The Issue The issue is whether the medical license held by Respondent, Louis C. Alaia, M.D., should be revoked or otherwise penalized based on the acts alleged in the Administrative Complaint.
Findings Of Fact The Respondent, Louis C. Alaia, M.D., was issued Florida medical license ME 0008062 on August 14, 1958. Dr. Alaia placed his Florida license on voluntary inactive status on December 31, 1979. Dr. Alaia's last known address is 18890 Santa Clara Circle, Fountain Valley, California. The Board of Medical Quality Assurance, the licensing authority for the State of California, revoked Dr. Alaia's license to practice medicine in California on May 15, 1987. The revocation was based on Dr. Alaia's conviction for manslaughter for the murder of his former wife and her boyfriend, on his inability to safely practice as a result of impairment from narcolepsy and cataplexy, and on his failure to show rehabilitation following the convictions and incarceration for the killings.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Department of Professional Regulation, Board of Medicine, enter a Final Order and therein revoke the license of Louis C. Alaia, M.D., to practice medicine in the State of Florida. DONE and ENTERED this 7th day of February, 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 7th day of February, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4659 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact submitted by Petitioner, Department of Professional Regulation, Board of Medicine 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1), 2(2), and 3(2). COPIES FURNISHED: JONATHAN KING STAFF ATTORNEY DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 LOUIS C. ALAIA 18890 SANTA CLARA CIRCLE FOUNTAIN VALLEY, CALIFORNIA 92708 KENNETH EASLEY GENERAL COUNSEL DEPARTMENT OF PROFESSIONAL REGULATION 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750 DOROTHY FAIRCLOTH EXECUTIVE DIRECTOR BOARD OF MEDICINE 130 NORTH MONROE STREET TALLAHASSEE, FLORIDA 32399-0750
Findings Of Fact Findings based on stipulation Petitioner is the state agency charged with regulating the practice of osteopathic medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 459, Florida Statutes. Respondent is, and has been at all times material hereto, licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 0001228. Respondent's last known address is 577 N.E. 107th Street, Miami, Florida 33161. Findings based on evidence at hearing On November 5, 1990, patient N. S. initially presented to the Respondent's office for a physical examination for the purpose of obtaining health insurance with Blue Cross & Blue Shield of Florida. During the course of the initial visit, when the Respondent became aware of where N. S. and her mother lived, it was obvious to him that N. S. lived in an expensive residential area and was probably a person of substantial financial means. Patient N. S. subsequently presented to the Respondent and received treatment from him for a variety of complaints on the following dates: November 14 and 27, 1990; December 10 and 20, 1990, January 7, 23, and 28, 1991, March 5, 1991, and April 15, 1991. Patient N. S. paid for all of the treatments and laboratory tests on the dates the treatments and tests took place. At the request of the Respondent, the checks written by patient N. S. to pay for services provided by the Respondent were made out to "cash." One day in early January of 1991, the Respondent contacted the patient N. S. by telephone at her home and asked her to loan him $8,000.00 or $8,500.00. The Respondent told the patient N. S. he needed the money because he was three months behind in making payments on the mortgage on his office-house, and because the mortgage was going to be foreclosed if he failed to pay the past due amounts in the next couple of days. In the course of this conversation the Respondent also remarked to N. S. that he would not be able to help her get well if the mortgage were to be foreclosed and he were to lose his office. Patient N. S. initially refused to loan any money to the Respondent. During the course of the next two days, the Respondent made numerous repeated pleas to N. S. for a loan. Ultimately, N. S. agreed to loan the Respondent a total of $1,000.00. The loan was to be repaid within sixty days and was without interest. On January 11, 1991, patient N. S. wrote a personal check to the Respondent in the amount of $1,000.00. Thereafter, the Respondent cashed the check. The patient N. S. made the $1,000.00 loan to the Respondent because she wanted the Respondent to be able to continue to treat her and not have his office repossessed. The Respondent did not timely repay the $1,000.00 loan. Shortly after the due date, the patient N. S. asked the Respondent on several occasions to repay the loan. On April 15, 1991, the patient N. S. sent a certified letter to the Respondent requesting repayment of the loan. On July 2, 1991, the patient N. S. sent the Respondent another certified letter requesting repayment of the loan and advising the Respondent that if the loan was not repaid by July 12, 1991, she intended to send complaints to the Department of Professional Regulation and to the Internal Revenue Service. During March and April of 1991, the Respondent was ill. Towards the end of April the Respondent was hospitalized and underwent surgery. The surgery was followed by several weeks of recuperation. During this period the Respondent had very little income and it was not possible for him to repay the loan to the patient N. S. On July 24, 1991, the patient N. S. sent yet another certified letter to the Respondent. In the letter of July 24, 1991, the patient