The Issue The issue to be determined is whether Respondent violated sections 458.331(1)(m) and 458.331(1)(bb), Florida Statutes (2008),1/ as alleged in the Administrative Complaint and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to section 20.42 and chapters 456 and 458, Florida Statutes. At all times material to the allegations in the Administrative Complaint, Respondent was a medical doctor licensed in the State of Florida, having been issued license number ME 98868. At the time of alleged incident, Respondent was board certified in anesthesiology. He is now also board certified in pain management. On February 10, 2009, Respondent was working at the Tallahassee Outpatient Surgical Center (TOSC). His duties included performing interventional pain management procedures. Patient C.C. was, at the time of the incident, a 50- year-old male. On February 10, 2009, he was admitted to TOSC for a dorsal medial nerve branch block at the right cervical levels 5/6/7. Respondent was scheduled to perform the procedure. Linda Dix was a nurse at TOSC who was present during C.C.'s procedure. She described the process for admission and preparation for surgery at TOSC, which included each patient receiving a plan, an order for surgery, and an informed consent form. C.C.'s plan, which Respondent signed, indicated that he was to receive a right-side medial nerve branch block at cervical levels 5/6/7. A medial nerve branch block may also be called a dorsal medial branch block. The procedure is a diagnostic block to rule out the level and type of pain the patient is experiencing. In this case, C.C.'s medical records indicate that C.C. had a left- side medial nerve branch block performed one month prior to this scheduled procedure, and had received relief from pain. When a medial nerve branch block is performed, the patient is placed in the prone position on the procedure table, and prepped with a cleaning solution such as Betadine or chorhexidene. There is more than one way to perform the procedure itself. However, a c-arm fluoroscope is used to identify the cervical levels. Sometimes, the physician will numb the skin in a subcutaneous needle pathway before inserting the needle that is going to be advanced to the medial branch nerve. The decision to do so, for Respondent, includes consideration of the size of the patient, and how far the final needle will need to be advanced. While the needle for numbing the skin and the needle for the procedure itself are the same size, they may be different lengths depending on how much tissue will be penetrated. The medial branch nerve lies against the lateral, or side, of the vertebral body, and the fluoroscope guides the needle to the vertebral body. Once the needle makes contact with bone, the physician will aspirate to ensure it is not in a blood vessel. In this case, Respondent was aware of the patient plan and the patient was already draped when he entered the procedure room. C.C. had been prepped and the c-arm fluoroscope was positioned consistent with the method used by another surgeon who had worked at TOSC. Respondent requested that the technician position the fluoroscope in a true lateral position rather than a posterior oblique position. A pause procedure was performed, in which Respondent participated and acknowledged agreement. He used a needle as a marker to show where to inject the numbing medication. However, Respondent placed the needle on the left as opposed to the right side. Respondent began injecting Lidocaine into C.C.'s left side. Before he could finish the injection, Ms. Dix asked him to explain how the medication was going to reach the right-side nerve branches from the location of the injection. Respondent realized at that point that he had injected the Lidocaine into the wrong site for a right-side medial nerve branch block. Respondent immediately stopped injecting the Lidocaine. At that point, .25 ml of Lidocaine had been injected. Lidocaine is a numbing agent. Respondent explained the error to the patient, and then completed the procedure on the correct side. There is no dispute that the correct procedure, and the only procedure intended to be performed, was to be performed on the right side. There is also no dispute that a small amount of Lidocaine was injected into the left side. In the nurse's notes contained in C.C.'s medical records for TOSC, under Intraoperative medication, it is noted that .25 ml of Lidocaine was injected on the left side, and 3 ml of Lidocaine was injected on the right. Also noted are other medications used during the procedure. On the page of the medical records containing the surgical plan (Petitioner's Exhibit 2, page 32) dated February 10, 2009, a list of medications used during the procedure includes .25cc of Lidocaine on the left, and 3cc of Lidocaine on the right, with the notation "local." Respondent signed this page of C.C.'s medical records. In addition, an incident report separate from the medical records was generated. Respondent's procedure notes, which were dictated on February 16, 2009, make no mention of the injection of Lidocaine on the left side. He testified that he did not view the numbing of the left side as part of the procedure itself, but rather part of the preparation of the patient. Specifically, he testified: Q. And where in here did you document the injection of the lidocaine into the left side? A. It was not documented in the procedure note. That only reflects the procedure that was performed on the correct side. Q. And why didn't you document that you injected lidocaine into the incorrect side in this procedure note that you're required to prepare? A. I have no particular reason for not doing it. We were doing 20-plus procedures a day, and I was just dictating and keeping up with the procedure notes, and I only dictated what was performed on the correct site. The chart had documented the error, and we had done the appropriate procedures for reporting the medical error, and so I relied on the rest of the chart to the complete the record as a whole.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Board of Medicine enter a final order finding that Respondent violated section 456.072(1)(bb), as alleged in Count I of the Administrative Complaint; that it find Respondent did not violate section 458.331(1)(m), as alleged in Count II; and that as a penalty for Count I Respondent receive a letter of concern, pay a $2,500 fine, attend five hours of risk management continuing medical education, present a one-hour lecture on wrong-site surgery, and perform 50 hours of community service. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of December, 2010.
Findings Of Fact The parties Petitioner, Agency for Health Care Administration, Division of Quality Assurance, Board of Medicine, formerly Department of Business and Professional Regulation, Board of Medicine, is the state government licensing and regulatory agency charged with the responsibility and duty of regulating the practice of medicine pursuant to the laws of the State of Florida, in particular Section 20.42, Florida Statutes, Chapters 120, 455 and 458, Florida Statutes, and the rules promulgated pursuant thereto. Chapter 93-129, Laws of Florida. Respondent, Muhammad S. Mustafa, M.D., is now and was at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0047360. Respondent was licensed by endorsement on October 7, 1985, but did not, ostensibly, actively engage in the practice of medicine in the State of Florida until September 14, 1988. 4/ Respondent's last known address, as of the date of hearing, was 8245 North Nebraska Avenue, Tampa, Florida 33604. Respondent received his medical degree from the Oklahoma University School of Medicine in 1970, performed an internship from 1970 to 1971 at the Altoona Hospital, Altoona, Pennsylvania, did a four-year residency in general surgery from 1971 to 1975 at The Cleveland Clinic, Cleveland, Ohio, and started practice as a sole practitioner in Cleveland, Ohio, in November 1975. Respondent's practice consisted of general surgery and family medicine, and he practiced in a predominately blue collar neighborhood until his license to practice medicine was revoked by the State Medical Board of Ohio, as discussed infra. While practicing in Cleveland, respondent had staff privileges at St. Vincent Charity Hospital, Luthern Medical Center, St. John's Hospital, and St. John's Westshore Medical Center, but by May 1988 had restricted his practice to Luthern Medical Center and St. John's Hospital. Respondent resigned his staff privileges at Luthern Medical Center and St. Johns in December 1989. The Ohio charges On May 11, 1988, the State Medical Board of Ohio, the licensing authority for medicine in the State of Ohio, notified respondent that it proposed to take disciplinary action against his certificate to practice medicine and surgery in Ohio. The gravamen of the Board's charges were as follows: That respondent's prescribing practices with regard to approximately 83 difference patients, as well as his overall prescribing as reflected by a listing entitled "Total Drug Amounts by Drug, Year and Month," constituted: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease," as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes," as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established," as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. That as to Patient 152 respondent did between March 27, 1984 and December 12, 1985, and again between November 13, 1986 and April 1, 1987, prescribe controlled substance stimulants when the patient either gained weight or failed to lose weight, contrary to the provisions of Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further charged that respondent's billing to Patient 152's insurance company for services rendered between March 27, 