather, Respondent would see such patients once a week, either in the physical therapy room or in one of his examining rooms. On November 2, 1989, Respondent saw C. F. in the therapy room. C. F. listed her complaints, and Respondent examined her and dictated notes for her medical chart. C. F. asked Respondent if she could talk to him in a different room. She was placed in one of the examining rooms. When Respondent came into the examining room, C. F. asked if the door could be closed and if it could be secured. Respondent then closed the sliding door to the examining room, securing it with a pin. C. F. then told Respondent that she was "very good at giving head." Respondent replied that that was nice but he was busy. C. F. continued to joke and was laughing when she left the examining room. Thinking it insignificant, Respondent gave no further thought to the banter which had taken place. As C. F. left the office, she stopped at the front desk and made an appointment for a physical therapy treatment the following week. On November 7, 1989, C. F. arrived for her scheduled physical therapy treatment. She was not scheduled to see Respondent on that date. While C. F. was lying on the traction table, she asked the physical therapist if Respondent were in the office that day. The therapist responded that he was and asked if C. F. needed to speak to him. At first, C. F. said she did not need to see Respondent, but she later became insistent that Respondent see her. By the end of C. F.'s therapy session, C. F. was demanding that she be seen by Respondent, taking the position that she would not leave without seeing him even if that meant that she had to wait all day. The therapist told Respondent that C. F. was demanding to see him, and Respondent told the therapist to put C. F. in an examining room. Respondent then became busy, and the therapist did not have an opportunity to tell Respondent that C. F. was acting "a little eerie." C. F. was taken to an examining room. She waited for approximately an hour before Respondent was able to see her. When Respondent entered the examining room, C. F. asked him to close the door and motioned to him to lock it by putting the locking pin in place. Respondent closed the door and inserted the pin. C. F. walked over to Respondent, abruptly opened his belt, opened his pants, pulled his pants down, pulled down his underwear, pulled up his shirt, and told Respondent to "hold this," referring to his penis. C. F. then told Respondent that she had to get a napkin. She turned, took two steps toward her pocketbook, reached in, pulled out a camera, and instantly shot two pictures of Respondent. She then ran to the door shouting for her husband whom she had brought with her to her therapy session on that day. Respondent reached for her pocketbook, but C. F. pulled the pin out of the door, opened the door, and ran out still loudly calling her husband's name. C. F. and Respondent were alone in the examining room for no more than two minutes. By this time, her husband Patrick had entered the examining room area, where he immediately attacked the x-ray technician, placing his hands around the x-ray technician's throat and attempting to strangle him. C. F. told her husband he had gotten the wrong doctor, and Patrick then ran to Respondent and placed a stranglehold on him. C. F. and Patrick left Respondent's office, stopped by the gas station where C. F. worked, and then went to the Hallandale police station. Within 24 hours from the time that C. F. seduced Respondent in his office, she had contacted the attorney representing her in her "slip and fall" lawsuit regarding his filing an action against Respondent, had had a "falling out" with that attorney over him representing her, had hired a different attorney to file a lawsuit against Respondent, had been referred by that second attorney to a third attorney who would represent her along with the second attorney in suing Respondent, had been interviewed by a local television station at the office of one of her new attorneys, her interview and the interview with her new attorneys had been shown on both the early evening and the late evening news, and contact had been made between C. F.'s new attorneys and Respondent's attorney regarding C. F.'s demand for money from Respondent. No civil suit was ever filed by C. F. against Respondent. Numerous contacts took place between C. F.'s attorneys and Respondent's attorney. Additionally, C. F.'s attorneys contacted the Department's investigator a number of times attempting to obtain confidential information from the investigator to be used in C. F.'s claim against Respondent. Over the next several months, C. F.'s attorneys continued to demand money from Respondent and threatened Respondent with additional publicity. In the face of C. F.'s threats of expanded publicity against Respondent, a settlement was entered into in February of 1990. Under the terms of that settlement, C. F. received a cash payment from Respondent's medical malpractice carrier with an "extremely nominal" contribution from Respondent. Respondent was immediately devastated by his encounter with C. F. on November 7, 1989. He walked down the hallway in his office building and made an appointment to see Dr. Burton Cahn, a psychiatrist practicing in that building. He was not able to see Dr. Cahn until November 9, 1989. Dr. Cahn began treating Respondent for his depression, seeing Respondent at first twice a week and then once a week. Respondent was still seeing Dr. Cahn regularly at the time of the final hearing in this cause. Respondent voluntarily ceased practicing medicine on November 9, 1989, to avoid the possibility that the problems with C. F. would distract him from providing good quality medical care. He resumed his office practice on March 7, 1990, with Dr. Cahn's full approval and following Dr. Cahn's suggestion that Respondent never see a female patient without another female in the room. Respondent had ceased performing hospital surgical procedures by approximately August of 1989, two months before the incident with C. F., since he was not doing much surgery in a hospital setting and had someone else in his office who was performing hospital surgical procedures. When he resumed his office practice on March 7, 1990, Respondent did not resume performing hospital surgical procedures since he thought he might be "too rusty". Respondent is able to practice orthopedic surgery. He does not represent a danger to himself or to the people in the community. A further suspension of Respondent from his practice would be of no benefit to him or to the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty and dismissing the Amended Administrative Complaint filed against him. DONE and ENTERED this 18th day of October, 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 October, 1991. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 90-1565 Petitioner's proposed findings of fact numbered 1-4, 6-9, 22, 28, and 31 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 5 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 10, 13-18, 23, and 24 have been rejected as being subordinate to the issues under consideration herein. Petitioner's proposed findings of fact numbered 11, 12, 20, 21, 25, 26, 29, 30, and 35 have been rejected as not being supported by the weight of the credible and/or competent evidence in this cause. Petitioner's proposed findings of fact numbered 19, 27, and 36-41 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. Petitioner's proposed findings of fact numbered 32-34 have been rejected as being contrary to the weight of the credible evidence in this cause. Respondent's four unnumbered paragraphs contained in the Findings of Fact section of his post hearing Report and Recommendation of Referee have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony, conclusions of law, or argument of counsel. COPIES FURNISHED: Dorothy Faircloth, Executive Director Department of Professional Regulation/Board of Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Mary B. Radkins, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 David Bogenschutz, Esquire 633 Southeast Third Avenue Fort Lauderdale, Florida 33301
The Issue Should discipline be imposed against Respondent's physical therapist license for violation of Sections 486.125(1)(j), and (k), Florida Statutes (2002), and Florida Administrative Code Rule 64B17-6.001(2)(g), (3)(f) and (3)(h)?