N. S. requested that the Respondent provide her with various specified documents related to his treatment of her, including "my complete medical records." The patient N. S. sent a copy of the July 24, 1991, letter to the Department of Professional Regulation. On that same day, the patient N. S. signed and mailed to the Department of Professional Regulation a Uniform Complaint Form complaining about the Respondent. On August 29, 1991, the Sunshine Messenger Service delivered to the patient N. S. a letter from the Respondent dated August 28, 1991, which read as follows: Enclosed is the sum of $1000 in return for the check you loaned to me. I'm sorry that it took as long as this date to return same. Your request for your records, etc. are being copied and will be mailed very soon. Sorry for the delay. Hope you are in good health. The letter was accompanied by two postal money orders payable to the patient N. S., each in the amount of $500.00. On September 16, 1991, Petitioner's investigator Schaublin spoke by telephone with the Respondent and at that time advised him of the Complaint that had been filed against him by his patient N. S. Investigator Schaublin advised the Respondent that two principal issues were being investigated: (1) his request and receipt of a loan that was not timely repaid, and (2) his failure to provide medical records requested by the patient. During the telephone conversation of September 16, 1991, the Respondent agreed to meet with the investigator at the investigator's office on September 25, 1991, and to bring with him at that time the medical records of the patient N. S. On September 25, 1991, the Respondent went to the investigator's office and delivered to the investigator a set of medical records for the patient N. S. The records appeared to be facially complete. The investigator handed the Respondent a subpoena for the records at the time the records were delivered to the investigator. At some time between the Respondent's receipt of the July 24, 1991, request for records and his delivery of records to the investigator on September 25, 1991, the Respondent discovered that two pages were missing from the records of the patient N. S. The missing pages consisted of the Respondent's progress notes regarding the treatment of the patient N. S. The Respondent conducted an extensive, but unsuccessful, search for the two missing pages. Upon concluding that he was unlikely to find the missing pages, the Respondent contacted an attorney and requested advice as to what he should do under the circumstances. The attorney advised the Respondent that he should do the best he could to reconstruct the missing records from his memory and from whatever other information was still available. The Respondent did his best to follow the advice he had received from the attorney. In an effort to verify dates, the Respondent called the pharmacy to which he had called in prescriptions for the patient N. S. With the information he had at hand, and based on his memory of his treatment of the patient N. S., the Respondent reconstructed the two missing pages of progress notes. In the process of reconstructing the progress notes, the Respondent made some inadvertent mistakes regarding the dates on which certain office visits took place. Other than the mistakes as to some of the dates, the reconstructed records accurately and sufficiently describe the Respondent's treatment of the patient N. S. The Respondent's records of his treatment of the patient N. S. do not contain a notation that the progress notes are reconstructed notes. When the Respondent delivered medical records to the Petitioner's investigator on September 25, 1991, he did not tell the investigator that two pages of the records had been reconstructed. Upon review of the medical records delivered by the Respondent, the investigator noted that some of the dates in the progress notes did not match dates with other documents in the investigator's possession and also noted that the progress notes looked like they had all been written at the same time. On September 27, 1991, the investigator contacted the Respondent by telephone and brought these apparent irregularities to the Respondent's attention. During the telephone conversation of September 27, 1991, the Respondent told the investigator that he had reconstructed the progress notes after being unable to find the missing notes. This was the first time the Respondent had mentioned to the Petitioner that the subject medical records contained two reconstructed pages. On October 4, 1995, the Respondent sent copies of his records to the patient N. S., along with a letter addressed to the patient N. S. The letter read as follows: Sorry for the delay in mailing your records. I have diligently looked thru your file and in the office and at home for the medical records missing that are the two written pages that I have reconstructed to the best of my ability as to dates. The billing ledger was also in the chart and has not been found. In order to recreate the bills for tax purposes, I could help you if I had the dates and amounts from photocopies of the cancelled checks. The Respondent did not destroy any medical records regarding the patient N. S. The Respondent did not falsify or attempt to falsify any medical records of the patient N. S. The documents of which official recognition has been taken reveal that the Respondent has been the subject of prior disciplinary action by the Petitioner. The most significant instances of prior disciplinary action were DPR Case No. 0052390, in which the Respondent stipulated to the imposition of disciplinary action on the basis of violations related to the improper prescription of controlled substances, and DPR Case No. 89-008659, in which the Respondent stipulated to the imposition of disciplinary action on the basis of a violation related to exploitation of a patient for financial gain by borrowing money from a patient. At the time of the Respondent's treatment of the patient N. S., the Respondent was still serving the term of probation imposed in DPR Case No. 0052390.