1984 and December 15, 1986, reflected a diagnosis of "hypertension, obesity, ingrown toenail, nerves, low back pain, and arthritis" when there was no indication in respondent's record that he had treated the patient for any condition other than obesity. Such conduct was alleged to constitute "publishing a false, fraudulent, deceptive or misleading statement," as that clause is used in Section 4731.22(B)(5), Ohio Revised Code, and the "obtaining of, or attempting to obtain money or anything of value by fraudulent misrepresentation in the course of practice," as that clause is defined in Section 4731.22(B)(8), Ohio Revised Code. That as to Patient 151 respondent did between February 21, 1979 and April 17, 1986, and again between November 13, 1986 and April 1, 1987, prescribe controlled substances and stimulants when the patient either gained weight or failed to lose weight, contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. The Board further alleged that on respondent's billing to Patient 151's insurance company for services rendered between January 10, 1984 and November 13, 1986, the diagnosis of "menopause; arthritis; glossitis; bronchitis; hypertension; nerves; and chest wall pain" were entered when the majority of services rendered by respondent were for "obesity," a diagnosis not listed, and his records contain no indication that she was being treated for hypertension, nerves or arthritis. Moreover, an EKG and "comprehensive office exam" performed on November 13, 1986 and billed under a diagnosis of "chest wall pain" were in fact performed as part of the physical required prior to starting the diet program. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent's reports and billing to two different attorneys with regard to Patient 140 (who had been involved in accidents in June and November 1985) reflected dates of service and patient complaints which were not reflected in the medical records. Such conduct was alleged to violate Section 4731.22(B)(5) and (8), Ohio Revised Code. That respondent prescribed controlled substances for Patient 241 in 1979, 1982 and 1983 through 1985 contrary to Section 4731.22(B)(2), (3) and (6), Ohio Revised Code, in that the patient had admitted to respondent in 1979 that he was addicted to Codeine and in 1985 that he was addicted to Percocet. Respondent was alleged to have first prescribed Percocet in 1983, upon the patient's complaint of back pain, without noting any physical exam or findings, and had continued prescribing it on a regular basis well into 1985. His prescribing of Codeine-based medications and Percocet continued after the patient's admission of addiction to those substances. Finally, citing 13 different patients as examples, the Board alleged that respondent routinely kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications prescribed or dispensed; prescribed controlled substances and dangerous drugs based upon patient requests for medications or patient complaints, often without utilizing appropriate testing or other methods for evaluating the validity or etiology of the complaints; and routinely prescribed controlled substance stimulants for weight loss over extended periods of time without regard to whether or not the patient demonstrated weight loss. Such conduct was alleged to violate Section 4731.22(B)(2), (3) and (6), Ohio Revised Code. Moreover, respondent's acts or omissions with regard to certain prescriptions written on or after November 17, 1986, for patients 25, 34, 130, 166, 265, and 276, were alleged to constitute violations of Rules 4731-11-02 and/or 4731-11-04, Ohio Administrative Code, and therefore Section 4731.22(B)(20), Ohio Revised Code. The aforesaid notice of charges dated May 11, 1988, advised respondent of his right to request a hearing on the matter, his right to appear at such hearing in person or through his attorney, to present his position and argument, and to present evidence and examine witnesses appearing for or against him. Respondent timely requested such hearing, and was represented by counsel. The subject charges were heard before Wanita J. Sage, Esquire, Hearing Examiner for the State Medical Board of Ohio, on September 18, 1988. Thereafter, the Hearing Examiner rendered an extensive recommendation, which contained findings of fact, conclusions and an order. Such findings of fact sustained the charges filed against respondent, and are contained in petitioner's exhibit 2. The recommendation, which summarized the factual findings, concluded: The acts, conduct, and/or omissions of Muhammad S. Mustafa, M.D., as set forth in the above Findings of Fact, constitute: "Failure to use reasonable care discrimination in the administration of drugs" and "failure to employ acceptable scientific methods in the selection of drugs or other modalities for treatment of disease", as those clauses are used in Section 4731.22(B)(2), Ohio Revised Code; "Selling, prescribing, giving away, or administering drugs for other than legal and legitimate therapeutic purposes", as that clause is used in Section 4731.22(B)(3), Ohio Revised Code; and/or "A departure from, or the failure to conform to, minimal standards of care of similar practitioners under the same or similar circumstances, whether or not actual injury to a patient is established", as that clause is used in Section 4731.22(B)(6), Ohio Revised Code. The testimony and evidence presented in this Matter amply establish that Dr. Mustafa, in the routine course of his practice, prescribed controlled substances and dangerous drugs for patients for excessive periods of time, without establishing valid medical indication or diagnosis. He prescribed potentially addictive controlled substances, often in dangerous combinations, for patients for years without adequately evaluating their complaints or attempting alternative therapies. In the case of Patient 241, Dr. Mustafa admitted that he had prescribed Codeine for this patient for a period of over one month in 1979 as treatment for his admitted Codeine addiction. Several years later, Dr. Mustafa began prescribing Percocet upon this same patient's complaint of back pain, without any evidence of evaluation, and continued to do so over a two-year period. When Patient 241 then admitted that he was addicted to Percocet, Dr. Mustafa continued to prescribe it for three addi- tional months as treatment for his addiction. Such prescribing contravenes both federal and state laws, including each of those provisions listed above. Dr. Mustafa's claim that there was no adequate treatment program available in 1979 does not satisfactorily explain his prescribing for Patient 241's addiction in 1985. The patient records clearly demonstrate Dr. Mustafa's willingness to prescribe whatever patients requested, even when objective data indicated that there was no valid medical indication for such drugs and no medical basis for the patients' complaints. In the case of Patient 36, Dr. Mustafa liberally prescribed synthetic thyroid hormone at her request, despite the fact that he had obtained tests showing her thyroid levels to be normal. He provided this same patient with narcotic pain medications, even when her complaints of pain were apparently related to urinary tract infections, menstrual cramps, or other conditions which would not appear to justify the use of controlled substances. In the case of Patient 308, Dr. Mustafa prescribed combinations of controlled substances and dangerous drugs, including narcotic analgesics, tranquilizers, hypnotics, barbiturates, antipsychotics, tricyclic antidepressants, and stimulants, even though he was aware that her complaints generally [had] no physical cause, but rather stemmed from emotional problems. On one occasion, he actually telephoned in a prescription for Compazine for Patient 308 when she was in the hospital under the care of another physician for treatment of a drug overdose. Even though Dr. Mustafa was admittedly aware that she had been hospitalized on three occasions due to drug overdoses, he continued afterwards to prescribe dangerous combinations of drugs for her, including the substances on which she had overdosed. In the case of Patient 130, Dr. Mustafa regularly prescribed and administered large amounts of narcotic analgesics over an approximately four year period. Dr. Mustafa admitted that Patient 130 was chemically dependent on narcotics, but claimed they were necessary to control his back pain. Yet, the patient record clearly indicates that Dr. Mustafa made no effort to independently evaluate or diagnose, but rather relied solely upon this patient's representations as justi- fication for his inappropriate prescribing in response to this patient's requests for addictive drugs. Furthermore, the patient record indicates that Dr. Mustafa abruptly discontinued prescribing pain medications and tranquilizers for Patient 130 in early 1987. In general, the patient records demonstrate lack of independent evaluations by Dr. Mustafa of patients' complaints of pain, for treatment of which he prescribed large amounts of controlled medications for excessive periods of time. Such prescribing violates each of the above provisions of law. Further, the patient records of Patients 152, 151, 25, 26, 36, 218, 236 and 265 support the State's allegations that Dr. Mustafa routinely prescribed controlled substance stimulants for weight loss purposes over extended periods of time, whether or not a patient demonstrated weight loss. Dr. Mustafa admitted that it had been his standard practice to prescribe a controlled substance anorectic upon a diet patient's initial visit, without first attempting to achieve weight loss through other means, such as diet or nutritional counseling. In addition, Dr. Mustafa often prescribed Lasix, a diuretic, for weight control purposes. As indicated by the