The Issue Whether on or about March 6, 1978, the Respondent, Ronald M. Tauber, D.O., performed an abortion on Gloria Small at the Orlando Birthing Center, Orlando, Florida; during the course of which procedure, the patient's uterus was perforated and other complications ensued and despite an agreement from a hospital staff member at Orange Memorial Hospital, Orlando, Florida, between that staff member and Respondent to allow the transfer of the patient, Small, to Orange Memorial Hospital for emergency treatment the Respondent did not transfer the patient to the hospital until March 7, 1978, and further, that notwithstanding an emergency hysterectomy operation performed at that hospital, Gloria Small died. It is alleged that should the above-stated facts be proven, the Respondent, Ronald M. Tauber, D.O., would have failed to demonstrate satisfactory professional skill, judgment or knowledge expected of him and to have exhibited an inability to practice osteopathic medicine with reasonable skill and safety and that his professional conduct departed from minimal standards of acceptable and prevailing osteopathic medical practice, in violation of Subsections 459.14 (2)(c) and (m), Florida Statutes. (The Administrative Complaint in this cause contained paragraphs 1 and 2 which were dismissed by the undersigned with leave for the Petitioner to amend. The Petitioner did not undertake such an amendment and the paragraphs 1 and 2 of the Administrative Complaint were not considered in the course of the hearing. Paragraph 5 of the Administrative Complaint was stricken and has not been considered. The phrase found in paragraph 3 of the Administrative Complaint which is constituted of the language "as well as other abortion procedures" was stricken and was not the subject of consideration in the course of the administrative hearing. Finally, the Petitioner moved to withdraw any reference to the substantive allegations found in paragraph 4 of the Administrative complaint pertaining to Subsections 459.14(2)(h), (k), and (n), Florida Statutes, and that motion was granted without opposition from the Respondent.)
Findings Of Fact This cause comes on for consideration based upon the Administrative Complaint filed by the Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Osteopathic Medical Examiners, against Ronald M. Tauber, D.O., Respondent. The date of that Administrative Complaint is April 24, 1978. The dispute to be resolved in the hearing process is as set forth in the issue statement of this Recommended Order. To that end, a formal hearing was held in accordance with the provisions of Subsection 120.57(1), Florida Statutes, during the course of which, testimony and other evidence were presented by the parties. The Petitioner, State of Florida, Department of Professional and Occupational Regulation, Florida State Board of Osteopathic Medical Examiners, is an agency of the State of Florida whose purpose is that of licensure and regulation of those individuals who practice osteopathic medicine in the State of Florida. The Respondent, Ronald M. Tauber, D.O., is licensed by the Petitioner in the State of Florida to practice osteopathic medicine and his license number is 3430. At all times pertinent to the Administrative Complaint, Dr. Tauber was so licensed. The facts in the case reveal that the Respondent in the month of March, 1978, was practicing osteopathic medicine in a facility located at 419 North Magnolia, Orlando, Florida. This particular structure was a building with approximately 9,000 square feet of office space which Dr. Tauber used in the practice of his specialty, obstetrics and gynecology. His type facility has been referred to as a "free standing clinic" that offers among other services elective abortions, to include those performed in the late first trimester or early second trimester of the patient's pregnancy. Some of the equipment in the installation included a maternal fetal monitor, a cardiac monitor and defibulator which were part of a crash cart. The crash cart also contained items for resuscitation of adults and infants, including drugs, tubes, scopes, Laryngoscopes and Ambu bags. There was an operating room with an operating-obstetrical table. There were sources of sterilization by gas and steam. The office also contained instruments for minor gynecologic surgery, to include abortions and laparoscopy. There was an office area used by the Patient Education Coordinator- Counselor who was a member of the Respondent's staff. This Counselor conferred with prospective abortion patients concerning the pros and cons of such a procedure, to include alternatives to pregnancy termination. The office contained a laboratory which had equipment for the performance of blood counts, cultures, urine tests, other chemistry tests, blood typing and blood cross-matching. In connection with the blood work-ups, there was a blood bank refrigerator; however, no arrangements had been consummated for the storage of blood in that refrigerator prior to the abortion which was performed on the patient, Gloria Small, the subject of this complaint. In a related area, the Respondent intended to employ an anesthetist who would give Dr. Tauber the capability of utilizing general anesthesia in his operative procedures. This arrangement had not been made on or before March 6, 1978, and the abortion performed on Gloria Small was without the benefit of any form of general anesthesia. The personnel who worked in the facility in March, 1978, included a full-time registered nurse, a number of part-time registered nurses; a full-time licensed practical nurse, a number of part-time licensed practical nurses; a full-time certified operating room technician; a part-time licensed practical nurse who functioned as a LaMaze instructor and other functions associated with the maternity aspect of the facility; a medical records librarian; a receptionist; a full-time housekeeper; a part-time maintenance man and a business advisor/bookkeeper. Dr. Tauber had arranged for backup personnel in the persons of a pediatrician in the child delivery cases and a medical doctor who specialized in obstetrics and gynecology. These individuals were to assist in the procedures at the clinic and to cover for Dr. Tauber when Dr. Tauber was unavailable. However, the medical doctor in the field of obstetrics and gynecology did not have hospital privileges and neither did Dr. Tauber. There were two other physicians who had agreed to give hospital coverage for Dr. Tauber in complicated cases, but this arrangement excluded abortion procedures. On March 2, 1978, the patient, Gloria Small, was seen by Dr. Tauber and he accepted her case. Ms. Small requested a pregnancy termination and sterilization. During his initial interview and examination, the Respondent took the patient's personal history and conducted a physical examination and determined that the patient was pregnant approximately fourteen to fifteen weeks according to the gestational size. In addition to the physical examination, Dr. Tauber counseled the patient about the abortion and sterilization procedures and indicated alternatives to those procedures and the risks involved in each course that might be pursued. The patient indicated a desire to go forward with the abortion and sterilization procedures and in preparation for the procedures the Respondent ordered certain laboratory work, including hematology; type and Rh and urinalysis. This lab work was performed. Subsequent to this time, the patient was seen by the office counselor and continued to indicate her desire to have the procedures performed and the patient was scheduled for the procedures to be conducted on March 6, 1978. When the patient arrived on the morning of March 6, 1978, she was prepared for the abortion and sterilization procedures to the extent of being sterilly cleaned and having a medication administered to relax the patient. (At the time