Findings Of Fact Stipulated Facts Petitioner is the state agency charged with the regulation of Physical Therapy Practice pursuant to Chapters 20, 456, and 486, Florida Statutes. Respondent, Snehal Jawaharlai Patel, is a licensed Physical Therapist in the State of Florida, having been issued license number PT 20254. Respondent's mailing address of record is 2601 NW 44th Place, Gainesville, Florida 32605. Respondent was an employee working for Rehab Therapy Works and providing physical therapy services at Timber Ridge in February 2003. Respondent provided services to Patient R.G. while she was a resident at Timber Ridge. Dr. Pares was R.G.'s primary physician as reflected on the Timber Ridge Intake Sheet dated February 15, 2003. The February 17, 2003, Plan of Treatment Mr. Patel prepared was approved and signed by Dr. Pares on February 17, 2003. Dr. Cannon's April 14, 2003, correspondence to Timber Ridge indicates that Ms. G's patella was reduced and well- aligned on her February 25, 2003, office visit. The February 25, 2003, office note of Dr. Cannon indicating no bending of the knee was misfiled by Timber Ridge and was not transcribed by Timber Ridge. Patient R.G.: Her Care On February 10, 2003, Patient R.G. was 76-years old when admitted to Munroe Regional Medical Center (MRMC) in Ocala, Florida. The patient was brought to the emergency room at that facility having slipped in a puddle at Langley Medical Center causing her to fall on her right knee. X-ray findings at MRMC revealed a right patella fracture. Patient R.G. was treated by Odest Frank Cannon, Jr., M.D., an orthopedic surgeon. On February 12, 2003, Dr. Cannon addressed the patient's condition by performing a right patella open reduction internal fixation (ORIF). On February 15, 2003, Patient R.G. was transferred from MRMC to Timber Ridge Nursing and Rehabilitation Center (Timber Ridge) in Ocala, Florida, for rehabilitation. The nature of the rehabilitation to be provided at Timber Ridge was in relation to speech therapy, physical therapy, occupational therapy and management of medical care. Principally, the patient was placed at Timber Ridge to receive physical therapy following the knee surgery. When Patient R.G. was referred to Timber Ridge by Dr. Cannon, it was pursuant to the Physicians' Referral Form 3008 (Form 3008), establishing what Dr. Cannon had in mind by way of physician's orders, guidance in caring for the patient at Timber Ridge. The physician's referral was faxed to Timber Ridge on February 15, 2003, and bore Dr. Cannon's signature. In the pre-established format, Form 3008 refers to physical therapy where it reflects Dr. Cannon's comments and execution as follows: PHYSICAL THERAPY: [ ] New Referral [x] Continuation of Therapy - Assist SLR Walker gait - TDWB R leg TREATMENT GOALS: (Please Check) Frequency of Treatment _ Sensation Impaired [ ] Yes [ ] No Restrict Activity [ ] Yes [ ] No [ ] Stretching [ ] Coordinating Activities [ ] Progress Bed to Wheelchair [ ] Passive ROM [ ] Non-weight Bearing [x] Recovery to Full Function [x] Active Assistance [x] Partial Weight Bearing [ ] Wheelchair Independent [x] Active [ ] Full Weight Bearing [ ] Complete Ambulation [ ] Progressive Resistive Precautions: [ ] Cardiac Other Segismundo Pares, M.D., is a family-physician who was employed at Timber Ridge when Patient R.G. was treated. Dr. Pares as a family-physician is licensed in Florida. He is board-certified in family practice, geriatric medicine and hospice and palliative care. In his time at Timber Ridge, he was assigned to manage the medical problems that patients at Timber Ridge may have experienced, such as cardiac disease, lung disease, kidney disease, etc. The orthopaedic condition for patients undergoing rehabilitation at Timber Ridge was the responsibility of a physiatrist, a rehabilitation doctor at Timber Ridge, in conjunction with specialists in physical therapy, occupational therapy and speech therapy. The physiatrist was also involved in other matters of rehabilitation. The physiatrist at Timber Ridge was a Dr. Scott. Dr. Pares relied on Dr. Scott as a physiatrist to attend weekly team meetings, during which Patient R.G.'s physical therapy needs would be discussed. His expectation was that Dr. Scott would address any problems in providing physical therapy to the patient. For the most part, Dr. Pares primarily managed medical care for patients. But he had overall oversight over patient care. In his oversight role, Dr. Pares' plan of treatment for physical therapy in relation to Patient R.G. involved certifying the appropriateness of that therapy, relying upon Respondent who had produced the plan of treatment in that discipline. At present Dr. Pares has no recollection of Patient R.G. while she was at Timber Ridge. Another form of orders established in providing patient care at the facility, was telephone orders or facsimile orders from outside health care practitioners. Dr. Pares as the attending physician at Timber Ridge was responsible for signing off on those orders after review. This process did not involve conversations between Dr. Pares and the health care provider who initiated the telephone order or facsimile order. In addition, Dr. Pares would give his own telephone orders concerning patient care. One of the telephone orders signed off by Dr. Pares was dated February 17, 2003. It refers to: "PT clarification order: PT 5X weekly X 4 weeks for therapy, gait transfer, safety training, neuromuscular . . . " and other matters that Dr. Pares could not interpret at the hearing. The complete clarification order written down by the Respondent stated: "PT Clarification Order: PT 5 x weekly x 4 weeks for therex, gait transfer, safety training, neuromuscular reeducation & modalities PRN." Respondent signed the notations. Dr. Pares signed this outside telephone order on February 20, 2003, as the reviewing authority. Dr. Pares has no recollection of conversations with other persons concerning that telephone order. Respondent wrote the details of the February 17, 2003, telephone order on the form maintained at Timber Ridge in relation to Patient R.G. Dr. Pares relied upon Respondent when signing the telephone order under Respondent's recorded information, without knowledge of where the instructions originated that established the substance of the telephone order received on that date. Respondent's role in that act will be explained. Respondent's Treatment of Patient R.G. After he was licensed as a physical therapist in Florida in 2002, Respondent began his practice. In February 2003 when he provided treatment to Patient R.G., he was a staff physical therapist at Timber Ridge. His duties at that facility were to direct clinical care provided by his assistant, after evaluation and assessment of patients needs, as well as provide treatment and physical therapy to the patients. On February 15, 2003, when Patient R.G. came to Timber Ridge, Respondent's interpretation of the orders from Dr. Cannon on Form 3008 in the physical therapy section, was "Assist with straight leg raise (which is a separate clause), walker gait, touch down weight-bearing right leg, active assistive range of motion, active range of motion, also partial weight-bearing and recovery to full function." These orders were in view of Dr. Cannon's primary diagnosis set forth in the Form 3008 pertaining to a patella fracture, with ORIF on the patient's right knee. Respondent observed that the Form 3008 did not list any precautions in addressing the patient's physical therapy needs. Based upon the information set forth in the Form 3008 Respondent proceeded with the belief that Dr. Cannon expected that the physical therapy for Patient R.G. immediately begin with the performance of active range of motion. This was in keeping with Respondent's experience with this type of patient. At the time of hearing, the