testimony of Dr. Junglas, there is no valid medical indication for the use of a diuretic for weight loss. Such pre- scribing of diet medications also violates each of the above provisions of law. Certainly, both the patient records and the testimony of Dr. Mustafa support the Board's allegations that Dr. Mustafa, in the routine course of his practice, kept inadequate patient records which did not reflect examinations performed or physical findings made to justify the medications he prescribed or dispensed to his patients. Although Dr. Mustafa appeared to claim that he had done examinations or made physical findings which justified the medications he prescribed, he stated that he simply didn't have time to write down everything he knew about his patients. The patient records generally reflect only patient requests for refills of medications, non-specific patient complaints, and lists of drugs prescribed or administered by Dr. Mustafa. They are generally devoid of evidence of appropriate diagnostic testing; documentation as to the nature or severity of the patient's reported pain, illness, or injury; evidence of investigation of alter- native therapies; thorough histories, physical examinations, and diagnoses; in short, infor- mation necessary to assure that the patient receives appropriate treatment. Such records evidence Dr. Mustafa's violations of each of the above provisions of law. As indicated by the testimony of Dr. Donald Junglas, Dr. Mustafa's treatment with regard to each of the 17 patients whose records were reviewed at hearing violates each of the above provisions of law. Further, the prescriptions identified as State's Exhibits #6A through #6H and summarized by the "Prescription List by Patient Number" and the listing of "Total Drug Amounts by Drug, Year, and Month" (State's Exhibit #1) indicate that Dr. Mustafa's inappropriate, long-term prescribing of controlled substances was not confined to those 17 patients, but rather was common in his practice. Dr. Mustafa's prescribing of controlled substances for weight reduction for Patients 152 and 151 after November 17, 1986, constitutes "violating . . ., directly or indirectly, . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rule 4731-11-04, Ohio Adminis- trative Code, as in effect on and after November 17, 1986. Rule 4731-11-04(B) requires that a physician's use of controlled substances for purposes of weight reduction in the treatment of obesity be only as an adjunct in a regimen of weight reduction based on caloric restriction. It further requires the physician to determine, before instituting treatment with a controlled substance, that the patient has made a "substantial good-faith effort to lose weight in a treatment program utilizing a regimen of weight reduction based on caloric restriction, nutritional counseling, behavior modification, and exercise, without the utilization of controlled substances, and that said treatment has been ineffective. Further, the physician must obtain a thorough history, perform a thorough physical examination, and rule out the existence of any recognized contradictions to the use of the controlled substance. Further, according to this rule, the physician may not initiate or must discontinue utilizing controlled substances immediately upon determin- ing that the patient has failed to lose weight while under treatment with a controlled substance over a period of 14 days, such determination to be made by weighing the patient at least every fourteenth day. Dr. Mustafa's prescribing of Schedule IV anorectics for Patients 152 and failed to meet these requirements. Patient testified that he had never tried dieting before seeing Dr. Mustafa. Dr. Mustafa's lecturing Patient 152 about snacking does not constitute the institution of a regimen of weight reduction based on caloric restriction. The documentation in the patient records, parti- cularly in the case of Patient 151, fails even to establish that these patients' overweight constituted obesity which might have justified the use of a controlled substance in the event that other treatment methods had been proven ineffective. Further, Dr. Mustafa failed to discontinue prescribing Schedule IV anorectics for Patients 152 and 151 when they failed to lose weight, as required by Rule 4731-11-04(B). In fact, although Dr. Mustafa admittedly become aware of this Rule in December, 1986, he prescribed Schedule IV anorectics for Patient 152 when he demonstrated weight gains on February 5, March 5, and April 1, 1987, and he prescribed Schedule IV anorectics for Patient 151 when she demonstrated failure to lose weight on January 9, February 5, and March 5, 1987. Pursuant to Rule 4731-11-04(C), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Further, Dr. Mustafa's prescribing for Patients 25, 34, 130, 166, 265, and 276, on and after November 17, 1986, constitutes "violating . . ., directly or indirectly . . . any provisions of this chapter or any rule promulgated by the Board", as that clause is used in Section 4731.22(B)(20), Ohio Revised Code, to wit: Rules 4731-11-02 and/ or 4731-11-04, Ohio Administrative Code, as in effect on and after November 17, 1986. With respect to patient 25, Dr. Mustafa violated Rule 4731-11-04(B) by prescribing the Schedule IV controlled substance Fasin 30 mg. for purposes of weight reduction on both December 19, 1986, and February 13, 1987, without: instituting a regimen of weight reduction based upon caloric restriction, first determining the ineffectiveness of other methods of weight reduction, or determining whether or not she failed to lose weight by weighing her at least every fourteenth day. Further, Dr. Mustafa violated Rule 4731-11-02(D) by telephoning in a prescription for 30 Tranxene 7.5 mg., a Schedule IV anxiolytic, for Patient 25 on April 2, 1987, without documenting any exam- ination, evaluation, diagnosis, or purpose for this controlled substance. On seven occasions from November 19, 1986, through April 29, 1987, Dr. Mustafa prescribed Vicodin, a Schedule III narcotic analgesic, for Patient 34 without documenting any examination, evaluation, diagnosis, or purpose for his use of this addictive controlled substance. In fact, four of these prescriptions were issued after Dr. Mustafa had discussed with Patient 34 the addictiveness of Vicodin and the need for him to take less of it. Such acts and omissions violate both paragraph (C) and (D) of Rule 4731-11-02. Dr. Mustafa's acts and omissions with regard to Patient 130 also constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Without documenting any examination, evaluation, diagnosis, or purpose other than the patient's requests for pain medication, Dr. Mustafa administered IM injections of Demorel 100 mg., a Schedule II narcotic analgesic, to Patient 130 on December 13, 1986, January 6, 1987, and April 7, 1987. In addition to the Demerol injection, he also prescribed 100 Tylenol #4, a Schedule III narcotic analgesic, for this patient on April 7, 1987, solely upon Patient 130's request for pain medications for vacation. Dr. Mustafa had previously notified this patient on January 12 that he would prescribe no more tranquilizers or pain medications for him. Dr. Mustafa admitted at hearing that this patient had been chemically dependent upon narcotics, though he claimed that he had needed them to control his pain. Upon Patient 166's request, without document- ing any examination, evaluation, diagnosis, or purpose, Dr. Mustafa prescribed for her 100 Vicodin, a Schedule III narcotic analgesic, on December 24, 1986, and 50 Vicodin on January 29 and again on April 23, 1987. Such acts violate Rule 4731-11-02(D). With respect to Patient 265, Dr. Mustafa initiated treatment with Adipex-P, a Schedule IV stimulant anorectic controlled substance, on December 9, 1986, without first determining the effectiveness of other methods of weight reduction, without instituting a regimen of weight reduction based on caloric restriction, and without obtaining a thorough history or performing a thorough physical examination to rule out the existence of any contradiction. Dr. Mustafa continued to prescribe Apidex-P through April 31, 1987, without weighing Patient 265 at least every fourteenth day and without immediately discontinuing such treatment when this patient showed a weight gain on February 10, 1987. Such acts and omissions violate Rule 4731-11-04(B). Furthermore, from December 9, 1986, through May 11, 1987, Dr. Mustafa prescribed Valium for her on three occasions, two of which prescriptions he telephoned in. On five occasions during this period, he prescribed Darvon Compound 65 for her, including one occasion when Patient 265 indicated that she had 30 tablets left from a previous prescription, two occasions where Dr. Mustafa provided her with postdated prescriptions, and one occasion where he telephoned in a prescription. At no time did Dr. Mustafa document any examination, evaluation, diagnosis, or purpose other than the patient's stated complaint, for his prescribing of these controlled substances. Such acts and omissions constitute violation of both paragraphs (C) and (D) of Rule 4731-11-02. In an approximately five month period from November 17, 1986, through April 28, 1987, Dr. Mustafa prescribed for or administered to Patient 276 a total of 519 dosage units of controlled substances, including: 25 Demerol 50 mg., a Schedule II narcotic analgesic; 2 IM injections of Demerol 50 mg.; 2 IM injections of Demerol 75 mg.; 60 Fiorinal, a Schedule III barbiturate analgesic; and 430 Darvocet N-100, a Schedule IV narcotic analgesic. Of these, 230 dosage units were prescribed by telephone. Throughout this period, Dr. Mustafa failed to document examination, evaluation, diagnosis, or purpose for this prescribing other than patient requests and complaints. On one occasion, he did note a physical finding of severe pain and tenderness in the back, radiating downward; however, no further evaluation was done and no diagnosis was indicated. On another occasion, Dr. Mustafa noted a diagnosis of severe migraine headache, but failed to state any information upon which that diagnosis was based. In view of the addictiveness and volume of the substances so prescribed, it is concluded that Dr. Mustafa's acts and omissions with regard to Patient 276 constitute violations of both paragraphs (C) and (D) of Rule 4731-11-02. Pursuant to Rule 4731-11-04(C), Ohio Administ- rative Code, Dr. Mustafa's violations of Rule 4731-11-04(B) also violate Sections 4731.22(B)(2), (B)(3), and (B)(6), Ohio Revised Code. Pursuant to Rule 4731-11-02(F), Ohio Adminis- trative Code, Dr. Mustafa's violations of Rule 4731-11-02(C) and (D) also violate Sections 4731.22(B)(2) and (B)(6), Ohio Revised Code. Further, in view of the nature and/or amounts of the drugs prescribed and the circumstances with regard to such prescribing, Dr. Mustafa's acts and omissions with regard to Patients 130, 265, and 276 are found to constitute purposeful, knowing, or reckless violations of paragraph (C), and thus, pursuant to paragraph (F), also violate Section 4731.22(B)(3), Ohio Revised Code. Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of Fact #7 and #13, above, constitute: "Publishing a false, fraudulent, deceptive, or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Reviewed Code. Claim forms submitted by Dr. Mustafa or his office staff to insurers for reimbursement for Dr. Mustafa's services for both Patient 152 and Patient 151 reported diagnoses for which he had not treated those patients. The fact that diagnoses appeared on claim forms, but not in the patient records, cannot be attributed merely to Dr. Mustafa's poor documentation. Although Dr. Mustafa's patient records clearly indicate that the EKG's done in November, 1986, were part of physical examinations for initiation of diet programs, these EKG's were claimed under diagnoses of hypertension for Patient 152 and chest wall pain for Patient 151. In fact, the "Weight Reduction Program" form contained in Patient 152's file indicates that he had no history of hypertension or heart disease. It must be concluded that false diagnoses were reported for purposes of obtaining reimbursement from the insurer for performance of these routine tests. Although not included in the Board's allegations, it is noted that a similar billing was submitted on behalf of another patient reviewed in this Matter, Patient 25 (See Finding of Fact #19). Although Dr. Mustafa denied knowledge of or responsibility for these false billings, copies of the claims, many of which were signed by Dr. Mustafa, were made a part of the patients' records. Furthermore, contrary to Dr. Mustafa's contentions, he is responsible for the billing procedures of his office. It must be concluded that Dr. Mustafa knew or should have known of the fraudulent billings submitted on behalf of Patients 152 and 151. Further, Dr. Mustafa's acts, conduct, and/or omissions, as set forth in Findings of fact #15 and #16, above, constitute: "Publishing a false, fraudulent, deceptive or misleading statement", as that clause is used in Section 4731.22(B)(5), Ohio Revised Code; and "The obtaining of, or attempting to obtain, money or anything of value by fraudulent misrepresentations in the course of practice", as that clause is used in Section 4731.22(B)(8), Ohio Revised Code. Dr. Mustafa submitted billings and reports of Patient 140's attorneys, listing dates of service and fees not reflected in the patient record. In addition, he billed both attorneys for a January 28, 1986, office visit. Dr. Mustafa's attempts to explain these discrepancies are not convincing. The reports to the attorneys listed no specific treatments or medications for the dates reported; thus, they could not be adequate substitutes for clinical notes which Dr. Mustafa claimed to have recorded on separate cards. Further, Dr. Mustafa claimed that he had made clinical notes on cards, later discarded, because Patient 140 had come to his home, rather than to his office, for treatment; yet he had earlier testified that his office was in his home (Tr. at 41). Also, Dr. Mustafa's attempt to blame his receptionist for the double billing of the January 28, 1986, visit is not well taken. Dr. Mustafa signed the reports submitted to both attorneys and was responsible for their accuracy. It is evident that the billings submitted to Patient 140's attorneys for reimbursement for professional services fraudulently misrepresented the extent of and fees for Dr. Mustafa's services. Although not part of the Board's charges, it is further noted that the patient record for Patient 166 contains a billing submitted to an attorney which contains both dates of service and fees which are not reflected in the patient record (see Finding of fact #31). * * * * * The testimony and evidence in this Matter sub- stantially shows that Dr. Mustafa, in the routine course of his practice, engaged in inappropriate, indiscriminate prescribing of controlled substances and dangerous drugs. The patient records evidence his willingness to prescribe at the patient's request, without regard for medical indications or patient welfare. In at least one case, he admittedly prescribed narcotics to a known addict for an inappropriate period of time without referring him to an authorized treatment program. Both the State's exhibits and the testimony of its expert, Dr. Junglas, rob Dr. Mustafa's claim, that his prescribing was in accordance with acceptable community standards for the time, of credence. Dr. Mustafa admitted that he had ignored the warnings of drug manufacturers and FDA labeling with regard to his long-term prescribing of controlled substances, relying on information he claimed to have obtained from his colleagues. At best, Dr. Mustafa's prescribing practices reflect a willful ignorance of the properties and effects of drugs. Neither willful ignorance nor the lack of moral character demonstrated by Dr. Mustafa's fraudulent billings would seem to be remediable. PROPOSED ORDER It is hereby ORDERED that the certificate of Muhammad S. Mustafa, M.D., to practice medicine and surgery in the State of Ohio shall be and is hereby REVOKED. This Order shall become effective thirty (30) days from the date of mailing of notification of approval by the State Medical Board of Ohio, except that Dr. Mustafa shall immediately surrender his United States Drug Enforcement Administration certificate and shall not order, purchase, prescribe, dispense, administer, or possess any controlled substances, except for those prescribed for his personal use by another so authorized by law. Further, in the interim, Dr. Mustafa shall not undertake treatment of any individual not already under his care. Wanita J. Sage Attorney Hearing Examiner The Hearing Examiner's proposed findings of fact, conclusions and order were adopted by the State Medical Board of Ohio on December 6, 1989. Respondent appealed the Board's order through the courts and on May 4, 1992, the Ohio Supreme Court refused respondent's request that it take jurisdiction of the case. Consequently, the order of the State Medical Board of Ohio revoking respondent's license to practice medicine became effective June 15, 1992. Other matters At hearing, respondent offered the opinion of Adnan E. Mourany, M.D., Soundiah Selvaraj, M.D., and Marcello Mellino, M.D., by way of deposition (Respondent's exhibits 9-11), concerning respondent's reputation as a physician. Dr. Mourany is licensed to practice medicine in the State of Ohio, as well as Indiana, Minnesota and New York, and has practiced since 1986. He is Chairman of Surgery and Chief of Otolarynology at St. John's Westshore Hospital, and has known respondent professionally and personally since 1979. Dr. Selvaraj is licensed to practice medicine in the State of Ohio, and has practiced since 1974. he is Chief of Internal Medicine and Ambulatory Care at the Luthern Medical Center, and has known respondent professionally since 1976. Dr. Mellino is licensed to practice medicine in Ohio, and has practiced for 13 years. He is a cardiologist, and has known respondent professionally since 1978. It was the opinions of Doctors Mourany, Selvaraj and Mellino that respondent was an excellent surgeon who enjoyed a reputation as a good physician. 5/ At hearing, respondent also presented proof that during medical school he received an award from the Governor of Oklahoma for having performed volunteer work with charitable organizations, and that during his practice in Cleveland he received a ten-year service award from Luthern Medical Center and an award from the United States Senate recognizing his volunteer work for the Cleveland Foundation. Respondent also participated in two projects in Cleveland, one in 1983 and one in 1987, to treat patients without charge. All such activities predated the charges filed by the Ohio Board of Medicine. Since revocation of his Ohio license, respondent attended three courses of continuing medical education programs. The first, "Medical Malpractice and Risk Management--1993," was apparently completed in October 1993; the second, "AIDS and Florida Law--1993," was apparently completed in October 1993; and the third, "Surgical Education and Self-Assessment Program," was apparently completed in November 1993. Other than having attended such courses, respondent's activities since the revocation of his Ohio license do not appear of record.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license to practice medicine in the State of Florida. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of September 1994. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of September 1994.
