Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: The Respondent, Zevart Manoyian, M.D. is a licensed physician in the State of Florida, having been issued License No. ME 0003347. Respondent is engaged in the practice of family medicine at 725 Opa Locke Boulevard, Opa Locke, Florida. The Respondent has practiced medicine for the past thirty-eight years. The Respondent treated patient Willie Dawson from October 1981 through May 1984. When interviewed by DPR Investigator Lichtenstein during the initial investigation of this case on October 2, 1986, the Respondent stated that she was treating Dawson for a broken jaw and depression. Based on information contained in hospital records and the Respondent's office records during the period which Dawson was treated by Respondent, the following medical history is disclosed: In 1980, Dawson was hospitalized because of a broken jaw; In 1982, the Respondent diagnosed Dawson as having narcolepsy and began prescribing Preludin. In 1984, Dawson was admitted to the Veteran's Administration Hospital and died due to an "intestinal obstruction." Between December 1983 and September 1984, the Respondent prescribed 180 doses of Preludin and 180 doses of Percodan to Dawson. Narcolepsy is a rare and unusual sleeping disorder and may be treated with Preludin, a Schedule II controlled drug. Percodan, a Schedule II controlled drug, may be prescribed for pain. Percodan could be an appropriate medication to prescribe for lingering pain associated with a previously broken jaw. The Respondent's medical records pertaining to Dawson contained no medical history, given by the patient, allergy history physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Physicians' Desk Reference (PDR) is accepted by physicians as an authoritative reference source of appropriate drug usage indications and contraindications, The PDR is made up of inserts provided by various drug companies and manufacturers and will indicate the limits and limitations of a particular drug. Although the POP is accepted by physicians as an authoritative reference source, physicians recognize that it is merely a guide and that the treating physician must determine the most appropriate and medically justifiable treatment for a given patient. According to the PDR, the appropriate recommended dosage for Percodan is four per day or one every six hours when medically indicated. However, a physician may increase this dosage if the patient has developed a tolerance to the analgesic effects of the drug or when there is severe pain. The appropriate recommended dosage for Preludin is one per day. The PDR advises that the recommended dosage for Preludin not be exceeded. The amounts of Preludin and Percodan given to Dawson were within the dosage and administration recommendations in the PDR. In addition, the choice of drug, and the amount prescribed, could have been indicated to a reasonably prudent physician based on Dawson's medical conditions. The Respondent treated patient Barbara Gaskill from September 1977 through December 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for lower back pain and obesity. Based on information contained in the Respondent's office records during the period which Gaskill was treated by Respondent, the following medical history is disclosed: In 1977, Gaskill hurt her back, suffered an arthritis attack and had a ruptured sciatica; In 1978, Gaskill was experiencing problems sleeping due to her back conditions; In 1980, Gaskill was involved in an automobile accident; In 1982, Gaskill suffered headaches; In March 1983, Gaskill had an infected tooth in her right jaw; In March 1984, Gaskill injured her back when she tripped and fell; In April 1984, Gaskill suffered from chronic pain in her lower back; Between December 9, 1983, and August 7, 1984, the Respondent prescribed 115 tablets of Tuinal and 102 tablets of Percodan to Gaskill. Tuinal is a Schedule II controlled drug used to help induce sleep. The recommended dosage in the PDR for Tuinal is one per day. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical problems such as those with which Gaskill suffered between December 9, 1983 and August 7, 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Gaskill were within the recommended limitations established for those drugs in the PDR. The Respondent's medical records pertaining to Gaskill contained no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x- rays. The Respondent treated Linda Godfrey from November 1980 through July 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Gaskill for severe pain. The Respondent stated she knew that Godfrey was addicted to the medication but that she continued to prescribe the medication to alleviate the pain. Based on information contained in hospital records and the Respondent's office records during the period Godfrey was treated by Respondent, the following medical history is disclosed: In 1980, Godfrey was diagnosed as having congenital cerebral palsy and multiple sclerosis. On the same visit, the Respondent noticed that Godfrey had an abscess on her left buttock; In March of 1981, Godfrey was involved in an automobile accident; In August of 1981, Godfrey passed a kidney stone and went to the hospital; In August and September of 1983, Respondent noted that Godfrey was experiencing severe pain "all over"; In April of 1984 Godfrey had an infected ulcer; In June of 1984, Godfrey was admitted to the hospital by the Respondent. The Respondent noted that the patient had a drug addiction, which the patient denied. During Godfrey's hospital stay, the Respondent did not allow her to have visitors because Godfrey was overheard requesting a friend to bring drugs to her in the hospital. Godfrey admitted to snorting cocaine while in the hospital. On June 4, 1984, Godfrey was discharged to North Miami General Hospital in order to be cared for in the drug and detoxification unit. The diagnosis at that time was acute gastritis and drug dependence. On June 3, 1984, the Respondent noted that Godfrey was scheduled for a psychiatric consultation with another physician; In July of 1984, Godfrey was readmitted to the hospital because she fell down a flight of steps and injured her right knee and twisted her lower back. Between December 26, 1983, and July 8, 1984, the Respondent prescribed 10 doses of Percocet, 12 doses of Nembutal, and 377 doses of Perdocan to Godfrey. Percocet is a Schedule II controlled drug which is used in the treatment of pain. Percodan and Percocet are similar except that Percocet has a Tylenol base and Percodan has an aspirin derivative. The PDR's recommended dosages and limitations are the same for Percodan and Percocet. Nembutal is a short-acting or medium-acting barbiturate and is used to help induce sleep. The recommended dosage in the PDR for Nembutal is one per day. Percodan, Prococet and Nembutal, in the amounts prescribed, could be appropriate drugs with which to treat pain and associated sleeping problems arising from medical conditions such as those with which Godfrey suffered between December 26, 1983 and July 8, 1984. The dosages of Percodan, Prococet and Nembutal which Respondent prescribed to Godfrey were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to Godfrey contain no medical history given by the patient, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Martha Guc from January of 1977 through September of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that she was treating Guc for severe back pain. Based on information contained in hospital records and the Respondent's office records during the period which Guc was treated by Respondent, the following medical history is disclosed: In January of 1979 Guc was involved in a serious automobile accident and also suffered from scoliosis. Guc was experiencing cramps in her spine and was unable to sleep as a result of her back pain; In the automobile accident of January 1979, Guc received extensive injuries, including multiple abrasions and lacerations, a broken arm and multiple contusions in her sternum and knee. Plastic surgery was required to repair the facial lacerations and her arm was placed in a cast. In December of 1979, Guc experienced pain in her back and left knee; In 1980, Guc continued to experience back pain; In 1983, Guc was involved in an automobile accident and her head hit the windshield; From March to June 1984, Guc continued to experience back pain; Between January 20, 1984, and August 27, 1984, the Respondent prescribed 580 doses of Percodan to Guc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems and conditions such as those with which Guc suffered between January 20, 1984 and August 27, 1984. The dosages of Percodan which Respondent prescribed to Guc were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Guc did not show any medical history, allergy history, physical examination or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Delores Jones from January of 1969 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that she was treating Jones for back pain. The Respondent stated that she knew that Jones was addicted to narcotics but that the medication was required to relieve the symptoms of pain. Based on information contained in hospital records and the Respondent's office records during the periods which Jones was treated by Respondent, the following medical history is disclosed: In 1969, Jones experienced severe back pain; In 1970, Jones suffered from acute gastritis; In 1974, Jones again experienced severe back pain; In May of 1974, Jones was involved in an automobile accident and injured her back; Additionally, Jones suffered from a hernia, stenosis of the spine and a duodenal ulcer. Between December 1, 1983, and August 28, 1984, the Respondent prescribed 1200 doses of Percocet to Jones. The Respondent was aware that Jones was becoming addicted to narcotics and referred Jones to a Doctor Baldry in Coral Gables for treatment. The Respondent stated that she was not aware if Jones ever followed her referral. Percocet, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Jones suffered between December 1, 1983 and August 28, 1984. The dosages of Percocet which Respondent prescribed to Jones were within the recommended limitations established for that drug in the PDR. The Respondent's medical records pertaining to Jones did not show any medical history, allergy history, physical examinations or the result thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Cheryl LeBlanc from December of 1983 through October of 1984. When questioned by DPR Investigator Lichtenstein regarding her treatment of this patient, the Respondent stated that Ms. LeBlanc was being treated for pains in the left hip and bursitis. Based on information contained in hospital records and the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: In December of 1983, LeBlanc was diagnosed as having bursitis. Respondent noted that LeBlanc had pains in her left hip and down the posterior portion of her left leg; On January 6, 1984, the Respondent noted that LeBlanc had bursitis in the left hip; In July of 1984, Respondent noted that LeBlanc had a problem with a lymph node; In September of 1984, the Respondent noted that LeBlanc suffered from chronic pain; (f) Prior to being treated by the Respondent, LeBlanc was admitted to North Shore Medical Center in October of 1983 for treatment of infertility and irregular periods. In October of 1983, LeBlanc had a D&C and salpingogram. In November of 1983, she was readmitted to North Shore Medical Center for tubal reconstruction. Between December 13, 1983, and August 2, 1984, the Respondent prescribed 90 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain arising from medical problems such as those with which LeBlanc suffered between December 13, 1983 and August 2, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established in the PDR. Respondent's medical records pertaining to LeBlanc did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Gerald LeBlanc, husband of Cheryl LeBlanc, from October of 1983 to October of 1984. When questioned by DPR Investigator Lichtenstein regarding this patient, the Respondent stated that Mr. LeBlanc suffered from severe bursitis in the shoulder and upper back pain. Based on information contained in the Respondent's office records during the period in which LeBlanc was treated by Respondent, the following medical history is disclosed: On October 7, 1983, LeBlanc was treated for muscle spasms in his back; shoulder; On November 9, 1983, LeBlanc was treated for acute bursitis in his On December 6, 1983, Respondent noted that she intended to wait one month and if LeBlanc's shoulder was not better, she was going to have it x- rayed; On December 26, 1983, Respondent noted that LeBlanc's shoulder was still very sore and that he had difficulty working in the cold; On February 17, 1984, the Respondent noted that LeBlanc still had bursitis in his left shoulder; On March 16, 1984, the Respondent indicated that LeBlanc still had bursitis; On April 25, 1984, and September 17, 1984, Respondent noted that LeBlanc was still experiencing severe pain in his shoulder; On October 8, 1984, Respondent noted that LeBlanc refused Tylenol #3, because he stated that it made him sick and nauseous. Between December 1983 to July 9, 1984, the Respondent prescribed 405 doses of Percodan to LeBlanc. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which LeBlanc suffered between December 1983 and July 9, 1984. The dosages of Percodan which Respondent prescribed to LeBlanc were within the recommended limitations established for those drugs in the PDR. Respondent's medical records pertaining to LeBlanc did not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Betty Mitchell from November of 1981 to August of 1984. When questioned. By DPR Investigator Lichtenstein regarding this patient, Respondent stated that Mitchell suffered from chronic pain. The Respondent stated that Mitchell was drug dependent, but not addicted. Based on the information contained in the Respondent's office records during the period in which Mitchell was treated by Respondent, the following medical history is disclosed: In 1982, Mitchell was shot in her left buttock; On July 21, 1982, Respondent noted that the bullet was still lodged in Mitchell's buttock and that Mitchell had a drainage tube in her abdomen; pain; On September 7, 1982, Mitchell suffered from pelvis and mouth On January 14, 1983, the Respondent noted that Mitchell suffered from pain in the buttocks and back; On April 6, 1984, Respondent noted that Mitchell had pain in her back near her buttock area; On August 7, 1984, Respondent noted that Mitchell was still experiencing back pain; On April 18, 1983, Respondent noted that Mitchell was experiencing pain. Between December 23, 1983, and August 24, 1984, Respondent prescribed 180 doses of Percodan to Mitchell. Respondent was aware that Mitchell was becoming dependent on Percodan. Percodan, in the amount prescribed, could be an appropriate drug with which to treat pain associated with medical problems such as those with which Mitchell suffered between December 23, 1983 and August 24, 1984. The dosages of Percodan which Respondent prescribed to Mitchell were within the recommended limitations established for that drug in the PDR. Respondent treated patient Rhona Molin from September of 1981 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Molin was being treated "for nervousness and being very high strung." Based on information contained in the Respondent's office records during the period which Molin was treated by Respondent, the following medical history is disclosed: In 1981, Molin suffered from colitis and stomach pain; In 1981, Respondent noted that Molin had bursitis in her right shoulder; In 1982, Molin suffered from right arm pain; On March 16, 1984, Respondent noted sporadic stomach pain; On June 1, 1984, Respondent noted that Molin was nervous and experiencing severe stomach pain; On August 28, 1984, Respondent diagnosed Molin as having colitis. Between December 21, 1983 and August 28, 1984, the Respondent prescribed 300 doses of Tuinal to Molin. Tuinal, in the amount prescribed, could be an appropriate drug with which to treat sleeping problems arising from the medical conditions with which Molin suffered between December 1983 and August 1984. The dosages of Tuinal which Respondent prescribed to Molin were within the recommended limitations established in the PDR. The Respondent's medical records pertaining to Molin do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient John Skilles from May of 1981 through October of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that Skilles was being treated for severe pain and bursitis in both shoulders. The Respondent further stated that Skilles was provided two prescriptions for fifty (50) doses of Percodan on the same date because he could not afford to have a prescription for one hundred (100) Percodan filled at one time. Based on information contained in hospital records and the Respondent's office records during the period in which Skilles was treated by Respondent, the following medical history is disclosed: Respondent noted on May 25, 1981, that Skilles was shot five or six times in an accident at Camp Pendelton while he was in the military. Respondent noted that his upper body was full of lead shot; On September 14, 1981, the Respondent noted that Skilles was experiencing pain in both shoulders; On December 7, 1981, the Respondent indicated that Skilles was still experiencing shoulder pain; On August 30, 1982, Respondent noted that Skilles was in an automobile accident and injured the left side of his chest; On October 1, 1982, Respondent noted that Skilles was still experiencing shoulder and chest pain; On June 3, 1983, the Respondent noted that Skilles had pain in both shoulders and was unable to work (Skilles was a painter); On September 6, 1983, the Respondent noted that Skilles was experiencing severe pain in his shoulder. On December 28, 1983, Respondent noted chest pain, and on February 17, 1984, and March 26, 1984, it was noted that Skilles was still experiencing chest pain; On June 13, 1984, the Respondent noted that Skilles had bursitis in both shoulders and was suffering from insomnia; On October 1, 1984, the Respondent noted that Skilles suffered from severe pain in the shoulder and chest. Between August 11, 1983, and September 1, 1984, the Respondent prescribed 90 doses of Tuinal and 600 doses of Percodan to Skilles. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Skilles suffered between August 1983 and September 1984. Respondent's medical records pertaining to Skilles do not show any medical history, allergy history, physical examinations or the results thereof, laboratory tests or the results thereof, or x-rays. The Respondent treated patient June Sweeney between February of 1980 and August of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Sweeney for nervousness and insomnia. Based on information contained in Respondent's office records during the period in which Sweeney was treated by Respondent, the following medical history is disclosed: In 1980, Sweeney was having difficulty sleeping and was experiencing back pain; In 1982, Sweeney was involved in an automobile accident and experienced more back pain; In 1982, Sweeney experienced severe back pain. In August of 1984 Sweeney returned to Respondent's office complaining of pain and insomnia. On August 9, 1984, the Respondent prescribed 30 doses of Percodan and 30 doses of Tuinal to Sweeney. Percodan and Tuinal, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Sweeney suffered. The dosages and Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations as established for those drugs in the PDR. The Respondent's medical records pertaining to Sweeney did not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, and no x-rays. The Respondent treated patient Mike Sweeney from April of 1979 to October of 1984. When questioned by Investigator Lichtenstein regarding this patient, Respondent stated that she was treating Mr. Sweeney for "various things, including back pain and insomnia." Based on information contained in hospital records and the Respondent's office records during the period in which Sweeney was treated by the Respondent, the following medical history is disclosed: Prior to being seen by Respondent, Sweeney had surgery on his left buttock in 1978. On March 12, 1979, Sweeney fell and injured his back; In May of 1979, Sweeney was beaten up and his left eye was swollen; In 1980, the Respondent noted that Sweeney was still experiencing back pain; On May 11, 1981, the Respondent noted that Sweeney was still experiencing back pain and was experiencing difficulty sleeping as well; On August 4, 1981, Respondent again noted that Sweeney was still experiencing back pain; Between December 1983 and September 1984, Respondent prescribed 240 doses of Tuinal and 48 doses of Percodan to Mike Sweeney. On one occasion, the Respondent prescribed two thirty-dose prescriptions of Percodan to Sweeney on the same day. The Respondent stated that it was cheaper to prescribe multiple prescriptions of thirty doses than one prescription for sixty. Tuinal and Percodan, in the amounts prescribed could be appropriate drugs with which to treat pain and sleeping problems associated with medical conditions such as those with which Mike Sweeney suffered between December 1983 and September 1984. The dosages of Percodan and Tuinal which Respondent prescribed to Sweeney were within the recommended limitations established for those drugs in the PDR. The Respondent treated patient Ivan Weithorn from November of 1970 through September of 1984. When questioned by Investigator Lichtenstein regarding this patient, the Respondent stated that she treated Weithorn for back and shoulder pain and insomnia. Based on information contained in the Respondent's office records during the period in which Weithorn was treated by Respondent, the following medical history is disclosed: In 1977, Respondent recorded that Weithorn had dental work done and a root Canal was done along with oral surgery; In 1978, Respondent noted that Weithorn had pain in his right elbow; In 1982, the Respondent noted that Weithorn fell and hit a table; In August 1983, the Respondent noted that Weithorn had an abscess on his left forearm and in December 1983 noted that he had an infected finger on his left hand; On February 3, 1984, Respondent noted that the patient had sustained a puncture wound in his upper lip. Between December 9, 1983, and August 27, 1984, the Respondent prescribed 360 doses of Tuinal and 600 doses of Percodan to Weithorn. Tuinal and Percodan, in the amounts prescribed, could be appropriate drugs with