The Issue The issue to be determined is whether Respondent violated section 474.214(1)(ee), Florida Statutes (2008), and if so, what penalty should be imposed?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of veterinarians in the State of Florida, pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. At all times material to the allegations in the Second Amended Administrative Complaint, Respondent has been licensed as a veterinarian, having been issued license number VM 5290. Respondent was the treating veterinarian for a dog named Awesomer, owned by Sheri Lawhun. On April 28, 2009, Ms. Lawhun brought Awesomer to Respondent for examination and treatment. Just prior to his provision of care for Awesomer, Respondent’s office switched to a “paperless” system, which involved switching to electronic medical records, bookkeeping, etc. Respondent testified that the medical record itself is stored on the computer software and that there are a wide variety of “print screen” options available. Respondent demonstrated the complicated nature of the software and the ability of the software to “hide” different parts of the medical record from the print screen, as well as copy and paste entries to the “top” of the medical record. The software does not allow Respondent to delete medical record entries, but does allow a user to hide them or make them unavailable to print. As a result, there are three different sets of medical records for Awesomer that were admitted into evidence in this proceeding. Petitioner's Exhibit numbered 2 is the copy of medical records printed on May 16, 2009, at the request of the dog's owner, Ms. Lawhun. Petitioner's Exhibit numbered 3 is the copy of the records printed on July 15, 2009, in response to a complaint filed with the Department. Petitioner's Exhibit numbered 4 is a copy of the medical records for Awesomer printed August 2, 2011, and provided to Respondent's counsel. While much of the documentation is the same, there are some differences. Respondent attributes these differences to entries that he ordered “declined” or hidden, so that the client did not see them, or because information was on the “splash screen” in the program, which does not print. He also explained that the information related to Awesomer's final visit on the evening of April 30, 2009, was moved to the top of the record on May 16, 2009, so that her owner could see what happened the day the dog died. He claimed that the entry was originally recorded soon after the dog's death, but it was moved when providing the records to Ms. Lawhun. Similarly, the date of death for Awesomer is recorded in Petitioner's Exhibits numbered 2 and 3 as May 1, 2009, the first business day after the dog's final after-hours visit. It is corrected to April 30, 2009, in the records identified as Petitioner's Exhibit numbered 4. The following findings of fact deal with the alleged deficiencies in the Respondent's medical records for Awesomer, in the order alleged in the Administrative Complaint. Respondent did not record any recommendations for diagnostic tests or follow-up examinations to determine the cause of an elevated heart rate in Awesomer's medical records for April 28, 2009. He did not do so because in his professional opinion, Awesome’s heart rate was not elevated and was within normal limits. Respondent did not record in Awesomer’s medical records for April 28, 2009, any examination of feces. He did not do so because he did not perform any fecal tests. Respondent's medical records for April 28, 2009, included laboratory results with test results for serum creatinine, serum albumin, serum sodium, and urine pH. He did not find any of these test results to be elevated. Respondent did not record in the April 28, 2009, medical records any indication that Awesomer was drinking excessively, beyond a tentative diagnosis of psychogenic polydipsia. He did not do so because the history the owner gave his office on April 28, 2009, did not mention that the dog was drinking excessively. Respondent's medical records for April 28, 2009, indicated that he administered Phenylpropanolamine but did not state the basis for doing so. Respondent testified that Phenylpropanolamine has one use in veterinary medicine: to help with urine retention in female dogs only, making further explanation unnecessary. His testimony on this issue, which was consistent with Dr. Vega's, is credited. Ms. Lawhun brought Awesomer back to Respondent's office on April 29, 2009, for Respondent to conduct a modified water deprivation test. The medical records for Awesomer do not include the dog's weight at the beginning or the end of the test. However, Respondent testified that, for a modified water deprivation test as opposed to a traditional water deprivation test, the weight of the animal at the beginning and end are not required, because the test simply measures the weight of the urine over time. Although the medical records sometimes refer to the test as a water deprivation test, in at least one entry in both Petitioner's Exhibits 3 and 4, the test is referred to as a modified water deprivation test. No persuasive evidence was presented by the Department that contradicts Respondent's distinction between a traditional modified water deprivation test and a modified water deprivation test. The Second Amended Administrative Complaint alleges at paragraphs 23-24 that Respondent's written response from July 7, 2009, states that he provided Awesomer with some water at 2:30, and that the April 29, 2009, medical records fail to reflect that he received water during the water deprivation test. However, the Department did not introduce Respondent's written response dated July 7, 2009, into evidence. There are also allegations in the Second Amended Administrative Complaint that reference the July 7, 2009, response regarding a visit to the clinic on April 29, 2009, in the evening. Respondent's medical records for Awesomer have no entries for the evening of April 29, 2009, but the Department presented no evidence that such a visit occurred. On April 30, 2009, Respondent recorded Awesomer's heart rate as being 160. He did not record any recommendations for diagnostic tests or follow-up examinations to determine the cause of the elevated heart rate in Awesomer’s medical records for April 30, 2009, because in his professional opinion, Awesomer’s heart rate was within normal limits and was not tachycardic. The Department presented no evidence to support the premise that a heart rate of 160 is abnormal and needs further study. Respondent did not record the total amount of fluid administered in Awesomer’s medical records on April 30, 2009, but he did record the rates upon which the computerized fluid administration pump were set. Both of these rates were documented in the medical record. Respondent performed a complete blood count (CBC) and general health profile with electrolytes on Awesomer on April 30, 2009. The lab results are included in the medical records, and indicated that the white blood count was high. While the Second Amended Administrative Complaint indicates that no explanation or discussion of the lab results was included in the medical records, there was no persuasive evidence that, as a record- keeping matter as opposed to a standard of care issue (with which Respondent was not charged), additional information was required. Respondent discharged Awesomer on April 30, 2009. However, he received an emergency call that evening about the dog, and returned to the clinic to see her. When Ms. Lawhun arrived with Awesomer, the dog was already dead. Respondent did not fail to record an entry regarding Awesomer’s emergency evening examination in Awesomer’s April 30, 2009, medical records until May 16, 2009. Respondent entered the original post on April 30, 2009. On May 15, 2009, Awesomer’s owner, Ms. Lawhun, requested to know what happened to Awesomer. On May 16, 2009, the Respondent directed a receptionist to print Awesomer’s medical records, excluding non-medical notes, for Ms. Lawhun’s boyfriend. The notes from April 30, 2009, were copied out of a post containing medical and non-medical notes to the top of the record on May 16, 2009, in order to exclude the non-medical notes. Given that the medical records record Awesomer's death as occurring either April 30 or May 1, Respondent's testimony is credited. The Board of Veterinary Medicine's rule regarding recordkeeping requirements does not define “contemporaneous.” Moreover, Dr. Melanie Donofro, D.V.M., the Department's expert and a former board member, could not identify a standard length of time recognized in veterinary practice in which medical records could be considered contemporaneous. The Second Amended Administrative Complaint refers to a response dated March 16, 2011, prepared by Respondent to present to the probable cause panel of the Board of Veterinary Medicine, and several entries in the response that are labeled as “clarifications” but that are different from the entries in the medical records for Awesomer. However, this March 16, 2011 response was not submitted into evidence by the Department. Dr. Sergio Vega, former board member and expert witness for Respondent, testified that the purpose for accurate medical records is to allow other treating veterinarians or anyone else reading the records to be able to understand what a veterinarian did or did not do. Whether the appropriate treatment was given is not a medical records issue, but a standard of care issue. His testimony is credited.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that a Final Order be entered dismissing the Second Amended Administrative Complaint. DONE AND ENTERED this 14th day of November, 2011, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 14th day of November, 2011. COPIES FURNISHED: Ann M. Bittinger, Esquire The Bittinger Law Firm 13500 Sutton Park Drive South, Suite 201 Jacksonville, Florida 32224 C. Erica White, Esquire R. Kathleen Brown-Blake, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399 Layne Smith, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399
The Issue Whether the employment of Respondent, a school teacher, should be terminated based on the allegations of job abandonment and/or insubordination set forth in the More Definite Statement of Charges filed December 15, 2005.