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be issued in this case to the following effect: Dismissing Counts Two, Three, Four, Five, and Six of the Administrative Complaint; Finding the Respondent guilty of the violation charged in Count One of the Administrative Complaint; and Imposing a penalty consisting of all of the following: (a) an administrative fine in the amount of one thousand dollars ($1,000.00), (b) suspension of the Respondent's license for a period of ninety (90) days, (c) placing the Respondent on probation for a period of one (1) year following the suspension, and (d) restricting the Respondent's practice by prohibiting him from entering into any financial arrangements with patients other than those arrangements reasonably necessary to assure payment for osteopathic medical services provided by the Respondent. DONE AND ENTERED this 6th day of March 1996 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of March 1996. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Findings submitted by Petitioner: Paragraphs 1 through 10: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance. Paragraph 13: Rejected as irrelevant. Paragraph 14: Accepted in substance. Paragraph 15: Rejected as irrelevant. Paragraphs 16 through 20: Accepted in substance, but with a few unnecessary details omitted and with a few details modified in the interest of clarity. Paragraph 21: First sentence accepted in substance. Second sentence rejected as subordinate and unnecessary details. Paragraph 22: Rejected as irrelevant. Findings submitted by Respondent: Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in part and rejected in part. Accepted that the Respondent and N. S. had a physician-patient relationship during the relevant time period. The notion that the Respondent and N. S. also had a business venture relationship is rejected as contrary to the greater weight of the evidence. N. S. made suggestions to the Respondent as to how he could improve his practice, but there was no joint business venture relationship. Paragraph 4: First sentence accepted in substance. The second sentence is rejected as contrary to the greater weight of the evidence; there was no business relationship. Paragraph 5: Accepted in substance. Paragraphs 6 and 7: Rejected as subordinate and unnecessary details. Paragraphs 8 through 12: Accepted in substance. Paragraph 13: Accepted in substance, with the exception of the second sentence and the last sentence. The second sentence is rejected as not supported by persuasive competent substantial evidence. The last sentence is rejected as subordinate and unnecessary details. Paragraph 14: Accepted in substance. COPIES FURNISHED: Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Doddo, Esquire 100 Southeast 12th Street Fort Lauderdale, Florida 33316 William H. Buckhalt, Executive Director Board of Osteopathic Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Douglas M. Cook, Director Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman, General Counsel Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact The word "rewrote" in paragraph 14 of the Recommended Order has been changed to "modified." The Board finds that this word more accurately reflects the activity of the Respondent as set forth by the evidence in the record. A comparison of the "original" medical record and the subsequently prepared medical record unequivocally establishes that Respondent did more than just copy over the "original" medical record. The language in paragraph 23 stating that the original medical record would verify that the subsequently prepared medical record was identical to the original is rejected as not being supported by any competent and substantial evidence in the record. To the contrary, a comparison of exhibits 1 and 2 clearly establishes that the two versions of the medical record are not identical. Paragraph 40 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The first sentence of paragraph 48 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Paragraph 48 is further modified to reflect Respondent's failure to reveal the existence of an "original" record. This failure is admitted by Respondent and Respondent's attorney witnesses in their testimony and reiterated by Mr. McPherson in his testimony. The final sentence of paragraph 53 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. Furthermore, as a matter of policy, the public safety is harmed by exposure to potential and real injury due to the egregious nature of Respondent's fraudulent act and hiding that fact from appropriate authorities for several years. The harm that would be done to the public by tolerating the fraudulent reconstructing of medical charts is such that it strikes deep at the public safety and welfare. Paragraph 54 of the Recommended Order is rejected as not being supported by any competent and substantial evidence in the record. The proposed finding of fact ignores the fundamental and obvious fact that at least one of Respondent's stated motive in reconstructing the medical record was to better protect against exposure in a malpractice action. Appendix B RULINGS ON PETITIONER'S EXCEPTIONS TO FINDINGS OF FACT 1. - 3. Accepted Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. Accepted. - .7 Rejected. Hearing Officer's findings supported by competent and substantial evidence in the record. 