which to treat pain and sleeping problems arising from medical conditions such as those with which Weithorn suffered between December 1983 and August 1984. The dosages of Percodan which Respondent prescribed to Weithorn were within the recommended limitations established for that drug in the PDR. The dosages of Tunial which Respondent prescribed to Weithorn slightly exceeded the recommended dosage contained in the PDR. The FOR recommends one Tuinal per day. In this instance, 360 Tuinal were prescribed over a 300-day period. It may be appropriate for a physician in the exercise of his or her professional judgment, to slightly exceed the recommended dosage of a particular drug if the patient has developed a tolerance to the effects of the substance. Respondent's medical records pertaining to Weithorn do not show any patient medical history, allergy history, physical examinations or the results thereof, laboratory tests ordered or the results thereof, or x-rays. All of the Respondent's medical records were stored in a plastic shoe- box like container and were maintained on 3 X 5 index cards. The use of small file-type index cards for the maintenance of a physician's office medical records was prevalent about 20 to 25 years ago. Today, most physician's written medical records are maintained in standard size folders and include laboratory tests, examination results, hospital records, discharge summaries and letters from consulting physicians. Although Respondent sometimes indicated a diagnosis on an initial visit, she rarely noted the diagnosis, objective findings or subjective symptoms of the patients on return visits. On some occasions, a subjective complaint such as "pain" was the only symptom recorded. Extensively within the Respondent's medical records upon a return visit of a patient, nothing was recorded except a prescription, the number of doses and the office charge. Occasionally, a blood pressure or temperature reading was recorded by Respondent. Except for the prescription of pain and sleep-inducing medication, the Respondent's written medical records for the patients described herein failed to demonstrate or indicate the Respondent's overall treatment plan for the patients. In order to justify a course of medical treatment which includes the long term use of Schedule II controlled substances, good medical practice requires that a physician's written patient medical records contain subjective findings (i.e. complaint, onset, duration and severity), a patient history and objective, physical findings made by the physician and/or confirmed and disclosed through laboratory tests or x-rays. The medical records maintained by Respondent on the patients described herein contained only anecdotal information about the patients and contained only scant subjective and objective findings, contained no medical histories and no laboratory results or x-rays. The records maintained by Respondent during the periods when Schedule II controlled drugs were prescribed to the patients herein were inadequate and demonstrated a failure to provide medical care at the minimum level of skill and care required of a reasonably prudent physician under similar conditions. Episodic treatment or care is defined as treatment of symptoms or problems as they present themselves in a patient without any consideration of the root causes of the symptoms, the long term affects the problem may have on the patient, and no consideration of a viable treatment plan. Episodic treatment is considered very poor quality medical care and is a type of treatment which is below the standard of care which is recognized by reasonably prudent physicians as being acceptable. This type of treatment is especially unacceptable when provided to a patient on a long term basis. The patients described herein had medical conditions which could have caused moderate to moderately severe pain and/or sleep disorders. Moderate to moderately severe pain may be defined as pain that interferes with a person's ability to lead a normal life and to perform the daily activities of living which they would normally perform. Chronic pain patients present a difficult challenge to the treating physician because pain is not usually a directly measurable disability. Some patients require greater or lesser amounts of pain medication to relieve a similar amount of pain than do other patients. It may be appropriate and ethical for a physician to prescribe a Schedule II controlled drug to relieve a patient's pain even though the patient may have developed a tolerance to or dependence on the substance. In each instance described herein, the Respondent prescribed the medication in question in a good faith effort to either relieve pain or induce sleep in the patients that she was treating. There was no evidence that any of the drugs prescribed to the patients discussed herein were ever resold on the streets or used by anyone other than the patients for whom they were prescribed. Doctors Handwerker and Frazier testified on behalf of the Petitioner. Neither Dr. Handwerker nor Dr. Frazier examined any of the fifteen patients described herein nor had they reviewed or seen any of the patient hospital records. The Respondent has privileges at the North Shore Hospital in Miami and enjoys an excellent reputation among her fellow physicians as a person of good character and as a dedicated provider of medical treatment. In addition, the Respondent is known among her colleagues as a physician that devotes a substantial portion of her time treating indigent patients. The Respondent cooperated fully with DPR Investigator Lichtenstein during the initial investigation of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law and a consideration of the aggravating and mitigating factors delineated in Rule 21M- 20.01, F.A.C. it is, RECOMMENDED that a Final Order be entered assessing a $2,000 administrative fine. It is further recommended that Respondent's license to practice medicine in the State of Florida be placed on probation for a period of three (3) years under the following terms and conditions: Respondent shall make semi-annual appearances before the board. Respondent shall not use, dispense, administer, or prescribe Schedule II controlled substances, except in a hospital setting. Respondent shall successfully complete fifty (50) hours annually of Category I Continuing Medical Education. The primary subject matter of each course taken must involve Pharmacology, General Medicine and/or Medical Record- Keeping. DONE and ORDERED this 17th day of December, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of December, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-0995 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 1. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Rejected as subordinate. Partially adopted in Findings of Fact 2, 3 and 8. Matters not contained therein are rejected as subordinate and/or unnecessary. Rejected as unnecessary. At the final hearing, the Petitioner was allowed to amend the Administrative Complaint to reflect that Mary Dukes received zero (0) doses of Percodan. Thus, any findings regarding the prescribing of Percodan to patient Mary Dukes is unnecessary. Adopted in Findings of Fact 11 and 13. Adopted in Findings of Fact 18 and 20. Rejected as subordinate. Adopted in Finding of Fact 26. Adopted in Finding of Fact 26. Adopted in Finding of Fact 34. Adopted in Findings of Fact 32 and 35. Adopted in Findings of Fact 38 and 40. Adopted in Findings of Fact 43 and 45. Adopted in Findings of Fact 47 and 49. Adopted in Findings of Fact 53 and 55. At the final hearing the Petitioner was allowed to amend the complaint to reflect that zero (0) doses of Percodan were prescribed to patient James Sams. The Petitioner stated that it was determined by Investigator Lichtenstein after viewing the signature of the Respondent and those upon the prescriptions acquired from the various pharmacies that all prescriptions for patient Sams were forgeries. There- fore, Findings of Fact involving prescriptions to patient James Sams are unnecessary. Partially adopted in Findings of Fact 58 and 60. Matters not contained therein are rejected as unnecessary. Adopted in Findings of Fact 63 and 65. Adopted in Findings of Fact 69 and 71. Adopted in Findings of Fact 74 and 76. Rejected as subordinate and unnecessary. Adopted in Finding of Fact 83. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Addressed in the Procedural Background section. Rejected as a recitation of testimony. Rejected as subordinate and/or unnecessary. Rejected as subordinate and/or unnecessary. Adopted in Finding of Fact 84. Partially adopted in Finding of Fact 7. Matters not contained therein are rejected as subordinate and/or a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 83. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 85. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Adopted in Findings of Fact 85 and 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 82. Addressed in Procedural Background section. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as subordinate. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Addressed in Procedural Background section. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Adopted in Finding of Fact 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 7 and 8. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 9. Matters not contained therein are rejected as a recitation of testimony. Rejected as subordinate and unnecessary. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony and/or subordinate. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 37. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Findings of Fact 68 and 86. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 79 and 86. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Findings of Fact 85 and 86. Matters not contained therein are rejected as a recitation of testimony. Adopted in Finding of Fact 85. Adopted in Finding of Fact 86. Rulings on Proposed Findings of Fact Submitted by the Respondent (The Respondent's Findings of Fact were un-numbered. For the purpose of this Appendix, each paragraph in the Findings of Fact submitted by the Respondent was assigned a number in chronological order beginning with Paragraph Number 1.) Adopted in Finding of Fact 1. Addressed in Conclusions of Law Section. Addressed in Procedural Background section. Partially adopted in Findings of Fact 9 and 87. Matters not contained therein are rejected as not supported by the weight of the evidence. Rejected as argument end/or subordinate. Rejected as argument and/or subordinate. Adopted in substance in Findings of Fact 2, 3, 4, 5, 6, 8, 9 and 10. Rejected as unnecessary. Adopted in substance in Findings of Fact 11, 12, 13, 14, 15 and 16. Adopted in substance in Findings of Fact 18, 19, 20, 21, 22, 23 and 24. Adopted in Finding of Fact 19. Adopted in Finding of Fact 19. Adopted in substance in Findings of Fact 20, 21, 22, 23 and 24. Adopted in substance in Findings of Fact 26 and 27. Adopted in Finding of Fact 27. Adopted in substance in Findings of Fact 27, 28, 29 and 30. Adopted in substance in Findings of Fact 32 and 33. Adopted in substance in Findings of Fact 34, 35 and 36. Adopted in substance in Findings of Fact 38 and 39. Adopted in substance in Finding of Fact 39. Partially adopted in Findings of Fact 40 and 41. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 43 and 44. Adopted in substance in Finding of Fact 44. Partially adopted in Finding of Fact 46. Matters not contained therein are rejected as misleading. Adopted in substance in Findings of Fact 47 and 48. Adopted in substance in Finding of Fact 48. Partially adopted in Findings of Fact 49, 51 and 52. Matters not contained therein are rejected as mis- leading. Adopted in substance in Findings of Fact 53 and 54. Partially adopted in Findings of Fact 55 and 56. Matters not contained therein are rejected as mis- leading. Rejected as unnecessary. Rejected as unnecessary. Adopted in substance in Findings of Fact 58 and 59. Adopted in substance in Finding of Fact 59. Adopted in substance in Findings of Fact 60 and 61. Adopted in substance in Findings of Fact 63 and 64. 36. Adopted in substance in Findings of Fact 65, 66 and 67. Adopted in substance in Findings of Fact 69 and 70. Adopted in substance in Findings of Fact 71, 72 and 73. Adopted in substance in Findings of Fact 74 and 75. Adopted in substance in Findings of Fact 76, 77 and 78. Rejected as a recitation of testimony and/or subordinate. Rejected as argument. Rejected as a recitation of testimony. Rejected as argument. Adopted in substance in Finding of Fact 88. Partially addressed in Procedural Background section. Matters not contained therein are rejected as recitation of testimony. Adopted in Finding of Fact 5. 48. Rejected as a recitation of testimony. Adopted in substance in Finding of Fact 10. Adopted in substance in Finding of Fact 16. Rejected as argument and/or a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as unnecessary. Rejected as a recitation of testimony. Partially adopted in Finding of Fact 88. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 89. Partially addressed in Procedural Background section. Matters not contained therein are rejected as subordinate. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 6 and 10. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 5. Matters not contained therein are rejected as a recitation of testimony. Partially adopted in Finding of Fact 23. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as argument and/or a recitation of testimony. Partially adopted in Finding of Fact 82. Matters not contained therein are rejected as subordinate. Addressed in Procedural Background section. Rejected as subordinate. Partially adopted in Finding of Fact 87. Matters not contained therein are rejected as a recitation of testimony. Adopted in substance in Finding of Fact 8. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially addressed in Procedural Background section. Matters not contained therein are rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Partially adopted in Findings of Fact 87 and 88. Matters not contained therein are rejected as argument and/or a recitation of testimony. Rejected as argument. Partially adopted in Finding of Fact 81. Matters not contained therein are rejected as argument. Partially adopted in Finding of Fact 90. Matters not contained therein are rejected as subordinate. COPIES FURNISHED: David F. Bryant, Esquire 1107 E. Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz, Esquire 119 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 =================================================================
The Issue The issue to be decided is whether disciplinary action should be taken against the Respondent's license as a medical doctor for the alleged violations of Chapter 458, Florida Statutes (1983), as set forth in the Administrative Complaints?
Findings Of Fact The Respondent is licensed as a medical doctor with the State of Florida, Board of Medical Examiners. The license, Number 28366, was first issued on February 11, 1976. The Respondent was licensed at all times relevant to this proceeding. October 5, 1983 Complaint. On or about July 7, 1982, the State Attorney of the Eleventh Judicial Circuit filed a ten (10) count Information against the Respondent. In the information it was alleged that the Respondent knowingly and unlawfully filed, attempted to file or aided and abetted in the filing of claims for services to recipients of state or federally funded assistance program benefits (the Florida Medicaid Program) in violation of Section 409.325, Florida Statutes. The services, according to the Information, were never rendered. On April 18, 1983, the State of Florida nolle prossed Counts 3 and 4 of the Information. On June 30, 1983, the State nolle prossed Counts 1, 2, 5, 7 and 9. The same day, the Respondent withdrew his original plea and plead guilt to the remaining counts: 6, 8 and 10 of the Information. As a result of the Respondent's guilty plea, he was found guilty on counts 6, 8 and 10 and adjudication was withheld. The Respondent was placed on probation for one (1) year and was required to repay $3,500.00 to the Florida Medicaid Program. The Respondent completed his probation, which was terminated early by the court, and made restitution to the Florida Medicaid Program. The Respondent stipulated that he plead guilty to Counts 6, 8 and 10 of the Information, that adjudication ways withheld and that the case was disposed of in the manner described above. According to the Respondent, he plead guilty on the advice of this counsel and as a matter of convenience (to himself and not "to all parties" as suggested by the Respondent in his proposed findings of fact). He did so despite his belief that he was not guilty. The Respondent's proposed finding of fact that his attorney never advised him that he could be in violation of Section 458.331(1)(c), Florida Statutes, irrelevant. July 27, 1983 Complaint. On March 24, 1981, the Respondent saw Ana Gonzalez as a patient in his office. Ms. Gonzalez was thirteen years old at the time of her first visit (Ms. Gonzalez's date of birth was incorrectly listed as "8-7-82" in the Respondent's records). Ms. Gonzalez, according to the Respondent's record of Ms. Gonzalez's visits (hereinafter referred to as the "Patient Records") complained of "pain of mild intensity on lower left quadrand [sic], inradiating [sic] to right lower quadrant and left lumbar fossa." The Patient Records, which were all in the same handwriting, 1/ also indicate that Ms. Gonzalez had low back pain, dark urine which looked like blood and a fever of 100.4 degrees. A physical examination of Ms. Gonzalez found nothing abnormal except pain in both lower quadrants of the abdomen and the left lumbar fossa of the back. The Respondent made a probable diagnosis of pyelonephritis and ordered a SMAC 26, a Complete Blood Count ("C.B.C."), an urinalysis, an E.K.G. and a chest x-ray. The Petitioner has proposed a finding of fact that the chest x-ray and the E.K.G. were not referred to in the Patient Records. This proposed finding is incorrect. The Respondent did, however, order a kidney, urethra and bladder x-ray ("K.U.B.") which was not recorded in the Patient Records. The Respondent also prescribed an antibiotic. The results of the E.K.G. and the chest x-ray are not noted in the Patient Records; nor does the E.K.G. print-out include any findings. The SMAC 26 showed nothing abnormal. The C.B.C. also showed nothing abnormal and the K.U.B. was negative. Finally, the urinalysis showed that the patient's urine was yellow, clear and contained no blood. The charges for the first visit were $30.00 for the examination, $182.00 for the SMAC 26 (charged at $7.00 per 26 procedures), $6.00 for the urinalysis, $10.00 for the C.B.C., $40.00 for the chest x-ray and $40.00 for the E.K.G. No charge was made for the K.U.B. The patient was next seen by the Respondent on March 31, 1981 (erroneously reported as March 31, 1982 in the Patient Records). The Petitioner's proposed finding of fact that the Patient Records were kept in the same pen is therefore incorrect. The Patient Records indicate the following: "The patient is feeling a little better of pain. No fever. Persist urine dark." The Patient Records do not indicate that Ms. Gonzalez was examined on this visit. The Respondent continued the antibiotic and ordered the following tests: a C.B.C., a K.U.B. and an intravenous pyelogram ("I.V.P."). The I.V.P. was reported as negative in the Patient Records. The C.B.C. again found no abnormalities. The K.U.B., as testified to by the Respondent, was also negative. The Respondent testified that he ordered another K.U.B. on this visit because he again found blood in the patient's urine and because he believed that you can never tell when a test will result in a positive finding. The Petitioner has proposed the following finding of fact with regard to the March 31, 1981 visit: Again, the tests results obtained from the laboratory show that the urine is not discolored and that the urine does not contain blood, in contradiction with the handwritten medical record of the Respondent. Although this proposed finding is correct with regard to tests performed on the March 24, 1981 visit, no urine test was performed on the March 31, 1981 visit. The charges for the March 31, 1981, visit included $30.00 for the examination, $10.00 for the C.B.C., $40.00 for the K.U.B. and $80.00 for the I.V.P. The third visit by Ms. Gonzalez was on April 7, 1981. On this visit, Ms. Gonzalez was feeling much better (the "pain was very mild"), but the Respondent determined there was still blood in her urine. The Patient Records again do not indicate the results of any physical examination. The Respondent ordered an urinalysis which found that her urine was yellow. Although the Respondent testified in his deposition that the Patient Records for the April 7, 1981 visit were complete, billing records show that a charge for an I.V.P. was made for April 7, 1981 which was not recorded in the Patient Records. The Respondent admitted in his deposition that no I.V.P. was performed and stated that the charge for $80.00 was a mistake. The Respondent stated that he did perform a K.U.B. or I.V.P. on this visit because it was too soon after the last K.U.B. and I.V.P. tests. Instead of an I.V.P., the Respondent testified in his deposition that Ms. Gonzalez received physiotherapy for which she should have been charged only $20.00. The physiotherapy was ordered because of the patient's complaints of lower back pain and consisted of heat treatment/ultrasound. Petitioner, in its proposed findings of fact, indicates that the Respondent took Ms. Gonzalez, off the antibiotic he had prescribed earlier at the April 7, 1981 visit, citing "(Depo., page 20)." This proposed finding is not supported by the record. Other charges for the April 7, 1981, visit included $30.00 for the examination and $6.00 for the urinalysis. The next visit by Ms. Gonzalez was on April 14, 1981. The Patient Records do not indicate Ms. Gonzalez's condition or that an examination was performed. The Patient Records only indicate that the Respondent suggested hospitalization of Ms. Gonzalez so that more tests could be made and that her father refused. The Respondent ordered a K.U.B. (which was negative) and a SMAC 26 (which found no abnormalities). The antibiotic was also changed. The charges for this visit included $30.00 for the visit, $40.00 for the K.U.B. and $182.00 ($7.00 per 26 procedures) for the SMAC 26. Again the bill included a charge of $80.00 for an I.V.P. which, according to the Respondent, was a mistake in billing. The Respondent actually