Findings Of Fact Petitioner has employed Respondent as a school teacher since the school year 1998-99. Respondent’s assigned school has been Nova Middle School (Nova) since the 2000-01 school year. At all times relevant to this proceeding, Petitioner was certified to teach in the designated field of "elementary education." That certification permitted Respondent to teach kindergarten through sixth grade. At all times relevant to this proceeding, Respondent’s employment was subject to the provisions of the collective bargaining agreement (CBA) between Petitioner and the Broward Teachers Union (BTU). At all times material hereto, Petitioner was a duly constituted school board charged with the duty to operate, control and supervise all public schools within the school district of Broward County, Florida, pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Dr. Ricardo Garcia was the principal of Nova for the 2004-05 and 2005-06 school years. During the 2004-05 school year, Respondent began to perceive that he was having problems with Dr. Garcia1. August 2, 2005, was the first day of the 2005-06 school year for teachers. August 2-5 were teacher planning days with the following Monday (August 8) being the first day of the school year for students. Teachers who will not be at work on a particular school day are instructed to call in to the school office or to a computerized service (called Sub Central) so that the school can take appropriate action to prepare for the teacher's absence, such as obtaining a substitute teacher. Respondent did not report for work at any time during the 2005-06 school year. On August 5, 2005, Mr. Garcia wrote to Respondent the following letter2 that accurately states the facts recited therein: The first day to report to work for the 2005-2006 school year was August 2, 2005 at 8:00 a.m. At 5:12 a.m. on August 2nd you called in sick to Sub Central. On August 3rd, you called in sick to Sub Central at 6:39 a.m., and on August 4th, you called in sick to Sub Central at 7:35 a.m. Today, Friday, August 5th after my office manager checked the Sub Central database, I was informed that you did not call in today, and you also did not report for work. If you are aware that you will be absent for additional days, please inform my office at your earliest. If you need to request a medical leave, contact the Leaves Department to assist you in this matter. Because I have not received any communication from you for your absence today, disciplinary action will be taken if I do not hear from you by August 10th, 2005. The letter of August 5, 2005, was mailed by certified mail and received by Respondent. The address used for all correspondence between Dr. Garcia and Respondent was to the address Respondent had on file with Nova, which was also the address Respondent gave out to the public. That address was to a residence in Boca Raton. An acquaintance of the Respondent lived at that Boca Raton residence. That acquaintance would typically call Respondent when mail came to the Boca Raton address for Respondent. Respondent actually lived at an address in Fort Lauderdale. Respondent used this unusual arrangement for all of his mail, not just mail dealing with school matters. In response to the August 5 letter, Respondent called the principal's office at Nova on August 8 and spoke to a staff person.3 During that conversation, Respondent represented to the staff person that he wanted a leave of absence and that he would file the requisite paperwork by August 10, 2005. On August 8, 2005, Respondent went to Petitioner's Leaves Department and picked up a packet that contained blank leave application forms. The packet also contained a form for his treating physician to fill out. Also on August 8, 2005, Respondent went to Dr. Myers' office and asked him to complete the medical form. Dr. Myers complied with that request the same day. Respondent called to report his intended absence for each workday during the week August 8-12, 2005. Respondent placed the various calls to either Sub Central or Nova. On August 15, 2005, Respondent called Nova and spoke to Ms. Daniel, who worked as a bookkeeper. Prior to that call, Dr. Garcia had instructed his staff that he wanted to talk with Respondent. He further instructed the staff that he wanted Respondent to talk to Ms. Morales if he was not available. When Respondent called on August 15, Ms. Daniel asked Respondent to speak with Dr. Garcia or Ms. Morales. Respondent thought it unnecessary to speak to either Dr. Garcia or Ms. Morales and declined to do so. Respondent’s last day of accrued sick leave expired on August 18. On August 18, 2005, Dr. Garcia wrote Respondent a second letter which was mailed by certified mail to the same address as the August 5 letter. That letter was not received by Respondent prior to the institution of these proceedings. The August 18 letter was as follows: This is a follow-up to my letter dated August 5, 2005. As of today's date, you have not reported to work for the 2005-2006 school year. You called Nova Middle School on August 8th after receipt of the August 5 letter and spoke to Mrs. Morales, Office Manager. You stated to her that you would submit appropriate paperwork to request a leave of absence no later than Wednesday, August 10th. I did not receive any paperwork or any physician's note either by August 10th to date. On Monday, August 15th, you called the front office of Nova Middle School and notified Mrs. Daniels, Bookkeeper, that you wanted to take an unpaid sick leave until Wednesday, August 17th. Mrs. Daniels referred you to talk to Mrs. Morales or me, and you declined to do so. Please be advised that you have the right to use any paid leave for sick purposes before a leave of absence takes effect, according to the Collective Bargaining Agreement, Article 23(S)(9). Because you have failed to inform my office in writing of any medical illness that is supported by a licensed physician and you have not provided, to date, any request for an unpaid medical leave of absence, I must move forward with this matter to ensure that the students of Nova Middle School are not further adversely impacted by your absence in the classroom. As a result, I am requesting that you notify my office, in writing, no later than Tuesday, August 23, 2005, of your return to work date. In addition, I am requesting that you send by mail documentation from a licensed physician to support your illness since August 2, 2005. If I do not receive your response by the date as mentioned above, I must recommend that the School Board consider you for termination due to job abandonment. Please govern yourself accordingly. On August 19, 2005, Respondent’s two leave applications simultaneously reached Dr. Garcia’s office through Petitioner’s internal mail service called the Pony System. Respondent deposited the applications in the Pony System at another school on or about August 17 and it took approximately two days for the applications to reach Dr. Garcia. The first leave application to be discussed is Respondent’s application for leave pursuant to the Family Leave/Medical Leave Act (FMLA). Under defined circumstances, including his own illness, Respondent was entitled to up to 60 days of FMLA leave with his position assured upon the expiration of his leave. Respondent stated on his application that the reason for the FMLA leave was for his illness, which he described as “work-related stress, anxiety . . .”. Respondent requested a total of 60 days of FMLA leave beginning August 2 and ending October 27. The FLMA leave form contained the following direction: All requests for medical leave due to your illness or the illness of a family member must include the completed attached “Certification of Health Care Provider” form[4]. The FMLA also contained a routing instruction directing the school to forward the application and the medical certification to the Leaves Department. Respondent did not attach the completed Certification of Health Care Provider form or any other medical documentation to his FMLA leave application. Respondent’s FMLA leave application was incomplete without the Certification of Health Care Provider or other suitable medical documentation. Respondent knew or should have known that the application for FMLA leave was incomplete without appropriate medical documentation. Respondent’s second application was for a Board Approved Personal Leave of Absence (BAPLA). The reason given for the request was also “work-related stress, anxiety ...” Pursuant to the terms of the CBA between Petitioner and BTU, Respondent had the right to go on an unpaid leave of absence for personal reasons of up to two years' duration. His teaching position would not be assured upon the expiration of that leave, but he could be rehired, depending upon job openings. Respondent’s BAPLA application was incomplete because Respondent did not fill out the part of the form identifying the start date of the requested leave. The form contained the following, which Respondent left blank following the word “on”: I wish to request a leave of absence for the 2005-06 school year effective at the close of work on: 5 Dr. Garcia routed the two applications to the Leaves Department the same day he received them (August 19). On August 30, 2005, Dr. Garcia wrote a letter to Respondent and mailed it to the Boca Raton address. Respondent did not receive Dr. Garcia’s letter of August 30, 2005, prior to the institution of these proceedings. Dr. Garcia advised Respondent that medical documentation was necessary for FMLA leave and set a deadline of September 6, 2005, for Respondent to submit that documentation. Dr. Garcia incorrectly advised Respondent as to the availability of BAPLA6. Debra Knaub, an employee of the Leaves Department, processed Respondent’s applications after receiving them from Dr. Garcia. Ms. Knaub could not process the FMLA leave application because of the missing medical documentation. After she received Respondent’s two applications from Dr. Garcia, Ms. Knaub called on at least two occasions the telephone number that Respondent had provided. The telephone number was to Respondent’s cell phone. On each occasion, Ms. Knaub left Respondent a voice message requesting that Respondent return her call. Ms. Knaub was attempting to obtain Respondent’s medical documentation so she could process his FMLA leave application. Respondent did not respond to these voice messages. After the Leaves Department received and reviewed Respondent’s two leave applications, Marjorie Fletcher, Ms Knaub’s supervisor, prepared a form letter, dated September 7, 2005, that notified Respondent that the FMLA leaves application lacked a signed Certification of Health Care Provider form. This form letter also contained the following: Please respond by September 12, 2005 or you will be placed on Board Approved Personal Leave where your position is no longer guaranteed. After learning from Ms. Knaub that Dr. Garcia had established in his letter of August 30, 2005, a deadline of September 6, 2005, for Respondent to furnish the signed Certification of Health Care Provider form, Ms. Fletcher decided not to send to Respondent her letter of September 7. Ms. Knaub did not process Respondent’s application for BAPLA because she learned that Dr. Garcia had recommended that Respondent’s employment be terminated. Petitioner advised Respondent of the following by certified letter dated September 12, 2005, signed by Receca A. Brito, Director of Instructional Staffing: This is to inform you that your name will be submitted to the Broward County School Board on September 20, 2005, with a recommendation for termination of your employment. If you have any questions, please contact Instructional Staffing Department . . . . After Respondent exhausted his last day of authorized leave on August 18, 2005, he was absent from school without authorized leave for more than three consecutive workdays. Respondent left Broward County for approximately three weeks beginning August 25, 2005. When he returned, he received Ms. Brito’s certified letter. The School Board voted on September 20, 2005, to accept Dr. Garcia’s recommendation that Respondent’s employment be terminated. Petitioner has adopted disciplinary guidelines applicable to this proceeding which provide for progressive discipline. Those guidelines were introduced into evidence as Petitioner’s Exhibit 56 and are adopted by reference. Petitioner established that Respondent’s failure to adhere to Petitioner’s leave policies despite repeated efforts to communicate with him had a detrimental impact on the education process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Petitioner enter a final order adopting the findings of fact and conclusions of law set forth herein. It is further recommended that Petitioner terminate Respondent’s employment without prejudice to his right to seek re-employment. It is further recommended that Petitioner find Respondent not guilty of insubordination. DONE AND ENTERED this 10th day of August, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 10th day of August, 2006.
The Issue Whether Respondent engaged in medical malpractice, failed to keep legible medical records, exploited a patient for financial gain, or accepted or performed the professional responsibilities of an oncologist that he knew, or had reason to know, he was not competent to perform; and if so, what is the appropriate sanction.