8. - 9. Accepted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered: Finding Respondent guilty of Count Two of the Administrative Complaint filed herein; Finding Respondent not guilty of Counts One, Three, and Four and dismissing those Counts of the Administrative Complaint filed herein; Imposing an administrative fine of $250 to be paid by a date certain; and Requiring that Respondent perform 150 hours of community service over a 3-year period. DONE and ENTERED this 3rd day of May, 1994, 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 3rd day of May, 1994. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 93-6228 Petitioner's proposed findings of fact numbered 1, 3-9, 11, 14-16, 19, 20, and 22 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed findings of fact numbered 10, 12, 13, 17, 18, 21, and 25 have been rejected as being unnecessary to the issues involved herein. Petitioner's proposed findings of fact numbered 23, 24, and 26-29 have been rejected as not being supported by the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-29, 31-41, and 43-92 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 30 has been rejected as not constituting a finding of fact but rather as constituting argument of counsel. Respondent's proposed finding of fact numbered 42 has been rejected as being irrelevant to the issues under consideration in this cause. COPIES FURNISHED: Joseph Harrison, Esquire Slepin, Harrison & Feuer 2500 North Military Trail, Suite 275 Boca Raton, Florida 33431 Michael Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Dr. Marm Harris, Executive Director Department of Business and Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether the allegations of the Administrative Complaint are correct and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the state agency charged by statute with regulating the practice of medicine in Florida. At all times material to this case, the Respondent has been a physician in the state, holding Florida license number ME 0044838. The Respondent's last address of record is 11216 North Dale Mabry, Tampa, Florida, 33168 The Respondent has practiced in Florida since 1984 in Internal Medicine. At all times material to this case, Patient number 1 was a 72 year old male. In early December of 1988 the Respondent performed a physical examination of Patient number 1 on behalf of the American Weight Clinic weight loss program. The records of that examination were forwarded to the clinic. Because the Respondent was not the patient's physician, he did not retain a copy of the exam report. Patient number 1 returned to the Respondent on December 28, 1988 and became his patient. Between December 1988 and May 1989, Patient number 1 was examined and/or treated by the Respondent on approximately ten visits. The Respondent became familiar with Patient number 1 over the course of the six months. Patient number 1 was obese, diabetic, and suffered from chronic obstructive pulmonary disease (COPD), glaucoma and heart disease. COPD can not be cured. Patients with COPD generally deteriorate over time. Treatment of COPD may include medications to open bronchial tubes, but most treatment results in minimal improvement. The overall treatment rendered to the patient by the Respondent included weight loss and "maintenance" of the COPD. The Respondent's treatment of the COPD can essentially be described as the "fine tuning" of medications. Although not codified during the time period relevant to this proceeding, effective professional standards required that physicians make contemporaneous medical records to justify the course of treatment provided to patients. Medical records protect both the patient and the physician. Such records provide an historical record of a patient's physical condition, diagnosis and treatment, and are valuable both to the recording physician and to any subsequent physician who provides treatment to the patient. The Respondent was aware of the purpose of keeping medical records. During the time period relevant to this case, the Respondent's receptionist would greet each patient who entered the Respondent's office. Thereafter, a nurse would guide the patient to an examining room, check the patient's "vital signs" and record the main presenting complaint. After the nurse entered the information on the chart, the Respondent would talk with and examine the patient. Also during this time, the Respondent began utilizing a dictation system to record the results of physical examinations. The Respondent continued to hand write diagnosis and medication information but relied on the dictation for recordation of physical exam findings. The office employee responsible for transcribing the dictation performed inadequately. Examination results were apparently not being entered into the medical records. The Respondent also had problems during this time with the employee responsible for management of his office. The family of Patient number 1, apparently unhappy with the medical care being provided to the patient by the Respondent, began utilizing the services of another physician. The family sought to obtain the patient's medical records from the Respondent. Eventually, Patient number 1's son obtained a copy of his father's records in approximately August of 1989, after making repeated requests to obtain the records. Although the Respondent asserts that he did not review records for completeness until or unless a copy of the record was requested, the records provided to Patient number 1's son in August, 1989 were apparently