performed physiotherapy which should have resulted in a $20.00 charge. The final visit occurred on April 20, 1981. The Patient Records for this visit indicated the following: I insisted some UROLOGY must consultate this patient and she refused to see another Doctor and culture and sensitivity. She says she does not want to go to the rest room. She decides pick up the urine. I decide another I.V.P. because persist a mild hematuria [blood]. Mr. Gonzalez again refused to admit his daughter to a hospital as suggested by Respondent. The Respondent recommended hospitalization because his tests were not finding anything and he therefore wanted to run a kidney scan. There is no indication in the Patient Records as to whether an examination was performed. The Respondent ordered a K.U.B., an I.V.P. and a C.B.C. The results of these tests are not recorded in the Patient Records but the Respondent has testified that they were negative. On this visit the Respondent indicated his diagnosis was pyelonephritis, which he described as "kidney infection." Charges for this visit were $30.00 for the examination, $40.00 for the K.U.B., $80.00 for the I.V.P. and $10.00 for the C.B.C. Pyelonephritis is an inflammatory reaction of the kidney involving the kidney tissue and the pelvis of the kidney. It is usually accompanied by severe toxicity, a temperature for a child the age of Ms. Gonzalez of 104 to 105 degrees and extreme chills. It is a serious infection. The diagnosis of pyelonephritis on March 24, 1981 and April 20, 1981, by the Respondent was not medically justified. Ms. Gonzalez did not have any of the symptoms normally associated with pyelonephritis. The results of all of the tests performed by the laboratory 2/ and the Respondent were negative. Laboratory test results conclusively showed that Ms. Gonzalez's urine was yellow, and contained no blood. Additionally, the Respondent should have performed a urine culture, a blood culture and a sensitivity test before concluding that the patient was suffering from pyelonephritis. The cultures would have determined if there was an organism present and, if so, what type. The sensitivity test would have shown what the organism was sensitive to. None of these tests were performed. Most of the tests ordered by the Respondent were also not medically justified. The only tests which were clearly medically justified were the SMAC 26, C.B.C. and the urinalysis ordered on March 24, 1981. Most of the remaining tests were not medically justified as hereinafter discussed. The E.K.G. performed by the Respondent on March 24, 1981, was not medically justified. The Respondent indicated that he ordered an E.K.G. because he was looking for valvular problems with Ms. Gonzalez's heart. An E.K.G., however, only, shows the electrical activity of the heart. The Respondent also testified that the E.K.G. was performed because he suspected a kidney problem. According to the Respondent, if there was a problem with Ms. Gonzalez's kidneys, it could have affected her E.K.G., especially in light of her age. No problem was found according to the Respondent. The chest x-ray performed on the March 24, 1981 visit was not medically justified. This test resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her. The Respondent, based upon his deposition testimony, believes that a chest x-ray should be taken of anyone who comes to his office as a patient and has insurance. With regard to Ms. Gonzalez, he indicated that her parents requested the chest x-ray but admitted there was no medical cause for her to receive a chest x-ray. The K.U.B. tests performed on March 24, 1981, March 31, 1981, April 14, 1981 and April 20, 1981 and the I.V.P. tests performed on March 31, 1981 and April 20, 1981 were not medically justified. These tests also resulted in exposure of Ms. Gonzalez to x-rays which could be harmful to her; especially the I.V.P. test which has six to seven times the radiation level of a K.U.B. The I.V.P. was also a dangerous procedure because it is an invasion procedure (the introduction of a foreign substance to the body). Even the Respondent must have realized the possible problem with the I.V.P. since he indicated that this test was not performed on April 7, 1981, because it was too soon after the test performed on March 31, 1981. The second SMAC 26 test, performed on April 14, 1981 was not medically justified. The test, according to the Respondent, was performed because the blood in Ms. Gonzalez's urine persisted. The evidence clearly shows that there was no blood in her urine, however. A SMAC 26 is a single laboratory procedure whereby one blood sample is divided into 26 parts (or some other number of parts) which are diagnosed or read by a machine at the same time. It is not 26 separate tests; it is a single automated test. The method by which the Respondent billed for the SMAC 26 tests performed on March 24, 1981 and April 14, 1981, (charging $7.00 for each of 26 tests) was not justified. The Respondent billed for the S4AC 26, which gas performed by Central Medical Laboratory, because he believed that the insurance company would pay what he hoped to receive for the test: $60.00-$80.00. If he had only billed $60.00 for the test he stated that he would only have received $6.00 to $10.00 from the insurance company. The Petitioner has proposed a finding that the SMAC 26 billing was "outrageously high." The evidence supports a finding that the charge was excessive. Finally, the C.B.C. tests of March 31 1981 and April `20, 1981 and the physiotherapy performed on April 7, 1981 and April 14, 1981 were not medically justified. Dr. Handwerker's testimony was consistent with the findings in this Recommended Order with regard to the lack of medical justification for most of the tests. The Respondent stated that he agreed in part and disagreed in part with Dr. Handwerker's testimony. When asked to identify those areas of Dr. Handwerker's testimony he disagreed with, the Respondent unsuccessfully attempted to rebut Dr. Handwerker's testimony with regard to the E.K.G. and chest x-ray and with the fact that the tests were repeated to often. 3/ The Respondent did not attempt to rebut any other part of Dr. Handwerker's testimony, which was based upon his examination of the Patient Records and the Respondent's deposition (she did not examine Ms. Gonzalez). Based upon the foregoing, it is clear that the Respondent failed to practice medicine in conformance with the generally accepted and prevailing standards of medicine in the medical community. The Respondent also failed to, practice medicine with the level of care, skill and treatment recognized by a reasonably prudent similar physician as being acceptable under similar circumstances and conditions. The father of Ms. Gonzalez testified on behalf of the Respondent. Mr. Gonzalez stated that he was satisfied with the Respondent's medical care of the Gonzalez family and that he would continue to retain the Respondent. Letters submitted by the Respondent also indicated that friends, associates and his pastor believe the Respondent is honest, experienced, qualified and of high moral and ethical standards. Although the Respondent testified that he had done the best he could do for Ms. Gonzalez, the unrebutted testimony supports a conclusion that his best was not good enough. Finally, the Respondent's testimony to the effect that he had not intended to exercise influence over Ms. Gonzalez or to deceive her in his medical treatment of her is not believable in light of the facts.
Recommendation Based on the foregoing Findings of Fact and Conclusions RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(c), Florida Statutes (1983), by being found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of medicine or to the ability to practice medicine. It is further RECOMMENDED: That Respondents be found guilty of violating Section 458.331(1)(l), Florida Statutes (1983), by employing a trick or scheme in the practice of medicine when such scheme or trick fails to conform to the generally prevailing standards of treatment in the medical community. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(o), Florida Statutes (1983), by exercising influence on a patient or client in such a manner as to exploit the patient or client for financial gain of himself, as a licensee. It is further RECOMMENDED: That Respondent be found guilty of violating Section 458.331(1)(t), Florida Statutes (1983), by failing to practice medicine with the level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. It is further RECOMMENDED: That the Respondent's medical license be suspended for a period of one (1) year and that the Respondent be placed on probation for a period of three (3) years, upon reinstatement of his license, subject to such conditions and terms of monitoring and continuing medical education as may then be prescribed by the Board of Medical Examiners. DONE and ORDERED this 22nd day of February, 1985, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 FILED with the Clerk of the Division of Administrative Hearings this 22nd day of February, 1985.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times relevant to this proceeding, respondent Herbert F. Johnson was licensed as a medical doctor in the State of Florida, and practiced in Tampa, Florida. The majority of his practice has been in the field of radiation therapy, oncology and the treatment of cancer patients. In approximately June of 1980, respondent began a general practice in Tampa and continued there until the latter part of March, 1981, when he moved his practice to Bryson City, North Carolina. On February 26, 1981, Leonard F. Torres, a thirty-one year old man who listed his occupation as an airline technician (radio) with Eastern Airlines, visited respondent's office with complaints of back pains. The respondent's medical records do not reflect that Torres was given a physical examination or that any diagnostic studies were undertaken by respondent to confirm Torres' complaints of back pain. Between February 26, 1931, and March 24, 1981, respondent prescribed 320 tablets of Dilaudid, 4 mg. strength, for Mr. Torres. The medical records indicate that one 4 mg. Dilaudid prescription for 100 tablets was given because Torres was going to be out of the country for 4 to 6 weeks, that another was renewed for 100 tablets because Torres was departing for a period of 4 to 6 months and that another 100 tablet prescription was renewed because Torres did not have the prior prescription filled within the 48 hours allowed for Dilaudid. The medical records prepared by respondent for patient Torres do not justify the prescription of 320 tablets of 4 mg. strength Dilaudid. Proper medical practice requires a physician to attempt to find the systemic origin of a complaint of back pain. This may include the use of x- rays, a myelogram, or referral to an orthopedic surgeon. A physician can not properly treat a patient without knowing what is wrong with the patient. Patient Patti Hendrix first visited respondent's office on February 11, 1981, complaining of headaches and vomiting. The respondent's medical records reflect that respondent examined her eyes, her throat and took her blood pressure. Along with other medications, respondent prescribed 30 tablets of 4 mg. strength Dilaudid for Miss Hendrix on this first visit. She appeared at respondent's office again on February 15, 20, 27 and March 4, 9, 13 and 25, 1981, and each time respondent prescribed an additional 30 tablets of Dilaudid, 4 mg. strength. The respondent's medical records reflect no further physical examination or diagnostic studies for patient Hendrix's complaints of headaches. On one occasion when she received a prescription for Dilaudid, March 13th, respondent's records note that Miss Hendrix was "totally free of headaches for the last two days." Her other complaints included sinus infection and cold sores or blisters. It is acceptable medical practice to prescribe Dilaudid for headaches only in acute situations after the trial of other medications. A patient suffering acute head pain should be referred to a neurologist. Danny Springer, age 31, first visited respondent's office on February 27, 1981, complaining of pain in his foot following an earlier surgery. The pain was of an arthritic type. Respondent did order blood tests on this patient, but no radiological or other diagnostic tests were performed. Mr. Springer was prescribed 30 tablets of Dilaudid, 4 mg. strength, on the first visit. The respondent's Medication List for Mr. Springer indicates that 50 tablets of Dilaudid were prescribed on March 2, 100 on March 4 and another 100 on March 10, 1981; for a total of 280 tablets in less than two weeks. Respondent's medical records indicate that Springer was given 100 tablets on March 4 because he was leaving the state for 3 to 5 weeks, and was given another 100 tablets on March 10 because he "lost his medication." The respondent's Medication List for patient Robert A. Korynas, 21 years of age, indicates that he received four Dilaudid prescriptions from respondent for 100 tablets each, 4 mg. strength, between February 18 and March 23, 1981. This patient complained of back pain on his first visit of February 17, 1981. Respondent found muscle tightness in the patient's back and the medical records reflect that the only physical examination performed was an elevation of the patient's legs. On that first visit, Emperin No. 3 was prescribed. On the following day, February 18, without further notation in the medical records, the patient was prescribed Dilaudid, 4 mg. x 100. Respondent's medical records note that on a March 12th visit, "he is getting the back pain under control." Another 100 tablet prescription for Dilaudid was given the patient. On March 20, 1981, respondent noted that the patient "experienced definite improvement with the use of Robaxin and DMSO," but lost his prescription for Dilaudid. A new prescription was given. The medical records reflect that three days later, on March 23, the patient stated that his prescription was lost last week and "a new prescription was given today for Dilaudid x 100." There is no indication in the medical records of patient Korynas that any diagnostic studies, such as x-rays, were undertaken to define the origin or extent of the patient's alleged back pain. Patient Charles Goodwin, a 36-year-old truck driver, first visited respondent's office on February 13, 1981, with complaints of pain in his left leg near the site of a steel rod placed there after a fracture. The patient stated that he had been using Dilaudid for control of his pain. The only notation in the respondent's medical records indicating treatment afforded this patient on the first visit were a blood pressure reading of 218/140, and notes that old surgical scars were present on the patient's ankle and that there was no localized tenderness or redness to suggest infection. The patient was given a prescription for 50 tablets of Dilaudid 4 mg. strength, on this first visit. On subsequent visits, the patient's blood pressure was checked and blood lab tests were performed on February 27, 1981. The respondent's medical records reflect that Dilaudid, 4 mg. strength, was prescribed for Goodwin in doses of 100 tablets each, on the following dates: February 18 and 26, and March 6, 13, 20 and 26, 1981. The patient received a total of 650 tablets of Dilaudid in a period of six weeks, in spite of respondent's notations in the medical records that the patient was advised to take aspirin or bufferin for pain "rather than depending exclusively on Dilaudid" (March 6), that "he is requiring a lot of Dilaudid" (March 13) and "I've advised him at this time to decrease the Dilaudid to one every four hours and after 3 days to start increasing the interval between medications" (March 20). Between February 4, 1981 and March 26, 1981, patient Norman Clyde Snyder, a 35-year-old construction worker, received from the respondent prescriptions for 570 tablets of 4 mg. Dilaudid. This patient had sustained back injuries in the past and complained of pain. Respondent diagnosed a herniated disc after a physical examination. His prescriptions for Dilaudid from respondent were received on the first visit of February 4 (20 tablets), and again on February 9 (100 tablets), February 13 (100), February 27 (100), February 28 (100), March 9 (30), March 16 (30), March 17 (30), March 23 (30) and March 26 (30). The respondent's notations in the patient's medical records indicate that, on February 13, the patient was going to Oregon for "possible 2 to 4 months," that on March 5, the patient was advised by respondent "to start tapering down on the Dilaudid since he is taking too much at the present time," that on March 9, the patient lost his medication in an automobile accident, that on March 16, respondent advised him "to start tapering rapidly on his medication and stretch out to 8 hours between doses," and that on March 17, the patient's medication was taken out of his jacket at the pool hall." Phyllis Myers, 37 years old, received from the respondent eight prescriptions for Dilaudid, 4 mg. strength, between February 6 and March 26, 1981, for a total of 600 tablets. She complained of having a history of urinary tract infections with attendant back pain. On her first visit on February 6, 50 Dilaudid tablets were prescribed. The Medication List reflects that another 100 were prescribed on February 11, though the medical records do not reflect that respondent saw her on that date. The respondent's records for this patient indicate that on February 21, the patient advised respondent that she would be in Miami for the next three weeks. She received a prescription for 100 tablets of Dilaudid. On February 27, the patient came in and received another prescription for Dilaudid, 100 tablets. Again, she was to be in Miami for a week and a half. On March 3, the records state that Myers came in and had been robbed of her money and medications in Miami. Again, another prescription for 100 tablets was given, though this is not reflected on the Medication List. Prescriptions for 50 tablets of Dilaudid were given on March 16 and 17, the medical records reflecting that "husband beat pt. and stole medicine." A urinalysis and lab report was obtained by respondent for this patient on March 5, some one month after her first visit and after 350 tablets of Dilaudid had already been prescribed for her. Dale J. Schepman, a 31-year-old long-distance truck driver, first visited respondent on February 24, 1981, with back pain complaints. Respondent performed a physical examination and found muscle tenderness and tightness and a small inguinal hernia, acute pharyngitis and early tonsilitis. Respondent prescribed 50 tablets of Dilaudid, 4 mg. strength, on this initial visit. The respondent's records reflect that the patient was given additional prescriptions for Dilaudid on February 27 (50 tablets), March 10 (50), March 19 (50) and March 26 (100), for a total of 300 tablets in a one month period. No x-rays or other diagnostic studies were undertaken on this patient by respondent. Belinda Hagan, a 25-year-old employed by Eastern Airlines, first visited respondent's office on March 9, 1981, complaining of severe headaches and stating that she had used Dilaudid in the past. Respondent's impression was that she had acute frontal sinusitis. Among other medications, respondent prescribed 20 tablets of Dilaudid, 4 mg. strength, on this first visit. The respondent's medical records reflect that the patient returned to his office on March 24, stating that she had been raped on March 18, and was unable to sleep since that episode. She requested Dilaudid to allow her to sleep and relax, and respondent again prescribed 20 tablets. On the following day, March 25, the patient again came into respondent's office, stating that she "lost her medication in the parking lot yesterday." Respondent prescribed another 20 tablets of Dilaudid for her. Between February 6, 1951 and March 26, 1981, Edward E. Cohran received from the respondent prescriptions for 430 tablets of Dilaudid, 4 mg. strength. This patient, a 44-year-old truck driver, complained of severe back pain, had a herniated disc and was significantly overweight. Respondent did have his medical records from a recent hospitalization. The medical records reflect that on one occasion, respondent was told that the pharmacist would not honor the prescription because it was not timely presented for filling, and that on another occasion, the patient reported that he lost his prescription. Harry Allen Rockwell, a 41-year-old long-distance truck driver, first visited respondent on February 26, 1981, with pain in his right flank, tenderness in the right side of the abdomen and a history of renal stones. The medical records do not reflect that any laboratory or other diagnostic tests were performed by respondent on that first visit, or any time thereafter. One hundred tablets of Dilaudid, 4 mg. strength, were prescribed by respondent. Some seven days later, patient Rockwell was again prescribed 100 tablets of Dilaudid. While the medical record for March 5th reflects that he was given refills because he "lost all his medication on his last trip out of town," the Medication List indicates that the Dilaudid was "replace[d]" on March 6th. Patient Ken Williams, a 31-year-old construction worker, was prescribed 30 tablets of Dilaudid by respondent on his first visit on February 5 and an additional 230 tablets on the following seven visits between February 10 and March 16, 1981. This patient suffered back pain following a 1978 automobile accident, according to respondent's medical records. Other than the performance of manipulation by the respondent, the medical records do not indicate that other diagnostic testing was performed on this patient. Jackie A. Knecht, 33 years old, first visited respondent's office on February 19, 1981, with complaints of back pains resulting from an injury two years ago. After an examination, respondent found some muscle spasms and evidence of a curvature within the spine. On this first occasion, respondent prescribed 100 tablets of Dilaudid, 4 mg., for the patient. On March 4, 1981, patient Knecht again visited respondent and his notes reflect that the use of DMSO and Norflex "gives her complete relief. With these results, the patient is planning to taper off her dependence and need for Dilaudid. I've advised her to take 1/2 tablet, rather than a whole tablet as needed." A prescription for 100 tablets of Dilaudid, 4 mg., was given the patient on March 4th. A similar prescription was given her on March 9th because the patient told respondent that her purse and medication were lost at the beach. Neither x-rays nor other diagnostic studies were undertaken