the Respondent performed the abortion and sterilization procedures on the patient, he had performed a significant number of these procedures before.) When the patient was presented in the operating room, she had been administered Nisentil in the amount of 40 milligrams. This is an analgesic drug designed to decrease the pain during the procedure. The patient was also given Atropine, a parasympathetic, to slow down the digestive track and to decrease the chance of nausea and to retard salivation. Intravenous lines were opened and the patient was given compositions of fluids which had a mineral and sugar content. The doctor was assisted by a scrub technician and there was a circulating registered nurse available. The procedures began at approximately 12:00 noon and were concluded at 1:25 p.m. The patient was dialated and the suction cannula was placed in the uterus and the suction machine turned on, at which point the materials in the uterus began to flow into the suction machine. In view of the advanced stage of the pregnancy, it was then necessary to place various instruments, ring forceps, to withdraw the pregnancy tissue. In the course of the manipulations, placental tissue was observed being brought down. At that point, the patient began to bleed heavily. Dr. Tauber placed the ring forceps into the uterus and the ring forceps went beyond normal depths expected in such an examination of the uterus. This preliminary procedure led to the eventual verification that a perforation had occurred. At this juncture, the doctor was working in the cervical canal. The doctor's response to the apparent perforation was to place the laparoscope and attendant instrument into the abdomen, setting up the procedure with a local anesthesia. When this action was taken, the Respondent, using a fallopian applicator (which was to be used in the sterilization procedure) lifted the uterus and saw a perforation two to four centimeters in length in the right posterior aspect of the lower uterine segment. At this point of observation, the perforation was not bleeding. There was a certain amount of blood in the lower dependent portion of the abdomen which did not measure more than 25 cc and this was consistent with a perforation that was not bleeding. The operating room technician was allowed to visualize the perforation through the laparoscope and the medical doctor who specialized in obstetrics and gynecology was called to assist. While the Respondent was waiting for the arrival of the backup physician, he allowed the operating room technician to assist him by viewing through the laparoscope while the Respondent turned to the vaginal aspect of the procedure and entered the uterus. During the process of the evacuation of the remaining placental tissue, the Respondent placed an instrument through the performation a second time; however, no additional bleeding was observed at that point. The bleeding which had been observed initially had slowed to a continuous ooze and this amount of bleeding caused the Respondent to observe the area of the perforation for an additional period of thirty minutes or more to confirm that the bleeding was not increasing in volume. The backup physician also observed the area of the perforation and consulted with the Respondent about the complication. The dialation and evacuation procedure was completed and the fallope rings applied and when the Respondent was convinced that he didn't have bleeding intra-abdominally, the patient was packed by placing gauze-type material in the vagina, thereby promoting pressure against the bleeding area. (The sequence of observations through the laparoscope that have been mentioned before occurred after the packing had been placed.) During the pendency of the observation, no blood was observed to be coming through the packing. Contemporaneous to the observations, fluids were used to replace the high blood loss. That amount of blood loss was believed to be in the amount of 1500 cc. When the complications occurred in the course of the operation, there was a drop in blood pressure and an increase in the pulse rate. In addition, the pre-operative hemoglobin was 13.5 g.m. as compared to 9.5 g.m. post- operative, and the hemoglobin ranged from around 8.2 g.m. through the higher 8.0 g.m. and lower 9.0 g.m., from the period immediately following the operation until around 5:00 p.m.., March 7, 1978. A more complete detail of the change in blood pressure, pulse rate and hemoglobin count may be found in Petitioner's Composite Exhibit No. 1, which is a copy of the Respondent's case records on the patient, Gloria Small. From an examination of all the vital signs, the patient was hypovolemic to the extent of being in hypovolemic shock following the aforementioned procedures. At the conclusion of the operation, Dr. Tauber instructed his staff to monitor the patient closely, and she remained on the cardiac monitor which had been employed during the operative procedures and the patient's vital signs, to- wit, blood pressure and pulse, were checked frequently. In addition, the staff was instructed to catherize the patient after six hours if the patient did not void and to record the amount of fluid intake and output and to observe the patient for vaginal bleeding. The patient was also given fluids to include dextrose and water and Normasol M, together with certain medication. These instructions were carried out by the staff. Dr. Tauber continued to give the patient fluids and to consider whether the patient should be transfused with whole blood. Around 3:00 p.m. on March 6, 1978, Dr. Tauber decided to infuse the patient with whole blood. He contacted the managing director of the Central Florida Blood Bank to attempt to gain the permission of that organization to provide whole blood for the benefit of the patient, Gloria Small. There had been some preliminary contact with the blood Bank about providing blood for patients of Dr. Tauber, but that arrangement had not been finalized prior to Gloria Small's operation. The managing director conferred with the medical director of the blood bank and a decision was made to honor Dr. Tauber's request for blood. Some delay ensued due to a mix-up on the part of Dr. Tauber's staff on the question of labeling the samples; nonetheless, this problem was rectified and at 6:10 p.m., and again at 7:25 p.m., blood was delivered for the benefit of the patient, Gloria Small, and that blood was infused into the patient. Contrary to the recollection of the Respondent, there is no record of further units of blood being requested by the Respondent, Dr. Tauber, for the benefit of the patient, Gloria Small, and, therefore, officially no such request was made of the blood Bank during the pendency of Dr. Tauber's treatment of the patient. As a consequence, the further treatment which Dr. Tauber gave the patient, Gloria Small, was without the benefit of the immediate availability of further units of blood. As previously stated, Dr. Tauber did not have hospital privileges and had not made any prior arrangement for the patient to be turned over to a physician with hospital privileges, in the event a medical emergency arose which required the hospitalization of the patient, Gloria Small. His first effort at making such an arrangement occurred between 5:00 and 5:30 on March 6, 1978, when he contacted a Dr. Lassiter, a resident in obstetrics and gynecology at the Orange Memorial Hospital, Orlando, Florida. The purpose of such conversation was to arrange for the patient to transfer if her condition worsened. Dr. Lassiter was unable to make this arrangement and it was only after the physician in charge had been conferred with that it was arranged for the patient, Gloria Small, to be accepted at Orange Memorial Hospital. This agreement was reached by the Respondent and the physician in charge, one Dr. Herran. Dr. Herran then confirmed this agreement with Dr. Lassiter, the resident, and