not reviewed for completeness by the Respondent. The Respondent asserts that he was not made aware by his office manager that such records had been requested. The medical records released to the son in August 1989 fail to document the patient's physical condition for three specific office visits. The record of Patient number 1's office visit on December 28, 1988 sets forth the nurse's documentation of vital signs and medication records. The record does not include a description of physical examination findings made contemporaneously at the time of the examination. Based on the lack of physical examination information, the Respondent's medical record related to and made contemporaneously with Patient number 1's office visit on December 28, 1988 does not justify the course of treatment of the patient as identified in the record. The record of Patient number 1's office visit on February 21, 1989 does not include a description of physical examination findings made contemporaneously at the time of the examination. Based on the lack of physical examination information, the Respondent's medical record related to and made contemporaneously with Patient number 1's office visit on February 21, 1989 does not justify the course of treatment of the patient as identified in the record. The record of Patient number 1's office visit on April 18, 1989 does not include a description of physical examination findings made contemporaneously at the time of the examination. Based on the lack of physical examination information, the Respondent's medical record related to and made contemporaneously with Patient number 1's office visit on April 18, 1989 does not justify the course of treatment of the patient as identified in the record. The Respondent asserted that he dictated the physical examination reports of the patient conducted on December 28, 1988, February 21, 1989 and April 18, 1989. There is no credible evidence to the contrary. After the records were provided to the Patient number 1's son in August, 1989, the Respondent became aware that examination information for December 28, 1988, February 21, 1989 and April 18, 1989 was missing from the medical records. Based on his mental recollection of the Respondent and a review of the existing record, he added physical examination findings to the medical records of Patient number 1 for exams conducted on December 28, 1988, February 21, 1989 and April 18, 1989. Standard practice among physicians is to initial and date any additions or changes made to a patient's medical records. The additions made by the Respondent to Patient number 1's medical records are not initialed or dated. There is no notation made on the records which would indicate that the information was not recorded contemporaneously at the time of the examination. The Respondent testified that at the time of the additions, he had sufficient recollection of Patient number 1 to permit the addition of information related to specific office visits to the medical records. The testimony was not persuasive. The evidence fails to establish that the Respondent's recollections of the patient are of such sufficient reliability to establish that the subsequent additions to the medical records were reliable. At some point in the treatment of the patient, he presented to the Respondent with complaints of hemoptysis. The number of such complaints is indeterminable. Testimony by the patient's family directed to the number of visits and quantities of expelled blood being brought to the office lack sufficient precision to be credible. It appears, based on the medical records, that hemoptysis was reported as early as January, 1989. In any event, the evidence fails to establish that incidents of hemoptysis were reported to and not recorded by the Respondent. There is no credible evidence that the Respondent sought to conceal the fact that information was added to the medical records of Patient number 1. The Respondent's primary medical practice involves a substantial level of managed care. According to the Respondent, the effect of a reprimand or probation will be termination of managed care contracts. The Respondent has not been previously disciplined. The Respondent currently hand writes all medical records because he is not convinced of the reliability of dictation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Agency for Health Care Administration enter a Final Order determining that Alexander Sonkin, M. D., has violated Sections 458.331(1)(m), Florida Statutes, and imposing a fine of $1,000. It is also recommended that the Respondent be required to complete such course of education related to appropriate methods of patient care documentation as the Board deems acceptable. DONE and RECOMMENDED this 29th day of November, 1995, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 29th day of November, 1995. APPENDIX TO RECOMMENDED ORDER, DOAH CASE NO. 95-2535 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 2. Rejected, irrelevant. 5-7. Rejected, the dates of reported hemoptysis are not supported by clear and convincing evidence. Respondent The Respondent's proposed findings of fact, set forth at pages 16-22 of the proposed recommended order are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected, incorrect license number cited. 4. Rejected, subordinate. 16-18. Rejected, not supported by credible and persuasive evidence. Rejected, subordinate. Rejected, irrelevant. The Respondent is not alleged to have provided inappropriate or unreasonable medical treatment. 24-25. Rejected, cumulative. 29. Rejected, not supported by cited testimony. Dr. Stein did not state that he knew of no standard for making "after the fact" record additions. 30-31. Rejected, irrelevant. 32. Rejected, immaterial. DOAH CASE NO. 95-2535 COPIES FURNISHED: Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hugh Brown, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Grover C. Freeman, Esquire 201 East Kennedy Boulevard, Suite 1950 Tampa, Florida 33602