Findings Of Fact Petitioner is responsible for the investigation and prosecution of complaints against medical doctors licensed in the state of Florida who are accused of violating chapters 456 and 458, Florida Statutes. Respondent is licensed as a medical doctor in the state of Florida, having been issued license number ME 80412. At all times material to this proceeding, Respondent was the sole owner and sole physician at Holistic Family Medicine (HFM), a medical practice located at 9325 Glades Road, Suite 104, Boca Raton, Florida 33434. The charges against Respondent arise from Respondent's treatment of patient S.S. (S.S.) from March 17, 2011, until her death on February 10, 2013. M.S., S.S.'s mother, was present during all of S.S.'s medical appointments and was involved in all of S.S.'s medical decisions. Facts Related to S.S.'s Medical History In the spring of 2011, S.S., a 23-year-old female archeology student from Loxahatchee, Florida, suffered from a multitude of medical issues. At that time, S.S. was frustrated with her current primary care physician (PCP), Robert Federman, M.D., and treating sub-specialists because she felt that they were ignoring what she identified as her most pressing symptom, an excruciating pain in her side. Due to her frustration, S.S. sought a second opinion from Respondent at HFM on March 17, 2011. M.S. learned about Respondent from an employee at Whole Foods grocery store.2/ During her first appointment at HFM, S.S. told Respondent she was recently diagnosed with peripheral t-cell lymphoma (PTCL) by the University of Miami (UM), but that she was waiting on a second opinion from the H. Lee Moffitt Cancer Center & Research Institute (Moffitt). S.S. expressed skepticism at the PTCL diagnosis. Approximately nine months before S.S. first presented to Respondent, she suffered from unrelenting diarrhea, nausea, and vomiting. In September 2010, Dr. Federman referred S.S. to a gastroenterologist to diagnose these complaints. The gastroenterologist's attempt to diagnose S.S.'s persistent diarrhea, nausea, and vomiting eventually led to the discovery of several abnormal masses in S.S.'s abdomen. This discovery initiated a flurry of radiographic studies and biopsies that ultimately revealed cancerous cells in S.S.'s lymph nodes, consistent with PTCL. S.S. was provisionally diagnosed with PTCL by Deborah Glick, M.D., a UM hematologist during a consultation appointment on February 3, 2011. During the appointment, Dr. Glick indicated to S.S. that PTCL is a very aggressive cancer and that S.S. would likely die in a matter of months. S.S. did not agree with Dr. Glick's prognosis, so she decided to see another oncologist/hematologist. S.S. presented to Abraham Schwarzberg, M.D., a new oncologist/hematologist on February 8, 2011, to continue her ongoing work-up and management of her PTCL.3/ On February 16, 2011, after discussing S.S.'s biopsy results with UM pathology specialists, Dr. Schwarzberg recommended S.S.'s slides be reviewed at Moffitt because her case "ha[d] been a very complicated and tough case to make a diagnosis on." On February 25, 2011, S.S. traveled across the state for an oncology consultation at Moffitt, located in Tampa, Florida. Dr. Lubomir Sokol, M.D., an oncologist/hematologist employed by Moffitt advised S.S. that the long-term prognosis of PTCL patients treated with standard chemotherapy is not satisfactory. However, Dr. Sokol suggested that S.S. did not have PTCL, given the aggressive nature of the disease and her lack of symptoms at that time. Dr. Sokol requested S.S. submit her biopsy slides for review by Moffitt's pathologists, as well as by a world-renowned hemapathology expert specializing in lymphoma at the National Institutes of Health/National Cancer Institute (NCI), Dr. Elaine Jaffe. Dr. Sokol also requested S.S. undergo extensive staging exams. These exams, including a bone marrow biopsy, were negative--indicating that S.S.'s disease had not yet progressed to her bone marrow. Initial Meeting with Respondent – March 17, 2011 Of the foregoing information provided to Respondent by M.S. and S.S. during the March 17, 2011, initial appointment, Respondent only documented that S.S.'s bone marrow biopsy was negative; a seemingly insignificant detail compared to S.S.'s pending diagnosis of cancer and dire prognosis.4/ By the time S.S. spoke to Respondent on March 17, 2011, she had been told by various physicians that her biopsies were inconclusive, negative for cancer, and positive for cancer. S.S. was also told that she had PTCL and that she may not have PTCL. Finally, S.S. was told that she may die as a result of her malignancy in a matter of months. Any skepticism or doubt harbored by S.S. was completely understandable. Respondent encouraged S.S.'s skepticism by indicating to her that cancer was "low on his list" of S.S.'s possible concerns. Respondent shared a story regarding his uncle, a medical doctor who was successfully sued for $8.1 million for erroneously providing chemotherapy to a patient who did not have cancer. Respondent recommended S.S. undergo additional blood work ordered by him, so that he could have a better understanding of what was going on. Before her next appointment with Respondent, S.S.'s abdominal pain intensified, such that she presented to the Emergency Room and was admitted to Palms West Hospital (PWH) on March 28, 2011. S.S. underwent a CT scan that revealed a distended gallbladder, as well as masses in her abdomen near her liver and pancreas.5/ Ultimately, S.S.'s excruciating abdominal pain was attributed to a diseased gallbladder that needed to be immediately surgically removed. When Respondent learned of S.S.'s upcoming surgery, he told M.S. that he would get S.S.'s operative report and see S.S. in follow-up after her surgery. S.S.'s gallbladder was removed on April 1, 2011, and she was discharged with instructions to follow up with her PCP. After the surgery, S.S.'s frustration with Dr. Federman peaked, which prompted her to terminate her doctor-patient relationship with him. Although no formal notice was sent to Dr. Federman from S.S., Dr. Federman was informed by M.S. that she and S.S. were "going a different way" for her treatment. S.S. never made another appointment with Dr. Federman. Conversely, S.S. fortified her trust in Respondent and relied nearly exclusively on him for all of her future medical advice, recommendations, referrals, guidance, and treatment. Post-Surgery Follow Up with Respondent - April 7, 2011 Accordingly, on April 7, 2011, S.S. presented to Respondent for a "post-op" follow-up visit, at which Respondent discussed S.S.'s recent blood work results with her. Notably, Respondent failed to document anything concerning her post-op follow-up, aside from the paltry comment "gallbladder surgery." That same day, after S.S. left HFM, Dr. Sokol, from Moffitt, called M.S. and indicated that S.S.'s diagnosis was changed from PTCL to Hodgkin's lymphoma (HL). HL is a much less aggressive form of cancer and has a very high potential to be cured when treated. M.S. immediately updated Respondent about S.S.'s new diagnosis. Respondent indicated that he was "underwhelmed at the possibility of HL," but Respondent nevertheless assumed his role as S.S.'s PCP and attempted to coordinate care with Dr. Sokol. Request for Referral to Mayo – May 16, 2011 Because S.S. had now been presented with two conflicting diagnoses (PTCL and HL), S.S. researched cancer centers in Florida and decided to obtain a third opinion6/ from the Mayo Clinic (Mayo) in Jacksonville, Florida. On May 16, 2011, M.S. informed Respondent that S.S. made an appointment herself for a consultation at Mayo on June 1, 2011. M.S. requested that Respondent send a letter to Mayo, so he could be listed as a doctor that Mayo could contact regarding S.S.'s progress. Respondent wrote "refer to Mayo" on a prescription pad and mailed it the same day. Request for PET Scan – June 2011 On June 1, 2011, S.S. presented to Vivek Roy, M.D., an oncologist/hematologist at Mayo for consultation. Dr. Roy told S.S. that the Mayo pathologists would review her biopsy slides since there was a debate about the exact diagnosis. Dr. Roy asked S.S. to obtain an updated PET scan.7/ On June 14, 2011, Respondent again assumed his role as S.S.'s PCP by attempting to facilitate an updated PET scan for Dr. Roy. On June 20, 2011, Respondent received the PET scan report indicating that S.S.'s malignancy progressed to her pelvic region. As of this date, Respondent clearly knew S.S. was suffering from some form of lymphoma. On June 22, 2011, Dr. Roy confirmed the HL diagnosis and recommended S.S. receive ABVD chemotherapy.8/ S.S. elected to receive treatment locally and scheduled an appointment with Neal Rothschild, M.D., an oncologist/hematologist located in Palm Beach Gardens, Florida. S.S. presented to Dr. Rothschild on June 27, 2011, to discuss chemotherapy and the ongoing management of her HL. Respondent's Attribution of S.S.'s symptoms to Mold – June 2011 A few days before S.S.'s appointment with Dr. Rothschild, M.S. asked Respondent if it were possible that a "toxic something" was causing all of S.S.'s symptoms, including her swollen lymph nodes. Instead of telling M.S. that S.S.'s symptoms, including her swollen lymph nodes, were more likely caused by her untreated cancer, Respondent suggested that S.S.'s house be tested for mold. On July 5, 2011, S.S. presented to Respondent for a "check-up" and to discuss the little bit of mold that was found in her home. During the appointment, S.S. mentioned to Respondent that she met with Dr. Rothschild to discuss chemotherapy for her HL. Respondent reiterated to S.S. that cancer was "low on his list" of possible medical concerns. Respondent indicated that S.S.'s tests showing she had increased lymphocytes9/ were not indicative of cancer, especially since he did not see any "Reed- Sternberg" cells.10/ Respondent insinuated that oncologists often overreact to the presence of lymphocytes and recommend chemotherapy before making an actual diagnosis. Respondent further insinuated that Dr. Rothschild may not be a competent oncologist. Respondent recommended S.S. pursue her "mold allergy" issues and referred her to Daniel Tucker, M.D., a local allergist. Respondent also provided S.S. with a letter addressed to Dr. Rothschild wherein he emphasized that "mold could be causing all of [S.S.'s] symptoms and exam findings." As instructed, S.S. presented to Dr. Tucker on July 12, 2011, and continued to follow-up with him until November 2011. Dr. Tucker diagnosed S.S. with mold allergies and recommended a series of life-style modifications to reduce her mold allergy symptoms. Discontinuation of Oncologist/Hematologist Care – July 2011 S.S. believed Respondent's assessment that her symptoms were actually caused by allergies. Accordingly, S.S. only pursued treatment for her allergies, with the understanding that Respondent would refer her to a new oncologist/hematologist of his choosing if he thought she needed to pursue cancer treatment. On July 28, 2011, S.S. cancelled her follow-up appointment with Dr. Rothschild. M.S. indicated to Dr. Rothschild that S.S. wanted to resolve her "mold issues" before pursuing chemotherapy treatment. S.S. never returned to Dr. Rothschild or any other oncologist/hematologist for treatment. Instead, S.S. stayed under the care of Respondent, who spent the next year and a-half attempting to find the "cause" of S.S.'s symptomatic complaints. In contrast to Respondent's previous concern over S.S.'s "scary" HL diagnosis and his alleged multiple attempts to interact and coordinate care with S.S.'s oncologists, after July 5, 2011, Respondent never discussed HL, lymphoma, cancer, oncologists, or chemotherapy with S.S. again.11/ While addressing her symptomatic complaints, Respondent never told S.S. that her symptoms could be caused by untreated HL, even when many of her symptoms were reasonably attributed to her progressive HL. Complaints of Back Pain – August 2011 On August 30, 2011, S.S. complained to Respondent about "back pain." Respondent diagnosed S.S. with lumbosacral neuritis12/ and prescribed Flector patches to treat the pain. Respondent assumed S.S.'s back pain was caused by mold without ever conducting an appropriate evaluation, including physical examination, or test to determine its cause. S.S. was charged $200.00 for the August 30, 2011, office visit. Complaints of Lymph Node Swelling – December 2011 On December 15, 2011, S.S. complained to Respondent about her lymph nodes and swelling. Respondent did not address S.S.'s lymph node or swelling concerns. Respondent failed to conduct and document a complete and appropriate physical exam of S.S.'s lymph nodes. S.S. was charged $425.00 for the December 15, 2011, visit. Concern Regarding Lymph Nodes, Pain, and Dysuria – March 2012 On March 5, 2012, S.S. complained to Respondent about pain in her side, pain in her lymph nodes