for this patient. Eighteen-year-old Susan Burns received five prescriptions for Dilaudid from the respondent between February 26 and March 18, 1981, for a total of 170 tablets, 4 mg. strength. This patient came in with complaints of pain in the right flank which respondent diagnosed as chronic urinary tract infection. On the first visit, she indicated that Dilaudid gave her pain relief and she was prescribed 30 tablets. A urinalysis was not performed until the second visit on March 5, with the result not available until March 7. She was prescribed an additional 30 tablets on March 5, and the Medication List indicates that 30 tablets were prescribed on March 6 as a "replace T for 3/5/81." On March 13, 30 more Dilaudid tablets were prescribed and respondent noted that he would see her again in ten days. Five days later, on March 18, patient Burns visited respondent again. The respondent's medical records note that Burns planned to go to New York for a couple of weeks and that she had noticed further improvement in her symptomatology. A prescription for Dilaudid, 50 tablets, was given her on this occasion. Respondent's notes state "will not see her again." Dilaudid is a strong, addictive narcotic utilized in some instances to relieve acute pain. It is seven to eight times more potent that morphine and is similar in effect to heroin. Its usage is justified in situations of acute, almost debilitating pain and for terminal illnesses. In those instances, the maximum and safe dosage of Dilaudid, 4 mg. strength, for outpatients is one tablet every six hours. It is best to start a patient on the weakest of analgesics and if Dilaudid is used, the recommended dosage is 2 mg. strength. Because of its highly addictive quality and extreme potency, Dilaudid should be a medication of last choice for the control of pain. It does not cure a condition; it only relieves acute pain. In a noninstitutional setting, it is not good medical practice to prescribe more than 20 to 30 narcotic tablets at one time. The use of strong narcotics is not the proper manner to treat chronic pain. Patients develop a tolerance to the drug and this requires increased dosages, thus resulting in physical and psychological dependence. Addictive drugs should be avoided with chronic conditions. There are common ploys utilized by "patients" who are abusing or trafficking in narcotics and a physician should be, aware of such signals. These include a request by the "patient" for a specific narcotic, an alleged history of being unable to tolerate other milder drugs and excuses of losing a prescription or having the medication stolen. A radiation therapist who has treated cancer patients should know about pain and proper medications and procedures for controlling and alleviating pain. Respondent has been active in an alcohol detoxification and rehabilitation program in Tampa, a service for which he received the "Service to Mankind" award by the Sertoma Club of Tampa. During the years 1972 through 1974, respondent was also actively involved in drug awareness Programs in Tampa. Respondent did not feel that any of the fourteen patients referred to above manifested symptoms of drug addiction on their first visit. He admits that he would not today have any of the fourteen as patients after the second visit. He further admits that the medical records for these fourteen patients do not justify the prescriptions given for Dilaudid and that the quantities prescribed were so great and so frequent as to be inappropriate. The respondent's stated reason for continuing to see these fourteen patients and continuing to prescribe Dilaudid for them is that he was asked to do so by Detective Gates with the narcotic division of the Tampa Police Department. Respondent testified that he had discussions with Detective Gates over a four to five week period in late February and early March, 1981, that several patients were discussed, that Gates never asked respondent who his other patients were but that Gates did tell him to keep treating and issuing prescriptions to "all his patients." The undersigned does not find this testimony to be credible. Detective Gates first met respondent on March 25, 1981, in respondent's office. While there is conflicting evidence regarding the subject matter of the discussion between respondent and Detective Gates, it is concluded that respondent was not instructed to continue to issue Dilaudid prescriptions to all his patients. Even if he were so instructed, it would not be good medical practice to follow such instructions. Respondent closed his office and his medical practice in Tampa on March 26, 1981. He moved to Bryson City, North Carolina and opened an office for medical practice there on April 1, 1981. Respondent knew as early as the first weekend of February, 1981, that he would be closing his Tampa office and moving to North Carolina.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that respondent be found guilty of violating Section 458.331(1)(q) and (t), Florida Statutes, and that his license to practice medicine in the State of Florida be revoked. Respectfully submitted and entered this 10th day of November, 1982. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1982. COPIES FURNISHED: Grover C. Freeman, Esquire Freeman & Lopez Suite 410 4600 West Cypress Avenue Tampa, Florida 33607 Howard L. Garrett, Esquire Garrett & Garrett Suite 202 518 Tampa Street Tampa, Florida 33602 Samuel R. Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether respondent's license as a medical doctor should be disciplined for the reasons cited in the administrative complaints.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Respondent, David M. Scheininger, is a licensed medical doctor having been issued license number ME 025317 by petitioner, Department of Business and Professional Regulation (DBPR), Board of Medicine (Board). He now resides at 7076 Lenczyk Drive, Jacksonville, Florida. When the events herein occurred, respondent was in the practice of family medicine with offices at various locations in Jacksonville, Florida. Respondent has been licensed by the state since 1975. The record reflects that besides these proceedings, respondent has been disciplined by the Board on two prior occasions. On June 23, 1983, his license was suspended until such time as he could demonstrate that he could practice medicine with reasonable skill and safety. The license was later reinstated in 1984. On December 16, 1986, he received a reprimand and agreed not to dispense samples of legend drugs from his office. Respondent is the subject of four administrative complaints filed against him between October 1991 and September 1993. The complaints allege generally that while treating a female patient between 1985 and 1990, respondent improperly prescribed legend drugs, failed to adhere to the appropriate standard of care, and failed to keep adequate medical records (Case No. 94-0900), he failed to adhere to the appropriate standard of care while treating a female patient in 1989 (Case No. 94-0901), he failed to post a notice in his office, or otherwise advise patients of the fact that he did not carry medical malpractice insurance (Case No. 94 because of a mental incapacity (Case No. 94-0904). Although respondent did not appear at final hearing, he has disputed all allegations. Each case will be discussed separately below. Case No. 94-0900 Beginning on May 22, 1985, respondent began to treat B. M., a forty- three year old female, on a regular basis for routine illnesses, lower lumbar back pain, chronic headache pain and nervous anxiety. During the next four years, the patient had approximately 150 contacts with respondent. A drug profile taken from a local pharmacy indicated that from November 30, 1988, through February 6, 1990, respondent prescribed the following legend drugs to B. M.: Darvocet-N-100 862 units Tranxene 795 units Paragoric 300 MD's Talwin NX 290 units Ionamine 255 units Placidyl 195 units Tavinix 209 units In response to an investigator's inquiry as to why so many drugs were prescribed, respondent gave no explanation but simply asked that his records be returned. Although respondent was given the opportunity to file an "amendment" to his records, he declined to do so. A medical expert established that ninety percent of the prescriptions were written without related entries in the medical records explaining why such drugs were prescribed. In addition, the office calls did not match the prescriptions. During one five month period alone, more than 500 units of Tranxene were prescribed. Moreover, in almost every case, the patient had refilled the prescription far sooner than should have been done with ordinary prescribing, and most of the drugs were prescribed in combination with other drugs. Based upon these considerations, it is found that respondent failed to prescribe drugs in the course of his professional practice. In B. M.'s medical records, respondent simply recorded the chief complaint of the patient and nothing more. No reason was given for approximately 140 office visits. There was no indication that a complete initial work given. No diagnostic studies were made nor were there any objective findings in the records supporting the care given to the patient. Therefore, it is found that respondent failed to keep medical records justifying the course of treatment of the patient. Expert testimony further established that while treating the patient, respondent failed to practice medicine with that level of care, skill and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. This finding is based on the fact that the records were incomplete, there was very poor prescribing practice, no clinical evidence was shown to justify the large numbers of drugs prescribed, and there was no documentation to show that adequate care was given the patient. Case No. 94-0901 In Case No. 94-0901, respondent's care of a female patient is brought into issue. The patient had been treated by respondent since October 1975, mainly for recurring respiratory infections. During an office visit on September 18, 1989, she presented breathing difficulties and was coughing and spitting up blood and phlegm. Respondent failed to order a chest x arrange for a pulmonary consultation. Instead, he ordered immune serum globulin, which is not efficacious in treating respiratory infections. On October 15, 1989, the patient entered a local hospital after experiencing chest pains. She was initially diagnosed as having a collapsed lung but a bronchoscopy and biopsy revealed cancer in her left lung. The lung was removed on October 24, 1989. By failing to order an x smoking, or to refer her to a pulmonary specialist, and by simply treating her with immune serum globulin, respondent's care and treatment of the patient fell below the recognized standard of care. Case No. 94-0903 This complaint alleges that during the years 1990 and 1991, respondent failed to post a notice in his office that he did not carry medical malpractice insurance or otherwise advise his patients of this fact. During office visits by a DBPR investigator in July and August 1992, no signs were present and respondent acknowledged that no notice was being given to his patients. Even so, there is no direct evidence through observation or admission that during the years 1990 and 1991 such notices were not posted, or that the patients had not been advised of this lack of insurance. Therefore, it is found that there is less than clear and convincing evidence to sustain this charge. Case No. 94-0904 The final complaint alleges that respondent is no longer capable of practicing medicine with reasonable skill and safety by reason of dementia and memory loss resulting from his primary disease of hydrocephalus (fluid on the brain). The DBPR learned of this condition through a report received from one of respondent's relatives. The evidence shows that on May 12, 1993, respondent visited a local internist and complained of weakness, poor memory, inability to control urine and immobility. At that time, respondent was confined to a wheelchair. Respondent was referred to a neurologist who diagnosed respondent as having normal pressure hydrocephalus. On May 24, 1993, respondent underwent an atrial- peritoneal shunt operation to drain the excess spinal fluid. He now suffers from dementia and memory loss caused by the disease. Expert testimony established that respondent is now confused and has cognitive mental deficits showing the persistence of dementia. As a consequence, his ability to use good judgment has been compromised, and he no longer has the ability to safely practice medicine.
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 respondent guilty of all charges in Case Nos. 94-0900, 94-0901, and 94-0904, imposing a $10,000 administrative fine, and suspending his license until such time as he appears before the Board and demonstrates that such fine has been paid and that two Board approved psychiatrists have examined him and state that he is able to practice medicine with skill and safety. Case No. 94-0903 should be dismissed. DONE AND ENTERED this 8th day of July, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of July, 1994. Petitioner: APPENDIX TO RECOMMENDED ORDER CASE NOS. 94-900, 94-901, 94-903, 94-904 The proposed findings submitted by petitioner have been adopted in substance except for those findings pertaining to Case No. 94-0903. Those findings have been rejected on the ground they are not supported by the evidence. COPIES FURNISHED: Alex D. Barker, Esquire 7960 Arlington Expressway Suite 230 Jacksonville, FL 32211-7466 Dr. David M. Scheininger 7076 Lenczyk Drive Jacksonville, FL 32211 Jack L. McRay, Esquire 1940 North Monroe Street Suite 60 Tallahassee, FL 32399-0792 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, FL 32399-0770 Francesca Plendl, Esquire 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether Respondent, a physician, failed to adhere to the applicable level of care in prescribing controlled substances; failed to follow standards for the use of controlled substances for the treatment of pain; and failed to keep legible medical records justifying the course of a patient's treatment; if so, whether Petitioner should impose discipline on Respondent's medical license within the applicable penalty guidelines or take some other action.
Findings Of Fact At all times relevant to this case, Respondent Lowell Anthony Adkins, M.D., was licensed to practice medicine in the state of Florida. Dr. Adkins is a family practitioner who has a clinical interest in pain management. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Adkins. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Adkins committed three such offenses——namely, failure to adhere to the applicable level of care in prescribing controlled substances; failure to follow standards for the use of controlled substances for the treatment of pain; and failure to keep legible medical records justifying the course of treatment——in connection with the care he provided to J.D., a young adult (early twenties) whom Dr. Adkins saw on about a half-dozen occasions between September 2007 and March 2008. The events giving rise to this dispute began on September 19, 2007, when J.D. was first seen by Dr. Adkins. J.D. presented with complaints of chronic pain in both knees, which were swollen, and a history of juvenile arthritis. Until recently before this visit, J.D. had been treated for several months by a Dr. Gelinas, who had prescribed Vicodin to alleviate the pain. J.D. told Dr. Adkins that the Vicodin had made him nauseous and failed to control his pain. He also reported that nonsteroidal anti-inflammatory drugs ("NSAIDs") caused him to have nosebleeds. Dr. Adkins took J.D.'s medical history and performed a physical examination. J.D. characterized the degree of pain he was experiencing as severe (grading it as 8 on a scale of 1 to 10 with 10 being the worst), which was an exaggeration intended to deceive the doctor (although he did in fact have some pain). As part of his ruse, which fooled Dr. Adkins, J.D. purposely faked the range of motion tests to give the impression that the condition of his knees was worse than it actually was. J.D. was not candid with Dr. Adkins in providing information about his symptoms because——unknown to Dr. Adkins at the time, who reasonably assumed that his patient's statements for purposes of medical diagnosis or treatment were reliable1——J.D. was addicted to narcotic pain medication and wanted a prescription to feed this addiction. Dr. Adkins wrote a prescription authorizing J.D. to obtain 60 tablets of Oxycodone having a dosage of 15 milligrams ("mg") apiece. Because Oxycodone is a narcotic pain reliever, Dr. Adkins required J.D. to sign a Medication Contract, which enumerated J.D.'s responsibilities regarding the proper use of the controlled substances he was being prescribed. The terms and conditions of the contract included the following: The physicians and staff of Lowell Adkins M.D.P.A. will be the ONLY physicians that will be writing for these medications and I will not seek these medications from other physicians, INCLUDING EMERGENCY ROOM PHYSICIANS. . . . I will take the medications as prescribed and not take more on a daily basis unless approved by my physician. At the initial visit on September 19, 2007, J.D. also signed a release authorizing Dr. Gelinas to provide copies of J.D.'s medical records to Dr. Adkins, which was done. Dr. Gelinas's handwritten chart is largely illegible, but it shows that J.D. carried a diagnosis of arthralgia (joint pain) based on the problems he was having with his knees. In addition, the records included the radiologist's report regarding an MRI of J.D.'s right knee, which had been examined on July 31, 2007. The MRI report gives as J.D.'s diagnosis: "History of juvenile rheumatoid arthritis since age 12. Complaints of pain, crepitus, locking, and instability." The study did not discover any significant damage or disease, except for a "tiny incipient Baker's cyst." For the next half-year, J.D. saw Dr. Adkins on a monthly basis. J.D. continued to complain of chronic pain and repeatedly reported that the pain medication Dr. Adkins was prescribing was not adequately controlling his pain. For much of this time, J.D. held two jobs, working full-time as a small- engine mechanic until being laid off in December 2007, and moonlighting in a sporting goods store, which became his only source of income after the loss of his regular job. These jobs required J.D. to be physically active, and Dr. Adkins periodically increased the dosage of the pain medication he was prescribing, so that J.D. could function at work. Dr. Adkins ordered X-rays of J.D.'s knees as well, but J.D. declined to get them. While under Dr. Adkins's care, J.D. suffered at least two traumatic injuries requiring treatment for acute pain. In October 2007, J.D. injured his shoulder at work and went to an urgent care center for treatment. The doctor prescribed Oxycodone to control the pain associated with this injury. J.D. told Dr. Adkins that he had hurt his shoulder but did not let Dr. Adkins know that he had obtained a prescription for Oxycodone from another physician, in violation of the Medication Contract he had entered into. On or about December 29, 2007, J.D. suffered a serious and painful injury to his finger at work. For this he went to the emergency room, accompanied by his mother who told the ER doctor that J.D. was addicted to, and abusing, narcotic pain medication. Despite the objection of J.D.'s mother, the ER doctor prescribed Oxycodone for pain. Thereafter, J.D. visited a workers' compensation physician for treatment of this same injury, and he was again prescribed Oxycodone. J.D. informed Dr. Adkins of the injury to his finger but not these prescriptions, which represented additional breaches of the Medication Contract.2 A couple of months before the trip to the ER described above, J.D.'s mother ("T.R.") had attempted to stop Dr. Adkins from prescribing Oxycodone to J.D., raising similar concerns about J.D.'s alleged drug abuse. On November 26, 2007, she had dropped by Dr. Adkins's office to report to him that J.D. was crushing and snorting his pain medication. Dr. Adkins was not immediately available, so T.R. left her business card and requested that Dr. Adkins call her, which he did later that evening. Upon hearing T.R.'s concerns, Dr. Adkins requested that she arrange to accompany J.D. on his next office visit, so that the three of them could discuss the situation together. T.R. did show up for J.D.'s next doctor's appointment, on December 14, 2007. J.D., however, had not invited her, and he became very angry when, upon arriving at Dr. Adkins's office, he found his mother already waiting there. The two argued loudly in the reception area, causing a scene. J.D. refused to allow his mother to come into the examination room with him and Dr. Adkins. Consequently, Dr. Adkins met separately with J.D. and T.R. T.R. told Dr. Adkins that J.D. was on probation as a result of drug-related charges and that he was participating in a Drug Court program, but she apparently provided no paperwork to substantiate these assertions. Dr. Adkins had not been aware that J.D. might be in trouble with the law, and he was somewhat surprised by the news because ordinarily the authorities contact him when a patient of his has been arrested for unlawful possession or use of prescription medication. T.R. further claimed that J.D. had been snorting his medication, although she had not actually seen him do so. T.R.'s concerns upset Dr. Adkins, and when he met with J.D. alone, he lectured him on the need for strict compliance with the Medication Contract. Dr. Adkins told J.D. that he would be discharged from Dr. Adkins's practice if J.D. ever snorted the medication again. Dr. Adkins ordered a urine toxicology screen and required J.D. to be tested. J.D. complied, and the drug screen was negative for illegal substances. Dr. Adkins agreed to continue treating J.D. with narcotic analgesics. When J.D. lost his full-time job in December 2007, he lost his health insurance. After that, J.D. paid out-of-pocket for his doctor's appointments. Following a visit on March 19, 2008, however, J.D. stopped seeing Dr. Adkins. In summary, Dr. Adkins prescribed Oxycodone to J.D. in the following dosages and amounts, on the dates shown below: Date Dosage Amount 09/19/07 15 mg 60 tablets 10/19/07 30 mg 90 tablets 11/16/07 30 mg 120 tablets 12/14/07 30 mg 120 tablets 01/14/08 30 mg 150 tablets 02/22/08 30 mg 150 tablets 03/19/08 30 mg 180 tablets The Department's expert witness, Marc R. Gerber, M.D., testified at hearing that the foregoing amounts and dosages of opioids, which Dr. Adkins prescribed to J.D., did not violate the standard of care. T. 165. The undersigned finds this to be true, based on Dr. Gerber's testimony. In its Amended Administrative Complaint, the Department alleged that Dr. Adkins had practiced below the requisite level of care in prescribing narcotic pain medication to J.D.