Respondent had dealt with approximately a dozen cases in provision of physical therapy to patients with this condition. Nothing in the Form 3008 from Dr. Cannon, pertaining to physical therapy, created an impression in Respondent's mind that he should have not performed range of motion exercises on Patient R.G. There was a question in Respondent's mind concerning the weight-bearing status of Patient R.G., a separate consideration from the question of active range of motion. Respondent addressed the weight-bearing status question by seeking clarification from Dr. Cannon. When Respondent called Dr. Cannon to clarify the weight bearing status, he took the opportunity to make certain of other aspects of the orders previously given by Dr. Cannon, should there be an error of perception concerning other items set forth in Form 3008 pertaining to the patient physical therapy. On February 17, 2003, Respondent wrote the note in the patient's chart concerning Dr. Cannon's physician's telephone order. The note refers to the "PT clarification order" and the expectation that the patient have "therex." Respondent intended by his entry in the patient chart, that he understood Dr. Cannon's orders to include range of motion. The note on the clarification order does not specifically refer to the term "range of motion." It does not specifically refer to "weight bearing," the issue which prompted the call for a clarification order. Respondent concedes that the term "therex" has a number of possible definitions when addressing types of therapeutic exercise. After receiving the clarification order from Dr. Cannon, Respondent prepared a plan of treatment for Patient R.G. It called for active range of motion exercises to be performed by the patient, increasing the range over time. Leslie Sutack, a physical therapy assistant supervised by Respondent provided the physical therapy to Patient R.G. Ms. Sutack's efforts were overseen by Respondent on a daily basis. Respondent was in the same room while Ms. Sutack provided physical therapy to Patient R.G. Dr. Pares signed the plan of treatment for Patient R.G. in relation to physical therapy. Dr. Scott was aware that Patient R.G. was receiving physical therapy that included range of motion. On April 9, 2003, Respondent became aware that Patient R.G. had seen Dr. Cannon earlier and that Dr. Cannon's order was for no range of motion on the part of the patient. Respondent was unaware of this choice by Dr. Cannon prior to that date in April 2003 because of an institutional error at Timber Ridge, in which Dr. Cannon's order against range of motion had been misplaced. Ordinarily, Dr. Cannon's order would have been provided to the physical therapy department at Timber Ridge where Respondent was employed. The order from Dr. Cannon was dated February 25, 2003, prohibiting range of motion therapy. Without awareness, Respondent preceded with range of motion treatment from February 15, 2003 until the April 2003 date based upon his understanding of Dr. Cannon's February 15, 2003, orders in the Form 3008 for Patient R.G. Mike Mandarino was the director of rehabilitation at Timber Ridge while Patient R.G. was undergoing treatment. He has experience with orders from physicians at MRMC for patient care after transferring to Timber Ridge. The orders would be provided on the Form 3008. Absent an addendum to the Form 3008 by the referring physician, Timber Ridge personnel would use the Form 3008 as controlling when determining the doctor's choices for treatment. Mr. Mandarino explains that Dr. Pares' role at Timber Ridge at the time was that as the person responsible for the overall patient care. Dr. Scott oversaw rehabilitation received by a patient. In his testimony, Mr. Mandarino confirmed that Dr. Cannon's February 25, 2003, order prohibiting range of motion for Patient R.G. had been misfiled at Timber Ridge. Expert Opinion Dana Lameier is licensed in Florida as a physical therapist. She has been licensed for 14 years. She earned a Bachelor's degree in physical therapy from the University of South Alabama. She also holds a master's degree in health care administration from Webster University. She actively practices physical therapy. On occasion she has served as a teacher in physical therapy. She had been an adjunct instructor for Pope Community College. Ms. Lameier's present position is as Director of Rehabilitation at Osceola Regional Medical Center. She is responsible for supervising the therapy services provided in the hospital and through the outpatient services in that facility. Those therapy services include physical therapy. Ms. Lameier supervises three physical therapy assistants. She treats patients in the hospital setting and as outpatients. Ms. Lameier has familiarity with the expectations for documentation of services provided by a physical therapist. She gained that understanding through her formal education, continuing education, reading of books, on the job training, and through the Joint Commission on Accreditation of Health Care Organizations (JACHO). Ms. Lameier is familiar with the standards of practice for physical therapists in Florida. She is familiar with the standard of care for physical therapists in addressing orthopaedic cases. Ms. Lameier is familiar with the circumstances of patients who are dealing with recovery from knee surgery, this through her schooling and her work experience, involving somewhere between 20 and 50 cases. Ms. Lameier is uncertain concerning the number of knee rehabilitation patients that she has assisted who have undergone ORIF. Although Ms. Lameier is not certain of the number of patients she has treated following ORIF of the petalla, she agrees that it would be less than 20 patients. The nature of her work done in physical therapy has involved extensive association with orthopedic surgeons. Concerning Patient R.G., Ms. Lameier understood that the patient had a severely comminuted fracture. In addressing rehabilitation for that type of surgery, Ms. Lameier believes that full recovery of the function is expected in six months. Bone healing would take place within six to eight weeks. In addressing a person who had undergone ORIF, before providing physical therapy, Ms. Lameier would wish to know the medical history, such as problems with diabetes, osteoporosis, opteopenia, medications taken by the patient and other matters that might influence the rehabilitation. Age is a factor that enters into the discussion because elder patients heal more slowly and tend to have more medical issues. According to Ms. Lameier, when addressing physical therapy for a patient, the therapist, like other health care professionals, needs to be concerned that no harm befall the patient. If there is a question concerning the approach to care, Ms. Lameier would take a more conservative approach until certain of the underlying status of the patient. Ms. Lameier was accepted as an expert in the standard of care expected of physical therapists practicing in Florida. Ms. Lameier is familiar with the requirements of a plan of a treatment for a patient undergoing physical therapy. Following an evaluation of the patient's condition, consistent with the requirements of law, the physical therapist prepares a plan that lists the short-term and long-term goals for the patient. The plan includes the interventions that are involved with the care, the modalities to be used and a discharge plan. The physical therapist is responsible for creating the plan of care based upon his or her judgment. In performing the evaluation leading to the plan of care, a review of documents pertaining to the patient is made. Tests are performed to ascertain the patient's strength, balance, potentiality for range of motion, all directed toward gaining an impression of the patient's ability to perform physical activities. The plan of care may be changed