The Issue This is a rule challenge petition in which the Petitioners are challenging both an existing rule pursuant to Section 120.56, Florida Statutes, and a proposed rule pursuant to Section 120.54, Florida Statutes. The Petitioners contend that portions of both the existing rule and the proposed rule are invalid exercises of delegated legislative authority. The challenged rule is Rule 33-3.0051, Florida Administrative Code, both as it exists and as the Department proposes to amend it. Rule 33-3.0051 is a rule of the Department of Corrections that deals with the subject of photocopying services for inmates. At the hearing the Petitioners testified on their own behalves and also presented the testimony of several other witnesses. The Petitioners also offered several exhibits into evidence. The Respondent did not call any witnesses, nor did it offer any exhibits. Subsequent to the hearing, a transcript of the proceedings at hearing was filed on January 25, 1988. The parties were allowed until February 9, 1988, [later extended to February 11, 1988] within which to file their proposed final orders. Both parties filed proposed final orders, which have been carefully considered in the preparation of this final order. All findings of fact proposed by all parties are specifically addressed in the Appendix which is attached to and incorporated into this final order.
Findings Of Fact Based on the stipulation of the parties, on the matters of which official recognition has been taken, and on the testimony and exhibits received at the hearing, I make the following findings of fact. All of the Petitioners are inmates in the custody of the Department of Corrections. Petitioners Cribbs, Pacheco, and Theophile are presently confined at Baker Correctional Institution. Petitioner Dinkins was confined at Baker Correctional Institution when this proceeding began, but has since been transferred to Tomoka Correctional Institution. As inmates, they are all subject to the rules of the Department of Corrections. The Department of Corrections has approved and published notice of proposed amendments to subsection (4) of Rule 33-3.0051, Florida Administrative Code. As originally proposed, the amended rule provision read as follows (with the underscored language representing new language added to the rule and the boldface language in square brackets representing prior language deleted from the rule): (4) Copying services shall not be denied inmates unable to pay for copies. An inmate shall be considered unable to pay for copies when there are no funds [is $5.00 or less] in his inmate account at the time any copies are made. If an inmate requesting copies has any funds [ore than $5.00] in his account, he shall be required to pay for copies furnished him at the rate of $0.15 per page until the costs reduce his account to zero. [$5.00] Copies for which the inmate is unable to pay shall be provided free, not to exceed three copies per page, and the expense will be borne from general operating funds of the institution. No attempt will be made to recover such expense from money later deposited in the inmate's account. Thereafter, in response to suggestions made by staff, the Department published a notice of change which stated that the text of the proposed amendments to subsection (4) of Rule 33-3.0051 would be further modified to read as follows: (4). . . Copies for which the inmate is unable to pay shall be provided free, not to exceed three copies per page, except when additional copies are legally required. The inmate will be resonsible for proving that copies in addition to the routine maximum are legally necessary. [and] The expense will be borne from general operating funds of the institution. No attempt will be made to recover such expense from money later deposited in the inmate's account. Other provisions of the existing rule which are relevant to this proceeding are subsections (1), (2), and (3) of Rule 33-3.0051, which read as follows: All institutions and facilities shall provide photographic copying services to inmates submitting legal documents and accompanying evidentiary materials to courts and administrative bodies. Documents will be copied only if they are necessary to initiate a legal or administrative action or if they must be filed or served in a pending action. The number of copies made shall be the number required to be filed and served according to the rules of the court or administrative body: one additional copy shall be made for the inmate to keep if the original is filed or served. Cases, statutes, and other reference materials are not evidentiary materials and will not be copied to accompany legal documents. Inmates will be charged $0.15 per page for standard legal or letter size copies, or if special equipment or paper is required the institution may charge up to the estimated actual cost to the institution of making the copies. Petitioner Cribbs has been an inmate at Baker Correctional Institution since November of 1986. He has previously been an inmate at Union Correctional Institution. Petitioner Cribbs has had only $0.41 in his inmate account for over six months. During such time he has received free photocopying. Petitioner Cribbs has been involved in numerous administrative rule challenges. When he was an inmate at Union Correctional Institution he was allowed to send