——and thus violated section 458.326(3), Florida Statutes3——in one or more of the following ways: By failing to diagnose Patient J.D. with intractable pain; and/or By failing to refer Patient J.D. to a Psychiatric-addiction specialist, especially after he was informed by Patient's mother that he was, allegedly, an addict; and/or By failing to refer Patient J.D. to an orthopedic specialist to have the pain in his knee evaluated; and/or By prescribing excessive narcotics for Patient J.D.'s alleged pain condition prior to exploring the effectiveness of other NSAIDs; and/or By failing to refer Patient J.D. to a rheumatoid arthritis specialist and/or by failing to verify the complaints of pain from juvenile rheumatoid arthritis with blood tests. Although Dr. Gerber clearly expressed concerns about Dr. Adkins's treatment of J.D., his testimony ultimately failed to establish, unequivocally, that any of the acts or omissions enumerated above constituted an unambiguous violation of the applicable standard of care. As mentioned, Dr. Gerber specifically refuted the allegation that Dr. Adkins had prescribed "excessive narcotics," as charged in subparagraph d). He further testified that, in his opinion, Dr. Adkins had not violated section 458.326, see T. 164——a blanket statement that casts doubt on all of the standard-of-care violations that the Department has alleged. Dr. Gerber testified that he "had no problem with respect to how J.D. presented to Dr. Adkins and the treatment Dr. Adkins had rendered to J.D. through December." T. 161. This testimony, given by the Department's expert, precludes the undersigned from finding without hesitation that the acts and omissions described in subparagraphs a), c), and e) above violated the standard of care. As for subparagraph b), Dr. Gerber stopped well short of stating that the standard of care required Dr. Adkins to refer J.D. to an addiction specialist. To the contrary, he expressed the opinion that, at the time (i.e., 2007-2008), the decision whether to make such a referral was left to the physician's discretion. T. 124, 153. The most Dr. Gerber could say on this point was that, in his view, one "hundred percent of pain specialist [sic] would . . . possibly refer out to an addiction specialist." T. 155 (emphasis added). This testimony is insufficiently convincing to establish clearly that Dr. Adkins's "failure" to refer J.D. to an addiction specialist violated the standard of care. The essence of Dr. Gerber's opinion on the standard of care was captured in the following remarks, which he made on cross-examination in the course of explaining his opinion that Dr. Adkins had not violated section 458.326: We wouldn't even be here if there wasn't the issue [that is, J.D.'s addiction] brought to his [Dr. Adkins's] attention [by T.R.] and the negative urine screen. [T]here are not major issues early on and I never said that there were. I had concerns but this whole case and the whole issue, standard of care, revolves around what was not done when significant issues [relating to J.D.'s addiction] were made available. That's really what I feel comfortable giving my opinion on is what happened after November." T. 163. Dr. Gerber then identified three steps that, in his opinion, Dr. Adkins should have taken "after November" to satisfy the standard of care: (1) order a urine toxicology test; (2) talk with the patient and his mother; and (3) "possibly change the medication regimen." T. 167-68. Although the Department did not allege that Dr. Adkins had violated the standard of care by failing to take any of these measures, the evidence shows that Dr. Adkins did, in fact, perform the first two. The third is plainly too indefinite on its face to qualify as a standard of care. The Department's other expert, James F. Schaus, M.D., who testified via videotaped deposition, was, like Dr. Gerber, unable to unambiguously declare that Dr. Adkins's treatment of J.D. had fallen below the applicable standard of care. On this subject he hedged: I found some problems in the case that could or could not be deviations from the standard of care, but it certainly raised some concerns on my part. . . . * * * Standard of care is to me a black and white, you know, question, and there's many shades of gray, like any case. And in this case, there are shades of gray when it comes to standard of care. As I said earlier, I found a few things that could be potential deficiencies in his care that may or may not come to the level of a deviation of the standard of care. And I'm not prepared to say definitively that he did deviate from the standard of care. But I do identify those concerns, those various concerns. J.F.S. 11, 13 (emphasis added). Dr. Schaus's testimony is insufficient to support a finding, based on clear and convincing evidence, that Dr. Adkins's treatment of J.D. fell below the applicable level of care, skill, and treatment. The remaining charges against Dr. Adkins are based on alleged deficiencies in the medical record of J.D.'s treatment. In Count Two of the Amended Administrative Complaint, the Department has charged Dr. Adkins with violating, in one or more of the following ways, the administrative rule which sets forth standards for prescribing narcotic pain medications: By prescribing controlled substances for pain control, to wit: oxycodone and carisprodol, to Patient J.D. without documenting the nature and intensity of the pain, current and past treatments for pain, underlying or coexisting diseases or conditions, the effect of the pain on physical and psychological function, and any history of substance abuse; and/or By prescribing controlled substances for pain control, to wit: oxycodone and carisprodol, to Patient J.D. without documenting one or more recognized medical indications for the use of a controlled substance. As will be discussed below, the provisions of the rule that articulated standards for documenting a pain-management patient's evaluation, which are the provisions that Dr. Adkins is alleged to have violated, were aspirational rather than prescriptive at the time of the alleged violations, enumerating matters that a physician should include in the medical record as opposed to mandating what must be done. Nevertheless, even though the chart that Dr. Adkins prepared contemporaneously was written in his own hand and is difficult to decipher, the undersigned finds upon review of the medical record that Dr. Adkins substantially followed the rule's guidelines. To be sure, Dr. Adkins's handwriting is hard to read. This, coupled with Dr. Adkins's use of abbreviations and other types of informal shorthand when making his notes, prevents the undersigned from forming a full understanding of everything in the medical record. The undersigned can make out enough words, however, to appreciate that Dr. Adkins documented the nature of J.D.'s pain, current and past treatment for pain, and various diseases or conditions that had caused, or were causing, pain, e.g., swollen knees, a rotator cuff injury, and the avulsion of J.D.'s finger. The Department has failed to prove, with clear and convincing evidence, that Dr. Adkins's documentation of his evaluation of J.D. fell short of the guidelines. In Count Three of the Amended Administrative Complaint, the Department has alleged that Dr. Adkins violated the statute governing medical recordkeeping in one or more of the following ways: By failing to keep legible medical records documenting the reasons for prescribing oxycodone and carisprodal for Patient J.D.; and/or By failing to keep medical records which legibly recorded the patient history, examination results, test results, and drugs prescribed for Patient J.D.; and/or By failing to keep medical records which justify the course of treatment for Patient J.D. Having reviewed the medical record, the undersigned finds the evidence insufficient to prove, clearly and convincingly, that Dr. Adkins failed to justify the course of treatment for Patient J.D. The chart is barely legible, however, and in this regard Dr. Adkins has committed a disciplinable offense; the chart itself is clear and convincing proof of guilt.
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 Dr. Adkins not guilty of the charges set forth in the Counts One and Two of the Amended Administrative Complaint; finding Dr. Adkins guilty of the charge set forth in Count Three, namely failing to keep legible medical records, an offense defined in section 458.331(1)(m); and imposing the following penalties: reprimand, administrative fine in the amount of $1,000, and obligation to complete the Medical Records course. DONE AND ENTERED this 26th day of October, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2011.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the state of Florida, having been issued license number ME 0044173. She practiced medicine in Key West, Florida, from 1985 through June 1993 when she closed her office as a result of a family problem and moved to West Virginia. She is licensed as a physician in West Virginia and currently practices medicine in that state. Respondent is Board-certified in internal medicine. In April 1993, Petitioner's pharmacy inspector responded to telephone calls from pharmacists in Key West concerning Respondent's prescribing practices by traveling to Key West and reviewing pharmacy records of Respondent's patients. One of Petitioner's investigators thereafter collected and compiled copies of computer printouts from six pharmacies listing prescriptions filled for seven of Respondent's patients. Respondent had worked at a clinic where she experienced approximately 15,000 patient visits per year. After determining that Respondent had prescribed what he considered to be an inordinate amount of controlled substances, Schedule II narcotics, the investigator wrote to Respondent advising her that an investigation had been commenced. In July, Respondent telephoned him and advised him that she had relocated to West Virginia. The investigator asked her for the medical records for the seven patients he questioned, and Respondent advised him that in conjunction with her closing her practice and relocating, she had given their medical records to approximately 500 of her patients so they could take them to other physicians and continue receiving their medical care, and those records not picked up by patients had been sent to a Dr. Garriques to be the custodian of those records. Of the seven medical records requested by the investigator, six of them had been given to the patients, and the seventh had been transferred to Dr. Garriques. Respondent admitted that she had not personally kept either the originals or copies of the medical records of her patients. The investigator subsequently telephoned Sun Belt Clinic where Respondent had worked and was told that Respondent's medical records were not there because she had given them to her patients. In December 1993, the investigator issued a subpoena to Sun Belt Clinic for Respondent's medical records and received nothing. Petitioner has made no further effort to obtain the medical records of the patients involved in this proceeding. Controlled substances are categorized by the Drug Enforcement Agency in five different schedules according to their potential for abuse. Schedule I substances are illegal. Schedule II substances, although considered highly addictive, can be prescribed by licensed physicians for medical purposes. Schedule II substances can be narcotic (opiates administered for pain) or non- narcotic. Schedule II narcotics include morphine (morphine sulfate), methadone (dolophine), dilaudid (hydromor-phone), and oxycodone (percodan and percoset). Dexedrine is also a Schedule II controlled substance. Although morphine is the most potent narcotic available in the United States, only approximately 10-20 percent of it is absorbed, when ingested. Methadone is available in government-run clinics for the treatment of heroin addiction. Methadone is also a bona fide treatment for pain. Pursuant to the statutes regulating the conduct of registered pharmacists in the state of Florida, pharmacists are not permitted to dispense methadone for addiction; rather, pharmacists can only dispense methadone as a pain medication. At least one doctor in Key West, other than Respondent, prescribes methadone for pain, and a local hospital there has begun using methadone to treat pain on an in- patient basis. L.P., one of Respondent's patients, is a narcoleptic. Narcoleptics need a stimulant, such as dexedrine or ritalin, to function normally. Before seeing Respondent, L.P. had been "worked up" at Stanford and was taking a maintenance dosage of dexedrine. Between September 11, 1992, and June 1, 1993, Respondent prescribed dexedrine, 15 mg., for L.P., the same dosage L.P. was on before and after being Respondent's patient. The amount and frequency of dexedrine prescribed by Respondent for L.P. is within the range recommended by the Physician's Desk Reference and was an appropriate treatment for L.P.'s narcolepsy. Persons suffering from chronic pain (as opposed to acute episodes of pain) for which there is no cure or treatment available that can alleviate the person's pain are said to suffer from "intractable pain." There are two types of patients who suffer from intractable pain. The first group are patients with terminal, irreversible illnesses, such as cancer patients. Physicians generally give those patients whatever narcotics they need to alleviate the pain during the end stage of their lives. The second group is composed of patients who suffer from non-terminal disease processes who have tried different specialists and treatments available without achieving relief from their chronic pain. Those persons are generally not treated in family practice settings but rather are referred to pain management centers or pain clinics, in locations where such are available, to have their pain alleviated by treatments such as receiving morphine implants or having doctors perform nerve blocks. Many physicians avoid caring for patients who require Schedule II controlled substances to alleviate their suffering. The United States Department of Health, Education and Welfare, through its Agency for Health Care Planning and Research, has established national guidelines for treatment of moderate to severe pain in cancer patients, using Schedule II narcotics. The guidelines are written as a starting dose for opiate-naive adults, i.e., adults who have never before taken opiates. The guidelines further indicate that adults who are not opiate-naive may need a stronger dose. Although none of Respondent's other five patients involved in this proceeding were cancer patients, they suffered from intractable pain. Respondent prescribed narcotics for them within the guidelines recommended to relieve intractable pain in cancer patients. The Agency for Health Care Planning and Research recommends for moderate to severe pain a starting dose of dilaudid of 6 milligrams every three to four hours with a maximum recommended dose of 24 milligrams a day. It recommends a starting dose for moderate to severe pain for methadone or dolophine of 20 milligrams every six to eight hours with a maximum of 80 milligrams a day. For morphine, Agency guidelines recommend a starting dose of 30 milligrams every three to four hours. As to those five patients discussed hereinafter, Respondent saw each of them two times a week when they came to her for their prescriptions. In that way, she was able to monitor them closely and write prescriptions for limited quantities of medication. Sometimes, she saw those patients more often since the pharmacies in Key West were not able to stock supplies of narcotics as easily as non-narcotic medications. If a patient brought a prescription for such narcotics to a pharmacy and the pharmacy had an insufficient quantity in stock to fill that prescription, the patient could go elsewhere or could take the quantity the pharmacy had in stock. Under that circumstance, the prescription for the full quantity would be cancelled, and the patient would return to Respondent to get an additional prescription in order to have the full dose prescribed by Respondent. Respondent treated J.P. for six years for migraine headaches on an indigent basis. J.P. could not afford a CAT scan, and there were no other resources in Key West available to him for further work-up at no cost. Respondent based her treatment plan on her best clinical judgment and a complete physical examination. She tried Midren and other anti-inflammatory medications first. She prescribed percoset for three or four years. She then tried dilaudid. She prescribed dilaudid, 2 mg. from March 19, 1992, through April 23, 1992. She then prescribed dilaudid, 4 mg., from April 30, 1992, through August 17, 1992. From September 3, 1992, through November 30, 1992, she prescribed dolophine, 10 mg. On December 4, 1992, she changed J.P.'s treatment, prescribing morphine, 30 mg., through January 29, 1993. Pharmacy records reflect other medications thereafter, with a prescription for 15 dilaudid, 4 mg., on March 24, 1993, followed by 8 morphine sulfate tablets, 30 mg., on May 21, 1993; 5 percoset tablets on May 31, 1993; 15 morphine sulfate tablets, 30 mg., on June 4, 1993; and 5 percodan tablets on June 7, 1993. Although J.P. filled Respondent's prescriptions at several pharmacies, for example using three different pharmacies during the month of January 1993, the total amount of medication prescribed by Respondent was within the federal Agency guidelines. Respondent's prescribing practices as to J.P. were appropriate and not excessive. Over the course of her treatment of J.P., Respondent observed him change from a "non-functional" person to a functional person who was able to hold a job as a chef when his pain was relieved. Respondent treated M.G. for AIDS-related cluster headaches, which are very intense. He was also grieving for his girlfriend who had died of AIDS. Respondent treated him with dilaudid, which made him pain-free most of the time, and, in addition, he learned relaxation techniques to help deal with his pain. Respondent maintained him on a dosage of dilaudid, 4 mg., from December 28, 1992, through early March 1993. The quantity of dilaudid prescribed by Respondent was within the federal Agency guidelines, and was appropriate and not excessive. While taking dilaudid, M.G. was able to work four days a week as a taxi dispatcher. Respondent treated C.D. for chronic severe pain resulting from connective tissue disease. C.D. also suffered from intermittent gland swelling. Respondent unsuccessfully tried numerous anti-inflammatory medications in treating C.D., and he was treated by a rheumatologist in Miami without benefit. Respondent placed him on a maintenance treatment plan of 100 mg. a day of morphine and kept him at that level. Pharmacy computer printouts reveal C.D.'s morphine treatment commencing in February of 1992 and continuing into mid-June 1993. His functioning improved so that he was able to obtain a job as a taxi driver and once again start playing his guitar in a band. The maintenance program Respondent instituted for C.D. was within the federal Agency guidelines and was appropriate. Respondent treated J.B. for six years for multiple orthopedic problems and back pain. J.B. was not opiate-naive. He had been severely abused as a child and started taking narcotics at the age of two when he suffered a broken arm and severe burns to his hand as a result of his father's behavior. Respondent wrote alternating prescriptions for methadone, dolophine, and morphine for J.B. from December of 1991 through mid-June 1993. He remained on the same dosage. When seen in the community, J.B. was clean, spoke coherently, walked in a straight line, and dressed appropriately for Key West. Although the mixture of prescriptions and the dosage amounts Respondent prescribed for J.B. were substantial, her prescribing practices for J.B. were within the federal Agency guidelines and were appropriate. Respondent treated P.P. from 1986 through 1993 for severe sinusitis. P.P. also developed severe low back pain (sciatica). Respondent took a back x- ray, administered physical therapy, and referred P.P. to a hypnotist. Respondent wrote on prescriptions which she gave to P.P. that her diagnosis was a herniated disc. Respondent started her on dilaudid, 2 mg., in February 1992 and continued that regimen through January 1993. She also prescribed percoset and valium, 5 mg., for the severe back pain and muscle spasm. She also prescribed an anti-inflammatory for the stomach upset resulting from the narcotic. Respondent's prescribing practices as to P.P. were within the federal Agency's guidelines and were appropriate. In her treatment and prescribing practices for L.P., J.P., M.G., C.D., J.B., and P.P., Respondent kept detailed records, in part due to her concern that she might become the subject of criticism by Petitioner. Such records were not, however, offered at hearing by either party. The prescribing of controlled substances to the patients involved in this proceeding was done in the course of Respondent's professional practice.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent not guilty and dismissing the Administrative Complaint filed against her in this cause. DONE and ENTERED this 1st day of June, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-3 and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 4-21, 23, and 24 have been rejected as not being supported by the weight of the credible evidence in this cause. Respondent's fifth unnumbered paragraph has been adopted either verbatim or in substance in this Recommended Order. Respondent's fourth unnumbered paragraph has been rejected as being irrelevant to the issues involved herein. Respondent's first, second, third, sixth, and seventh paragraphs have been rejected as containing only argument. COPIES FURNISHED: Steven Rothenburg, Esquire Agency for Health Care Administration Suite 210 9325 Bay Plaza Boulevard Tampa, Florida 33619 Katherine Anne Hoover, M.D. Route 2 Box 203 Lost Creek, West Virginia 26385 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0770 Tom Wallace, Assistant Director Agency for Health Care Administration Suite 301 The Atrium 325 John Knox Road Tallahassee, Florida 32303
The Issue The issue is whether Petitioner overpaid Respondent for medical services for 20 patients under the Medicaid Program from February 22, 1997, through February 22, 1999, and, if so, by how much.