The Issue The issues in this case are 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 department charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2005). At all times material to this case, the Respondent was a physician licensed by the State of Florida, holding license number 59702 and was board-certified in obstetrics and gynecology. The Respondent owned, and practiced medicine at, EPOC Clinic, 609 Virginia Drive, Orlando, Florida. On December 19, 2005, Patient S.B. presented to the EPOC Clinic to inquire about terminating a pregnancy, but elected not to proceed with the termination at that time. On February 3, 2006, S.B. returned to the EPOC Clinic, having decided to terminate the pregnancy. A sonogram was performed, and S.B. was determined to be approximately 18 to 19 weeks gestation. At that time, she executed consent forms for pregnancy termination by medication, and dilation and extraction (D&E). Patient S.B. had been pregnant three times previously and had birthed three children, each delivered live by cesarean section. The patient's pregnancy termination was scheduled to commence on February 4, 2006, but S.B. was late in arriving at the clinic, and the procedure was rescheduled for February 6, 2006. The patient returned to the EPOC Clinic as rescheduled. While at the EPOC Clinic on February 6 and 7, 2006, S.B. received medical care and treatment primarily from the Respondent and from Carmita Etienne, a medical assistant working at the clinic. The termination was initiated with the use of "Cytotec," a drug that causes cervical dilation and uterine contractions, and which generally results in passage of the fetus into the vaginal vault. Cytotec is commonly used in medication-based pregnancy termination. It is known to increase the potential for uterine rupture during labor and delivery, the risk for which is noted within the relevant consent documents executed by the patient. Cytotec tablets, in 200 microgram dosages, were administered orally to the patient by the Respondent's medical assistant. S.B. received 200 micrograms of Cytotec at 10:00 a.m. on February 6, 2006, and received the same dosage at four-hour intervals through 10:00 a.m. on February 7, 2006, at which time the patient's cervix remained undilated. The Respondent thereafter escalated the frequency of the Cytotec to every two hours, and the drug was administered two additional times on February 7, 2006, at noon and 2:00 p.m. According to progress notes contained in the medical records, S.B. complained of discomfort on February 6, 2006, at 7:45 p.m. and on February 7, 2006, at 3:00 a.m. Discomfort or pain is a typical element of labor, and S.B.'s discomfort was not unexpected. Demerol, a controlled substance, is routinely used to relieve pain during medical procedures, including pregnancy terminations. The medical assistant relayed S.B.'s reports of discomfort to the Respondent. The Respondent ordered Demerol on both occasions to relieve S.B.'s pain. A physician must be properly registered with the U.S. Drug Enforcement Administration (DEA) to order the administration of Demerol to a patient. The Respondent was not properly registered with the DEA on February 6 or 7, 2006. At the hearing, the Respondent denied that he ordered the Demerol. He testified that he was serving as a conduit between his medical assistant and another physician, Dr. Harry Perper, who also worked at the clinic and who was apparently properly registered with the DEA. The Respondent's testimony on this issue was not persuasive and has been rejected. The evidence failed to establish that Dr. Perper ordered the administration of Demerol to the patient or that the Respondent merely relayed such orders from Dr. Perper to the medical assistant. The Respondent asserted that he had not been registered with the DEA since 2002 and that everyone at the clinic knew he could not order controlled substances. The patient's progress notes, created contemporaneously with the patient's treatment at the clinic, explicitly state that the orders for Demerol came from the Respondent. The medical assistant who created the progress notes testified that she preferred talking to the Respondent rather than Dr. Perper and that the directions she received for the patient's Demerol came from the Respondent. The Respondent's assertion that he did not order the Demerol was not credible and has been rejected. The Demerol was administered by the medical assistant through injection of the medication into S.B.'s buttocks, and the patient's pain was reduced. The medical assistant denied that she personally administered the Demerol to the patient. Her denial was not credible and has been rejected. The progress notes also state that the patient complained of "right side" pain at 3:00 p.m. on February 7, 2006. At approximately 3:45 p.m. on February 7, 2006, the patient was apparently examined by Dr. Perper, who wrote "SROM" in the progress notes, signifying that a "spontaneous rupture of membranes" had occurred and indicating that the patient's "water had broken." He also documented his observation that a fetal part was protruding from the cervix into the vagina. By that evening, the patient's termination was not completed. At approximately 7:00 p.m. on February 7, 2006, the medical assistant moved the patient into a procedure room at the Respondent's direction. The instruments to perform a D&E were present in the procedure room. The Respondent began to perform an examination of S.B. to assess the situation and determine whether the termination procedure should be completed by D&E. The Respondent utilized a speculum to open the patient's vagina and performed a sonogram on the patient's abdomen to identify the location of the fetus. The fetus was observed to be within S.B.'s uterus. The Respondent observed a fetal part protruding through the cervical os into the vagina. In order to examine the extent of cervical dilation, he detached the part from the fetus by grasping the part with a "Hearn" instrument and twisting the instrument. After he detached the part, he withdrew the instrument and the part from the patient. The Petitioner alleged that the Respondent "apparently" attempted a D&E. The evidence failed to support the allegation. The evidence failed to establish that the Respondent pulled on the exposed fetal part in an attempt to extract the fetus from the uterus. The evidence failed to establish that the Respondent inserted the Hearn or any other instrument into the patient's cervix or uterus. After removing the fetal part from the vagina, the Respondent placed the part on a tray. Almost immediately thereafter, the Respondent's reviewed the ultrasound image and observed that the image indicated the fetus was no longer fully contained within the uterus. The Respondent understood that the ultrasound image indicated a potential uterine perforation or rupture and, appropriately, concluded that the situation could be life- threatening for the patient. He quickly contacted the Arnold Palmer Hospital to arrange for emergency transfer of S.B. to the hospital. The Respondent also spoke to two practitioners at the hospital. Initially, he spoke by telephone to Dr. Pamela Cates, a resident physician at the hospital. Dr. Cates did not have the authority to admit the patient to the hospital and directed the Respondent to talk to Dr. Norman Lamberty, the "Ob/Gyn" physician on call and present at the hospital. The Respondent spoke by telephone to Dr. Lamberty, who agreed to accept the transfer of the patient from the clinic to the hospital. The Respondent failed to inform either Dr. Cates or Dr. Lamberty that he had removed a portion of the fetus from the patient at the clinic. While waiting for an ambulance to arrive to transport the patient, the Respondent wrote a note to be transported to the hospital with the patient. Although in the note he documented the treatment provided to the patient at the clinic, he failed to include the removal of the fetal part in the note. The Respondent testified that he did not document his removal of the fetal part because he did not believe it was significant to the medical care the patient would receive at the hospital. S.B. was transported to the hospital along with some of her medical records from the clinic and the Respondent's handwritten note. None of the documentation indicated that a part of the fetus had been removed at the clinic. After S.B. arrived at the hospital, Dr. Lamberty removed the fetus and completed the abortion procedure. Dr. Lamberty also repaired a cervical laceration and performed a hysterectomy. He noted that the uterine rupture occurred on the patient's right side and that the fetus was located not "floating" in the abdomen but "between two layers of tissue on the right side of the pelvis." The