out personal legal materials to be copied by his family at 10 cents per page. Photocopy services are presently available from photocopy businesses outside the prison for 10 cents per page. He was not aware of any rule that allowed him to do the same thing at Baker Correctional Institution. Petitioner Cribbs does not presently have any pending litigation other than the instant cause. He does, however, intend to initiate future litigation. On at least one occasion, Petitioner Cribbs attempted to file a Notice of Supplemental Authority with a Florida Appellate court. The notice was returned to him because he could not photocopy the case referenced to in the notice. His case was not dismissed. Petitioner Pacheco is an inmate at Baker Correctional Institution. He has no funds in his inmate account and has not had funds in that account at any time when he needed photocopies. He anticipated receiving some funds at Christmas. Petitioner Pacheco appealed his conviction, but it was affirmed by the District Court of Appeal. The Florida Supreme Court did not take jurisdiction. During that time, Petitioner Pacheco had the services of a Public Defender. He is now making a pro se attempt to file a brief in the Eleventh Circuit Court of Appeals, challenging the constitutionality of the Florida Sentencing Guidelines. Petitioner Pacheco knows that the Eleventh Circuit Court of Appeals requires the filing of more than three copies of his brief. Petitioner Pacheco has not yet filed his brief, but he intends to file a Notice of Supplemental Authority with respect to a California case. Petitioner Pacheco plans to use his Christmas funds to buy shampoo and soap because he considers the free shampoo and soap provided by the Department to be inferior and injurious. He also considers the Department provided single edge razors to be dangerous and the Department provided toothbrushes to be poor. He prefers to use his money to buy what he deems to be better quality supplies. (There is no persuasive competent substantial evidence of the inadequacy of the Department provided shampoo, soap, razors, or toothbrushes.) Petitioner Pacheco previously had $15.00 in his inmate account in November of 1987, and before that he had another $25.00. He spent all of his money on such things as soap, shampoo, cream, and deodorant. Petitioner Pacheco has received pens and paper from his family. Petitioner Theophile has been an inmate at Baker Correctional Institution for four years. He has no funds in his inmate account. He is currently litigating a civil suit in the U.S. District Court, Middle District of Florida, on a pro se basis. There are seven defendants in his civil suit. He contemplates serving more copies than the number generally provided for in the proposed amendment to the rule. Petitioner Dinkins was previously an inmate at Baker Correctional Institution, but is now an inmate at Tomoka Correctional Institution. Petitioner Dinkins has funds in his account and has been paying 15 cents per page for photocopying. He is preparing a habeas corpus petition to be filed in the U.S. District Court, Middle District of Florida, but has no active litigation at this time other than the instant cause. He is also preparing to file some civil litigation regarding denial of religious freedom. If Petitioner Dinkins had to choose between spending his money on photocopying or on supplies, he would choose the former. Petitioner Dinkins has not personally experienced any problems in obtaining the necessary number of copies. He is not aware of any cases or appeals being dismissed because of an insufficient number of photocopies. James Gordon Smith, an inmate at Baker Correctional Institution, is presently involved in the litigation of a pro se post-conviction attack on his conviction. He has not experienced any difficulty in obtaining the required number of photocopies in his present litigation, but during 1984 he experienced some problems obtaining the necessary number of copies. Inmate Smith and his wife own a personal photocopy machine, which will produce copies at a cost of approximately 4 or 5 cents per page. If inmate Smith could send his legal pleadings home, he could have them copied for 4 or 5 cents per page. A classification officer has told inmate Smith that he cannot mail legal pleadings home to have them copied. The hours of operation of prison law libraries vary from institution to institution. Some prison law libraries are closed on certain weekdays. At Union Correctional Institution, photocopying for inmates is done in the law library by the librarian. Therefore, at that facility, reference sources are readily available for an inmate to prove how many copies he needs. The procedure for obtaining copies at Baker Correctional Institution is different and on days when the law library is closed, an inmate cannot produce authority to establish how many copies he needs, unless he has had the foresight to copy the applicable provisions while the law library wad open. The library at Baker Correctional Institution provides free typing service and free paper. There are no Department rules which provide for furnishing carbon paper to inmates, nor are there any rules which regulate the use of carbon paper by inmates. Carbon paper is available in the prison canteens. Carbon paper is not provided to inmates by the law library at Baker Correctional Institution. There are no Department rules which specifically permit or specifically prohibit an inmate from sending legal materials to his family to have them copied and returned. Harry K. Singletary, Assistant Secretary of Operations for the Department, initiated the proposed rule change on photocopying as a result of an inmate grievance which pointed out that the subject rule was different from the related rule regarding free postage for legal mail. The Department decided to change the photocopying rule to track the provisions of the postage rule. It is the position of the Department that any inmate who has funds available should pay for his own photocopying. The purpose of the proposed rule amendment is to balance the interests of the institution, the Department, and the inmates. The proposed rule amendment provides inmates with an opportunity to demonstrate a need for more copies than the routine maximum.