resulting in sleeping trouble, urgency, and dysuria.13/ Respondent treated S.S.'s painful lymph nodes with low-dose naltrexone. Respondent assumed S.S.'s symptoms of urgency and dysuria were caused by a urinary tract infection (UTI) and prescribed antibiotics to treat the "UTI." UTIs are diagnosed with a urine culture or urinalysis. These tests are also useful in determining the strain of bacteria, which would dictate the most appropriate type of antibiotic to use. Respondent did not perform a urine culture or urinalysis before prescribing an antibiotic to treat S.S.'s UTI-like symptoms. Respondent did not perform and document a complete and accurate physical exam of S.S.'s lymph node swelling, noting where the swollen lymph nodes were located or any other appropriate documentation of the exam. S.S. was charged $205.00 for the March 5, 2012, appointment. Complaints of UTI-like Symptoms – May 2012 through January 2013 S.S. repeatedly complained to Respondent about UTI-like symptoms, including on May 3, 2012, May 10, 2012, May 16, 2012, June 27, 2012, and January 3, 2013. Each time, Respondent assumed S.S.'s symptoms were caused by a UTI and prescribed her antibiotics without ever performing a urine culture or urinalysis to confirm the diagnosis or determine which antibiotic would be most appropriate to prescribe. Respondent also considered that S.S.'s UTI-like symptoms may be caused by an uncommon antibiotic-resistant infection called interstitial cystitis. Continued Concerns Regarding Lymph Nodes – May 16, 2012 On May 16, 2012, S.S. presented to Respondent with complaints of enlarged lymph nodes. Respondent did not examine, document an examination of, or otherwise address S.S.'s enlarged lymph nodes. However, S.S. was charged $200.00 for the May 16, 2012, appointment. Swollen Legs – January 3, 2013 On January 3, 2013, S.S. complained to Respondent about swelling in her legs. Respondent assumed S.S.'s swollen legs were caused by an allergic reaction, without performing any diagnostic examination or tests to confirm his assumption. S.S. was charged $200.00 for the January 3, 2013, appointment. Abdominal Pain and Swelling – January 2013 On January 11, 2013, S.S. complained of abdominal pain and swelling. Respondent assumed S.S.'s pain and swelling were caused by an allergic reaction and prescribed an allergy medication to treat her pain and swelling. On January 12, 2013, S.S. again complained of swelling in her legs. Respondent assumed S.S.'s swollen legs were caused by an allergic reaction and prescribed her an allergy medication. On January 14, 2013, S.S. underwent blood work at Respondent's request. The blood work cost S.S. $575.00. When Respondent received S.S.'s blood work results, Respondent called S.S. in for an urgent appointment because he thought her blood work results were "striking" and really "weird."14/ Urgent Appointment – January 24, 2013 The blood work did not test S.S.'s iron levels. Regardless, Respondent felt S.S. was iron deficient and instructed his medical assistant (MA) to administer 100 mg of iron to her on January 24, 2013. S.S.'s blood work revealed that she had high calcium levels. Respondent considered that S.S.'s potential issue with her parathyroid hormone (PTH) was her "dominant concern" at that time. Respondent recommended S.S. receive more testing and suggested that she may need PTH surgery in Tampa. Respondent also determined that S.S. had issues with her DHEA, Vitamin D, and T3 levels and spent considerable time discussing these concerns. During the urgent appointment, S.S. complained of swelling in her legs accompanied by weakness. S.S.'s pain and swelling was so severe that she used a cane to assist her in walking and requested Respondent to assist her in obtaining a temporary parking permit. Respondent now assumed S.S.'s swollen legs were caused by water retention and prescribed a diuretic to treat S.S.'s swollen legs. At no time during this appointment did Respondent inquire about, or suggest, that S.S.'s symptoms were attributable to HL or its treatment. S.S. was charged $680.00 for the January 24, 2013, urgent appointment. On the same day, S.S. underwent more blood work at Respondent's request. The additional blood work cost S.S. another $355.00. Review of Blood work – February 2013 On February 5, 2013, when Respondent reviewed S.S.'s second set of blood work results, Respondent was confused by her results and indicated that he was going to review S.S.'s chart to "come up with a better idea of what is going on." Despite knowing of S.S.’s significant cancer diagnosis since June 2011, Respondent did not consider, or discuss with S.S., the possibility that S.S. had unusual results because she had cancer, or in the alternative, was undergoing chemotherapy treatment. S.S.'s blood work revealed that she had normal iron levels. Nevertheless, Respondent felt S.S. was iron deficient and instructed his MA to administer 100 mg of iron to her on February 7, 2013. S.S. was charged $150.00 for the iron shot. Patient's Death – February 10, 2013 When S.S. went to HFM for her shot, she was in significant distress related to pain and severe swelling in her legs. S.S. rapidly decompensated and died in the hospital three days later, on February 10, 2013. Respondent initially thought S.S. may have died either from an adverse reaction to the iron shot or a combination of pneumonia and sepsis causing respiratory failure. When the medical examiner who performed S.S.'s autopsy notified Respondent that S.S. died from complications of untreated HL, Respondent responded by saying that S.S. had never been definitively diagnosed with HL. Despite having reviewed S.S.'s radiographic, pathology, and oncology consultation reports indicating that S.S. had HL,15/ and having treated her symptoms indicative of progressed HL for nearly two years, Respondent refused to believe that S.S. had HL, choosing instead to believe that she presented "more like a [chronic fatigue] patient allergic to mold than a lymphoma patient." It was not until Respondent received the final autopsy report, several months after S.S. died, that Respondent was finally "satisfied" that S.S. had HL all along. Facts Related to the Standard of Care Violation Charles Powers, M.D., an expert in family medicine, offered testimony on the standard of care that a doctor providing primary care services to a patient in a family medicine practice setting is required to follow when a young patient is diagnosed with HL, a highly curable malignancy. Dr. Powers opined that the role of the PCP is to use his or her established relationship with the patient to facilitate and ensure that the patient receives appropriate treatment. In this case, Respondent's role as S.S.'s PCP was to ensure that S.S. received chemotherapy, or in the alternative, be fully informed of the consequences of foregoing chemotherapy. Stephen Silver, M.D., testified on behalf of Respondent and opined that Respondent's role in S.S.'s care was as an out-of-network, adjunct holistic doctor, more comparable to an acupuncturist or Reiki specialist than a medical doctor. Dr. Silver suggested that Respondent should not be held to the same standard as other family medicine doctors providing primary care services. Dr. Silver opined that because of Respondent's limited "adjunctive holistic" role, the standard of care in Florida did not require Respondent to be engaged in S.S.'s care and treatment with relation to her cancer. Dr. Silver based his opinion on the incorrect assumption that from March 2011 to February 2013, S.S. was under the care of her former PCP, Dr. Federman, and that Respondent provided strictly adjunctive holistic treatment to S.S.16/ Dr. Silver defined "holistic therapies" to include acupuncture, massage, nutritional therapies, vitamin therapies, and energetic medicine, such as Reiki. Dr. Silver specified that surgery and pharmaceuticals are not "holistic therapies," but instead fall in the realm of "traditional medical services." Respondent did not provide "strictly holistic" treatment to S.S. From March 2011 to February 2013, Respondent prescribed and recommended 27 substances to S.S. Of those substances, 15 of them were drugs (including legend drugs, compounded medications, and over-the-counter medications) and 12 were nutritional supplements/vitamins. Respondent also recommended that S.S. undergo surgery, was actively involved in S.S.'s post-operative care, and ordered two PET CT scans for S.S. Respondent never recommended S.S. receive massage therapy, acupuncture, or Reiki. Furthermore, it is clear that by May 2011, S.S. severed all ties from her former PCP and relied on Respondent to fulfill the role of her PCP. Therefore, Respondent was not providing strictly "adjunctive" care to S.S. Dr. Silver contends that Respondent could not have been S.S.'s PCP because he was "out-of-network" with S.S.'s insurance, did not advertise as a PCP, and had a very "holistically- oriented" medical intake form. However, a PCP is not simply defined as the doctor whose name appears on a patient's insurance card. Instead, the definition of a PCP is a fluid concept that includes the doctor whom the patient trusts to provide appropriate medical advice, guidance, recommendations, referrals, and treatment.17/ Under this definition, it is possible for even a sub-specialist to operate as a patient's PCP. Those involved in S.S.'s medical treatment, including M.S., Dr. Tucker, and Dr. Juste, believed that Respondent was S.S.'s PCP. Additionally, Respondent advertised that he offered concierge-level primary care services to his patients on his website. Respondent operated as S.S.'s PCP, regardless of whether he was out-of-network with her insurance provider, advertised as a PCP, or had a "holistic" intake form. Based on the foregoing, Dr. Silver's opinion, that Respondent is not required to adhere to the same standard of care as family medicine doctors in Florida, is rejected. Timely Referral When a PCP learns that a young patient is diagnosed with a highly curable malignancy, the standard of care in Florida requires the PCP to timely refer the patient to an oncologist/hematologist for chemotherapy treatment. This standard is applicable as long as the patient is not under the current care of an oncologist/hematologist. From July 2011 to February 2013, Respondent knew, or should have known, that S.S. was not under the care of a treating oncologist/hematologist and should have timely referred her to one, or ensured that she present to an oncologist/hematologist. Although Respondent suggested that he did refer S.S. to an oncologist, he eventually attempted to justify his failure to do so by alternatively asserting: 1) it was not his duty to refer S.S. to an oncologist; 2) it was unnecessary to refer S.S. to an oncologist because she was already under the care of an oncology "team"; and 3) it was unnecessary to refer S.S. to an oncologist because she adamantly refused to be treated for HL. At the final hearing, Respondent testified that he did not refer S.S. to an oncologist because he assumed she was under the care of Dr. Rothschild, receiving treatment as appropriate, from June 2011 until her death in February 2013. If it were true, why then would Respondent prescribe countless medications to S.S. without ever consulting her treating oncologist? Respondent himself testified that the treating oncologist needed every piece of information about the patient's concurrent treatment. Respondent's testimony in this regard simply is not credible. Respondent's testimony was also directly contradicted by his previous statements where he indicated that S.S. adamantly refused to undergo chemotherapy and that she rebuffed and resisted his attempts to encourage her to follow up with an oncologist. Respondent further contends that he went above-and- beyond his duty as a "holistic doctor" by "ensuring" S.S. went to Mayo for her consultation by writing "refer to Mayo Clinic" on a prescription pad (after S.S. already scheduled her appointment). However, Respondent never provided a definitive explanation for the purpose of this "refer to Mayo Clinic" document, and even at one point described it as a "back to school note" for S.S. to take to class. Based on these inconsistencies, Respondent's testimony regarding an oncology referral was not credible. M.S. testified that Respondent did not refer S.S. to an oncologist/hematologist, even though Respondent knew that S.S. was not under the care of one. M.S. also testified that S.S. was waiting on Respondent to refer her to an oncologist/hematologist if and when he decided that S.S. had lymphoma. M.S. testified that had Respondent referred S.S. to an oncologist/hematologist that he trusted, S.S. would have gone to that doctor for treatment. M.S.'s testimony was clear, concise, consistent, and credited. Respondent failed to timely refer S.S. to an oncologist/hematologist for appropriate treatment as soon as he