to address the patient's status at a given time. The plan of care may be referred to as a plan of treatment, as it was in Patient R.G.'s case. According to Ms. Lameier, in relation to telephone orders, the physical therapist is expected to discuss the order with the physician, physician assistant, or nurse practitioner who gave the order and read back the order once the physical therapist has written it down. The written information concerning the order recorded by the physical therapist would reflect the name of the practitioner who gave the order and the physical therapist, with the physical therapist's signature affixed. In reviewing the plan of treatment created by Respondent to address Patient R.G.'s condition, Ms. Lameier commented on information available to the Respondent before he created the plan of treatment. To arrive at her opinions concerning the care Respondent provided Patient R.G., Ms. Lameier reviewed documents from Timber Ridge, MRMC, documentation from Dr. Cannon's office, and certain affidavits. Part of that information came from the Form 3008 created by Dr. Cannon. Ms. Lameier expressed the opinion that Respondent did not meet the standard of care expected of him in preparing the plan of care for Patient R.G. She arrived at this opinion based upon her knowledge of the Form 3008 for the patient, her training as a physical therapist, and basic protocols, for what she describes as the orthopedic process. In her opinion, when you have a patella fracture, such as the case at issue, which she again describes as a severely communited patella fracture, the standard of care is to leave the knee in extension until it is radiographically demonstrated that bone healing is taking place. As a physical therapist, Ms. Lameier believes that the bone healing in a healthy individual generally requires 6 to 8 weeks. In an elderly person with diabetes, and osteoporosis it may take longer, as with Patient R.G. Ms. Lameier mentions the protocol for immobilization of the knee as 3 to 6 weeks in that case. Ms. Lameier's opinion concerning Respondent's care provided Patient R.G. is in recognition of the need for Respondent to practice with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapist, as being acceptable under similar conditions and circumstances. Ms. Lameier does not believe that the Respondent met the standard of care in that he was not knowledgeable of the basic protocols for bone healing and of the orthopedics involved with Patient R.G.; that he performed a range of motion early and without specific recommendation from the orthopedic surgeon, and that his choices could have caused harm or failure of the device that was created to hold the patella together. Respondent had identified range of motion as a goal for Patient R.G. to be carried out by the physical therapist assistant. Ms. Lameier thinks this was inappropriate given the severity of the knee injury experienced by the patient and that the physical therapy was undertaken prematurely. In describing the duties of the doctor and the physical therapist, the referring physician makes the diagnosis for the patient and the physical therapist determines the appropriate rehabilitation to be provided in view of the diagnosis, according to Ms. Lameier. In this example, the physician's diagnosis was fractured patella and the physical therapy treatment that Respondent was to provide was a response to the patient's difficulty walking. Ms. Lameier expressed the opinion that Respondent failed to properly interpret the physician's referral in Patient R.G. Had there been some question or uncertainty on Respondent's part, he should have contacted the physician, the physician assistant, or the nurse practitioner associated with the physician. Ms. Lameier believes that Respondent should have made the physical therapy assistant under his supervision aware of special problems or cautioned that person of special problems or contraindications for Patient R.G., that might limit her range of motion because of the surgery that the patient had undergone. In Ms. Lameier's opinion, having failed to properly interpret the physician's referral in Form 3008, Respondent did not follow up for specific clarification of that referral. He then created a plan of care to utilize what Ms. Lameier refers to as "pretty aggressive range of motion for something that has a protocol of general immobility initially." In addition, Ms. Lameier expressed the opinion that Respondent did not document clearly the precautions, special problems, or contraindications that were involved in the diagnosis. There is a requirement for documentation of contraindications in Ms. Lameier's opinion. Ms. Lameier's reading of Dr. Cannon's instructions in the Form 3008 for physical therapy, is that Dr. Cannon calls for continuation of therapy; assists with SLR, referring to straight leg raises; walker gait; and TWB, referring to touchdown weight- bearing on the right leg. More specifically, the straight leg raise would mean lifting the leg straight up with no bend at the knee, with the pivot point being at the hip. The reference to assist with straight leg raise is describing circumstances after a patella fracture or an injury to the patella. There is a weakness in the quadricep muscle that would prohibit being able to lift the leg independently, so assistance is required. On the subject of any orders that Dr. Cannon gave concerning active range of motion for Patient R.G., Ms. Lameier expressed the belief that the physician included in his treatment goals for active assist movement and active movement, referring to the assist with the straight leg raise. The check off of the word "active" meant active range of motion that the therapist does not participate in. While the Form 3008 could be interpreted as an order to begin an immediate active range of motion for Patient R.G., Ms. Lameier does not believe that it would be a range of motion to the knee. The straight leg raise is a hip exercise. The reference within the Form 3008 to "active assistance" pertained to assistance with the straight leg raise, in her view. Recognizing precautions and contraindications related to the underlying diagnosis for Patient R.G., Ms. Lameier does not believe that Dr. Cannon would ask a physical therapist to perform active range of motion to the knee. This in connection with the reference to assisting with the straight leg raise, meaning that the doctor would like active assistance during those exercises progressing to active range of motion. Ms. Lameier acknowledges that a physical therapist might form a different interpretation of Dr. Cannon's orders but any question about active range of motion to the knee to commence immediately, would raise a "red flag" that would cause her to contact the physician to clarify the order, if that were the interpretation arrived at. However, if a physician wanted to inform a physical therapist of precautions for the patient, such as not bending the knee or keeping the knee immobile at all times, Ms. Lameier would "hope" that it would be stated in the Form 3008. That would be her expectation. No precautions were indicated by Dr. Cannon in the Form 3008 in the case involving Patient R.G. Ms. Lameier's reading of the reference to walker gait, is that when the patient walks she uses a walker and that she only puts her toe down for weight bearing, to be used as a balance on the right leg side. The reference to walker gait does not mean bending the leg, according to Ms. Lameier's interpretation of Dr. Cannon's orders. TWB does not mean bend the leg. Walker gait - TWB does not mean bend the leg. The box that is checked for "active assistance" to be provided Patient R.G., in Ms. Lameier's interpretation, means that the therapist would provide some of the work, in that the patient is unable to do it independently. This reference does