The Issue The issue presented for decision herein is whether or not the Respondent engaged in proscribed conduct, set forth hereinafter in detail, as is more particularly set forth in a two count administrative complaint filed herein dated May 12, 1986.
Findings Of Fact Respondent, Cecil Rolle, during times material was a licensed dentist in Florida having been issued License Number DN0005067. On January 24, 1984, Respondent treated Karen Fuller, a patient. For such treatment, Respondent charged $250 for dental services rendered and Ms. Fuller paid $50 on account. (Petitioner's Exhibit 8). Ms. Fuller never returned for follow- up treatment nor did she pay the outstanding balance of $200 for services rendered. On approximately July 26, 1985, Respondent received a letter and an accompanying executed medical release authorization from Fuller's attorney, Scott Saperstein, requesting copies of "any and all records, charts and x-rays regarding the care and treatment of Karen Fuller." (Petitioner's Exhibit 1). Respondent failed to provide the records requested in the July 26, 1985 letter until more than one (1) year later on August 11, 1986. On about September 6, 1985, Respondent received a second written request from attorney Saperstein requesting Ms. Fuller's records. (Petitioner's Exhibit 2). Respondent again failed to provide the requested records. Shortly after making the September 6, 1955 request, Scott Saperstein spoke to Respondent who advised that he had treated patient Fuller on one occasion, that she had not made payment or still owed money for that visit and that he would not release patient records while the outstanding fee remained unsatisfied. On October 25, 1985, attorney Saperstein wrote to the Department of Professional Regulation (DPR) advising of Respondent's failure to provide the requested documents and a copy of that letter was sent to Respondent. (Petitioner's Exhibit 3). On December 10, 1985, Respondent received a letter from DPR requesting that he explain his failure to provide the patient's records to attorney Saperstein. (Petitioner's Exhibit 4). On January 28, 1986, Respondent sent a written reply to DPR apologizing for having delayed responding to DPR's original request and furnished a summary of treatment he provided to Ms. Fuller on November 24, 1984. (Petitioner's Exhibit 5). However, Respondent offered no explanation as to the reason he did not provide Ms. Fuller's records as requested by her counsel. On February 3, 1986, Respondent received another letter from DPR requesting that he respond to the allegations, i.e., his failure to make patient's records available immediately. (Petitioner's Exhibit 6). Respondent never replied to this second request by DPR. On July 28, 1986, Respondent received written notification from Karen Fuller's counsel advising of his intent to initiate litigation alleging dental malpractice against Respondent relative to the treatment Petitioner provided Ms. Fuller. (Petitioner's Exhibit 7). On approximately, August 11, 1986, Respondent provided Ms. Fuller's counsel with her original medical records. (Petitioner's Exhibit 8). Respondent acknowledged that he is required to know the pertinent statutes and rules relating to the practice of dentistry. Respondent also acknowledged that he did not turn over Ms. Fuller's medical records initially based on an informed decision reached after consultation with his attorney and directives from his medical malpractice insurance carrier to the effect that he should not release medical records until his insurance carrier authorized him to do so. Respondent initially advised attorney Saperstein that since Ms. Fuller had failed to pay the entire fee for services rendered, he would not be releasing copies of her medical records. Respondent made the decision to withhold Ms. Fuller's medical records until the air was cleared surrounding the competing claims between attorney Saperstein and his malpractice insurance carrier.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent pay Petitioner an administrative fine of $1,000 within thirty (30) days after entry of Petitioner's Final Order. Respondent be issued a written public reprimand by the Petitioner, Board of Dentistry. RECOMMENDED this 15th day of July, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 15th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3676 Rulings on Petitioner's Proposed Recommended Order Paragraph 8. Accepted as modified in paragraphs 6 and 13, Recommended Order. Paragraph 14. Accepted as modified in paragraph 11, Recommended Order. Paragraph 15. Accepted as modified in paragraph 14, Recommended order. COPIES FURNISHED: Henry N. Adorno, Esquire Adorno Allen Schiff & Goodkind, P.A. 1501 Venera Avenue Park Place II, Suite 240 Coral Gables, Florida 33146 Harold C. Culmer, Esquire, P.A. 5020 Northwest Seventh Avenue Miami, Florida 33127 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Pat Guilford, Executive Director Department of Professional Regulation, Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399-0750