knew or had reason to know that S.S. was not under the care of an oncologist/hematologist. Duty to Educate or Counsel After timely referring the patient to an oncologist/hematologist for treatment, if the doctor learns that the patient does not want to receive treatment, either because the patient is in denial of the diagnosis or simply does not want the treatment, the standard of care in Florida requires the PCP to educate or counsel the patient on the risks, including death, of foregoing potentially life-saving treatment, so that the patient can make a fully-informed decision. As the doctor counsels the patient, he or she must refrain from facilitating or encouraging the patient's denial of their diagnosis. Respondent stated that S.S. was in denial of her diagnosis of lymphoma long before she first came to see him and remained in denial of the diagnosis despite his multiple attempts to educate and counsel her. Specifically, Respondent claims he educated or counseled S.S. on May 12, 2011, May 16, 2011, March 5, 2012, May 16, 2012, and January 3, 2013. Any reference to these alleged discussions are absent from Respondent's notes. Respondent claims his advice was rebuffed, met with "stiff resistance," and that S.S. and her mother ultimately refused to believe that she had lymphoma. Respondent's statements were not credible because again, in direct contradiction to himself, Respondent testified at the final hearing that after July 5, 2011, he never spoke to S.S. about her lymphoma because he assumed S.S. was under the care of Dr. Rothschild and was receiving treatment as appropriate. In contrast, M.S. credibly testified that not only did Respondent never educate or counsel S.S. on the risks of not treating her lymphoma, he continuously undermined the recommendations and advice of the oncologists and facilitated S.S.'s skepticism toward her diagnosis. Indeed, instead of using his relationship with S.S. to assuage her fears related to her possibly life-threatening disease, Respondent expressed that he was "underwhelmed" with the possibility that she had lymphoma and repeatedly told S.S. that cancer was low on his list of possible medical concerns. Respondent further undermined the oncologists by indicating to S.S. that it would be potentially deadly to undergo chemotherapy if she did not actually have HL, despite knowing that S.S.'s confidence in her diagnosis was already very tenuous. Respondent failed to educate and counsel S.S. on the risks, including death, of failing to receive treatment for her HL. Symptoms When a patient makes a fully-informed decision to forego treatment of an otherwise terminal illness, such as HL, the standard of care in Florida requires the PCP to attribute the patient's symptoms that are reasonably caused by the malignancy to the malignancy. Additionally, the standard of care in Florida prohibits the PCP from attempting to find an alternate diagnosis for these symptoms, when the PCP knows that treatment for the alternate/secondary diagnosis would not change the patient's life expectancy. A June 20, 2011, Skull to Thigh PET CT scan of S.S. showed hypermetabolic masses and enlarged lymph nodes throughout S.S.'s body. These PET CT scan findings can only be attributed to a malignancy and are most consistent with HL. By June 2011, Respondent knew that S.S.'s HL had significantly progressed and included the involvement of her chest, abdomen, and pelvis. Respondent attributed these exam findings to S.S.'s allergies to mold, food, and drugs. As HL progresses throughout the body, it can cause the lymph nodes to enlarge. S.S. suffered from enlarged lymph nodes, a symptom reasonably attributed to HL. Respondent attributed S.S.'s enlarged lymph nodes to S.S.'s mold allergy. The enlarged lymph nodes can apply pressure on adjacent organs and structures, causing irritation and pain. S.S. suffered from back pain, a symptom that is reasonably attributed to HL. Respondent attributed S.S.'s back pain to S.S.'s mold allergy. S.S. suffered from abdominal pain, a symptom that is reasonably attributed to HL. Respondent attributed S.S.'s abdominal pain and swelling to an allergic reaction to an antibiotic, even though he had never seen this type of an allergic reaction to an antibiotic before. HL can suppress the immune system, making patients more susceptible to infections, like UTIs. HL can also mimic UTI symptoms if the lymph nodes in the patient's pelvic region are enlarged and pushing on the organs in the urinary tract. S.S. regularly experienced UTI-like symptoms like urgency and dysuria. These symptoms, whether they were caused by a UTI or from the pelvic lymph node involvement, are reasonably attributed to HL. Respondent attributed S.S.'s UTI-like symptoms to an infection without ever obtaining a urine culture or urinalysis to confirm his assumption. HL often causes swelling in patient's extremities by affecting the lymphatic system, which is used to transport fluids throughout the body. S.S. experienced extreme painful swelling in her legs, a symptom that was caused by her HL. Respondent attributed S.S.'s swollen legs to an allergic reaction. Respondent claims that he was "keenly" aware that S.S.'s symptoms could have been caused by HL and that he repeatedly informed S.S. of the same. However, Respondent claims that S.S. may have had concurrent illnesses that were causing similar symptoms and that it was not inappropriate for him to treat those symptoms. Interestingly, Respondent's notes do not reflect that he discussed with S.S. that her symptoms could be attributed to her untreated lymphoma. Despite being "keenly" aware that S.S. was suffering from untreated Stage III HL, Respondent often expressed bewilderment as to the cause of S.S.'s symptoms and repeatedly remarked that he wanted to "find out what was going on" and ordered blood work purportedly for that purpose. Due to the inconsistencies, Respondent's testimony is not credible. M.S. credibly testified that Respondent never indicated that any of these symptoms were likely caused by HL and that he spent time with S.S. trying to find the real cause of her symptoms. Respondent completely ignored S.S.'s existing HL diagnosis and instead believed that S.S. presented "more like a CFIDS[18/] patient allergic to mold than a lymphoma patient." Respondent failed to appropriately attribute S.S.’s symptoms to HL. Facts Related to Medical Records Violation During each office visit, Respondent should have created a progress note that included the subjective complaints of the patient, the objective observations of the patient (including a physical exam), an assessment of the patient's medical concerns, and a treatment plan (commonly referred to as "SOAP notes"). Included in these notes should be adequate justification for each diagnosis given and prescription given to the patient. Respondent failed to create or keep documentation of an adequate medical justification for the diagnoses he made and the treatment he provided to S.S. 134. On April 7, 2011, July 5, 2011, August 30, 2011, December 15, 2011, March 5, 2012, January 3, 2013, and January 24, 2013, Respondent failed completely to document the objective portion of the exam. Respondent also routinely failed to document adequate medical justification for the diagnoses or treatments rendered to S.S. Respondent failed to create or keep documentation in which he purportedly referred S.S. to an oncologist. Similarly, Respondent failed to create or keep documentation of his alleged educating or counseling of S.S. on the risks of foregoing chemotherapy treatment. Facts Related to Scope of Practice Respondent testified that he did not practice outside of the scope of his profession or perform or offer to perform professional responsibilities that he knows he is not competent to practice because he did not treat S.S. for cancer and did not offer to treat her for cancer. Petitioner offered the testimony of Roy Ambinder, M.D., an expert in oncology and hematology. Dr. Ambinder testified regarding the scope of practice for an oncologist and the standard of care for oncologists treating HL. Dr. Ambinder's testimony was clear, concise, consistent, and credited. It is not within the scope of practice for a family medicine physician to modify or reject an existing diagnosis of HL. Oncology is the study of cancer. A physician needs oncology training, experience, and a background in oncology to modify or reject an existing diagnosis of HL. Before modifying or rejecting an existing diagnosis of HL, a physician with the appropriate training, experience, and background would have to perform a physical exam, obtain blood work and additional radiographic studies, review past reports from the pathologists/oncologists, and review and interpret tissue biopsies. Respondent knew that five oncologists/hematologists, including specialists from Moffitt, NIH, and Mayo diagnosed S.S. with lymphoma. Respondent knew that he did not have the necessary qualifications, skill, training, education, or experience to modify or reject a diagnosis of HL. Yet, after harboring significant skepticism towards the diagnosis, Respondent reviewed S.S.'s pathology reports and radiographic studies and rejected S.S.'s HL diagnosis. Therefore, Respondent acted in the role of an oncologist, regardless of whether he actually treated, offered to treat, or advertised that he could treat S.S. for cancer. Respondent acted beyond the scope of his practice by law and performed professional responsibilities that he knew he was not competent to perform by rejecting S.S.'s existing diagnosis of HL. Facts Related to Financial Exploitation Violation Respondent knew, or should have known, that S.S. had lymphoma. Respondent knew that the only approved effective treatment for HL is chemotherapy and that if left untreated, HL will cause a patient's untimely death. Despite knowing that S.S. had HL, Respondent tried to find an alternate diagnosis to explain S.S.'s symptoms. M.S. and S.S. trusted Respondent to make medical decisions in S.S.'s best interest, such that Respondent was able to convince M.S. and S.S. that S.S.'s symptoms were caused by something other than HL, thus necessitating additional appointments and blood work. Between August 30, 2011, and February 7, 2013, Respondent addressed S.S.'s symptoms, which were reasonably caused by HL, with a variety of symptomatic treatments that Respondent knew, or should have known, would not have affected S.S.'s HL or extended her life expectancy. Respondent's MA administered S.S. $300.00 worth of InFed injections when he knew, or should have known, that S.S. was not iron-deficient and that iron would not have addressed S.S.'s fatal illness. Even if S.S. was iron-deficient, iron supplements would not have extended S.S.'s life expectancy. Respondent ordered $930.00 worth of blood work testing for S.S. when he knew or should have known that additional blood work would not have affected the established diagnosis of HL and that any diagnosis derived from the lab results would not have extended S.S.'s life expectancy. Respondent charged S.S. $1,760.00 in appointment fees over a one and a-half year period. During these appointments, Respondent treated S.S.'s symptomatic complaints with treatments that Respondent knew, or should have known, would not have addressed S.S.'s HL. Moreover, even if the treatments appropriately addressed a secondary diagnosis, Respondent knew, or should have known, that these consultations and recommended treatments would not have extended S.S.'s life expectancy. Accordingly, S.S. and her family paid Respondent and HFM approximately $2,990.00, in pursuit of treatment that Respondent influenced them to believe was necessary, appropriate, and would lead to or improve S.S.'s health. Respondent benefitted financially from the payments remitted to him and HFM by S.S. Facts Related to Aggravating Factors Respondent's conduct resulted in significant harm, including the extended suffering and ultimate death, of patient S.S. Petitioner entered a Final Order against Respondent's license in DOH Case No. 2008-00890 for violations of Sections 458.331(1)(t), and 458.331(1)(m), Florida Statutes (2003-2004). The Final Order constitutes discipline against Respondent's license.19/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding that Respondent violated sections 458.331(1)(t), 458.331(1)(m), 458.331(1)(n), and 456.072(1)(o), Florida Statutes, as charged in Petitioner's Second Amended Administrative Complaint; imposing a fine of $16,000.00; requiring repayment of $2,990.00 to the estate of S.S.; revoking Respondent's license to practice medicine; and imposing costs of the investigation and prosecution of this case. The undersigned reserves jurisdiction to rule on Daniel Tucker’s Application and Motion for Award of Expert Witness Fees. DONE AND ENTERED this 29th day of April, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 29th day of April, 2016.