evidence failed to establish that the cervical laceration occurred while the patient was at the clinic or that it was caused by treatment the patient received at the clinic. Upon removing the fetus, Dr. Lamberty observed that the fetus was incomplete and that a portion of the fetal leg was missing. Dr. Lamberty began efforts to locate the missing part, which he reasonably presumed remained in the patient. Dr. Lamberty's concern regarding the missing part was that potential exposure of the part to the patient's vagina would have contaminated the part with bacteria and that a risk of infection would be presented by leaving the part within the patient's pelvis or abdomen. Dr. Lamberty was unable to locate the missing part, and, thereafter, radiological studies, including X-rays and a CT scan, were performed in an unsuccessful attempt to locate the part. The patient remained hospitalized and on February 10, 2006, a second surgical procedure was performed on the patient, this time to remove a "Jackson-Pratt" drain that had been improperly sutured into the patient's abdomen at the time of the hysterectomy. The second surgery was unrelated to the search for the missing part. Also on February 10, 2006, the hospital contacted the clinic to inquire as to the missing part and was advised that the part had been removed by the Respondent at the clinic.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a final order finding James S. Pendergraft IV, M.D., in violation of Subsections 458.331(1)(m) and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a two-year period of suspension followed by a three-year period of probation and an administrative fine of $20,000.00. DONE AND ENTERED this 21st day of September, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 21st day of September, 2009. COPIES FURNISHED: Greg S. Marr, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Kenneth J. Metzger, Esquire Metzger, Grossman, Furlow & Bayo, LLC 1408 North Piedmont Way Tallahassee, Florida 32308 Kathryn L. Kasprzak, Esquire Fowler White Boggs Banker, P.A. 200 South Orange Avenue, Suite 1950 Orlando, Florida 32801 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether Respondent, a physician specializing in gastroenterology, (a) mistakenly gave a patient an upper endoscopy, thereby committing the disciplinable act of performing a "wrong procedure"; and/or (b) failed to confirm the intended procedure, allegedly a colonoscopy, before performing the alleged "wrong procedure," in violation of the "pause rule." If Respondent committed these offenses, or either of them, it will be necessary to determine an appropriate penalty.
Findings Of Fact At all times relevant to this case, Respondent Aryama Devi Sharma, M.D., was licensed to practice medicine in the state of Florida. Dr. Sharma has practiced in Broward County for nearly 20 years and has privileges at Broward General Medical Center (the "Hospital") in Fort Lauderdale, Florida. She is board-certified in gastroenterology and internal medicine. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed physicians such as Dr. Sharma. In particular, the Department is authorized to file and prosecute an administrative complaint against a physician, as it has done in this instance, when a panel of the Board of Medicine has found that probable cause exists to suspect that the physician has committed a disciplinable offense. Here, the Department alleges that Dr. Sharma committed two such offenses when she performed an upper endoscopy on a patient named G.R., instead of a colonoscopy as originally planned. The crux of this case is whether, as the Department contends, Dr. Sharma made a mistake and performed the "wrong procedure" on G.R., or whether, alternatively, Dr. Sharma deliberately changed the plan for G.R. and intentionally performed the upper endoscopy, as she maintains. As will be seen, the resolution of this essential dispute of material fact drives the ultimate determinations regarding whether Dr. Sharma performed a wrong procedure; (b) failed to obey the "pause rule," which requires a physician to stop and confirm the intended procedure and the patient's identify before proceeding; or (c) committed both of these disciplinable offenses. The events giving rise to this case began in the summer of 2007, when G.R.'s primary care physician, Dr. Valerie Solomon, referred G.R., then 60, to Dr. Sharma for a routine colonoscopy, which was overdue. As a result of this referral, Dr. Sharma saw G.R. for the first time on August 1, 2007. During this office visit, Dr. Sharma assessed G.R. and, while doing so, recorded pertinent medical information in her notes for inclusion in the patient's file. Dr. Sharma's contemporaneous notes report, for example, that G.R. complained of a change in bowel habits, occasional constipation, bloating, and heartburn. Dr. Sharma also wrote that G.R. was taking a prescription medicine called Actos for diabetes, as well as antacids as needed. Dr. Sharma performed routine abdominal and rectal examinations on G.R., who did not refuse to undergo either. (Had G.R. refused these examinations, Dr. Sharma would have discharged her from her practice.) In conducting the abdominal examination, Dr. Sharma discovered that G.R. had mild epigastric tenderness, which can be indicative of gastritis (an infection or inflammation of the stomach) or peptic ulcer disease. The rectal examination revealed occult blood——that is, blood invisible to the naked eye——in G.R.'s stool. Based on these examinations, Dr. Sharma formulated three working diagnoses: (a) occult G.I. bleeding, for which she wanted to rule out (as possible causes) cancer, polyps, and diverticulitis; (b) dyspepsia, for which she wanted to rule out peptic ulcer disease, gastroesophageal reflux disease (GERD), and Helicobactor pylori (H. pylori) infection; and (c) diabetes mellitus. These working and differential diagnoses are documented in Dr. Sharma's office notes. Dr. Sharma recommended that G.R. undergo both an upper endoscopy and a colonoscopy. Following her routine practice, Dr. Sharma explained both of these procedures to G.R., using anatomical posters in her examination room as visual aids. Dr. Sharma wrote in her office notes as follow: Plan on colonoscopy. Patient will need EGD [meaning esophagogastroduodenoscopy——in other words, an upper endoscopy], colonoscopy. Procedures explained to patient. All risks, benefits, complications and alternatives explained. [Patient] understands and agrees to proceed. Plan on EGD/colonoscopy. Schedule for colonoscopy. Dr. Sharma testified credibly, and the undersigned finds, that G.R. consented to have both procedures done. For no particular reason, it was decided that the colonoscopy would be performed first, and Dr. Sharma's staff accordingly made an appointment for G.R. to have a colonoscopy at the Hospital on August 23, 2007. Dr. Sharma signed an order for the colonoscopy, using a preprinted form for endoscopy procedures (including EGD), which was delivered to the Hospital the next day.1 On the morning of August 23, 2007, G.R. arrived at the Hospital to have the colonoscopy for which she had been scheduled. G.R. was seen upon admission by Christine Bomeisl, R.N., who obtained a medical history and checked G.R.'s vital signs. Ms. Bomeisl noted on a form called the Same Day Unit Flow Sheet that G.R. had arrived at 9:15 a.m., and that the patient reportedly had taken the laxative Fleet's Phospho-soda that day (as part of the colonoscopy prep) and vomited.2 At 9:40 a.m., G.R. signed a Consent for Operative and Invasive Procedures form, which authorized Dr. Sharma to perform a colonoscopy. Ms. Bomeisl witnessed G.R. sign the written consent form. At a few minutes past 10:00 a.m., Dr. Sharma gave G.R. a preoperative physical, during which she took a brief medical history. Pre-op visits of this nature are part of Dr. Sharma's routine practice. G.R. complained to Dr. Sharma of nausea, vomiting, and abdominal pain, which Dr. Sharma documented contemporaneously, on a form called the Short Form History and Physical Medical Clearance (the "Pre-op Form"), as "60 yr old with dyspepsia." On the line where the Pre-op Form called for entry of the patient's "chief complaint/present illness," Dr. Sharma wrote: "abdominal bloating." Upon learning that G.R. had vomited earlier and continued to be nauseas, Dr. Sharma became concerned about performing a colonoscopy. This was because, if G.R. vomited while under sedation, she might aspirate the contents of her stomach. Additionally, it was more urgent under the circumstances, in Dr. Sharma's medical judgment, to investigate G.R.'s abdominal symptoms immediately and to defer the colonoscopy, which could wait. Accordingly, Dr. Sharma decided to change the original plan and perform an upper endoscopy on G.R. that