Findings Of Fact At all material times, Respondent, who is a licensed physician, was authorized to provide medical services to Medicaid recipients, provided medical services to Medicaid recipients, billed Petitioner for these services, and received payment for these services. The Medicaid program provides for periodic audits of each Medicaid provider, after which Petitioner may seek repayment of amounts revealed by audit to have been overpaid to the provider. After conducting such an audit of Respondent for services rendered from February 22, 1997, through February 22, 1998, and exchanging post-audit information, Petitioner informed Respondent, by letter dated March 1, 2002, that it had overpaid him $238,069.09 for claims that were, in whole or in part, not covered by Medicaid, and demanded repayment of this amount. The letter states that the overpayment was extrapolated from the overpayment amount determined from auditing the records of a random sample of 21 patients for whom Respondent had submitted 423 claims. The actual overpayment amount, before extrapolation is $11,248.14. Petitioner later removed one of the patients from the sample due to a billing error. Among the 21 patients covered by the audit, the deleted patient is identified as Patient 20. The age of each patient set forth below is his or her age at the time of the first office visit during the audit period. Where a series of payments are set forth below, they are listed in the order of the procedures discussed immediately above the payments. Patient 1, who was 17 years old first saw Respondent on March 27, 1998. Petitioner allowed payments for Patient 1's first two visits. On March 27, 1998, Respondent performed an abdominal echogram and other services for abdominal pain of three or four months' duration, and, on April 14, 1998, Respondent performed a doppler echocardiograph and other services for chest pain of three or four days' duration. On April 27, 1998, Patient 1 presented at Respondent's office with fever and chills since the previous day. Patient 1 complained of nausea, frequent and painful urination, and pain in the abdomen and lower back. Without first performing a urinalysis or urine culture, Respondent performed a renal echogram April 27, based on his diagnosis of urosepsis and to rule out a urinary tract infection. Renal echography was not medically necessary to rule out a urinary tract infection, at least until Respondent had first performed a urinalysis and urine culture and considered the results from this laboratory work. Respondent's diagnosis of urosepsis lacks any basis in his records. If Patient 1 had suffered from urosepsis, which is a life-threatening condition that requires urgent treatment--not echography--Respondent should have treated the matter as a medical emergency. Petitioner proved that it overpaid $61.57 for this service. Petitioner allowed a payment for medical services, which did not include any echography, on May 4, 1998. On June 1, 1998, Patient 1 presented at Respondent's office complaining of acute abdominal pain for three or four days. Respondent performed a physical examination and detected an enlarged spleen. He then performed an echogram of the spleen and found a normal spleen without inflammation or cyst. Respondent proceeded with the echography without first performing routine blood work, such as a white blood cell count, to detect infection. The echogram of the spleen was not medically necessary, at least until Respondent had performed routine blood work to confirm or rule out infection. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to this payment, so Petitioner did not overpay for this service. Petitioner allowed a payment for a medical service on June 5, 1998. On June 19, 1998, Patient 1 presented at Respondent's office complaining of weakness, fainting, dizziness, fatigue, palpitations, shortness of breath, heartburn, rectal discomfort, and skin rash. After performing a physical examination, Respondent suspected hypothyroidism and performed a thyroid echogram, which revealed a normal thyroid. Again, thyroid echography is not medically necessary without first performing routine laboratory tests of thyroid function. Petitioner proved that it overpaid $45.24 for this service. On August 3, 1998, Patient 1 presented at Respondent's office complaining of weakness in his arms and hands of three to four weeks' duration. A physical examination revealed that Patient 1's grip was weak and his wrists painful upon pressure. Suspecting carpal compression, Respondent conducted three types of nerve conduction velocity tests (NCV), including an H-Reflex test, all of which test nerve function. Patient 1 had a psychiatric diagnosis, as Respondent was aware at the time of this office visit. Before conducting the NCV, Respondent contacted Patient 1's psychiatrist and obtained her approval of the test. Also, before conducting the NCVs, Respondent obtained blood work, so as to determine the blood levels of the psychotropic medications that Patient 1 was taking. Petitioner failed to prove that it overpaid for these services. Patient 1 visited Respondent's office on August 7, August 25, September 16, and October 30, 1998, but Petitioner is not disallowing any of these payments. On November 23, 1998, Patient 1 presented at Respondent's office complaining of pain in his right ankle after tripping and falling the previous day. Respondent conducted a physical examination and found mild swelling, applied an elastic bandage, prescribed Motrin and physical therapy for three weeks, and ordered an X ray. Petitioner claims that Respondent misbilled the procedure. Respondent billed a 73000, which is a procedure under the Current Procedure Terminology manual (CPT), and Petitioner claims that the correct CPT code is 73600, which would generate an overpayment of 59¢. However, as noted in the Preliminary Statement, the evidence fails to support this claim by Petitioner, so Petitioner failed to prove that it overpaid for this service. Patient 2, who was a 57 years old, had seen Respondent for three years. Patient 2 visits the office "constantly," according to Respondent. Petitioner has disallowed payments for services rendered on March 2, March 31, April 28, June 1, August 17, August 28, September 24, October 2, November 3, November 9, December 1, and December 21, 1998, and January 8, 1999. However, as noted in the Preliminary Statement, Dr. Hicks has withdrawn his objection to the aerosol treatment on August 17 and the level of service of the office visit on August 28. On March 2, 1998, Patient 2 presented at Respondent's office with acute onset the previous day of left flank pain, now radiating to the left lumbar and genital areas. Patient 2 denied passing any stones in his urine, although he complained of frequency and pain of urination. Respondent found Patient 2's abdomen distended and liver enlarged. He performed a renal echogram to rule out kidney stones or urinary retention. The results were normal. Respondent's testimony failed to establish the medical necessity of this renal echography. The symptoms are too nonspecific to justify this diagnostic procedure at this time, so Petitioner proved that it overpaid $61.57 for this service. On March 31, 1998, Patient 2 presented at Respondent's office with complaints of leg pain and cramps at night, which arose after walking a block and alleviated with rest. Diagnosing this obese patient with peripheral vascular disease, Respondent performed doppler procedures of the lower extremity veins and arteries. The results revealed mild atheromatous changes in the lower extremities. Petitioner failed to prove that the two procedures billed by Respondent for the March 31 office visit were medically unnecessary, so Petitioner failed to prove that it overpaid for these services. On April 28, 1998, Patient 2 presented at Respondent's office with nausea of three or four days' duration, vomiting associated with indigestion, fatty food intolerance, flatulence, and bitter taste. Patient 2, whom Respondent presumed was alcoholic, had an enlarged liver, as Respondent had noted in previous examinations of Patient 2. Respondent performed a liver echogram, after ordering a laboratory report on January 29, 1998. The results confirmed the presence of liver echogenicity or fatty liver. 26. Petitioner failed to prove that this echography was not medically necessary, so Petitioner failed to prove that it overpaid for this service. On June 1, 1998, Patient 2 presented at Respondent's office with complaints of pain on urination, increased frequency of urination, the need to urinate at night, and chills. Respondent performed an echogram of the prostate to rule out cancer; however, Respondent's records did not disclose any laboratory test, which is more appropriate for detecting prostate cancer. Respondent's testimony establishes that this echogram was not medically necessary, so Petitioner proved that it overpaid $51.34 for this service. On September 24, 1998, Patient 2 presented at Respondent's office with a complaint of low back pain after slipping and falling down three days earlier. Respondent performed three NCVs, including an H-Reflex test. Respondent's notes state an intention to do X rays, although the records fail to reveal whether X rays were ever done. Petitioner failed to prove that the three NCV tests were not medically necessary. Petitioner also downcoded the office visit on this date, but, as noted in the Preliminary Statement, due to the failure to produce a CPT manual, Petitioner failed to prove that it overpaid $10.74 for this service. On October 2, 1998, Patient 2 presented at Respondent's office with a complaint of shortness of breath. Respondent administered an aerosol with Ventolin, which is a drug used to combat asthma. This is the same aerosol that Dr. Hicks decided to allow on August 17 upon further review, and the medical necessity for this aerosol is the same as the earlier aerosol, so Petitioner failed to prove that it overpaid $10.62 for this service. On November 3, 1998, Patient 2 presented at Respondent's office with complaints of malaise, fatigue, weakness, and weight gain. Respondent performed a thyroid echogram in connection with a diagnosis of hypothyroidism, and the test results were normal. Patient 2, who suffered from chronic obstructive pulmonary disease (COPD), had not actually gained weight over 1998. Without the results of other tests of thyroid function, a test to measure the size of the thyroid was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On November 9, 1998, Patient 2 presented at Respondent's office with complaints of continuing chest pain and palpitations. Respondent had seen Patient 2 three days earlier for the same complaints and performed an electrocardiogram, whose results were abnormal, although not acute. Based on this test, Respondent had referred Patient 2 to a cardiologist. Given the proper referral of Patient 2 to a cardiologist, the ensuing doppler echocardiogram was not medically necessary. The record is devoid of any evidence that Respondent could adequately care for the cardiac condition suffered by Patient 2, so this diagnostic service performed no useful function. Petitioner proved that it overpaid $117.23 and $51.34 for these services. On December 1, 1998, Patient 2 presented at Respondent's office with chest congestion and cough, with some shortness of breath, of three days' duration. Respondent administered an aerosol with medications to treat Patient 2's bronchial asthma and COPD by functioning as a bronchodilator. This treatment was preceded by a spirometry, which tests respiratory function. Petitioner failed to prove that either the diagnostic or therapeutic service provided by Respondent on December 1 was not medically necessary. On December 21, 1998, Patient 2 presented at Respondent's office with the same complaints from his visit nearly three weeks earlier. Respondent performed two duplex scans of the lower extremities to check his circulatory state, These scans were not medically necessary. Although Patient 2 was also complaining of a slow progression of leg pain and cramps, Respondent had performed a diagnostic procedure for these identical symptoms nine months earlier. The absence of any recorded treatment plan in the interim strongly suggests that diagnostic echography is displacing actual treatment. Respondent also performed another spirometry, less than three weeks after the prior spirometry. There was no medical necessity for this second procedure because Patient 2's symptoms and complaints had remained unchanged. Petitioner proved that it overpaid $97.96, $72.39, and $15.70 for these services. On January 8, 1999, Patient 2 presented at Respondent's office, again with respiratory complaints. Respondent claims to have administered a maximum breathing test, but he submitted no documentation of such a test to Petitioner, so Petitioner has proved that it overpaid $9.82 for this service. Patient 3, who was 13 years old, saw Respondent only one time--April 28, 1998. On this date, she presented at Respondent's office with menstrual complaints, abdominal pain, anxiety, and urinary disorders in terms of frequency and urgency. After performing a physical examination (limited as to the pelvic area due to the demands and cultural expectations of the patient and her family) and ordering blood work, Respondent performed pelvic and renal echograms, choosing not to subject the patient to X rays due to her young age. When Respondent later received the blood work, he found evidence supporting a diagnosis of a urinary tract infection. Although the menstrual history should have been developed in the records, the pelvic echogram could have uncovered an ovarian cyst, and legitimate reason existed to avoid an X ray and an extensive pelvic examination. However, the renal echogram was not medically necessary. The proper means of diagnosing a urinary tract infection is the blood work that Respondent ordered. The records mention the possibility of kidney stones, but this condition did not require ruling out based on the complaints of the patient, findings of the physical examination, and unlikelihood of this condition in so young a patient. Petitioner proved that it overpaid $61.57 for the renal echogram, but failed to prove that it overpaid for the pelvic echogram. Patient 4, who was eight years old, first saw Respondent on November 11, 1998. Patient 4 presented with a fever of two days' duration, moderate cough, and runny nose. His grandmother suffered from asthma, but nothing suggests that Patient 4 had been diagnosed with asthma. After conducting a physical examination and taking a history, Respondent diagnosed Patient 4 as suffering from acute tonsillitis, allergic rhinitis, bronchitis, and a cough. Apparently, Respondent misbilled Petitioner for an aerosol treatment because Respondent testified, and his records disclose, that no aerosol was administered, so Petitioner proved that it overpaid $10.62 for this service. Respondent administered a spirometry, which he justified on the basis of the grandmother's asthma. Although the results of the spirometry indicated pulmonary impairment, the test was not medically necessary, given the history and results of the physical examination, so Petitioner proved that it overpaid $32.06 for this service. On February 15, 1999, Patient 4 presented at Respondent's office with a fever of two days' duration, moderate cough, and clear nasal discharge. Again, Respondent administered a spirometry, which again revealed pulmonary impairment, and, again, the test was not medically necessary. Again, Respondent displayed a fondness for diagnostic procedures that yielded no plan of treatment. Petitioner proved that it overpaid $16.94 for this service. Patient 5, who was 61 years old, presented at Respondent's office with a history of weekly visits, as well as osteoarthritis and high blood pressure. On March 26, 1998, Patient 5 presented at Respondent's office with a complaint of left hip pain of three days' duration, but not associated with any trauma. She also reported dizziness and occasional loss of consciousness after faintness. Patient 5 noted that her neck swelled three or four months ago. Respondent billed for two views of the hip, but nothing in his records indicates more than a single view, so Petitioner proved that it overpaid Respondent $6.68 for this aspect of the X-ray service. Respondent also performed a duplex scan of the carotid artery. The scan, which was justified due to Patient 5's dizziness, faintness, and loss of consciousness, revealed atherosclerotic changes of the carotid arteries, so Petitioner failed to prove that it overpaid for this service. On April 9, 1998, Patient 5 presented at Respondent's office with complaints of left flank pain, nasal stuffiness, headaches, and urinary incontinence on exertion. Interestingly, the report from the thyroid echogram, which was performed on the March 26 office visit and allowed by Petitioner, revealed an enlargement and solid mass at the right lobe, but Respondent's records contain no conclusions, diagnosis, or treatment plan for this condition, focusing instead on cold and other minor symptoms described above. Respondent performed kidney and bladder echograms, to rule out stones, cysts, or masses, and a sinus X ray. However, he did not first perform a urinalysis--instead ordering it simultaneously--to gain a better focus on Patient 5's condition, but his records contain no indication of the results of this important test. Petitioner proved that it overpaid $61.57 and $39.73 for the renal and bladder echograms, both of which were normal, although the left kidney revealed some fatty tissue. Although the results were normal, the sinus X ray was medically necessary, so Petitioner failed to prove that it overpaid for this service. On May 13, 1998, Patient 5 presented at Respondent's office with a complaint of chest congestion, "chronic" cough (despite no prior indication of a cough in Respondent's records), and shortness of breath of two or three days' duration. Respondent administered a spirometry. Respondent justified this test, in part, on Patient 5's "acute exacerbation of COPD," but Respondent's records reveal no other symptoms consistent with a diagnosis of COPD. Administering spirometry when confronted with common cold symptoms is not medically necessary, so Petitioner proved that it overpaid $30.06 for this service. On June 29, 1998, Patient 5, who was diabetic, presented at Respondent's office with complaints of gradual onset of leg pain on exertion, alleviated by resting, and cramping at night. A physical examination revealed no right posterior pedal pulse, grade 2 edema and dermatitis, and bilateral varicose veins. Previous blood work had revealed high cholesterol, triglycerides, and low-density lipoprotein cholesterol. Respondent performed a doppler study of the arteries of the lower extremities, which Petitioner allowed. He also performed a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities, both of which Petitioner disallowed. Petitioner also downcoded the office visit. Given Patient 5's diabetes and the laboratory work, the disallowed study and scan were justified. Petitioner failed to prove that the services were medically unnecessary or, as noted in the Preliminary Statement, due to the absence of the CPT manual, that the office visit should be downcoded, so Petitioner failed to prove that it overpaid for these services. On July 20, 1998, Patient 5 presented at Respondent's office with complaints of diffuse abdominal pain and nausea without vomiting. Respondent found that her liver was enlarged and tender and performed a liver echogram. Petitioner's disallowance of this service suggests an unfamiliarity with the subsequent report dated August 28, 1998, that states that a CT scan of the abdomen revealed possible metastatic disease of the liver and suggested correlation with liver echography. The liver echogram was medically necessary, so Petitioner failed to prove that it overpaid for this service. On August 13, 1998, Patient 5 presented at Respondent's office with complaints of low back pain of months' duration and related symptoms. Respondent performed three NCVs, including an H-Reflex. The NCVs suggested light peripheral neuropathy. Petitioner failed to prove that these tests were not medically necessary. On August 18 and 28, 1998, Patient 5 visited Respondent's office and received injections of vitamin B12 and iron. However, the medical necessity for these injections is absent from Respondent's records. Respondent testified that the iron was needed to combat anemia, but this diagnosis does not appear in the August 18 records. The August 28 records mention anemia, but provide no clinical basis for this diagnosis. Neither set of records documents the injections. Petitioner proved that it overpaid $94.25 and $37.70 for these services. On October 21, 1998, Patient 5 presented at Respondent's office with complaints of chest congestion, cough, and moderate shortness of breath of one day's onset, although she had visited Respondent one week earlier with the same symptoms. Petitioner allowed an aerosol treatment, but disallowed a maximum breathing procedure. Respondent testified that the service was the administration of oxygen, which is documented in the records and medically necessary. Petitioner's worksheets, which are Petitioner Exhibit 19, contain a handwritten note, "no doc[umentation]," but the shortcomings in