instructed Dr. Lassiter to accept the patient, Gloria Small, if she were transferred and to immediately notify Dr. Herran if such transfer did occur. Dr. Tauber left his clinic around midnight of the morning of March 7, 1978, and left the patient in charge of a staff nurse. He returned to the hospital on the morning of March 7, 1978, and the patient's condition remained stabilized until approximately 5:00 p.m. on March 7, 1978. Up until that point, the bleeding that had been experienced following the initial hemorrhage was slight, and it was decided to remove the packing which had been placed at the conclusion of the operation. Most of the packing had been removed and there was no sign of bleeding, when a substantial hemorrhage took place in the cervical canal. At that point, Dr. Tauber repacked and made arrangements for an emergency ambulance, to transfer the patient to the hospital, and to notify Dr. Herran. The patient's vital signs began to deteriorate and during the transportation of the patient from Dr. Tauber's facility to Orange Memorial Hospital, the patient began to show marked signs of hypevolemic shock. Upon arriving at the Orange Memorial Hospital, the patient became the charge of that hospital staff and Dr. Tauber was no longer responsible, although he stayed with the patient and offered assistance, which was declined. The events which transpired at the Orange Memorial Hospital evidenced an inordinate delay on the part of the staff in properly administering to the needs of the patient. Whether this significantly contributed to the patient's ultimate demise is unresolved, but having arrived at the hospital in a condition where her body was already at a low ebb and unable to tolerate further insult, the patient died following a hysterectary performed in the Orange Memorial Hospital. The principal factor in that death was hypovolenic shock. Out of these events, the Petitioner has charged Dr. Tauber with a failure to demonstrate satisfactory professional skill, judgment or knowledge in the treatment of the patient, Gloria Small, and the accusation that Dr. Tauber has exhibited an inability to practice osteopathic medicine with reasonable skill and safety and that his professional conduct departed from minimal standards of acceptable and prevailing osteopathic medical practice. The particular substantive allegations which remain to be considered at this time are found in Subsections 459.14(2)(c) and (m), Florida Statutes, which state the following: 459.14 Refusal, revocation and suspension of license, etc.-- (c) Gross malpractice or the inability to practice osteopathic medicine with reasonable skill and safety. In enforcing this paragraph the board shall, upon just cause shown, have authority to compel a physician to submit to a mental or physical examination to be conducted by physicians designated by the board, such examination to be at the expense of the board. Failure or refusal of a physician to submit to such an examination when so directed by the board shall constitute an admission of his inability to practice osteopathic medicine with reasonable skill and safety. (m) A finding by the board that the indivi- dual is guilty of immoral or unprofessional conduct. Unprofessional conduct shall include any departure from, or failure to conform to, the minimal standards of acceptable and prevail- ing osteopathic medical practice, without regard to the injury of a patient, or the committing of any act contrary to honesty, whether the same is committed in the course of practice or not. In addressing the question of the application of these substantive standards set forth above to the facts reported in this case, the parties have offered the testimony of a number of persons within the profession of osteopathic medicine and other physicians who are medical doctors. An analysis of their testimony in view of the accusations in this cause establishes that the Respondent has evidenced an inability to practice ostepathic medicine with reasonable skill and safety within the meaning of Subsection 459.14(2)(c), Florida Statutes, and is likewise guilty of unprofessional conduct for departing from minimal standards of acceptable and prevailing osteopathic medical practice within the community where he practiced as required by Subsection 459.14(2)(m), Florida Statutes. The facts that led to these conclusions are those which show that the Respondent went forth with the dialation and evacuation and sterilization procedures of Gloria Small at a time when he did not have hospital privileges and at a time when he was unassociated with those persons who would have the necessary hospital privileges to address complications which might occur during these procedures, which complications might need immediate and well-defined access to a hospital facility. In addition, the possibility existed that the patient would need whole blood and other products associated with fluid replenishment and the Respondent had failed to make adequate arrangements for such eventuality, which failure caused undue delay in the infusion of the whole blood in the patient, Gloria Small. The problem in this case concerning the lack of readily available blood or blood products constituted a violation of the aforementioned standards on the part of Dr. Tauber and the very fact that Dr. Tauber had not made the prior arrangements to have available such blood or blood products constituted a further violation of the aforementioned standards. In a related area, that condition which would cause a necessity of the infusion of blood, to-wit, hypovolemic shock, had not adequately been anticipated, in violation of the necessary standards, even if you assume that Dr. Tauber made a sufficiently prompt response to the patient's hypovolemic condition which occurred following Dr. Tauber's operative procedures. Had the blood been needed more promptly, the Respondent was not prepared. There was considerable debate on the question of the necessity to transport the patient, Gloria Small, to a hospital following the substantial hemorrhage which occurred in the dialation and evacuation and sterilization procedures. After close scrutiny, it does not appear that the Respondent was remiss for not transferring the patient to Orange Memorial Hospital as opposed to the occasion when he did transfer her, remiss within the meaning of a violation of a standard set forth in Chapter 459, Florida Statutes. The procedures which Dr. Tauber used in discussing the case with his patient, Gloria Small, and providing other counseling do not violate provisions of Chapter 459, Florida Statutes, nor is the act of perforation itself and the contemporaneous management of that perforation in violation of Chapter 459, Florida Statutes. Likewise, the response which Dr. Tauber made in the second emergency on March 7, 1978, when the bleeding occurred did not violate the provisions of Chapter 459, Florida Statutes. Finally, it cannot be determined from this record whether Dr. Tauber could have avoided the confusion which took place after the patient was transferred to Orange Memorial Hospital, by earlier coordination with Dr. Herran; and in view of the fact that the patient was no longer his charge once she had been admitted to Orange Memorial Hospital, there can be no responsibility, within the meaning of Chapter 459, Florida Statutes, for those events which transpired when the patient was admitted to Orange Memorial Hospital. The parties have availed themselves of the opportunity to submit findings of fact, conclusions of law and recommendations and these offerings have been reviewed prior to the rendition of this Recommended Order and to the extent that they are not inconsistent with the Recommended Order, they have been utilized in aid of the preparation of this Recommended Order. To the extent that these proposals are inconsistent with the Recommended Order, they are hereby specifically rejected.