morning instead of a colonoscopy.3 Dr. Sharma explained the upper endoscopy procedure to G.R., informing G.R. that she would be putting a scope down G.R.'s esophagus to look into G.R.'s stomach in an attempt to find the cause of her acute distress. Dr. Sharma told G.R. that she would take tissue for a biopsy, if necessary. G.R. agreed with this change in the plan and verbally consented to the upper endoscopy.4 Dr. Sharma wrote on the Pre-op Form that the "procedure" to be performed was "EGD + Bp" [i.e. upper endoscopy with biopsy] and that the "plan" was "EGD + Bp." In addition, Dr. Sharma checked the "yes" box next to statement: "Risks, benefits, alternatives, & complications explained."5 Dr. Sharma told Hensylene Previlor, the nurse who was preparing patients for endoscopic procedures that morning, that G.R. would be having an upper endoscopy. From that point forward, all of the members of the team involved in implementing Dr. Sharma's order proceeded with the correct understanding that Dr. Sharma intended to perform an upper endoscopy on G.R.6 G.R. was brought into the procedure room shortly before 11:00 a.m. Consistent with the Hospital's procedure for positioning a patient for an upper endoscopy, G.R. was lying on her side, facing the endoscope, her feet pointed towards the door. Thus, when Dr. Sharma entered the room, G.R. was prepared for an upper endoscopy. Two nurses assisted Dr. Sharma with the upper endoscopy, Veronica Jacob, R.N.; and Tasha Nunziato, R.N. Ms. Jacob was the "paper-side" nurse responsible for documenting the procedure. Ms. Nunziato was the "scope-side" nurse, meaning that her job was to assist Dr. Sharma with the endoscope and to help place any biopsy tissues into the correct containers. At the outset, before the "time-out" was taken (when the team pauses to confirm the intended procedure and the patient's identity), and prior to the patient's receipt of anesthesia, Dr. Sharma once again explained to G.R. that she would be performing an upper endoscopy to investigate G.R.'s abdominal complaints. Ms. Nunziato gave another explanation of the procedure, similar to Dr. Sharma's, before inserting a bite block into G.R.'s mouth. G.R. never objected to having an upper endoscopy or denied having experienced the abdominal discomfort being cited as the reason for the procedure. Dr. Sharma initiated the time-out at about 11:00 a.m. by announcing that it had begun. Everyone stopped talking and focused on the process. Ms. Nunziato examined G.R.'s identification band and read aloud the patient's name, medical record number, and birth date and verified this information with G.R. Ms. Nunziato asked G.R. if Dr. Sharma were her doctor. G.R. said "yes." Ms. Nunziato asked G.R. if she agreed that an upper endoscopy would be performed on her, and G.R. answered "yes." Ms. Jacob, too, asked G.R. whether she were there for an upper endoscopy. G.R. replied that she was.7 Ms. Jacob consulted the endoscopy nursing record during the time-out to verify the intended procedure. This record indicated correctly that G.R. was to have an upper endoscopy in accordance with Dr. Sharma's most recent treatment order, which had countermanded the original order for a colonoscopy. (Unbeknown to Dr. Sharma, however, Ms. Jacob did not review the Consent for Operative and Invasive Procedures form that G.R. had signed that morning, pursuant to which G.R. authorized Dr. Sharma to perform a colonoscopy. Dr. Sharma was unaware that G.R. had not signed a written consent concerning the upper endoscopy.) Ms. Jacob documented that a time-out had been conducted for an EGD at 11:00 a.m. Anesthesia for the upper endoscopy was started at 11:05 a.m. The procedure commended at 11:06 a.m. and was finished at 11:08 a.m. During the upper endoscopy, Dr. Sharma found a hiatal hernia, gastritis, and antral erosions. Dr. Sharma also removed some tissue from G.R.'s stomach wall for biopsy. In her postoperative procedure note, Dr. Sharma wrote that it was her plan to have G.R. "be followed up in my office, at which time the biopsies will be discussed and if the patient is Helicobactor pylori positive, then the patient will be treated for that." After the upper endoscopy was performed, Ms. Jacob took G.R. to the recovery room, where Jackie Johnson, R.N., took over the care of G.R. Ms. Johnson reviewed G.R.'s chart, including the endoscopy report. When she noticed that G.R.'s discharge paperwork was for a colonoscopy patient, Ms. Johnson asked G.R. to identify the procedure that had been performed on her. G.R. told Ms. Johnson that she had undergone a colonoscopy. Ms. Johnson then left G.R. to report the discrepancy in the paperwork to the charge nurse.8 Eventually, the unit secretary was sent to retrieve Dr. Sharma to sort the matter out. Upon being alerted to a potential problem, Dr. Sharma went to the recovery room and found G.R. there. G.R. asked Dr. Sharma about the results of the colonoscopy. Dr. Sharma replied that she had performed an upper endoscopy as they had discussed earlier that morning.9 G.R. said she thought she was to have had both procedures. Because G.R. did not want to prepare again for a colonoscopy or take another day off from work, Dr. Sharma agreed, after consulting with the anesthesiologist, to perform a colonoscopy on G.R. later that day, which was done. The pathologist who performed the biopsy on G.R.'s tissue samples found that G.R.'s stomach contained "abundant organisms consistent with H. pylori." This caused the pathologist to diagnose chronic active Helicobactor pylori gastritis. An H. pylori infection can cause dyspepsia, the symptoms of which include abdominal pain, bloating, heartburn, and vomiting. On August 24, 2007, G.R. saw Dr. Solomon, apparently for a previously scheduled appointment. G.R. told her primary care physician that the results from the previous day's procedures should be sent to Dr. Solomon, so that she (G.R.) would not need to see Dr. Sharma again. G.R. reported being upset about what had happened at the Hospital the day before; she told Dr. Solomon that she had expected to have only a colonoscopy. G.R. was scheduled to return to Dr. Sharma's office for a follow-up appointment on September 5, 2007, to discuss the results of the endoscopic procedures. G.R. did not keep this appointment. Shortly thereafter, Dr. Sharma made several attempts to contact G.R. by telephone but failed to reach her. On September 19, 2007, Dr. Sharma informed Dr. Solomon of G.R.'s biopsy results and the H. pylori infection discovered during the upper endoscopy procedure. Dr. Solomon called G.R. after receiving a copy of the pathology report and prescribed G.R. the antibiotic Prevpac to treat the H. pylori infection. Dr. Solomon documented in the patient's chart that she had prescribed Prevpac for G.R. Dr. Sharma spoke with G.R. by telephone on September 26, 2007. During this conversation, which is documented in the patient chart that Dr. Sharma maintained on G.R., Dr. Sharma confirmed with G.R. that Dr. Solomon had prescribed an antibiotic to treat G.R.'s H. pylori infection.10 Ultimate Factual Determinations G.R. checked into the Hospital on the morning of August 23, 2007, expecting to have a colonoscopy pursuant to Dr. Sharma's order. Dr. Sharma countermanded the preexisting order for a colonoscopy, however, with a superseding order announced verbally at around 10:00 a.m., which called for G.R. to have an upper endoscopy. Because Dr. Sharma had previously told G.R. that G.R. would need to have an upper endoscopy so that Dr. Sharma could determine the cause of the abdominal discomfort G.R. had been experiencing, the order for an upper endoscopy did not come out of the blue. Dr. Sharma did not make a mistake when she performed an upper endoscopy on G.R. at around 11:00 a.m. on August 23, 2007. Rather, the upper endoscopy that Dr. Sharma performed was the procedure she intended to perform, pursuant to the order she herself had given respecting G.R.'s treatment plan. The upper endoscopy, in short, was the right procedure. Dr. Sharma neither performed nor attempted to perform a wrong procedure, and therefore she is not guilty of committing an offense punishable under section 456.072(1)(bb), Florida Statutes. Before Dr. Sharma performed the upper endoscopy, she and the team paused, in compliance with Florida Administrative Code Rule 64B8-9.007(2)(b), to confirm the patient's identity, the intended procedure, and the procedure site. Accordingly, Dr. Sharma is not guilty of committing an offense punishable under section 458.331(1)(nn), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order finding Dr. Sharma not guilty of the charges set forth in the Administrative Complaint. DONE AND ENTERED this 16th day of February, 2011, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2011.