Petitioner's evidence, as noted in the Preliminary Statement, prevent Petitioner from proving that it overpaid for this service. On November 11, 1998, Patient 5 presented at Respondent's office with complaints of weakness and fatigue of five or six months' duration. Respondent has previously diagnosed Patient 5 with hypothyroidism, and Respondent believed that she was not responding to her medication for this condition. Without ordering blood work to determine thyroid function, Respondent performed a thyroid echogram. However, this echography was not medically necessary, so Petitioner proved that it overpaid $45.24 for this service. On December 4, 1998, Patient 5 presented at Respondent's office with complaints of left chest and ribs pain and recent faintness. Respondent ordered an X ray of the ribs and conducted a physical examination, which revealed a regular heart rhythm. The following day, Respondent performed an echocardiogram and related doppler study. He had performed these tests seven months earlier, but the results were sufficiently different, especially as to new mitral and aortic valve regurgitation, so as to justify re-testing. Given Patient 5's poor health, these tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On December 17, 1998, Patient 5 presented at Respondent's office with complaints of cervical pain of three or four days' duration and radiating pain into the arms and hands. Noting a decreased grip on both sides and relevant aspects of Patient 5's history, Respondent performed two NCVs, including an H-Reflex, and ordered a cervical X ray. One NCV revealed abnormalities, but the H-Reflex did not. These tests were medically necessary, so Petitioner failed to prove that it overpaid for these services. On January 12, 1999, Patient 5 presented at Respondent's office with complaints of blurred vision, loss of memory, dizziness, and fainting over several months' duration. Respondent performed a carotid echogram, as he had on March 26, 1998. The results of the new carotid echogram were the same as the one performed nine months earlier. The problem is that, again, Respondent betrays his fondness for diagnosis without treatment, as he never addressed the abnormalities detected in the earlier echogram, except to reconfirm their existence nine months later. Petitioner proved that the second carotid echogram was not medically necessary, so it overpaid $99.14 for this service. On February 1, 1999, Patient 5 presented at Respondent's office with continuing complaints of leg pain and cramps. Respondent responded by repeating the doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities that he had performed only seven months earlier and another duplex scan. The main difference in results is that Respondent had suspected from the earlier tests that Patient 5 suffered from "deep venous insufficiency," but he found in the later tests that "mild vein insufficiency is present." Again, though, the tests performed on February 1 lack medical necessity, partly as evidenced by the failure of Respondent to design a treatment plan for Patient 5 after either set of test results. Petitioner proved that it overpaid $99.14, $37.92, and $110.50 for these services. On December 4, 1998, Patient 6 presented at Respondent's office complaining of leg pain, mild shortness of breath, and a cough. Except for the leg pain, the symptoms were of two days' duration. Patient 6 was 35 years old and had a history of schizophrenia and obesity. Respondent performed a physical examination and found decreased breathing with scattered wheezing in both lungs and decreased peripheral pulses, presumably of the lower extremities, although the location is not noted in the medical records. Respondent also found varices on both sides with inflammatory changes and swelling of the ankles. Respondent ordered duplex studies of the vascular system of the lower extremities and a doppler scan of the lower extremities. The results revealed diffuse atheromatous changes in the left lower extremity. Petitioner failed to prove that these services were not medically necessary. On the same date, Respondent performed a spirometry, which was "probably normal." Petitioner proved that this procedure was not medically necessary because of the mildness of the respiratory symptoms and their short duration. Petitioner overpaid $32.06 for this service. Respondent saw Patient 6 on December 9, 12, and 15, 1998, for abdominal pain, but Petitioner has not disallowed any of these services. On December 28, 1998, Patient 6 presented at Respondent's office with complaints of neck pain with gradual onset, now radiating to the upper and middle back, shoulders, and arms, together with tingling and numbness in the hands. Respondent performed three NCVs, including an H-Reflex, even though the physical examination had revealed active deep reflexes and no sensory deficits or focal signs. The results revealed mild abnormalities, which Respondent never discussed in his notes or addressed in a treatment plan. Petitioner proved that these services were not medically necessary, so Petitioner overpaid $195.12, $73.96, and $21.64 for these services. On February 2, 1999, Patient 6 presented at Respondent's office complaining of three days of chills without fever, left flank pain, and urinary frequency. Without first performing a urinalysis, Respondent performed a kidney echogram to rule out kidney stones. The echogram revealed no abnormalities. Petitioner proved that the renal echogram was not medically necessary, so it overpaid $62.37 for this service. On August 25, 1998, Patient 7, who was 58 years old, presented to Respondent's office with complaints of leg pains and cramps of five or six months' duration and some unsteadiness, as well as progressive numbness in her legs and feet. Patient 7 also complained of moderate shortness of breath, anxiety, and depression. The physical examination revealed decreased expansion of the lungs and decreased breath sounds, limited motion of the legs and back, decreased peripheral pulses (presumably of the legs), edema (again, presumably of the lower extremities), varices, and sensorial deficit on the external aspect of the legs. Blood work performed on August 25 was normal for all items, including thyroid function, except that cholesterol was elevated. Respondent ordered a chest X ray and electrocardiogram, which Petitioner allowed, but also ordered doppler studies of the veins and arteries of the lower extremities, an associated duplex scan, a spirometry, three NCVs (including an H-Reflex), and a somatosensory evoked potential test (SSEP), all of which Petitioner denied. Like the NCV, the SSEP is also an electrodiagnostic test that measures nerve function. The NCVs suggested mild peripheral neuropathy, which required clinical correlation, but the SSEP revealed no abnormalities. The doppler studies produced findings that "may represent some early arterial insufficiency" and "may represent some mild venous insufficiency," but were otherwise normal. The spirometry revealed "mild airway obstruction." The results of the tests do not support their medical necessity, nor do the complaints and findings preceding the tests. Petitioner proved that both doppler studies, the duplex scan, all three NCVs, the SSEP, and the spirometry were not medically necessary. Petitioner overpaid $66.48, $38.75, $108.58, $195.12, $73.96, $21.64, $42.68, and $17.70 for these services. Two days later, on August 27, 1998, Patient 7 presented at Respondent's office with swelling of her anterior neck and pain for two weeks. She complained that her eyes were protruding and large and that she had suffered mild shortness of breath for two days. Respondent ordered an echogram of the goiter, which Petitioner denied. Respondent's records contain no acknowledgement of the fact that, two days earlier, blood work revealed normal thyroid function. Even if the laboratory results were not available within two days of the draw, Respondent had to await the results before proceeding to ultrasound. Petitioner proved that the goiter echogram was not medically necessary, so it overpaid $43.24 for this service. On September 21, 1998, Patient 7 presented at Respondent's office with complaints of chest pain, palpitations, and shortness of breath. The physical examination revealed no abnormalities. Respondent performed an echocardiogram and related doppler study, largely, as he testified, to rule out thyrotoxicosis. However, as noted above, the blood work one month earlier revealed no thyroid dysfunction, and the medical records fail to account for this blood work in proceeding with a thyroid rule-out diagnosis. Petitioner proved that these services were not medically necessary, so it overpaid $117.23 and $51.34 for these services. On October 6, 1998, Patient 7 presented at Respondent's office with complaints of gradual loss of memory, fainting, and blurred vision. Respondent performed a carotid ultrasound, which revealed mild to moderate atheromatous change, but no occlusion. Petitioner failed to prove that this test was not medically necessary. Petitioner also downcoded the office visit, but, for reasons set forth above, its proof fails to establish that the billed visit should be reduced. On the next day, October 7, Patient 7 presented at Respondent's office in acute distress from pain of three days' duration in the legs, swelling, heaviness, redness, and fever. The physical examination revealed swelling of the legs and decreased peripheral pulses. Concerned with thrombophlebitis, Respondent ordered a chest X ray to rule out an embolism and a duplex scan of the lower extremities, neither of which revealed any significant abnormalities. Petitioner failed to prove that these tests were not medically necessary. On November 12, 1998, Patient 7 presented at Respondent's office with complaints of abdominal pain and vaginal discharge. One note states that the pain is in the left upper quadrant, and another note states that the pain is in the lower abdomen. The physical examination was unremarkable, but Respondent ordered echograms of the pelvis and spleen, which were essentially normal. Petitioner proved that the echograms were not medically necessary, so it overpaid $46.03 and $51.34 for these services. On November 30, 1998, Patient 7 presented at Respondent's office with complaints with worsening neck pain radiating to the shoulders and arms and decreased muscle strength on both sides. The physical examination uncovered decreased grip, normal pulses, and no focal findings. Respondent ordered three upper-extremity NCVs, including an H-Reflex, and an SSEP. The tests did not produce significantly abnormal results, such as to require any treatment beyond the anti-inflammatory medications typically used to treat the osteoarthritis from which Patient 7 suffered. Petitioner proved that the tests were not medically necessary, so it overpaid $193.12, $73.96, $21.64, and $42.68 for these services. One month later, on December 28, Patient 7 presented at Respondent's office with continuing complaints of neck pain and decreased muscle strength. Although the same three NCVs had revealed nothing significant only one month earlier, Respondent performed the same three tests. Petitioner proved that these tests were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 8, 1999, Patient 7 presented at Respondent's office with complaints of right upper quadrant abdominal pain of three days' duration with vomiting and urinary disorders. The physical examination suggested tenderness in the right upper quadrant of the abdomen. Respondent performed liver and renal echograms, which were normal. Petitioner allowed the liver echogram, but not the renal echogram. Petitioner proved that the renal echograms were not medically necessary, so it overpaid $62.37 for this service. On April 7, 1998, Patient 8, who was 48 years old and suffered from diabetes, presented at Respondent's office with an ulcer on her right foot with tingling, numbness, and muscle weakness in both legs. Relevant history included the amputation of the right toe. The physical examination revealed an ulcer on the right foot, but no tingling or numbness. Respondent ordered an electrocardiogram and a doppler study of the arteries of the lower extremities, both of which Petitioner allowed. However, Petitioner denied a doppler study of the veins of the lower extremities and a duplex scan of the veins of the lower extremities and three NCVs of the lower extremities, including an H-Reflex. The venous doppler study disclosed a mild degree of venous insufficiency and suggested a mild to moderate peripheral vascula disease without occlusion. The NCVs showed abnormal sensory functions compatible with neuropathy. In place of a report on the H-Reflex test, a report on an SSEP indicated some abnormalities. At the end of the visit, Respondent sent Patient 8 to the hospital for treatment of the infected foot ulcer. Petitioner failed to prove that the NCVs, including the H-Reflex or SSEP, and the venous doppler study were not medically necessary. For reasons already discussed, Petitioner also failed to prove that the office visit should be downcoded. On August 18, 1998, Patient 8 presented at Respondent's office with complaints of neck pain of two or three weeks' duration, dizziness, blurred vision, and black outs. Respondent ordered a carotid ultrasound, which revealed no abnormalities. Given the compromised health of the patient, Petitioner failed to prove that this service lacked medical necessity. On August 26, 1998, Patient 8 presented at Respondent's office with gastric complaints of three days' duration radiating to the upper right quadrant and accompanied by vomiting and occasional diarrhea. Patient 8 continued to complain of neck pain. Since yesterday, Patient 8 reported that she had had a frequent cough and shortness of breath. Her history includes fatty food intolerance, nocturnal regurgitations, and heartburn. The physical examination revealed a soft, nontender abdomen and normal bowel sounds. With "diagnoses" of epigastric pain, abdominal pain, and shortness of breath, Respondent performed, among other things, a spirometry. Given the short duration of Patient 8's respiratory complaints, Petitioner proved that the spirometry was not medically necessary, so Petitioner overpaid $17.70 for this service. On September 29, 1998, Patient 8 presented at Respondent's office with complaints of low back pain, malaise, chills, fever, and urinary disorders, all of three days' duration. The physical examination was unremarkable, but for unrelated findings in the lower extremities. Respondent performed an echogram of the kidneys, which revealed no significant problems. Petitioner proved that this ultrasound procedure was not medically necessary, so it overpaid $61.57 for this service. Respondent also billed for a diabetes test, but the test results are omitted from the medical records. Petitioner proved a lack of documentation for the diabetes, so it overpaid $11.50 for this service. On December 11, 1998, Patient 8 presented at Respondent's office with complaints of moderate neck pain, numbness and weakness of the shoulders and arms, and tingling of the hands, all of three or four months' duration. Diagnosing Patient 8 with cervical disc disease, cervical radiculitis, and diabetic peripheral neuropathy, Respondent ordered three NCVs, including an H-Reflex. The NCVs revealed some abnormalities, but evidently not enough on which Respondent could make a diagnosis and form a treatment plan. Although this Recommended Order finds an earlier set of NCVs of the lower extremities medically necessary, even though Respondent did not act on them, these NCVs are different for a couple of reasons. First, at the time of the lower- extremity NCVs, Respondent was preparing to send Patient 8 to the hospital, where follow-up of any abnormalities could be anticipated. Second, the lower-extremity NCVs were of the part of the body that had suffered most from diabetes, as Patient 8 had lost her toe. The NCVs performed on December 11 were basically in response to persistent or recurrent complaints about neck pain with an inception, for the purpose of this case, in mid-August. The record reveals that Respondent exerted some effort to diagnose the cause of the pain, but apparently never found anything on which he could base a treatment plan, because he never treated the pain, except symptomatically. From this point forward, Respondent could no longer justify, as medically necessary, diagnostic services for Patient 8's recurrent neck pain, but instead should have referred her to someone who could diagnose any actual disease or condition and provide appropriate treatment to relieve or eliminate the symptoms. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On January 12, 1999, Patient 8 presented at Respondent's office with complaints of leg pain and heaviness of "years'" duration. She "also" complained of lower abdominal pain, more to the left side, of mild intensity, "but persistent and recurrent," as well as a burning sensation in the vagina. The physical examination is notable because Patient 8 reportedly refused a vaginal examination. Failing to order a urinalysis, Respondent proceeded to perform a pelvic echogram, as well as a doppler study of the veins of the lower extremities and two duplex scans of the arteries and veins of the lower extremities. The omission of a urinalysis and a vaginal examination--or at least a compelling reason to forego a vaginal examination--renders the pelvic ultrasound, whose results were normal, premature and not medically necessary. Except for the duplex scan of the arteries, Respondent had performed these lower-extremity procedures nine months earlier, just prior to Patient 8's hospitalization. Absent a discussion in the notes of why it was necessary to repeat these tests when no treatment plan had ensued earlier in 1998, these procedures were not medically necessary, so Petitioner overpaid $51.78, $99.14, $37.92, and $110.50 for these services. On January 29, 1998, Patient 9, who was 62 years old, presented at Respondent's office with complaints of weakness and numbness in his legs and fear of falling. A physical examination revealed limited range of motion of both knees. The deep reflexes were normal. Respondent performed three NCVs, including an H-Reflex, and an SSEP, all of the lower extremities. The SSEP was normal, but the NCVs produced results compatible with bilateral neuropathy. Petitioner failed to prove that these services were not medically necessary. On January 31, 1998, Patient 9 presented at Respondent's office with complaints of chest congestion and coughs of three days' duration, accompanied by shortness of breath. This record adds COPD to his history. The physical examination revealed normal full expansion of the lungs, but rhonchis and wheezing on expiration. Respondent ordered a spirometry, which revealed a mild chest restriction. Given the chronic pulmonary disease, Petitioner failed to prove that this service was not medically necessary. On April 14, 1998, Patient 9 presented at Respondent's office with complaints of abdominal pain of three days' duration with vomiting and diarrhea. His history included intolerance to fatty foods. The physical examination found the abdomen to be soft, with some tenderness in the right and left upper quadrants, but no masses, and the bowel sounds were normal. Respondent performed a liver echogram, which was normal. Petitioner proved that the liver echogram was not medically necessary, so it overpaid $44.03 for this service. On May 8, 1998, Patient 9 presented at Respondent's office with complaints of chest pain of moderate intensity behind the sternum, together with palpitations that increased on exertion and eliminated on rest. The physical examination revealed regular heartbeats, a pulse of 84, and blood pressure of 150/90. Respondent performed an electrocardiogram, echocardiogram, and doppler echocardiogram. The electrocardiogram revealed a cardiac abnormality that justified the other procedures, so Petitioner failed to prove that these services were not medically necessary. On June 4, 1998, Patient 9 presented at Respondent's office with complaints of malaise and fatigue, which had worsened over the past couple of weeks. The physical examination showed the lungs to be clear and the heartbeat regular. Patient 9's pulse was 76 and blood pressure was 130/80. Respondent performed a chest X ray and another electrocardiogram, both of which were normal. Petitioner proved that these services were not medically necessary, as the chest X ray was unjustified by the symptoms and physical examination, and an electrocardiogram had just been performed one month earlier, so Petitioner overpaid $18.88 and $15.74 for these services. On July 1, 1998, Patient 9 presented at Respondent's office with complaints of ongoing knee pain. Patient 9 had been re-scheduled for knee surgery and required another clearance. Respondent performed another electrocardiogram, even though he had performed one only three weeks ago, and the results had been normal, as were the results from the July 1 procedure. Petitioner proved that this service was not medically necessary, and it overpaid $15.74 for this service. On August 14, 1998, Patient 9 presented at Respondent's office with complaints of pain in his hands and wrists of three or four months' duration, accompanied by tingling in the fingers and a loss of strength in the hands. Respondent