Recommendation In view of all the facts and circumstances, it is recommended that the Respondent, Ronald M. Tauber, D.O., have his license to practice osteopathic medicine in the State of Florida suspended for a period of two (2) years. DONE AND ENTERED this 10th day of May, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101, Collins Building 530 Carlton Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire Post Office Box 1752 Tallahassee, Florida 32302 Michael Sigman, Esquire Suite 1515 CNA Tower Orlando, Florida 32801 Roy Lucas, Esquire 1055 Thomas Jefferson Street, N.W. Suite 604 Washington, D.C. 20007 Samuel Weiss, Esquire 1180 Hartford Building 200 East Robinson Street Orlando, Florida 32801
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration (“the Agency”), which finds and concludes as follows: 1. The Agency issued the Petitioner (“the Applicant”) the attached Notice of Intent to Deny (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. 2. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $ 200.00 within 30 days of the entry of this Final Order. A check made payable to the “Agency for Health Care Administration” containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 3. Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney’s fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this @2/ day of Canuase/ 2012. Elizabeth Dudek,Secretary Agency for Health Care Administration Filed January 24, 2012 9:55 AM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this pea temas served on the below-named persons/entities by the method designated on thisZ3© day of > 2012. Richard Shoop, Agenc Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Roger Bell, Unit Manager Facilities Intake Unit Health Care Clinic Unit Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Interoffice Mail) Finance and Accounting Stevey Barnes, Owner Revenue Management Unit Agency for Health Care Administration (Interoffice Mail) National Family Medical Centers, Inc. c/o Rodney Gregory, Esquire Counsel for Petitioner 4811 Atlantic Boulevard, Suite 1 Jacksonville, Florida 32207 (U.S. Mail) Sharon K. Jones, Assistant General Counsel Office of the General Counsel Agency for Health Care Administration (Interoffice Mail) Barbara J. Staros Administrative Law Judge Division of Administrative Hearings (Electronic Mail) Rove NOR | Botfor Health Care forall Floridians alert eral duly 14, 2014 . CERTIFIED MAIL / RETURN RECEIPT REQUESTED National Family Medical Centers - : ; License Number: 5402 6349 Beach Blvd : Case #: 2011 00 7423 sacksonville, FL 32216 : : . NOTICE OF INTENT TQ DENY RENEWAL APPLICATION The application for health care clinic renewal. license for National Family Medical Genters is ° denied pursuant to Section 400.991(5)(d); and, s. 400.995 (1), Florida Statutes (F.S.), which’. requires all applicants as.defined by s, 400,991(5)(a), F.S., successfully complete a Level 2 background screening for convictions set forth on s. 435. 04, F.S., as minimum requirement for licensure. Stevey L. Barnes; the 100% owner of National Family ‘Medical Centers Is considered - 8 controlling interest as set forth in s. 408.803 (7), F.S., has failed to successfully pass Level:2 esreering in accordance with 8, 400.991 (5) (a), () and (d), and s, 408,809 (1)(8); 8. 408.810 )F el aa Pr ed an 2 el EXPLANATION OF RIGHTS Pursuant to Section 420.569, F.S., you have the right to request an administrative hearing. In order to obfain a formal proceeding before the Division of Administrative Hearings under Section 120.57(1), F.S., your request for an administrative hearing must conform to the requirements in: Section 28-1 08. 201, Florida Administrative Code F. A.C), and must state the material facts you dispute. SEE ATTACHED ELECTION AND EXPLANATION OF RIGHTS FORMS. ce: Agency Clerk, Mail Stop 3 Legal Intake Unit, Mail Stop 3 Visit AHCA online at ahos.myflorida.com 2727 Mahan Driye,MS-53 Tallahassee, Florida 32308 L467 / STATE OF FLORIDA AGENCY FOR HEALTH CARE ADMINISTRATION NATIONAL FAMILY MEDICAL CENTERS, DOAH/Case No. 11-3958 Petitioner, v. AHCA No. 2011007423 STATE OF FLORIDA, AGENCY FOR HEALTH CARE ADMINISTRATION, Respondent. / SETTLEMENT AGREEMENT The Petitioner (“the Applicant’) and the Respondent (“the Agency”) voluntarily enter into this Settlement Agreement (“Agreement”) and agree as follows: 1. Parties/Background. The Applicant filed an application seeking renewal licensure within the jurisdiction of the Agency. After initial review, the Agency issued the Applicant an omissions letter and thereafter a Notice of Intent to Deny (“NOI”). The Applicant has since tendered to the Agency additional information and/or documentation in support of the application, which the Agency is willing to review. 2. Purpose and Effect of Settlement. Both parties wish to resolve this case without further litigation and recognize that by entering into this Agreement, both are expressly waiving their right to any legal proceeding they are entitled, including, but not limited to, formal and informal proceedings under Section 120.57, Florida Statutes, and appellate review. Both parties consent to the withdrawal of any request for formal or informal hearing if such a request has been made, as well as the relinquishment of jurisdiction of the informal hearing officer or administrative law judge. 3. Resumption of Application Review. The parties agree that this Agreement shall supersede the NOI and that the application will no longer be deemed to be incomplete and withdrawn from further review. If the Agency has not already completed its review of the application, it shall resume its review of the application upon entry of the Final Order adopting this Agreement. Nothing in this Agreement, however, shall prohibit the Agency from denying the application based upon any statute, rule, or regulation, and, if applicable, an unsatistactory licensure survey. Applicant shall retain the right to challenge any future denial of application preserving any and all administrative and/or legal rights with respect thereto. 4. Administrative Fee. The Applicant agrees to pay the Agency an administrative fee of $200.00 within 30 days of the entry of the Final Order. 5. Release. The Applicant releases and forever discharges the Agency, its employees and agents, both past and current, from any and all clairas. including, but not limited to, damages, attorney’s fees and costs, arising from or relating to the issuance or litigation of this NOI. Page | of 2 Eoxh6/7 Zz di 6. Costs and Attorney’s Fees. Each party shall bear their own costs and attorney’s fees. 7. Right to Counsel. The Applicant acknowledges the right to retain independent counsel and has either obtained its own counsel or voluntarily waived the right to counsel. The Applicant further acknowledges that Agency counsel represents solely the Agency and that Agency counsel has not provided any legal advice to, or influenced, the Applicant in the voluntary decision to enter into this Agreement. 8. Entire Agreement. This Agreement contains the entire understandings of both parties. This Agreement supersedes any prior oral or written agreements that may have existed between the parties. This Agreement may not be amended by either party except in writing. 9. Execution of Agreement. Both parties agree that an electronic signature suffices for an original signature, that an electronic or facsimile copy suffices for an original document, and that this Agreement may be executed in counterparts. This Agreement shall be effective upon full execution by all parties and adoption into a Final Order. After full execution of this Agreement, the Agency will enter a Finai Order adopting this Agreement and ciosing the case. The following representatives have read and understand this Agreement, are signing it freely and voluntarily, and acknowledge that they are authorized to enter into this Agreement. Molly McKikstry, Deputy Secretary Stevey L. L-Ba Health Qual#ty Assurance -’ National Fanpfly Medical Centers. Agency for Health Care Administration So c/o Rodney Gregory, Esquire 2727 Mahan Drive, Bldg. #3 Counsel for Petitioner Tallahassee, Florida 32308 4811 Atlantic Boulevard, Suite 1 Jacksonville, Florida 32207 DATED: 7/ 06 fod WG, William H. Roberts, Acting General Counsel Office of the General Counsel Offf€e of the General Counsel Agency for Health Care Administration Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308 Tallahassee, Florida 32308 DATED: pate: ///3 ZZ. Page 2 of 2
The Issue The issues are whether Respondent failed to maintain emergency medications, in violation of Florida Administrative Code Rule 59A-9.0225(1), and failed to ensure that a defibrillator was available for immediate use, in violation of Florida Administrative Code Rule 59A-9.0225(2). If so, another issue is the penalty that should be imposed.