not refer to range of motion, nor to the expectation that Patient R.G.'s knee be bent, as Ms. Lameier perceives it. In the box marked "active" in relation to physical therapy to be provided Patient R.G., it is interpreted by Ms. Lameier to mean that the physician wanted the patient to progress toward active movement. As Ms. Lameier comments, "So the straight leg raise needs active assistance to begin; but we would hope that as she recovers and gains more function and strength, that she would be able to perform those actively, meaning the therapist would not need to assist with the movement." According to Ms. Lameier in her understanding of the box marked "partial weight bearing," this would mean " . . . approximately 50 percent of the weight . . . " Ms. Lameier remarks, "and again, the treatment goal when she started out as touch down weight-bearing, meaning just her toe down for balance and the goal being that she would progress to partial weight- bearing." Finally, there is a reference in the physical therapy section in Form 3008 for Patient R.G. checked in the box as "recovery to full function." This is understood by Ms. Lameier to be a long-term goal for the patient to return to full function, live independently, as she had prior to the injury. In commenting on the February 17, 2003, clarification order, Ms. Lameier's interpretation is that it called for five times weekly times four weeks for therex, gait transfer, safety training, neuromuscular-education and modalities PRN, as signed by Respondent. It was also signed by Dr. Pares. Ms. Lameier refers to this as a "standard clarification order" that is required for every patient in the skilled nursing facility. In the sequence, the physical therapist must make certain that there is an initial order for physical therapy, evaluation and treatment, followed by the performance of an evaluation, creation of a plan of care and then a clarification order, which includes all the interventions in the plan that the therapist would use. In her reading, Ms. Lameier does not believe that the February 17, 2003, clarification order makes mention of weight-bearing status pertaining to Patient R.G., nor does it contain any direction on performing bending of the knee exercises. Ms. Lameier's emphasis on the February 17, 2003, telephone order was that it did not specify or confirm active range of motion for Patient R.G. It did not include an indication or directive to bend the knee to perform knee exercises involving bending of the knee; and it did not comment on weight-bearing. Her interpretation of "therex" is that it is a broad term intended to refer to therapeutic exercises, everything from aerobic exercises, stretching, strength exercises, range of motion, etc. The reference to the term in this case is not apparent as to the exercise(s) expected to be performed by Patient R.G., according to Ms. Lameier. Ms. Lameier expressed the opinion that Respondent failed to ask for clarification or contraindicators for Patient R.G., in that she finds no indication in the patient chart that supports that Respondent made contact with the physician, or others on the physician's staff to make those determinations. Assuming that Respondent called the orthopedic physician to receive clarification with regard to weight bearing and range of motion, Ms. Lameier did not find documentation in the Timber Ridge records to reflect receipt of a clarification order on those subjects. In her opinion, to be an acceptable clarification order it needs to be written verbatim. In expressing her opinion concerning the comminuted fracture, Ms. Lameier acknowledged that information provided to Timber Ridge only referred to a right patella fracture with ORIF. Concerning her comments on the comminuted fracture, the reference is out of the operative record or report from Dr. Cannon which refers to "the inferior pole was comminuted . . . ." That report was rendered on February 10, 2003. No indication of precautions concerning the fracture were provided prior to February 25, 2003, the physician's note of February 25, 2003, information not made known to Respondent until April 2003. The misfiled note from Patient R.G.'s chart maintained by Dr. Cannon, dated February 25, 2003, refers to "no bending of RLE." The RLE was understood to mean right lower extremity. John Hisamoto is a physical therapist. He was licensed in Florida in 1981. He has practiced physical therapy in Florida since that time. At present Mr. Hisamoto practices at Proactive Physical Therapy. He has been in that position for 14 years. Mr. Hisamoto has experience treating patients who have suffered knee injuries. He has treated in excess of 5,000 who were seen following knee surgery. Mr. Hisamoto is an instructor at the University of South Florida, where he teaches therapeutic rehabilitation and modalities. Mr. Hisamoto acts as a consultant to a number of professional sports teams: the New York Yankees (baseball), the Tampa Yankees (baseball) and the Tampa Bay Lightning (hockey). More specifically Mr. Hisamoto is familiar with the protocol when treating a fractured patella with ORIF, such as experienced by Patient R.G. Mr. Hisamoto was accepted as an expert in physical therapy to offer opinion testimony. In connection with the physical therapy to be provided a patient with that condition, the patient has undergone a reduction in the fracture to improve the congruency in the joints and to hasten bone healing. There is the effort to improve the capacity to perform early range of motion to lessen stiffness and problems associated with the knee. The physical therapy that the patient who has undergone ORIF would be exposed to, could include use of a knee immobilizer to perform some touchdown weight-bearing activities. Here the Timber Ridge treatment plan called for the use of a knee immobilizer on the right knee. The patient is taught to do transfers, how to begin touchdown positions. One of the other considerations in the therapy is the range of motion exercises that the patient is taught to perform. In Mr. Hisamoto's experience, after ORIF, two or three days beyond the operation is allowed for wound healing. Then the range of motion exercises begin. This is a choice made by the physician. From Mr. Hisamoto's experience, the patient will have been put through a full range of motion by the physician at the time of surgery. The full range of motion is through an arc of 0 to 90 degrees. Given the degree of swelling following an injury, the full range of motion within that arc is not immediately available when performing physical therapy. In the case such as Patient R.G.'s early range of motion would be 0 to 30 degrees or 0 to 45 degrees. Mr. Hisamoto's opinion is that Respondent's plan of treatment calling for range of motion increased by 10 degrees in the first two weeks was a very conservative choice, not an inappropriate response to Patient R.G.'s case. Mr. Hisamoto offered no criticism of Respondent's choice to call for clarification of the initial orders on the Form 3008. He finds the initial orders in the Form 3008 provided by Dr. Cannon evident in the diagnosis and the expectation by the physician that what was to occur was the use of active-assist range of motion, the accepted standard of care for ORIF of the patella. In Mr. Hisamoto's opinion, he would have expected any precautions to be set forth in the Form 3008 if Dr. Cannon had that intention. They were not detailed. From Dr. Cannon's notes concerning the operation on Patient R.G.'s knee, Dr. Cannon had confirmed the range of motion in the patient's knee while in the operating room. Dr. Cannon noted that the fracture was very stable. Under those circumstances, Mr. Hisamoto believes that it would be appropriate for the patient to be exposed to early range of motion exercises by the physical therapist. In that connection, Mr. Hisamoto