The Issue The issue presented is whether Petitioner is entitled to attorney?s fees pursuant to section 57.105, Florida Statutes (2011), and if so, what constitutes a reasonable fee?
Findings Of Fact The Department is the state agency charged with the licensing and regulation of veterinarians in the State of Florida pursuant to section 20.165 and chapters 455 and 474, Florida Statutes. At all times material to these proceedings, Petitioner has been a licensed veterinarian in Florida, having been issued license number VM 5290. Petitioner was the treating veterinarian for a dog named, Awesomer, owned by Sheri Lawhun. On April 28, 2009, Ms. Lawhun brought Awesomer to Petitioner for examination and treatment. Details of the treatment provided to Awesomer are related in the Findings of Fact in the Merits Case. For the purposes of this Final Order, it is sufficient to state that Respondent treated Awesomer from April 28-30, 2009, and that on April 30, Awesomer died. Ms. Lawhun filed a complaint with the Department of Business and Professional Regulation regarding the care and treatment Respondent provided to Awesomer. Just prior to his provision of care for Awesomer, Dr. Langford?s office switched to a “paperless” system, which involved switching to electronic medical records, bookkeeping, etc. Petitioner testified in the Merits Case that the medical record itself is stored on the computer software and that there are a wide variety of “print screen” options available. Dr. Langford demonstrated the complicated nature of the software and the ability to “hide” different parts of the medical records from the print screen, as well as to copy and paste entries to the “top” or most recent page, of the medical record. The software does not allow the user to delete record entries, but does allow a user to hide them, change the dates for them, or make them unavailable to print. There are also entries on screens called “snatch screens” that do not print. As a result, there are three different sets of medical records for the same period of time for Awesomer that were admitted into evidence in the underlying case: 1) Petitioner?s Exhibit A, which was printed on May 16, 2009, at the request of Ms. Lawhun; 2) Petitioner?s Exhibit B, which is the copy of the records printed on July 15, 2009, in response to the complaint filed with the Department; and 3) Petitioner?s Exhibit C, which was printed August 2, 2011, and provided to Petitioner?s counsel during the litigation of this case. The three sets of medical records are not identical. Dr. Langford attributed these differences to entries that he ordered “declined” or hidden, so that the client did not see them, or because information was on the “snatch screen” in the program, which does not print. For example, the information related to Awesomer?s final visit to the clinic, according to Dr. Langford, was moved to the top of the record on May 16, 2009, so that Ms. Lawhun could see what happened on the day the dog died. He claimed that the entry was originally recorded soon after the dog?s death, but that it was moved when providing the records to Ms. Lawhun. Similarly, the date of the dog?s death is recorded in Petitioner?s Exhibits A and B as May 1, 2009, the first business day following the dog?s after-hours? visit. It is changed to April 30, 2009, in Petitioner?s Exhibit C. After the initial investigation of this case, counsel for the Department prepared a draft closing order and presented it to the probable cause panel for the Board of Veterinary Medicine at its meeting April 21, 2010. However, after some concerns expressed by the panel members, the Department?s recommendation was changed from closing the case to obtaining an expert review of the file. The Department had the file reviewed by two veterinary experts, Dr. Jerry Green and Dr. Melanie Donofro. Dr. Donofro is a former member of the Board of Veterinary Medicine. Both experts opined that there were problems with the care and treatment of Awesomer, as well as problems with the medical records for Awesomer. As a result of the expert witness reviews, a four-count Administrative Complaint was drafted and filed, charging Respondent with violating subsections 474.213(1)(r)(violation of the relevant standard of care); 474.213(1)(ee)(failure to keep contemporaneously written medical records as required by rule of the board); 474.214(1)(w) (practicing at a location without a valid premises permit); and 474.214(1)(m)(failure to notify Board of a change of address). The case was not taken back to probable cause prior to the drafting of the Administrative Complaint because of a computer data entry error that resulted in a computer record indicating probable cause had already been found. As is recounted below, the case eventually was presented to the probable cause panel a second time on the issue of medical records. Because the Fees Motion is directed to the medical records count, the failure to take the case back to the probable cause panel before the filing of the original Administrative Complaint has no real significance at this point. Petitioner?s assertion that counsel for the Department had a personal vendetta against him and had to remember that probable cause was not found at the April 2010, meeting is specifically rejected. As stated by Ms. Henderson at hearing, Dr. Langford?s case was one of many presented for consideration. While it is unfortunate that an error occurred, it is not indicative of any “personal” interest in prosecuting Petitioner. The Department and Dr. Langford agreed to a settlement that would have dismissed three of the four counts in the Administrative Complaint, and imposed a minimal penalty for Count III. However, when the stipulation was presented to the Board for approval, it was rejected. Board members voiced serious concerns regarding both the standard of care given to Awesomer and the adequacy of the medical records. The prosecutor told the Board that the Department entered into the settlement stipulation “in the interest of getting the case wrapped up,” and that the Department believed that the case would be a “battle of the experts” with respect to the standard of care issue. Ultimately, the Board voted to reject the stipulation offered and offered a counter proposal that would have resulted in dismissal of all of the charges except the medical records count, with a penalty consisting of a $1,500 fine, 30 days probation, and costs. Dr. Langford rejected the counter- proposal. An Amended Administrative Complaint was prepared and, along with the expert reports received, was submitted to the probable cause panel for review and approval. Also included in the materials was Dr. Langford?s response to the Amended Administrative Complaint. While counsel for Dr. Langford offered to “walk them through” his response to the allegations contained in the Amended Administrative Complaint, counsel acknowledged that she did not have anything to add that was not in his written response. The probable cause panel voted to approve amendment of the Administrative Complaint to a single charge of violating section 474.213(1)(ee). The panel also directed counsel for the Department to consult one of its experts, Dr. Green, to make sure the allegations in the Amended Administrative Complaint were consistent with his opinion. She did so. Contrary to Petitioner?s assertions, the panel did not simply “rubber stamp” the actions of the Department. Dr. Jones indicated her agreement with Dr. Green?s expert opinion, and there is lengthy discussion of the case. See Petitioner?s Exhibit P, pages 13-21, and 23-26. Respondent disputed the allegations in the Amended Administrative Complaint and on June 24, 2011, the case was forwarded to the Division of Administrative Hearings to conduct a section 120.57(1) hearing. Discovery and motion practice was active and, at times, acrimonious.1/ See, for example, the Order on Pending Motions, dated August 24, 2012. On August 29, 2012, Respondent filed the Fees Motion giving rise to this proceeding. The Fees Motion contains a certification that it was served on Petitioner on August 4, 2012. Ironically, much of the Fees Motion has nothing to do with the allegations contained in the Amended Administrative Complaint. The first four pages of the Fees Motion present Dr. Langford?s version of what happened in the final days of Awesomer?s life, and include facts not found anywhere in the pleadings. The next sections deal with accusations of the dog owner involving a psychic, and “public untrue statements about Respondent,” by Ms. Lawhun, which are also accusations not finding their way into the Department?s charging document. It is not until page 16 of the Fees Motion that the actual allegations that would give rise to the motion are identified and discussed. Ultimately, a Recommended Order was submitted that recommended dismissal of the Second Amended Administrative Complaint. The Recommended Order was issued after a section 120.57(1) hearing, and after consideration of all of the evidence presented at that hearing. The Board of Veterinary Medicine issued a Final Order on June 25, 2012, adopting the Findings of Fact and Conclusions of Law contained in the Recommended Order. At the time Petitioner filed the Fees Motion, the case was proceeding on the Amended Administrative Complaint. There was pending at that time a Motion to Amend the Amended Administrative Complaint, which was granted, and the case went to hearing on the Second Amended Administrative Complaint. At pages 16-17 of the Fees Motion,2/ Petitioner asserts that the Department alleges that he failed to properly document the dog?s heart rate and did not record any recommendations for diagnostic tests or follow-up examinations to determine the cause of the heart rate.3/ The basis for Petitioner?s challenge is an attack on the sources used by and the opinion of Dr. Donofro, one of the Department?s experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding Awesomer?s heart rate. The Department had a reasonable basis upon which to file the allegations in the Second Amended Administrative Complaint, and to proceed with those allegations. Petitioner cites to the Department?s allegations regarding his failure to record a fecal test. It was found in the Recommended Order that Respondent did not perform a fecal test (hence no record for one). While the Recommended Order concluded that the Department did not prove a medical records violation on this ground by clear and convincing evidence, the medical records indicate that the pet owner had reported that Awesomer had suffered from diarrhea the night before, and noted that his stool was “near normal” at the clinic. A notation of “near normal” stool could be interpreted, as it was in light of testimony presented at hearing, that no fecal test was performed and that the notation was based upon observation alone, or that fecal tests resulted in findings that were close to normal but that were not expressly recorded. Petitioner?s record is ambiguous enough to support either interpretation, and the Department relied on the interpretation of its experts. The fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the tests, or lack thereof, of Awesomer?s stool, and the Department had a reasonable basis to include the allegation in the Second Amended Administrative Complaint and to proceed with prosecution. Respondent takes issue with the allegations regarding low-urine gravity and other serum values. The specific allegations, found at paragraphs 12-13 of the Second Amended Administrative Complaint, state: Respondent performed a urinalysis for Awesomer. Respondent recorded in the medical records that he found a “low urine gravity,” but failed to address the elevated serum creatinine, serum albumin, serum sodium, and urine pH in Awesomer?s medical records. Dr. Donofro found the failure to address these values to be a problem. Ultimately, Dr. Langford?s testimony that he documented the values in the record but did not record any follow-up based on his belief that the identified values were not abnormal was credited at hearing. However, the fact that Petitioner ultimately prevailed on this issue does not negate the fact that the Department obtained and relied upon an expert in veterinary medicine with respect to the allegations regarding the evaluation of serum creatinine, serum albumin, serum sodium, and urine pH. The Department had a reasonable basis on which to include the allegations in the Second Amended Administrative Complaint and to proceed with the prosecution of these allegations. At page 16 of the Fees Motion, Petitioner takes issue with paragraphs 14-15 of the Second Amended Administrative Complaint, which allege that Respondent failed to record any indication that Awesomer drank excessively, beyond the tentative diagnosis of polydipsia. Dr. Donofro?s report specifically addresses the failure to indicate excessive fluid consumption in that one would expect to see a notation regarding the level of consumption, in light of Respondent?s tentative diagnosis for Awesomer. Once again, however, the inclusion of this item in the Second Amended Administrative Complaint was based upon expert reports received by the Department prior to filing the Amended Administrative Complaint and the Department had a reasonable basis for including it and for prosecuting it. At page 19 of the Fees Motion, Petitioner takes issue with the allegation that he failed to include anything in the medical records for April 28, 2009, to support the administration of Phenylpropanolamine. This allegation is discussed by Dr. Donofro in her report, upon which the Department relied. At hearing, the issue was decided in Dr. Langford?s favor based upon his testimony and that of his expert witness, Dr. Vega (who is also a former member of the Board of Veterinary Medicine). However, the Department had a reasonable basis for including this factual allegation in the Second Amended Administrative Complaint and for prosecuting