Findings Of Fact At all material times, Respondent has operated, under the jurisdiction of Petitioner, a licensed abortion clinic facility, bearing license number 899. The facility in question is located in North Miami Beach. At the time of the surveys described below, Respondent also operated another facility in south Miami, but that facility is not involved in this case. All references to "facility" will therefore refer to the North Miami Beach location. On June 8, 2010, one of Petitioner's surveyors conducted a relicensure survey of Respondent's facility. As is typical of such surveys, this survey was unannounced. During the survey, the surveyor discovered three expired medications in the facility: 0.2 mg Isuprel®--expired August 2009, 0.4 mg atropine--expired February 2010, and an unspecified dosage of nalbuphone--expired February 2010. These expired medications were on a shelf in the operating room. During the survey, the surveyor also discovered that the facility did not have a defibrillator. At the conclusion of the survey, the surveyor conducted an exit conference with the sole employee present at the facility. During this conference, the surveyor explained these deficiencies and gave Respondent until July 8, 2010, to correct them. Subsequently, the surveyor prepared a report showing these violations and confirming that the deadline for correcting both deficiencies was July 8, 2010. On April 21, 2011, the surveyor returned, again unannounced, to the facility to conduct a followup survey and again found only one employee present at the facility. During this survey, the surveyor discovered three expired medications in the facility: one 500-ml IV bag of Lactated Ringer's-- expired April 2009, 1 mg atropine--expired November 2010, and 2% lidocaine hydrochloride injection--expired November 2010. The surveyor found these expired medications in a locked storage box on the crash cart, which is the cart used for medical emergencies. During the followup survey, the surveyor also discovered that the facility did not have a defibrillator. On the dates of both surveys, the facility did not have any surgical procedures scheduled. Also, no patients were present at anytime during either survey. During each survey, the surveyor selected five dates at random to determine if the facility had performed any second- trimester abortions, and she found that no such procedures had been performed on any of these dates. For this reason, the surveyor did not cite the facility for any violations that are contingent on the actual performance of second-trimester abortions--such as, the failure to have a registered nurse in the recovery room. Similarly, because no patient was present during the surveys, the surveyor testified that she did not cite the facility for a failure to maintain anaesthesia equipment in the operating room; the surveyor explained that the anaesthesiologist brings his or her own equipment when attending a surgical procedure. The surveyor explained that she cited Respondent for the deficiencies alleged in this case because they are contingent upon licensure only, not licensure and the actual performance of second-trimester abortions. At the time of each survey, regardless of the level of patient activity, the facility was open and capable of supporting the procedures for which it is licensed. Dr. Rosenthal offered an explanation for each of the deficiencies cited in this case. As he testified, the expired medications found during the followup survey were in a locked storage box maintained by a certified registered nurse anesthetist, who had not worked at the facility for several years, but had never returned to retrieve her storage box. However, Dr. Rosenthal's explanation does not account for why the surveyor missed the Lactated Ringer's IV fluid during the original relicensure survey, if, in fact, she did miss this item. (The other two items were not expired at the time of the earlier survey.) Notwithstanding any shortcoming in Dr. Rosenthal's explanation, more importantly, the record fails to establish the absence of current emergency medications and IV fluids at the facility. As noted below, the cited rule requires that the facility contains these items; as long as it does, the cited rule is not violated by the presence of expired medications and fluids at the facility. The presence of such expired items is insufficient, especially when the standard of proof, as noted below, is clear and convincing evidence, to support an inference that adequate, current medications and IV fluids were not also available at the facility. As Dr. Rosenthal testified, at the time of both surveys, Respondent maintained a single defibrillator, which he transferred from one facility to another, depending on which facility was to be the site of surgical procedures on a given day. This explanation is not responsive to the requirement of a defibrillator at each facility.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order finding Respondent guilty of failing to maintain a defibrillator and imposing an administrative fine of $500 for this violation and dismissing the charge pertaining to expired medications and IV fluids. DONE AND ENTERED this 10th day of July, 2012, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of July, 2012. COPIES FURNISHED: Vlad Van Rosenthal A Medical Office for Women Suite 402 909 Northeast 163rd Street Miami, Florida 33160 Nelson E. Rodney, Esquire Agency for Health Care Administration Suite 300 8333 Northwest 53rd Street Miami, Florida 33166 nelson.rodney@ahca.myflorida.com Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Stuart Williams, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Elizabeth Dudek, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308
Findings Of Fact Answers on the Application Amer Alanbari, M.D., applied to the Board of Medicine for licensure as a physician by endorsement on February 19, 1992. The application form he filled out and submitted asks two questions on page 4 under no. 8: "Are you now or have you ever been emotionally/mentally ill?" and "Have you ever received psychotherapy?" To both questions, Dr. Alanbari answered "No." Under "POSTGRADUATE TRAINING," Dr. Alanbari listed "[f]rom 7/1/88 to 6/30/89: No training." The application form also asked, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" To this question, Dr. Alanbari answered "No." Events Prior to the Application Amer Alanbari, M.D., naturalized in Newark, New Jersey, as a citizen of the United States on August 29, 1989, was born in Damascus, Syria in 1958. He received his medical degree in the same city on September 7, 1982, from the University of Damascus. Within a month he began specialty training in pulmonary diseases at the University of Nancy, Centre Hospitalier Regional de Nancy, in Nancy, France. His attendance in the program in France was from October 1, 1982 until July 30, 1984, From August 1984 until November 1986 he resided in Prospect Park, New Jersey, where he has family, a time during which he received no medical training. For the next year and one-half, approximately, from December 1, 1986, until June 30, 1988, Dr. Alanbari enjoyed an Internship in Internal Medicine at The University of Toronto, The Toronto Western Hospital in Toronto, Ontario, Canada. He completed training in Core Internal Medicine on June 30, 1988, and left the program in good standing. Sometime shortly before completing the training in Internal Medicine in Toronto, Dr. Alanbari suffered a crisis brought on by serious family and financial problems following the death of his father. The chief resident at The Toronto Western Hospital arranged for Dr. Alanbari to see a psychiatrist. The psychiatrist's diagnosis of Dr. Alanbari's condition was "depression"; an anti-depressant medication was prescribed. Dr. Alanbari took the medication for three weeks. After the three weeks, not convinced that he was suffering from depression and having received some training in psychiatry, himself, Dr. Alanbari ceased the medication. He has not seen a psychiatrist since. Upon leaving Toronto, Dr. Alanbari returned to Prospect Park, New Jersey. On November 18, 1989, Dr. Alanbari entered the Internal Medicine Program at the Department of Veterans Affairs Medical Center in Wilkes-Barre, Pennsylvania. He entered the program as a first year medical resident even though he had completed a first year