described the pursuit of active range of motion exercises as depending on the physician who performed the surgery and any complications that may have been experienced in relation to the wound, the incisional site. Active range of motion would occur in the first week, taking into account the need to pay attention to the incisional site. That is what transpired in Respondent's care provided Patient R.G. as to timing. Mr. Hisamoto expressed the opinion that Respondent met the standard of care in providing services to Patient R.G. consistent with what would be expected of a physical therapist in Florida. This included necessary communication by Respondent with physicians involved with Patient R.G.'s treatment. Finally, concerning the clarification order notations made by Respondent on February 17, 2003, Mr. Hisamoto expressed the opinion that there are multiple definitions that may be ascribed to the term "therex". Marty Huegel is a licensed physical therapist in Florida. He received his license in 1979. Since that time he has consistently practiced physical therapy. Currently Mr. Huegel is the Director of Physical Therapy for Quest Physical Therapy in Gainesville, Florida. He also serves as the Director of Rehabilitation for the University of Florida Athletic Association. Mr. Huegel has experience treating patients with knee problems. He has treated approximately 6,000 knee patients following their surgery. Mr. Huegel is familiar with the protocol for treating a fracture of the patella with ORIF, such as the case of Patient R.G. Mr. Huegel has had what he describes as "quite a few" cases involving patients in the age group represented by Patient R.G. Mr. Huegel was received as an expert in the field of physical therapy to offer opinion testimony. Mr. Huegel expressed his opinion concerning the appropriate protocol or standard of care for patients such as Patient R.G. when addressing an ORIF after patella fracture by provision of physical therapy. The primary concern is that stabilization of the fracture be achieved. The surgeon will provide assurance to the physical therapist through the operative note that the patient has been taken through the range of motion following the surgery. This is in anticipation of the need to move the knee to avoid stiffness. Ordinarily the only thing that would prohibit the movement of the knee would be wound issues. Those wound issues would be more prevalent in older patients. If the wound is closed and appears to be healing, then the physical therapist is interested in immediate motion for the patient in the knee. With some patients the movement of the knee can occur the day after surgery. In older patients it may be a few days before that would be an appropriate choice, principally in relation to wound management. In the elderly patients Mr. Huegel has a concern that the range of motion exercises begin early because those patients, if they experience stiffness, can become disabled. Mr. Huegel agrees with Respondent's choice to begin range of motion physical therapy for Patient R.G. on February 17, 2003. Mr. Huegel refers to the immobilizer that was prescribed for Patient R.G. He explains that when physical therapy is being provided to the patient, the immobilizer would be removed in the setting where physical therapy was being provided. Otherwise the patient would utilize the immobilizer. Mr. Huegel does not believe that it would be the appropriate standard of care to wait for radiographic evidence of healing before range of motion exercises are undertaken. That would be important if the surgeon were concerned that there was not the expected fixation in the fracture. Mr. Huegel would expect the physician to mention the problem with fixation if it were there and indicate that the knee not be moved for a period of time or limit the range of motion and its arc. In Patient R.G.'s case, the operative report was to the effect that the fracture was stable as Mr. Huegel understood the circumstances. That information would have been relied upon by Mr. Huegel in his plan of care, consistent with his belief that the patient was a proper candidate for early range of motion exercise. In reviewing the Form 3008 in the section pertaining to physical therapy, Mr. Huegel expressed his understanding of Dr. Cannon's orders. His interpretation was that the doctor expected assistance with straight leg raises. Dr. Cannon wants the patient to use a walker for gait. The form in it depiction of the goals refers to the "active" box being checked and what Mr. Huegel refers to as "assisted active" concerning range of motion. The placement of those terms on the form under the term for "passive range of motion (ROM)," leads him to conclude that the doctor was absolute in his expectation that the knee be moved right away. Nothing in the doctor's orders found on Form 3008 led Mr. Huegel to believe that the physician did not intend that immediate active range of motion begin for Patient R.G. Mr. Huegel considers the matter set forth in the Form 3008 pertaining to physical therapy, to constitute the original order for physical therapy prepared by Dr. Cannon. Mr. Huegel would not have sought clarification from Dr. Cannon of the information set forth in the physical therapy section to Form 3008. He believes the explanation in the Form 3008 is straight forward enough. Mr. Huegel believes that he could have prepared a plan of treatment based upon the information set forth in the physical therapy section to the Form 3008 related to Patient R.G. Mr. Huegel reviewed the plan of treatment prepared by Respondent for Patient R.G. He believes that that plan was appropriate, with the exception that he deemed it to be conservative in its reference to as goal of 10 degrees of range of motion. Mr. Huegel would have extended the range of motion and the arc 30 to 40 degrees. Otherwise Mr. Huegel offered no criticism of Respondent's plan of treatment. This reference is to the expectation of physical therapy within the first two weeks as to the arc or range of motion. Mr. Huegel does not believe that the treatment provided by Respondent for Patient R.G. was too aggressive. Mr. Huegel does not believe that there were any precautions that Respondent should have taken in treating Patient R.G. that were not taken. Respondent properly documented the treatment of Patient R.G. in Mr. Huegel's opinion. In Mr. Huegel's opinion, Respondent practiced physical therapy with the level of care, skill and treatment recognized by a reasonably similar physical therapist as acceptable under similar conditions and circumstances. Mr. Huegel expressed the opinion that Respondent communicated appropriately with physicians regarding the patient's treatment. Mr. Huegel expressed the opinion that Respondent properly interpreted the orders received from Dr. Cannon and followed those orders. Having considered the opinions of the experts in view of the allegations of the Administrative Complaint and facts found, the opinions expressed by Mr. Hisamoto and Mr. Huegel that Respondent practiced with the level of care, skill and treatment recognized by a reasonably prudent similar physical therapy practitioner as being acceptable under similar conditions and circumstances is more persuasive. Their opinion that Respondent interpreted and acted in accordance in the orders from Dr. Cannon, known to Respondent, is accepted. Their opinion that Respondent participated appropriately, as part of the collaborative effort to treat Patient R.G. is accepted. Based upon their opinion, nothing in the Respondent's conduct in relation to the treatment provided Patient R.G. is considered beyond the opportunity provided under his license or outside his competence to perform. Prior Disciplinary History There was no indication of prior discipline imposed against Respondent's physical therapist license.