it. At pages 19-20 of the Fees Motion, Petitioner takes issue with the inclusion of allegations related to the documentation of a modified water-deprivation test. He is especially critical because he testified that he performed a modified water-deprivation test as opposed to a water- deprivation test, and states that the medical records clearly delineate that a modified water-deprivation test was performed. While the April 28, 2009, entry indicates that a modified water- deprivation test will be performed, there are other entries in the records for Awesomer that refer to scheduling and conducting a water-deprivation test. Based on the records, Dr. Donofro addressed this issue in her report.4/ While Petitioner ultimately prevailed on this issue, there was a legitimate basis for the Department to include the allegations in the Second Amended Administrative Complaint and to proceed with these allegations. On page 21 of the Fees Motion, Petitioner alleges that “Amended administrative complaint lines 25-26 allege Respondent failed to record in Awesomer?s medical record for April 29, 2009, anything regarding this visit, including the lactated- ringers solution administration. It is there in the record for that date, clear as day, that it was administered, as it was, on April 30, 2009, not on April 29, 2009.” Petitioner?s allegation is not consistent with the actual allegations in the Second Amended Administrative Complaint. That document states: Respondent?s written response from July 7, 2009, states that he examined Awesomer after 9:30 PM on April 29, 2009 and “found nothing abnormal in the examination of the dog, but considered the possibility of the lingering effects from the water deprivation study.” Respondent failed to record in Awesomer?s medical records for April 29, 2009, anything regarding this visit or examination. Respondent?s written response from July 7, 2009, also states that he examined Awesomer after 9:30 PM on April 29, 2009, and “placed a catheter in [Awesomer?s] arm, and administered 1000 cc of [Lactated Ringers Solution].” Respondent failed to record in Awesomer?s medical records for April 29, 2009, that he placed a catheter or administered the Lactated Ringers Solution (LRS). The Fees Motion does not mention the July 7, 2009, response by Dr. Langford. It was not admitted into evidence in this proceeding or in the disciplinary proceeding. It is, however, mentioned in Dr. Donofro?s report, and she comments on the discrepancy between Dr. Langford?s account of the events and Ms. Lawhun?s. Dr. Donofro also discusses at length what she viewed as some ambiguities in the recording of the amount of LRS, and opined that the amount provided under either interpretation she could reach was inappropriate. There was a basis upon which the Department could rely for including these allegations in the Second Amended Administrative Complaint and proceeding with those allegations. At page 21 of the Fees Motion, Petitioner claims that the Department alleges “in administrative complaint line 35 that Respondent should have included a „discussion? of electrolytes and white blood count,” and claims that there are no facts to support a records violation for line 35. Paragraph 35 of the Second Amended Administrative Complaint simply states that “the CBC results indicated that Awesomer?s white blood count was elevated.” A review of both the original and the Amended Administrative Complaint confirm that neither of those documents have the allegation of which Petitioner complains, at paragraph 35. Paragraph 36 of the Second Amended Administrative Complaint alleges that “Respondent failed to record any explanation or discussion of the results of the CBC or General Health Profile with Electrolytes in the April 30, 2009, medical records for Awesomer.” Dr. Langford?s criticism that “this is a medical record, not a dissertation,” is flippant at best, and ignores the requirement in Florida Administrative Code Rule 61G18-18.002(1) that the records “contain sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered.” Concerns about issues revealed in the CBC were discussed in Dr. Donofro?s report, and the lack of follow-up or discussion led her to believe that certain possibilities in treatment were overlooked. The Department?s belief, that some reference other than the test result itself was necessary, was reasonable given the need for records to justify a diagnosis, and the Department had a basis to proceed with this allegation. Finally, at page 22 of the Fees Motion, Dr. Langford takes issue with the Department?s allegations that medical records were not contemporaneously recorded for events taking place April 30, 2009. Yet, there is no dispute that there are three separate versions of the medical records in this case, and one of the issues presented was the discrepancy in dates for certain services. The Department had a reasonable basis to proceed with the allegations with respect to the May 16, 2009, entries.
Conclusions By letter dated March 31, 2010, the Agency for Persons with Disabilities (APD) informed Angels of America, Inc., that it was terminating the Medicaid Waiver Services Agreement that it and Angels of America had entered into. Following the receipt of a request for an administrative hearing, the matter was referred to the Division of Administrative Hearings (DOAH). On May 26, 2010, APD moved to dismiss the proceeding on the basis that Petitioner had not shown that its substantial interests would be affected by the Agency’s action. On June 9, 2010, the Administrative Law Judge entered an Order Relinquishing Jurisdiction and Closing File. THEREFORE, based on the foregoing and being otherwise fully apprised of the premises, it is hereby ORDERED that the hearing request filed in the above-styled case is hereby DISMISSED and this case is CLOSED, DONE AND ORDERED, this 16th day of June, 2011, in Tallahassee, Leon County, Florida. _ . PSY Nt ee Percy W. Mallison, Jr., Esquire Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, FL 32399-0700 APD-11-4859-FO | 1 Filed June 16, 2011 1:04 PM Division of Administrative Hearings CERTIFICATE OF SERVICE Copies provided to: Jeffrey C. Marty, Esa. Juan R. Collins, Esq. Post Office Box 3159 Agency for Persons with Disabilities Zephyrhills, Florida 33539 4030 Esplanade Way, Suite 335B Tallahassee, Florida 34785 APD Area 13 Office | HEREBY CERTIFY that a copy of this Final Order was provided to the above- named individuals at the listed addresses, by U.S. Mail or electronic mail, this 16th day of June, 2011. Percy i Mallison, Jr., Agency Clerk Agency for Persons with Disabilities 4030 Esplanade Way, Suite 380 Tallahassee, Florida 32399-0950 APD-11-4859-FO | 2
Findings Of Fact Respondent is a chiropractic physician licensed in the State of Florida having been issued license CH-0001538 on December 31, 1973. On or about November 20, 1992, in DPR Case Number 91-8743, the Board of Chiropractic entered a Final Order against the Respondent imposing as discipline: A suspension of Respondent's license for a period of sixty (60) days from the date of the entry of the Final Order, and Payment of an administrative fine in the amount of two thousand dollars ($2,000.00) within thirty (30) days of the filing of the Final Order. The Final Order further provided for revocation of Respondent's license should he violate the provisions of the Final Order. The November 20, 1992, Final Order was served on Respondent by U.S. certified mail on or about December 4, 1992. According to the terms of the Final Order, Respondent was required to pay the administrative fine by December 21, 1992, and in no instance later than January 5, 1993. Further, Respondent's license was suspended from November 21, 1992, through January 20, 1993. On or about January 27, 1993, Respondent submitted a check in the amount of two thousand dollars ($2,000.00) to the Board of Chiropractic as payment of the administrative fine. Respondent had sufficient funds to cover the check at the time it was written. On the advice of counsel, Respondent stopped payment on the check. The advice was based on the fact that Respondent had "appealed" the Final Order of November 20, 1992, to the United States District Court and that payment of the fine was stayed pending outcome of the "appeal." Respondent did not appeal the Board's November 20, 1992, Final Order to a Florida District Court of Appeal. Instead, Respondent filed an independent action under 42 U.S.C. Section 1983, for injunctive relief from the Board's November 20, 1992, Final Order. No order was entered by the United States District Court which stayed enforcement of the Board's Final Order. Clearly, the federal action was technically not an appeal of the Board's Final Order in the legal sense of the meaning of appeal. However, in layperson's language the term "appeal" could easily be applied to the Federal action with the resultant confusion, as in this case, of the effect of such an appeal to stay enforcement of the Board's Final Order. The stop payment order caused the bank to dishonor the $2,000.00 check and return the item to the Department unpaid. Around February 16, 1993, Respondent was notified, by letter, from Sheri Danzis of the Department of Business and Professional Regulation, Bureau of Finance and Accounting, that his check had been returned to the Petitioner dishonored. The letter also requested that he remit the amount of $2,000.00 plus a service charge of $100.00 for the dishonored check. Around February 22, 1993, Respondent informed Ms. Danzis that he had "appealed" the Board's Final Order of November 20, 1992, to the United States District Court and that the fine was stayed pending the outcome of the "appeal." Ms. Danzis notified the board of the unpaid fine. Ms. Danzis took no further action because the Final Order had been appealed. Around April 21, 1993, Respondent was again notified by letter from Ann Broome, Board of Chiropractic Staff Office, that his check had been returned dishonored and requested Respondent to pay $2,100.00 to clear up the matter. The letter also advised that Respondent's case could be reviewed for disciplinary action for violating the Board's Final Order. Respondent, around April 29, 1993, submitted payment of $1,500.00 to the Board of Chiropractic as partial payment of the administrative fine imposed by the November 20, 1992, Final Order. Respondent was unable to pay the entire fine because of financial problems caused by large medical bills. In the meantime, around June, 1993, the exact date is unclear, the Department's records reflected that Respondent's license had been revoked. The person making the record testified that Respondent's license was revoked because the Final Order called for that penalty if it was violated and the Respondent's license was therefore revoked. However, the Department's computer records of licensure submitted as evidence of licensing do not curently reflect the revocation. The computer records reflect only that Respondent's license expired on March 1, 1994 and was reissued on May 4, 1994, under the two-year renewal provisions of Chapter 460, Florida Statutes. No testimony regarding the data processing procedures of the Department was introduced at hearing. Therefore, given the general ability to add and delete information from a computer, the current records versus the live testimony of revocation, are not found to be reliable. The testimony of revocation is found to be reliable and establishes that Respondent's license was revoked and later reissued under Chapter 460, Florida Statutes. Around March 27, 1994, Dr. McCall mailed $350.00 to the Board for renewal of his license. However, the Board did not apply the $350.00 to reissuance of Respondent's license, but instead applied the funds to the Final Order debt. Respondent notified the Board of its error and demanded that the funds be applied to reissue his license. On April 21, 1994, the Board corrected its mistake and applied the $350.00 to Respondent's license reissuance. Importantly, the Department in an internal memorandum officially placed collection of the Final Order debt on hold pending the outcome of Respondent's "appeal." Around October 12, 1994, Respondent paid the remaining balance of his administrative fine. Respondent's "appeal" with the United States District Court for the Northern District of Florida was dismissed without prejudice by the Court sometime in December, 1993. 23. On January 20, 1982, the Board of Chiropractic issued a Final Order reprimanding the Respondent and admonishing him against the use of the title "Chiropractic Adjuster General of the United States." The Board's Final Order of November 20, 1992, was issued based upon a violation of the January 20, 1982, Board Final Order. 22. In this very confused case, Respondent did not timely pay the administrative fine imposed in the Board's November 20, 1992, Final Order. However, the untimeliness was initially caused by the advice Respondent received from his counsel and a layperson's incorrect understanding of the appellate process. The untimeliness was further exacerbated by the Department's willingness to place the collection process on hold pending the outcome of the "appeal." In short, the general impression given the Respondent by the Department was that collection was on hold. By the time the "appeal" was over, Respondent had financial difficulties and could not pay the balance of the fine. 19. The violation, if any, was minimal, at best; however, Petitioner had already revoked Respondent's license for the untimely payment or nonpayment of the administrative fine. Therefore, Petitioner has had its remedy in this case and the administrative complaint should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED: that the Board enter a final order dismissing the administrative complaint. DONE and ENTERED this 26th day of January, 1995, in Tallahassee, Florida. DIANE CLEAVINGER 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 26th day of January, 1995.