residency earlier because, for whatever reason, he was unable to obtain a second year residency. Dr. Alanbari was not given an official letter from the VA facility informing him of the status of his training because it was an unusual time of the year to begin training. He was told by the VA Medical Center that he could remain until June and then his status would be determined. Dr. Alanbari, however, did not remain at the facility until June. He left the Medical Center on April 18, 1989, under the affectation that his ulcer had begun bleeding. Although Dr. Alanbari had an ulcer at the time, it was, in fact, not bleeding. In truth, Dr. Alanbari left the program because of difficulties in an engagement to be married. Dr. Alanbari did not reveal the true nature of the basis of his departure from the Wilkes-Barre VA facility because the issue of difficulties in his personal relationship with his fiancee was sensitive to him at least, in part, because of the Syrian culture in which he was raised. Moreover, he did not want to suffer a suggestion from supervisory medical personnel at the VA facility, as had been made earlier at the Toronto facility, that he see a psychiatrist again. He resisted such a suggestion because he felt he was capable of solving the problem himself. Dr. Alanbari's fiancee, a Syrian woman residing in New York, wanted to return to Syria while Dr. Alanbari was intent on conducting the practice of medicine in the United States. Forced to choose between his fiancee and his career, a decision with at least the potential for affecting the remainder of his life, Dr. Alanbari returned to Prospect Park, New Jersey, in order to make a decision free of the pressures of residency and the practice of medicine. For several months, Dr. Alanbari lived with family in New Jersey. In July of 1989, less than three months after leaving the Wilkes-Barre VA facility, Dr. Alanbari moved to New York and entered a first-year residency for the third time, again in Internal Medicine, but this time at the Methodist Hospital at 506 Sixth Street in Brooklyn, New York. At the time Dr. Alanbari submitted his application in February of 1992, he had completed the first two years of his residency at the Methodist Hospital in Brooklyn and was in the second half of his third year of residency in internal medicine. Events after the application's submission During the processing of Dr. Alanbari's application, the Board received a profile from the American Medical Association revealing the training Petitioner received at the Wilkes-Barre VA hospital. The contradiction between the profile and Dr. Alanbari's application led the Board to inquire further. On May 24, 1992, two months after the filing of the application, Dr. Alanbari appeared in the office of the Board to discuss problems with his application. The visit was followed by letters from Dr. Alanbari to the Board less than one month later. Although copies of the letters were stricken from the record, Dr. Alanbari testified at hearing that he informed the board by letter of the crisis he had suffered following his father's death shortly before leaving Toronto, the single visit to a psychiatrist at the suggestion of the Chief Resident, the psychiatrist's diagnosis of depression and the prescription of the anti-depressant. Dr. Alanbari answered "No," to the question on the application as to whether he had ever been emotionally or mentally ill because he was not convinced that he suffered from depression, was hesitant to reveal matters that were private and was not sure he could obtain a report from the psychiatrist because of his limited treatment. Dr. Alanbari also related to the Board in the same letter that he had started training at the Wilkes-Barre VA facility in December of 1988 but left in April of 1989 because of serious problems in his marital engagement. In November of 1992, Dr. Alanbari appeared before the Board's Credentials Committee. The meeting's minutes relate: After receiving testimony, it was determined that Dr. Alanbari has been less than truthful not only during the application process, but during his medical training and the independent psychiatric evaluation which was arranged through PRN. Dr. Alanbari stated that he was very hesitant to give details about his personal problems because he feels it is a matter of privacy. The minutes go on to reflect that Dr. Goetz of the Physicians Recovery Network recommended that Dr. Alanbari undergo a five-day inpatient evaluation through the Physicians Recovery Network. After a discussion with Dr. Goetz outside the Committee's meeting room, the minutes report, "Dr. Alanbari stated that he is agreeable to undergoing the five-day evaluation through PRN as suggested by Dr. Goetz." Motion was made, seconded and carried unanimously to retain jurisdiction until no later than the March, 1993, meeting to allow Dr. Alanbari to undergo evaluation through PRN and to complete a new, complete and accurate application. The Credentials Committee reconvened on March 19, 1993. Minutes of this second meeting show that, On March 10, 1993, a letter was received from Dr. Alanbari stating that he could not afford the cost of the PRN evaluation. Motion was made, seconded and carried unanimously to recommend denial of application based on his testimony at the November, 1992 Committee meeting, attempting to obtain a license by fraud and misrepresentation, failure to comply with the Board's request that he undergo five-day inpatient evaluation through PRN and failure to submit a new, complete and accurate application. The minutes also show, apparently, that an inde- pendent evaluation, an evaluation other than the five-day inpatient evaluation the board had requested Dr. Alanbari to undergo, had been conducted of Dr. Alanbari. Dr. Goetz of the Physicians Recovery Network opined to the board that "he felt Dr. Alanbari had not been forthright during the independent evaluation . . ." Dr. Goetz did not testify at the hearing. There was, therefore, no foundation laid for the opinion; nor, was it elaborated upon or explained by Dr. Goetz. No evidence was introduced as to who conducted the evaluation, of what it consisted or anything else about it. On November 4, 1993 the Order of the Board denying Dr. Alanbari's application was rendered. There is nothing of record to indicate what, if anything, relevant to this case transpired during the eight month period between the March meeting of the Credentials Committee and the Board's order. In the order's statement of grounds for the denial is the following, "Your mental condition interferes with your ability to practice medicine with skill and safety." Although nothing was produced by the Board at hearing to show what happened between March of 1993 and November of 1993, the minutes of the Credentials Committee contain the grounds found by the committee in support of a recommendation to the Board that the application be denied. Dr. Alanbari's "mental condition" as "interference with his ability to practice medicine" was not among the Credential Committee's grounds supporting the recommendation to the Board formulated in March of 1993. The hearing. Following Dr. Alanbari's explanation at hearing of the reasons for filling out his application as he had, the Board presented no witnesses to support its action in entering the denial order. The remainder of the Board's case was comprised of four exhibits: (1) Dr. Alanbari's application; (2) A letter from Robert A. Bear, M.D., stating that Dr. Alanbari left the program at the University of Toronto "in good standing. He did not break a contract. He was not offered a contract to continue training"; (3) the Credential Committee's minutes from its November 1992 meeting, and; (4) the Credential Committee's minutes from its March 1993 meeting. Aside from the four exhibits, the Board's case for denial rests on the "admission" under oath by Dr. Alanbari that his replies on the application were false, an "admission" made by an unrepresented applicant under withering cross- examination by substitute counsel for the board: Q . . . First of all, I want to establish, is it not true that you stated on your application to the Board of Medicine that you have never had any mental illness or been treated with any psychotherapy? A Yes, it was true, and that's why -- Q Doctor, however, isn't it also true that, in fact, you were seen by a psychiatrist and