Recommendation Based upon the findings of facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Counts One and Two to the Administrative Complaint. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 2007. COPIES FURNISHED: Lynne A. Quinby-Pennock, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Donna M. Keim, Esquire Bice Kohl Law Firm, P.L. Post Office Box 1860 Alachua, Florida 32616 Susie K. Love, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin C05 Tallahassee, Florida 32399-1701 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the last sentence of Rule 64B17-3.003, Florida Administrative Code, which provides that "[a]n applicant who has failed to pass the [physical therapist licensure] examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure [by endorsement]," is an "invalid exercise of delegated legislative authority," within the meaning of Section 120.52(8)(c), Florida Statutes.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement and clarify the factual stipulations entered into by the parties:3 The "applications for licensure in Florida as physical therapists" that Petitioners filed were applications for licensure by endorsement.4 Their applications were denied because they each had failed the National Physical Therapy Examination (also known as the "NPTE") more than five times before finally passing the examination. Prior to November 11, 2002, the Board's "Licensure by Endorsement" rule, Rule 64B17-3.003, Florida Administrative Code, provided as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has passed an examination before a similar, lawful, authorized examining board in physical therapy in another state, the District of Columbia, a territory or a foreign country if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another state, the District of Columbia, a territory, or a foreign country are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider. Effective November 11, 2002, the Board amended Rule 64B17-3.003, Florida Administrative Code, to read as follows: An applicant demonstrating that he or she meets the requirements of Rule 64B17-3.001, F.A.C., may be licensed to practice physical therapy by endorsement by presenting evidence satisfactory to the Board that the applicant has active licensure in another jurisdiction and has passed an examination before a similar, lawful, authorized examining board in physical therapy in such other jurisdiction if their [sic] standards for licensure are as high as those maintained in Florida. The standard for determining whether the standards of another jurisdiction are as high as the standards in Florida shall be whether the written examination taken for licensure in such other jurisdiction by applicants meeting Florida's minimum educational qualifications was through the national physical therapy examination provider certified by the Department [of Health].[5] An applicant who has failed to pass the examination after five attempts, regardless of the jurisdiction through which the examination was taken, is precluded from licensure. No subsequent amendments have been made to Rule 64B17-3.003. The version of the rule that became effective November 11, 2002, is still in effect. Section 486.081, Florida Statutes, is cited as the "law implemented" in the current of version Rule 64B17-3.003, Florida Administrative Code, as it was in the pre-November 11, 2002, version of the rule. Florida, along with the other 49 states, the District of Columbia, and Puerto Rico, use the NPTE (the only national examination of its kind available in this country) to test the competency of candidates for licensure by examination to practice as physical therapists. Florida has used the NPTE since June of 1994, when the examination was certified.6 There is no "Florida-developed examination." The Federation of State Boards of Physical Therapy is the "provider" of the NPTE. The NPTE is a "criterion-based," minimum competency examination consisting of multiple-choice questions that is given only in English.7 It is designed to test whether candidates possess core skills basic to the practice of physical therapy, not their knowledge of the English language (although candidates "need a certain proficiency in English to fully understand the questions"). The examination is highly reliable in its measurement of entry-level knowledge in the discipline. "From a psychometric and statistical [perspective], [a] candidate would need to take the examination one time for [there to be] a very accurate estimate of [the candidate's competency]." It is reasonable, however, to permit a limited number of "retakes," in light of the possibility that "luck" or some other factor unrelated to the candidate's competency may have negatively impacted the candidate's test results. Allowing an "[u]nlimited number of retakes [of the NPTE]," though, diminishes the examination's reliability as a consequence of the "practice effect" and "repeat exposure" phenomena. It is contrary to "nationally and generally accepted testing standards" and increases the risk that a candidate lacking the required skills will be able to pass the examination. "[T]he number of times that Florida has set [for a candidate to take the NPTE] . . . is very ample and lenient."
The Issue Whether Tina Pate violated Subsection 486.125(1)(b), Florida Statutes, by committing deceit in obtaining a license as a physical therapist, and, if so, what penalty should be imposed; and whether Tina Pate violated Subsection 455.624(1)(w), Florida Statutes, for failing to report to the Board of Physical Therapy her conviction of aggravated child abuse, and, if so, what penalty should be imposed.
Findings Of Fact Based on the testimony of Pate and the evidence submitted, the following findings of fact are made: At all times material, Pate held a license as a Physical Therapist in the State of Florida. The Department of Health, through the Board of Physical Therapy Practice, is the state agency that licenses and has regulatory jurisdiction of physical therapists. As authorized by Florida Statutes, AHCA performs investigative and prosecutorial services for the Department of Health. Pate pled nolo contendere to a charge of aggravated child abuse in 1979. Aggravated child abuse is a felony (AHCA Exhibit 2). Pate applied for a physical therapy license on August 1, 1996. The license application contained, among other things, the following question: "12. Have you ever been convicted or found guilty of a felony, regardless of adjudication? (A plea of nolo contendere shall create a rebuttable presumption of guilt to the underlying criminal charges)." Pate answered "No" to this question. Pate testified that she was advised and that she believed that having successfully completed three years of probation that her record would be expunged. She further testified that because she found Question 12 and another question on the application regarding criminal convictions confusing, she sought legal counsel prior to answering the questions and answered the question as counseled. In this particular factual situation, based on the nature of the felony, the text of the question, the counsel she received, and her mistaken belief that the record of criminal conviction had been expunged, Pate's incorrect answer to Question 12 was not deceitful. Late in 1998, Pate discovered, as a result of an investigation by a prospective employer, that the 1979 nolo contendere plea was still a matter of public record. On February 15, 1999, Pate applied to AHCA for an exemption hearing. Subsection 400.215(4)(b), Florida Statutes, states: (b) As provided in s. 435.07 the appropriate regulatory board within the Department of Health, or that department itself when there is no board, may grant an exemption from disqualification to an employee or prospective employee who is subject to this section and who has received a professional license or certification from the Department of Health or a regulatory board within that department. Subsection 435.07(1), Florida Statutes, states: The appropriate licensing agency may grant to any employee otherwise disqualified from employment an exemption from disqualification for: (a) Felonies committed more than 3 years prior to the date of disqualification; In