Findings Of Fact Stipulated facts The Respondent, Raul A. Tamayo, M.D., is, and has been at all times material hereto, a licensed physician in the State of Florida, having been issued license number ME0051659. At all times material hereto, the Respondent worked on a part-time basis, solely as an employee, at Westchester Clinic. The Respondent was neither an owner nor a principal of Westchester Clinic, nor was he an employer of Simon Hajje. The Respondent has had no prior discipline against his license to practice medicine in the State of Florida. Facts proved at hearing From early April of 1990 until November 16 of 1990, Dr. Simon Hajje also worked as an employee of the Westchester Clinic. During the time he worked for the Westchester Clinic, Dr. Simon Hajje was not licensed as a medical doctor in the State of Florida. During the time he worked for the Westchester Clinic, Dr. Simon Hajje's job title was "medical assistant." During the period that Dr. Hajje and the Respondent were employed at the Westchester Clinic, there were also numerous other physicians who worked there on a part-time basis on many different work schedules. On November 15, 1990, a Department investigator named Ms. Georgina Jorge went to the Westchester Clinic where, using the assumed name of Megalyn Guzman, she pretended to be a patient in need of medical attention. On that day Ms. Jorge was taken to an examination room where she met Dr. Simon Hajje. Thereupon, Dr. Hajje, acting as if he were a licensed medical doctor, took a medical history from Ms. Jorge, examined Ms. Jorge, and then wrote two prescription forms which he ultimately gave to Ms. Jorge. As she was leaving the clinic, Ms. Jorge asked the receptionist for the name of the doctor and she was given a card on which the name "Dr. Hajje-Tamayo" was written. On the following day, November 16, 1990, Ms. Jorge returned to the Westchester Clinic, again using the assumed name of Megalyn Guzman, and asked to see "Dr. Hajje-Tamayo." Ms. Jorge again saw Dr. Simon Hajje, whereupon she told him that she had lost one of the prescriptions. Dr. Simon Hajje thereupon wrote and delivered to Ms. Jorge another prescription to replace the allegedly lost prescription from the previous day. The prescription forms given to Ms. Jorge on November 15 and 16, 1990, were on prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top. Those prescription forms also had a manuscript signature at the bottom that appeared to read "R. Tamayo, M.D." With regard to the two prescription forms given to her on November 15, 1990, Ms. Jorge observed that the prescription forms were signed before Dr. Simon Hajje started filling them out. She was unable to make such an observation regarding the prescription form given to her on November 16, 1990. On November 16, 1990, Ms. Jorge also retrieved six other presigned blank prescription forms that had the name, address, and telephone number of the Westchester Clinic Center printed at the top and had the manuscript signature of the Respondent at the bottom. None of the medications on the prescription forms given to Ms. Jorge by Dr. Simon Hajje were controlled substances. Dr. Hajje found the presigned prescription forms described above on a desk in one of the examination rooms at the Westchester Clinic. The Respondent never gave Dr. Hajje permission to take any of the presigned prescription forms and give them to Ms. Georgina Jorge. Dr. Hajje never told the Respondent that he was going to write prescriptions on the presigned forms and give them to Georgina Jorge. Dr. Hajje never told the Respondent that he was going to take the presigned prescription forms and write prescriptions for any patient. Dr. Hajje never said anything to the Respondent and never did anything that would cause the Respondent to expect that Dr. Hajje would write prescriptions on the presigned forms and give the prescription forms to Georgina Jorge. On November 19, 1990, Ms. Jorge interviewed the Respondent at the Respondent's private practice office located at 9473 West Flagler, Miami, Florida. Ms. Jorge had never seen the Respondent prior to the November 19, 1990, interview, nor had she spoken to him prior to the interview. During the course of the interview on November 19, 1990, Ms. Jorge showed the Respondent the prescription forms Dr. Hajje had issued to her and also showed him the other presigned blank prescription forms she had retrieved from the Westchester Clinic. Upon being told what had happened, the Respondent became very emotional and stated that he did not realize that Dr. Hajje had issued any prescriptions. The Respondent was very shocked and very surprised that Dr. Hajje had issued the prescriptions in question. The Respondent denied any knowledge of Dr. Hajje's actions in this regard and explained to Ms. Jorge that he might have left some presigned prescription forms behind at the Westchester Clinic because, as a matter of convenience and efficiency, he sometimes presigned blank prescription forms in order to save time while with his patients. In the course of this explanation, the Respondent showed Ms. Jorge a prescription pad he had in his possession that had two blank prescription forms that had been presigned by the Respondent. The presigned prescription forms the Respondent showed to Ms. Jorge on November 19, 1990, were different from the ones she saw on November 15 and 16, 1990, at the Westchester Clinic, because the ones on November 19 had printed at the top the Respondent's name and the addresses of the Respondent's private offices. On November 19, 1990, when Ms. Jorge showed the Respondent the prescription forms she had received from Dr. Hajje and the six blank presigned prescription forms she had retrieved on November 16, 1990, the Respondent examined those prescription forms and acknowledged that the signatures on all of those prescription forms appeared to be his signature. Prior to the interview on November 19, 1990, the Respondent did not realize that the act of presigning blank prescription forms was (and still is) prohibited by statute. The Respondent studied medicine in Havana, Cuba, in the early 1970's and also practiced in Cuba before coming to this country. Due to the heavy case loads that are common for physicians practicing in Cuba, it was common for such physicians to develop the habit of presigning documents such as prescription forms and having a physician's assistant fill out the prescriptions pursuant to instructions from the physician. Dr. Simon Hajje's activities on November 15 and 16, 1990, described above, led to his arrest on charges of engaging in the unlicensed practice of medicine. Those activities were also made known to the Board of Medicine when Dr. Hajje applied for a license to practice medicine in the State of Florida. Nevertheless, Dr. Hajje was licensed in due course and continues to be licensed to practice medicine in the State of Florida. The Respondent is well respected, both personally and professionally, by physicians in the medical community in which he practices. Physicians who know him well regard the Respondent as an honest and honorable individual who is an excellent and dedicated physician.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Board of Medicine issue a Final Order in this case to the following effect: Dismissing the violations charged in Counts Two and Three of the Administrative Complaint on the grounds that the evidence is insufficient to prove the violations charged in those two counts; Concluding that the Respondent is guilty of having, on at least one occasion, violated Section 458.331(1)(aa), Florida Statutes (1990), as charged in Count One of the Administrative Complaint; and Imposing an administrative penalty consisting solely of a written reprimand. DONE AND ENTERED this 15th day of December, 1993, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1993. APPENDIX The following are the Hearing Officer's specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 7: Accepted in substance, with a number of details corrected or clarified to conform to the evidence. Paragraph 8: Rejected as not supported by persuasive competent substantial evidence. (There is evidence that the Respondent presigned "some" prescription forms, but there is no clear evidence that he did so on "numerous occasions" and there is no clear evidence that he was doing so throughout a two-year period from November 1988 to November 1990.) Paragraph 9: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent intended for anyone other than himself to issue the prescription forms he presigned.) Paragraph 10: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence. (There is no evidence that the Respondent authorized Dr. Simon Hajje to issue prescriptions, that he delegated the issuance of prescriptions to Dr. Hajje, or that he even knew Dr. Hajje was issuing prescriptions.) Findings submitted by Respondent: Paragraph 1: Accepted. Paragraphs 2 and 3: Rejected as subordinate and unnecessary historical or background details. Paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, and 21: Accepted in substance, with a number of details corrected or clarified to conform to the evidence. Paragraph 22: Rejected as subordinate and unnecessary details. Paragraph 23: First sentence accepted in substance to the effect that the Respondent was very surprised and in a state of shock when he learned that Dr. Simon Hajje had issued prescriptions presigned by the Respondent. The remainder of this paragraph is rejected as consisting of subordinate and unnecessary details and legal arguments. Paragraph 24: Accepted in substance. Paragraph 25: Accepted in substance, but with a large number of unnecessary details omitted. Paragraph 26: Rejected as constituting legal argument rather than proposed findings of fact. Paragraphs 27, 28, and 29: Accepted in substance. Paragraph 30: Rejected as constituting legal argument rather than proposed findings of fact. Paragraph 31: Accepted in substance. Paragraph 32: Accepted in substance, with exception of last sentence. Last sentence is rejected as legal argument. Paragraphs 33, 34, 35, and 36: Rejected as consisting of a combination of subordinate and unnecessary details and arguments about the sufficiency of the evidence. Paragraphs 37, 38, 39, 40, 41, 42, 43, and 44: Accepted in substance, with a number of details corrected or clarified to conform to the evidence, and with other details simplified to the bare essentials. COPIES FURNISHED: Francesca Plendl, Esquire Senior Attorney Department of Business and Professional Regulation 1940 N. Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Steven R. Ballinger, Esquire, and Morton J. Morris, Esquire 2500 Hollywood Boulevard Suite 212 Hollywood, Florida 33020 Dorothy Faircloth, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Jack McRay, Esquire General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750