given medication? A Only once and I gave all the details, that's why I made my trip from New Jersey to meet with higher authorities to explain that special situation. It's my privacey [sic]. Q Doctor, that was after you said no, isn't that correct? A Yes. Q You keep talking about privacy here. Do you believe that you have a right to give a false answer on your application because you believe it to be a private matter. A It was delicate situation, I tried to deal with it with honesty, that's why I made my trip to Florida. I wanted to speak to someone. Q Doctor, was your answer on the application honest? A Yes. Q When you said no on the application, was that an honest answer? A If you asked me if any question on the application was honest, yes. Q No, I asked you if your answer on the application was honest, your answer to the question about psychotherapy and you said no. A The honest question, I don't know. Not yes, not no. Q But you answered no, didn't you, Doctor? A It was a very delicate situation and I presented the events as they happened and I left it to you to appreciate -- Q Doctor, did you submit such an explanation with your application when you said no? A No. Q You didn't, did you? A No. Q Now, did you honestly answer that question as to whether or not you had psychotherapy? A Initially, I said no, but -- Q Is that an honest answer, Doctor? A No, its not. Q Thank you. Do you believe, Doctor, that you have a right to tell a lie about something just because you consider it to be private? A I don't believe in telling lies. Q But you did, Doctor, didn't you? A I initially wrote down this, but again, the issue was very delicate, there was no good answer to this. Not a yes, not a no. Q Doctor, the truthful answer to that question was yes, wasn't it? A No. Q Doctor, did you receive psychotherapy? A No, sir. (Tr. 40-43, emphasis supplied). At hearing, Dr. Alanbari was also asked in light of the fact that he had discontinued the practice of medicine for more than a month on several questions why he had answered "no," to the question on the application, "Have you ever had to discontinue practice for any reason for a period of one month or longer?" (emphasis supplied). From his testimony, it was apparent that Dr. Alanbari believed "no" to be a correct answer because although he had ceased to practice medicine for more than a month on several occasions after graduation, he had never been forced by a licensing authority or anyone else to cease practicing medicine. Whenever he had lapses in practice of more than a month they were always by choice. He, therefore, had never had to discontinue practice, the precise question posed by the application. Dr. Alanbari's testimony on this subject squares with the remainder of his application from which it is obvious that he informed the board from the moment he first applied that he had not practiced for several periods of more than one month's duration subsequent to his graduation from medical school. This included a period from August of 1984 until November of 1986 and the time that he did not practice between July of 1988 and June of 1989 that preceded and followed his practice at the VA Medical Center.
Recommendation It is, accordingly, RECOMMENDED: That Dr. Alanbari be requested to submit additional information to the Board; and, That Dr. Alanbari's application be denied if he does not submit such additional information within 30 days of the request. If the Board does not choose to request additional information to clarify Dr. Alanbari's application then Dr. Alanbari should be certified by the Board to the Department for licensure by endorsement. DONE AND ENTERED this 21st day of September, 1994, in Tallahassee, Florida. DAVID M. MALONEY 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 21st day of September, 1994. APPENDIX Petitioner did not submit a proposed recommended order. Respondent's proposed findings of fact Nos. 1, 2, 3, 5, 7, 8 have been adopted, in substance, insofar as material. With respect to Respondent's proposed finding of fact No. 4, it was the Board which framed the issues of the hearing in its denial order. Dr. Alanbari adopted those issues. In all other respects the finding is accepted. With respect to Respondent's proposed finding of fact No. 6, Petitioner's representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 9, the representation was not fraudulent. With respect to Respondent's proposed finding of fact No. 10, the first sentence of the finding is accepted. The remainder of the finding is rejected. Although counsel stated at hearing that correspondence had been sent to Petitioner inquiring about the Wilkes-Barre program, there was no evidence presented of such correspondence. Nor was there evidence that Petitioner's participation in the program was anything other than temporary. His assertion, therefore, was not false. With respect to Respondent's finding of fact No. 11, the finding is accepted. The finding is relevant only to Petitioner's credibility. As explained in the body of the Recommended Order, under Petitioner's legitimate interpretation of the question, his answer was not false. COPIES FURNISHED: Amer Alanbari, M.D. 51 Layton Road Sussex, NJ 07461 Gregory A. Chaires, Esquire Allen R. Grossman, Esquire Assistant Attorneys General PL-01, The Capitol Tallahassee, Florida 32399-1050 Marm Harris, Executive Director Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay Acting General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue in this case is whether Petitioner’s claim for medical treatment by Dr. Gutovitz should be paid under the terms of her state health insurance plan.
Findings Of Fact Petitioner was, at all times relevant hereto, an employee of the State of Florida, receiving medical benefits under the State Employees’ HMO Plan (the “Health Plan”). In January 2015, Petitioner contacted North Florida OBGYN Associates, P.A. (the “Doctor’s Office”), to schedule a doctor’s appointment. A computer screenshot provided by the Department indicates that the purpose of the appointment was to “discuss infertility/endometriosis.” An appointment was scheduled for March 22, 2015. Upon arrival at the Doctor’s Office, Petitioner filled out an intake sheet. She stated the purpose of her visit was for the problems of “endo & checkup.” She indicated that she was not currently using birth control. As part of her medical history, she indicated: migraine headaches, reflux/IBS/ulcer, endometriosis, and infertility. Upon completion of his examination and treatment of Petitioner, Dr. Gutovitz dictated his “History & Physical Report” notes on the visit. He stated as follows: The patient is a 29 year old female who presents for a preconceptual consultation. LMP date: (2/25/2015) The frequency of cycles is monthly. The duration of menses is less than 3 days. The menstrual flow is moderate. The patient has never been able to conceive. The patient has been unable to conceive after 2 years of unprotected intercourse. Intercourse has been occurring twice per week. There has been associated abdominal pain, pain on intercourse, breast tenderness (only when she is on her period) and cramping (only in the morning and then will go away). Vitamin and mineral intake: currently on prenatal vitamins (taking Women’s one a day, vitamin b-12, vitamin d, calcium). Nutrition: normal /adequate. Unknown. There is a medical history of endometriosis dx at the 20 by Dr. Samuel Christian). Pt. presents to discuss conception. She and her partner have been trying to [get] pregnant for 2 years. She reports at age 21 she had a laparascopy for pain and was diagnosed with severe endometriosis and advised to have a hysterectomy. She had no follow up treatment, was not put on OCP. She continue to pain with menses, with intercourse and sometimes throughout the cycle. She does have regular cycles about 28 days apart. The partner has never had any children. He did have an injury to his scrotum about 7 years ago (fell off a truck onto some sharp object that “ripped open my scrotum in an L shape”), had stitches, significant swelling. Discussed components of conception –- ovulation, pathway and semen. Referral to the FIRM [Florida Institute of Reproductive Management] for SA [sperm analysis], and recommended consultation with Dr. Freeman. Suggest laparascopy. CPT for the pelvic pain. If covered by insurance, encouraged patient to have surgery