response to Pate's request for exemption hearing, Mr. Joe Baker, Acting Bureau Chief, Heath Care Practitioner Regulation, by letter dated February 24, 1999, granted her request stating, "an exemption from disqualification for the above disqualifying offense(s) is granted." Subsection 456.072(1)(w), Florida Statutes, states: The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken: * * * (w) Failing to report to the board, or the department if there is no board, in writing within 30 days after the licensee has been convicted or found guilty of, or entered a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction. Convictions, findings, adjudications, and pleas entered into prior to the enactment of this paragraph must be reported in writing to the board, or department if there is no board, on or before October 1, 1999. While she was preparing her request for exemption hearing, Pate had telephone conversations at the Board of Health with an individual she identified as Kay Howerton, who Pate believed had reviewed her request for exemption hearing. Pate's request for exemption hearing contains specific reference to her plea of nolo contendere to the November 3, 1978, Pasco County, Florida, charge of aggravated child abuse. It is not unreasonable for a lay person, having made an application to AHCA for an exemption from licensure disqualification for having pled nolo contendere to aggravated child abuse, and having received a letter from the Board of Health granting her the exemption, to believe that she had reported her plea of nolo contendere to the Board in writing as required by Subsection 456.072(1)(w), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Physical Therapy Practice, find Tina Pate not guilty of having violated Subsections 486.12(1)(b) and 455.624(1)(w), Florida Statutes, and dismiss the Administrative Complaint filed against her. DONE AND ENTERED this 9th day of March, 2001, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 2001. COPIES FURNISHED: Herbert Allen, Jr., Esquire 2000 Highway A1A, 2nd Floor Indian Harbour Beach, Florida 32937-3525 Mary Denise O'Brien, Esquire Agency for Health Care Administration Post Office Box 14229 Mail Stop 39 Tallahassee, Florida 32317-4229 Dr. Kaye Howerton, Executive Director Board of Physical Therapy Practice Department of Health 4052 Bald Cypress Way, Bin Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue The issue in this case is whether Ms. Nalda, a foreign trained applicant for licensure as a physical therapist by examination, has proven that she is eligible to sit for the licensure examination required by Section 486.031(3)(b), Florida Statutes (1935). In its preliminary action, the Board had indicated that Ms. Nalda has not presented evidence of educational credentials which are "deemed equivalent to a bachelor's degree in physical therapy in the United States" as required by Rule 21M-7.020, Florida Administrative Code (1966).
Findings Of Fact Ms. Nalda received her educational preparation in physical therapy in Bogota, Colombia. When she submitted her application for licensure by examination as a physical therapist, she also submitted an evaluation of her educational preparation in physical therapy performed by the International Education Research Foundation, Inc., dated December 5, 1983. It states in pertinent part: The Diploma is recognized as equivalent to a valid bachelor's degree in the United States. When Petitioner was first certified for examination by the Physical Therapy Council, the Council had misunderstood the meaning of the letters of evaluation it received from the International Education Research Foundation, Inc., such as the one quoted above. The letter did not state that the educational preparation under review was equivalent to a valid bachelor's degree in physical therapy in the United States, but the Council treated it that way. Due to this misunderstanding, the Council permitted Ms. Nalda to sit for the physical therapy examination three times, each of which she failed. The fourth time she applied for examination, she was denied the opportunity to be examined because the Council realized her educational credentials were not deemed equivalent to a valid bachelor's degree in physical therapy in the United States. Ms. Nalda requested a second evaluation from International Education Research Foundation, Inc., as well as an evaluation from another agency, International Consultants of Delaware, Inc. The Physical Therapy Council reviewed both of them. Neither evaluation deemed Petitioner's credentials to be equivalent to a valid bachelor's degree in physical therapy in the United States, and both identified specific deficiencies in her educational preparation. The September 24, 1986 evaluation of International Consultants of Delaware, Inc., states that Ms. Nalda lacks ten semester credits in humanities and two semester credits in natural sciences. A transcript from Miami Dade Community College dated May 6, 1967 (admitted into evidence without objection), shows that Ms. Nalda has completed three semester hours in English writing, twelve semester hours in elementary and intermediate Spanish, and three hours in general education biology. Ms. Nalda experienced significant delays in receiving communications from the office of the Physical Therapy Council, which caused her to make numerous telephone calls to the office to determine the status of her applications. Ultimately, she engaged an attorney to assist her in the licensure process. During the period from the date of her first application for licensure through the date of the hearing, Ms. Nalda submitted at least four applications for licensure. Those documents hear different last names and at least four different addresses. At no time did Ms. Nalda notify the Board that she had changed her address. The applications were treated as separate applications from different people. Although there were valid reasons for the different names appearing on Ms. Nalda's applications, due to her divorce and remarriage, the various forms of her name, the number of applications and the many addresses contributed to confusion on the part of the Board of Medical Examiners, Physical Therapy Council, and accounts for the difficulty she encountered in determining the status of her applications.
Recommendation It is RECOMMENDED that the licensure application of Myriam Nalda to sit for the licensure examination be GRANTED. DONE AND ORDERED this 17th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of July, 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-2966 The following constitute my rulings on the proposed findings of the parties as required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findings of Fact Submitted by Petitioner The Petitioner's proposal is in narrative form, not in the form of Proposed Findings of Fact. I have generally accepted the proposals that evaluations of Ms. Nalda's educational credentials have been performed by the agencies identified in Rule 21M-7.020(3)(a) and (b), and that she has completed course work prescribed by an evaluation agency to render her degree equivalent to a bachelor's degree in physical therapy. Rulings on Proposed Findings of Fact Submitted by Respondent Covered in Finding of Fact 1. Covered in Findings of Fact 1 and 2. Covered in Finding of Fact 2. Covered in Finding of Fact 3. Covered in Finding of Fact 4. Rejected as unnecessary. Covered in Finding of Fact 6. Covered in Finding of Fact 8. COPIES FURNISHED: Ms. Myriam Lucia Nalda Van B. Poole, Secretary 9115 Southwest 150th Ave Department of Professional Miami, Florida 33196 Regulation 130 North Monroe Street Patricia V. Russo, Esquire Tallahassee, Florida 32399-0750 Department of Legal Affairs The Capitol, Suite 1601 Joseph A. Sole, General Counsel Tallahassee, Florida 32399 Department of Professional Regulation Ms. Dorothy Faircloth 130 North Monroe Street Executive Director Tallahassee, Florida 32399-0750 Department of Professional Regulation Marcelle Flannigan, Director Board of Medicine Physical Therapy Council 130 North Monroe Street 130 North Monroe Street Tallahassee, Florida 32399 Tallahassee, Florida 32399-0750 =================================================================