performed two NCVs, which revealed findings compatible with neuropathy, but the records reveal no action by Respondent in forming a treatment plan or referring the patient to a specialist. Petitioner proved that these services were not medically necessary, so it overpaid $195.12 and $73.96 for these services. On March 9, 1998, Patient 10, who was three years old, presented at Respondent's office with a sore throat with fever and malaise. His history included asthma, and he had suffered from mild shortness of breath and a dry cough of three days' duration. The physical examination was unremarkable, except for congested tonsils and scattered rhonchis, but no wheezes. Respondent administered an aerosol, which was appropriate, given the young age of the patient and his asthmatic condition. Petitioner failed to prove that this service was not medically necessary. On the next day, Patient 10 again presented at Respondent's office in "acute distress." Although his temperature was normal, his pulse was 110. The findings of the physical examination were the same as the prior day, except that the lungs were now clear. Respondent billed for another aerosol treatment, but the medical records omit any reference to such a treatment. Petitioner proved that Respondent failed to maintain documentation for this treatment, so Petitioner overpaid $10.03 for this service. On May 21, 1998, Patient 10 presented at Respondent's office with a cough, chest congestion, and mild shortness of breath, but no fever. A physical examination revealed scattered rhonchis, but no wheezes, and the boy's chest expression was full. Diagnosing the patient with acute bronchitis, Respondent administered a spirometry and an aerosol. Again, due to the age of the patient and his asthma, Petitioner failed to prove that the spirometry or aerosol was not medically necessary. On August 18, 1998, Patient 10 presented at Respondent's office with chest congestion, cough, and moderate shortness of breath, all of three days' duration. The physical examination showed that the lungs were free of wheezes. Respondent administered an aerosol and a chest X ray. The aerosol was appropriate given the age of the patient and his asthma. However, the chest X ray was inappropriate given the clear condition of the lungs. Petitioner proved that the chest X ray was not medically necessary, so it overpaid $18.88 for this service. On August 6, 1998, Patient 11, who was three years old, presented at Respondent's office with a fever and sore throat, both since the prior day, as well as abdominal pain of two or three weeks' duration. The physical examination disclosed that the abdomen was normal, as were the bowel sounds. Respondent performed a kidney echogram, which was normal. Given the age of the patient, his overall health, and the lack of confirming findings, Petitioner proved that the echogram was not medically necessary, so it overpaid $61.57 for this service. On October 1, 1998, Patient 12 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 12 during the audit period, so there is no dispute as to Patient 12. On March 9, 1998, Patient 13, who was 30 years old, presented at Respondent's office with complaints of back pain, chills, burning urination, and general malaise, all of three days' duration. She also complained of lower abdominal pain, vaginal discharge, and pain during intercourse, but denied abnormal genital bleeding. The physical examination disclosed pain in the cervix on motion, but a normal temperature. Respondent performed echograms of the kidneys and pelvis to address his diagnoses of an infection of the kidneys and pelvic inflammatory disease. However, he ordered no blood work. The ultrasounds of the kidneys and the pelvis were normal. The symptoms and findings justified a pelvic echogram, but not a kidney echogram. Petitioner proved that the kidney echogram was not medically necessary, so that it overpaid $61.57 for this service. Petitioner failed to prove that the pelvic echogram was not medically necessary. On March 17, 1998, Patient 13 presented at Respondent's office with complaints of moderate chest pain behind the sternum with palpitations and anxiety. Diagnosing chest pain, mitral valve prolapse, and anxiety, Respondent ordered an electrocardiogram, which Petitioner allowed, and an echocardiogram and doppler echocardiogram, which Petitioner denied. The results from the latter procedures were normal. Petitioner failed to prove that these two procedures were not medically necessary. On June 12, 1998, Patient 13 presented at Respondent's office with complaints of leg pain of two to three months' duration with heaviness and discomfort, especially at night. Patient 13 also complained of mild shortness of breath and moderate cough. The history included bronchial asthma. The physical examination found normal full expansion of the lungs, but scattered expiratory wheezes in both lungs, as well as a possible enlarged and tender liver. The ankles displayed moderate inflammatory changes. Respondent diagnosed Patient 13 with varicose veins with inflammation and bronchial asthma. Respondent performed a doppler study of the veins of the lower extremities, a duplex scan of these veins, and a spirometry, which Petitioner denied, and an aerosol, which Petitioner allowed. The doppler study suggested a mild degree of venous insufficiency with bilateral varicose veins and edema. The spirometry revealed a moderate chest restriction and mild airway obstruction. Petitioner failed to prove that any of these services were not medically necessary. On March 10, November 16, and December 18, 1998, Patient 14 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 14 during the audit period, so there is no dispute as to Patient 14. On March 18, 1998, Patient 15 presented at Respondent's office. Respondent billed an office visit, which Petitioner allowed. This is the only item billed for Patient 15 during the audit period, so there is no dispute as to Patient 15. On March 16 and 19 and April 8,1998, Patient 16 presented at Respondent's office. On each occasion, Respondent billed an office visit, which Petitioner allowed. These are the only items billed for Patient 16 during the audit period, so there is no dispute as to Patient 16. On September 4, 1998, Patient 17, who was 52 years old, presented at Respondent's office with complaints of leg pain after exertion and cold feet, as well as low back pain of several years' duration that had worsened over the past two to three weeks. Patient 17 also complained of low back pain that had persisted for several years, but had worsened over the past two to three weeks. The history included an heart bypass. The only abnormalities on the physical examination were decreased expansion of the chest, edema of the ankles, decreased peripheral pulses, and cold feet. Respondent performed a duplex scan of the arteries of the lower extremities, a spine X ray, and an injection to relieve back pain, all of which Petitioner allowed. Respondent also performed an electrocardiogram, which Petitioner denied. Even though the electrocardiogram revealed several abnormalities, nothing in the symptoms, history, or examination suggests any medical necessity for this procedure. Petitioner proved that the electrocardiogram was not medically necessary, so Petitioner overpaid $15.74 for this service. Four days later, on September 8, Patient 17 presented at Respondent's office with complaints of continuing low back pain, now radiating to the legs. The history and findings from the physical examination were identical to those of the office visit four days earlier. Respondent performed three NCVs, including an H-Reflex, which revealed a mild neuropathy. However, the symptoms and history did not justify these diagnostic procedures focused on the legs when the back was the longstanding problem area, nor did Respondent have any treatment plan for the back problem. Eventually, according to Respondent's testimony, a month or two later, he sent this patient to the hospital, where he could receive treatment for this painful condition. Petitioner proved that the three NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On October 2, 1998, Patient 17 presented at Respondent's office with complaints of chest pain on exertion of three days' duration. The physical examination disclosed decreased breath sounds in the lungs, but a regular rhythm of the heart. Respondent performed an echocardiogram, doppler echocardiogram, and duplex scan of the extracranial arteries. Given the patient's history of coronary artery disease and heart bypass, Petitioner failed to prove that these services were not medically necessary. On December 10, 1998, Patient 17 presented at Respondent's office with complaints of left flank pain and bilateral back pain of three days' acute duration, as well as urinary disorder and nausea. The physical examination was unremarkable. Respondent performed a kidney echogram, which was negative, to address his working diagnoses of urinary tract infection and kidney stones. However, Respondent performed no urinalysis, and the complaints did not justify elaborate diagnostics to rule out the improbable condition of stones. Petitioner proved that the kidney echogram was not medically necessary, so it overpaid $59.57 for this service. On October 9, 1998, Patient 18, who was 35 years old, presented at Respondent's office with complaints of chest pain and palpitations of gradual onset over nearly one year, unrelated to exertion and accompanied occasionally by moderate shortness of breath. Patient 18 reported that she had smoked heavily for several years and suffered from intermittent smoker's cough and phlegms. Relevant history included asthma and bronchitis. The physical examination revealed that the lungs were clear and the chest expanded fully. Petitioner allowed several cardiac diagnostic procedures, but denied a spirometry and aerosol, the former as medically unnecessary and the latter as lacking documentation. The spirometry revealed severe chest restriction. Given the results of the spirometry and the history of Patient 18 as a heavy smoker, Petitioner failed to prove that the spirometry was not medically necessary, but, given the mild symptoms at the time of the treatment, without regard to whether Respondent provided documentation, Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.62 for this service. On October 16, 1998, Patient 18 presented at Respondent's office with complaints of persistent neck pain, radiating to the arms and hands. The physical examination disclosed a substantial limitation in range of motion of the neck, but no focal signs. Respondent performed three NCVs, including an H-Reflex, and an SSEP of the upper extremities, which revealed some abnormalities. Notwithstanding the positive findings, the absence of any treatment plan undermines the medical necessity of these diagnostic procedures. In response to these findings, Respondent merely changed Patient 18's anti- inflammatory medication, which he obviously could have done with negative NCVs and an SSEP. Petitioner has proved that the three NCVs and SSEP were not medically necessary, so it overpaid $195.12, $73.96, $21.64, and $42.68 for these services. On October 17, 1998, Patient 18 presented at Respondent's office with complaints of pelvic pain and vaginal discharge with left flank pain and urinary disorders. She also complained of leg pain and fatigue after standing. A previously performed urinalysis had revealed blood in the urine. The physical examination found vaginal discharge and pain in cervix motion to the right and left sides. It also found normal peripheral pulses and normal movement in all limbs, although some varicosities and inflammatory changes were present. Respondent performed echograms of the kidneys and pelvis and a doppler study and duplex scan of the veins of the lower extremities. Although both echograms were normal, these procedures were justified due to the symptoms and findings. The procedures performed on the lower extremities, which revealed a mild degree of venous insufficiency, were not justified by the complaints or findings. Petitioner failed to prove that the echograms were not medically necessary, but proved that the doppler and duplex procedures were not medically necessary, so it overpaid $38.75 and $108.58 for these services. On November 18, 1998, Patient 18 presented at Respondent's office with complaints of weakness of two to three months' duration and eating disorders. The physical examination uncovered a palpable, enlarged thyroid, even though, one month earlier, the physical examination found the thyroid to be non- palpable. Although the medical records indicate that Respondent ordered laboratory tests of thyroid function, no such reports are in his medical records, and, more importantly, he performed a thyroid echogram, which was normal, prior to obtaining the results of any laboratory work concerning thyroid function. Petitioner proved that the echogram was not medically necessary, so it overpaid $45.24 for this service. On January 21, 1999, Patient 19, who was four months old, presented at Respondent's office with a cough. Eight days earlier, Patient 19 had presented at Respondent's office with the same condition, and Respondent had recommended that the patient's mother hospitalize him if the symptoms worsened. A physical examination revealed that the lungs were clear and the chest fully expanded. Respondent administered an aerosol. Petitioner proved that the aerosol was not medically necessary, so it overpaid $10.97 for this service. On February 2, 1998, Patient 21, who was 46 years old, presented at Respondent's office with complaints of generalized headache and chest discomfort. For the past two weeks, Patient 21 had also suffered from painful urination. The relevant history included non-insulin-dependent diabetes and paranoid schizophrenia. The physical examination indicated that Patient 21's heart beat in regular rhythm. Patient 21's blood pressure was 190/105, and his cholesterol and triglyceride were high. His femoral and popliteal pulses were decreased. Respondent performed an electrocardiogram, which Petitioner allowed, and, after learning that the results were borderline abnormal, an echocardiogram and doppler echocardiogram, which Petitioner denied. Given the symptoms, Respondent was justified in proceeding with additional diagnostic tests, especially given the difficulty of treating a schizophrenic patient. Petitioner failed to prove that the echocardiogram and doppler echocardiogram were not medically necessary. On March 2, 1998, Patient 21 presented at Respondent's office with complaints, of four months' duration, of leg pain when standing or walking a few blocks. The physical examination revealed decreased peripheral pulses. Respondent performed a doppler study and duplex scan of the veins of the lower extremities, which were both normal. Given the diabetes and schizophrenia, these diagnostic procedures were justified. Petitioner failed to prove that these services were not medically necessary. On April 2, 1998, Patient 21 presented at Respondent's office with complaints of worsening leg pain, now accompanied by numbness and tingling in the feet and sensorial deficit on the soles of the feet. The physical examination was substantially the same as the one conducted one month earlier, except that the deep reflexes were hypoactive. Respondent performed three NCVs, including an H-Reflex, on the lower extremities, and they revealed abnormal motor functions. However, the failure of Respondent to prepare a treatment plan or refer Patient 21 to a specialist precludes a finding of medical necessity. Petitioner has proved that these NCVs were not medically necessary, so it overpaid $195.12, $73.96, and $21.64 for these services. On April 30, 1998, Patient 21 presented at Respondent's office with complaints of difficulty urinating for the past three or four days. A physical examination revealed an enlarged, tender prostate. Forming a working diagnosis of prostatitis and chronic renal failure, Respondent performed prostate and kidney echograms, which were both normal, but no laboratory work on the urinary problems. Petitioner failed to prove that the prostate echogram was not medically necessary, but proved that the kidney echogram was not medically necessary, so it overpaid $61.57 for this service. On July 3, 1998, Patient 21 presented at Respondent's office with complaints of visual disorders, dizziness, blacking out, and fainting, all of several months' duration. Respondent performed a carotid echogram, which was normal. Petitioner failed to prove that this service was not medically necessary. On August 4, 1998, Patient 21 presented at Respondent's office with complaints of moderate neck pain of five or six months' duration, radiating to the shoulders and arms and accompanied by tingling and numbness of the hands. The physical examination disclosed decreased femoral and popliteal pulses, limited motion in the neck and shoulders, pain in the shoulders upon manual palpation, pain in the wrists upon passive movements, and decreased grip on both sides. Respondent performed two NCVs, including an H-Reflex, and an SSEP, all of the upper extremities. The NCVs suggested bilateral carpal tunnel syndrome, and the SSEP showed some abnormalities of nerve root function. Respondent responded to these data with a prescription for physical therapy three times weekly. Petitioner failed to proved that the two NCVs and SSEP were not medically necessary. On September 1, 1998, Patient 21 presented at Respondent's office with complaints of "chest oppression" and hypertension since the previous day. Patient 21 also complained of moderate neck pain and urinary discomfort of three days' duration. His blood pressure was 160/100, and his heart was in regular rhythm. Respondent performed an electrocardiogram, which Petitioner allowed, and a 24-hour electrocardiogram with a halter monitor, after learning that the results of the initial electrocardiogram were abnormal. Petitioner disallowed the latter procedure, but failed to prove that it was not medically necessary. On October 6, 1998, Patient 21 presented at Respondent's office with complaints of chest pain, dizziness, fainting, excessive hunger and weight gain, and weakness. His blood pressure was 170/100, and his pulse was 88. His heart beat in a regular rhythm, and his thyroid was enlarged, but smooth. Respondent performed an echogram of the thyroid, even though he had not ordered laboratory work of thyroid function. He performed an echocardiogram and a doppler echocardiogram. All echograms were normal, although Patient 21 suffered from some mild to moderate sclerosis of the aorta. Petitioner proved that these echograms were not medically necessary because the thyroid echogram was not preceded or even accompanied by laboratory work of thyroid function, and the other procedures of repeated diagnostic tests that Respondent had performed eight months earlier and were normal at that time. Petitioner thus overpaid $43.24, $61.96, and $29.31 for these services. On November 6, 1998, Patient 21 presented at Respondent's office. Petitioner downcoded the office visit, but, as discussed above, the failure of Petitioner to produce the CPT manual prevents a determination that Respondent overbilled the visit. On January 4, 1999, Patient 21 presented at Respondent's office with complaints of flank pain of four months' duration accompanied by several urinary disorders, chills, and occasional fever. The physical examination revealed a distended and soft abdomen and tenderness in the flanks and right upper quadrant. Respondent performed a kidney ultrasound, despite having performed one eight months earlier and obtained normal results, but learned this time that the left kidney had a cyst consistent with chronic renal failure. Petitioner failed to prove that this service was not medically necessary. On January 29, 1999, Patient 21 presented at Respondent's office with complaints of moderate back pain of two weeks' duration, radiating to the legs, and weakness in the legs. The physical examination revealed pain on bending backward or forward and muscle spasm. Respondent performed a lumbar X ray, which Petitioner allowed, and three lumbosacral NCVs, including an H-Reflex, which Petitioner denied. The NCVs revealed mild neuropathy, although an SSEP, evidently billed as an H-Reflex, was normal. Petitioner failed to prove that these services were not medically necessary. The total overpayments, before extrapolation, from Petitioner to Respondent are thus $5952.99.
Recommendation It is RECOMMENDED that the Agency of Health Care Administration enter a final order determining that, prior to extrapolation, Respondent owes $5952.99 for overpayments under the Medicaid program. DONE AND RECOMMENDED this 26th day of May, 2006, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 2006. COPIES FURNISHED: Alan Levine, Secretary Agency for Health Care Administration Fort Knox Building, Suite 3116 2727 Mahan Drive Tallahassee, Florida 32308 Christa Calamas, General Counsel Agency for Health Care Administration Fort Knox Building, Suite 3431 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Jeffries H. Duvall Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Craig A. Brand Law Offices of Craig A. Brand, P.A. 5201 Blue Lagoon Drive, Suite 720 Miami, Florida 33126 Oscar Mendez-Turino 2298 Southwest 8th Street Miami, Florida 33135