done with Dr. Freeman. However, if not covered (if considered fertility intervention), would be happy to perform this surgery. Discussed fertile time in cycle, timing and frequency of intercourse. Brief review of fertility interventions. Pt happy with this information, will proceed to AS and schedule consultation with Dr. Freeman. Also discussed patient’s weight. Discussed healthy diet and exercise. Pt considering gastric sleeve procedure. Discussed some of the pros and cons of this being performed before or after fertility intervention. Pt likely to postpone surgery at this point. Dr. Gutovitz listed “Infertility, Female” as the diagnosis. The plan of treatment called for the patient to “Follow up with reproductive endocrinologist.” There is no mention of treatment for endometriosis. It is clear from Dr. Gutovitz’s notes that the purpose of the visit was to discuss infertility. Although endometriosis was mentioned, it was merely in a medical historical context. Following her visit to the Doctor’s Office, Petitioner made an appointment with Dr. Freeman (as advised by Dr. Gutovitz during the March 22 visit). She visited Dr. Freeman’s office on April 15, 2015. Dr. Freeman’s intake sheet on the patient indicates the chief complaint as “Primary infertility, endometriosis/pelvic pain.” Dr. Freeman discussed the infertility issue, but noted “[Petitioner] is interested in further evaluation and treatment but most interested in control of her pelvic pain.” Nonetheless, he noted that Petitioner’s husband would undergo a semen analysis to determine his fertility potential. About a week later, Petitioner presented again to Dr. Freeman for a follow-up visit. The doctor again addressed and discussed her pelvic pain and how it might be treated. He noted, “[Patient] is completely self-pay for fertility treatment and wishes to defer on HSG currently to see if tubal patency exists.” He concludes his notes on that visit with: At this point in time, [Petitioner] will forward results of her primary care physician’s lab work over to our office. Once this occurs, we will meet for reconsultation and likely undergo several cycles of empiric ovulation induction as a first step. If she does not become pregnant with that, then we will likely perform HSG to evaluate for tubal patency and consider the possibility of surgery. At the conclusion of the visit, they were understanding of the above, in agreement with the plan and rationale and had no additional questions or concerns. Empiric ovulation induction is a fertility treatment that induces ovulation. An HSG procedure uses dye to assess whether the fallopian tubes are blocked, i.e., whether there is tubal patency. Again, the doctor’s notes and comments address Petitioner’s endometriosis and pelvic pain, but his primary focus is on the infertility issue. Petitioner contends the two physicians simply misunderstood her needs or made a mistake when coding her office visits. The preponderance of evidence does not support her contention. Petitioner’s testimony concerning her claim was not persuasive. The Health Plan under which Petitioner was insured contains an exclusion of payment for infertility treatments. Section VI, Limitations and Exclusions, of the State Employees’ HMO Plan specifically excludes payment for “infertility treatment and supplies,” including testing, diagnostic procedures, and treatment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Management Services denying Petitioner's claim for reimbursement of payments relating to her medical treatments by Dr. Gutovitz. DONE AND ENTERED this 7th day of March, 2016, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of March, 2016. COPIES FURNISHED: Nesha Butterfield 2545 Chesterbrook Court Jacksonville, Florida 32224 Gavin D. Burgess, Esquire Department of Management Services Suite 160 4050 Esplanade Way Tallahassee, Florida 32399-0950 (eServed) J. Andrew Atkinson, General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 (eServed)
Findings Of Fact Several days prior to November 1, 1974, respondent had gone to a licensed medical doctor complaining of nervousness and a swollen and painful left leg. This doctor diagnosed her condition as plebitis and prescribed antibiotics and also the drug Darvon for pain. There was no evidence of elevated blood pressure at this time. On November 1, 1974, the respondent was on duty as a licensed practical nurse at the Cor Jusu Convalescent Center in Tampa, Florida. At approximately 9:00 P.M., the respondent began to have back pains and feel nervous and shaky. The respondent could not remember whether or not she had taken the prescribed drug Darvon, which can produce light-headedness, prior to going on duty that day. Another nurse on duty on the same floor, Ms. Ems, took respondent's blood pressure, which read 140 over 110. The respondent testified that she feared that she was going to have a stroke. She attempted to call her doctor, but could not reach him. She testified that she then called another doctor, Dr. Decobo, who told her to come in to see him the next day. Dr. Decobo testified that he could not remember whether or not he talked to respondent over the telephone on November 1, 1974. The respondent then decided to and did consume the drug Vistaril, which she thought to be helpful in relieving apprehension. This drug was obtained from those prescribed for a patient, Mrs. Falty. This was not a routine medicine for Mrs. Falty, but was to be administered when needed. Respondent informed nurse Ems that she had consumed the Vistaril. There was some dispute in the evidence as to the extent of respondent's ability to perform her duties after taking the drug Vistaril. Respondent admitted that she was unsteady and dizzy, but testified that she laid down for awhile and finished her charting. The only evidence of any harm being done by respondent was that a solution was spilled in a patient's room. The other nurse on duty, Ms. Ems, called the Director of Nursing, Ms. Kriston, and she in turn called respondent on the telephone. Ms. Kriston testified that respondent's speech was "slightly slurred". While she could not recall the exact conversation, Ms. Kriston felt that respondent was incoherent because she could not understand why she should go home. The respondent testified that she did not go home until her shift ended at 11:00 P.M. because she wanted to finish her charting and because she felt that there were too many patients for Ms. Ems to carry alone. She testified that at the time she felt she could carry out her duties until her shift ended. In retrospect, respondent admitted that she did not use good judgment and that she should have left the hospital at an earlier time. Respondent received her license as an L.P.N. in 1969. There was no evidence of any prior charges of immoral or unprofessional conduct on her part.
Recommendation While respondent is guilty of unprofessional conduct which is grounds for discipline under F.S. 464.21(1)(b), the evidence adduced at the hearing illustrates substantial mitigating factors which bear directly upon the penalty to be imposed. The event complained of occurred over a period of only two hours, a portion of which time respondent spent lying down. No patient was harmed during this two hour period. The penalty of suspension of a professional license should always be sparingly and cautiously used. Pauline v. Borer, 274 So.2d 1 (Fla. 1973). It is my conclusion that the record in this case demonstrates that suspension would be too harsh a penalty for this respondent, and it is recommended that the petitioner Board of Nursing place respondents on probationary status for a period of six months, with appropriate sanctions and/or reports, as prescribed by the Board within its discretion. Such a penalty would adequately safeguard and protect the public health, maintain the dignity of the nursing profession and sufficiently punish the licensee commensurate with her conduct. Respectfully submitted and entered this 5th day of September, 1975, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Geraldine B. Johnson, R.N. Ms. Janet G. Zeller Investigation and Licensing 122 Brentridge Drive 6501 Arlington Expressway, Brandon, Florida 33511 Jacksonville, Florida 32211 Julius Finegold, Esquire Frederick L. Joiner, Esquire 1130 American Heritage Build. 4616 West Kennedy Boulevard Jacksonville, Florida 32202 Tampa, Florida 33609