Findings Of Fact 1. The Administrative Law Judge’s findings of fact are hereby approved, adopted, and incorporated herein as amended by the exceptions granted. 2. There is competent, substantial evidence to support the Administrative Law Judge’s findings of fact as amended and adopted by the Board. EXCEPTIONS TO CONCLUSIONS OF LAW 1. Petitioner filed an exception to 453 of the RO wherein the ALJ concluded that Petitioner did not satisfy its burden of proof. The exception to 453 is granted., The record overwhelmingly supports by clear and convincing evidence that ‘ Respondent breached the standard of care. Respondent was responsible for the care and treatment of this patient. Respondent's responsibility to his patient as attending physician and surgeon of record required him to review the patient's records so that this error would not occur under his supervision. 2. Petitioner filed an exception to 455 of the RO wherein the ALJ concluded that the record failed to establish that Respondent breached any applicable standard of care, and that there was no evidence that Lankau committed any errors-or omissions which were connected in any way to the wrong site surgery. The exception to 455 is granted as not being supported by competent substantial evidence. Paragraph 55 is stricken, and is replaced with the following conclusion of law: The record in this case establishes that Lankau breached the standard of care. 10 3. Respondent filed an exception to {55 of the RO and requested that the findings in {55 be considered a finding of fact rather than conclusion of law. The exception is denied.
Other Judicial Opinions Pursuant to Section 120.569, Florida Statutes, any substantially affected person is hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the clerk of the Department of Health and by filing the filing fee and one copy of the Notice of Appeal with the District Court of Appeal within 30 days of the date this Final Order is filed. 12 CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to CHARLES A. LANKAU, MD, c/o W. Sam Holland, Esquire, 200 S. Biscayne Bivd., Suite 800, Miami FL 33131, and Florence Synder Rivas, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee FL 32399-1550 and and by inter-office mail to Nancy Snurkowski, Chief-Practitioner Regulation, Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee FL 32308-5403 and Lisa Pease, Senior Attorney-Appeals, Agency for Health Care Administration, 2727 Mahan Drive, Ft. Knox #3, Tallahassee FL 32308, this tiff, day of _(\41- A__) 2002. F:\USERS\ADMIN\LEE\MEDICINE\ORDERS\LANKAU2.02.wpd 13
The Issue The issue in this case is whether Kenneth D. Stahl, M.D. ("Dr. Stahl" or "Petitioner"), is entitled to an award of attorneys' fees and costs to be paid by the Department of Health, Board of Medicine ("Department" or "Respondent"), pursuant to section 57.105, Florida Statutes (2014).1/
Findings Of Fact Review of the record indicates that, at the time the Administrative Complaint was filed at DOAH, the following facts were known by Respondent, as later stated in the Findings of Fact of the Final Order of the underlying case: In February 2011, Patient C.C., a 52-year-old female, was admitted to Jackson Memorial Hospital ("JMH") with a diagnosis of perforated appendicitis. She also had a perirectal abscess. Her records indicate that she was treated with percutaneous drainage and a course of intravenous antibiotics. She was discharged on March 4, 2011. On June 22, 2011, Patient C.C. presented to the JMH Emergency Department complaining of 12 hours of abdominal pain in her right lower quadrant with associated nausea and vomiting. Shortly after her arrival, she described her pain to a nurse as "10" on a scale of one to ten. A computed tomography ("CT") scan of Patient C.C.'s abdomen was conducted. The CT report noted that the "the uterus is surgically absent," and "the ovaries are not identified." It noted that "the perirectal abscess that was drained previously is no longer visualized" and that the "appendix appears inflamed and dilated." No other inflamed organs were noted. The radiologist's impression was that the findings of the CT scan were consistent with non-perforated appendicitis. Patient C.C.'s pre-operative history listed a "total abdominal hysterectomy" on May 4, 2005. Patient C.C.'s prior surgeries and earlier infections had resulted in extensive scar tissue in her abdomen. Patient C.C. was scheduled for an emergency appendectomy and signed a "Consent to Operations or Procedures" form for performance of a laparoscopic appendectomy, possible open appendectomy, and other indicated procedures. Patient C.C. was taken to surgery at approximately 1:00 a.m. on June 23, 2011. Dr. Stahl was the attending physician, and notes indicate that he was present throughout the critical steps of the procedure. The Operative Report was dictated by Dr. Eddie Manning after the surgery and electronically signed by Dr. Stahl on June 23, 2011. The report documents the post-operative diagnosis as "acute on chronic appendicitis" and describes the dissected and removed organ as the appendix. Progress notes completed by the nursing staff record that, on June 23, 2011, at 8:00 a.m., Patient C.C. "denies pain" and that the laparoscopic incision is intact. Similar notes indicate that at 5:00 p.m. on June 23, 2011, Patient C.C. "tolerated well reg diet" and was waiting for approval for discharge. Patient C.C. was discharged on June 24, 2011, a little after noon, in stable condition. On June 24, 2011, the Surgical Pathology Report indicated that the specimen removed from Patient C.C. was not an appendix, but instead was an ovary and a portion of a fallopian tube. The report noted that inflammatory cells were seen. Surgery to remove an ovary is an oophorectomy and surgery to remove a fallopian tube is a salpingectomy. On Friday, June 24, 2011, Dr. Nicholas Namias, chief of the Division of Acute Care Surgery, Trauma, and Critical Care, was notified by the pathologist of the results of the pathology report, because Dr. Stahl had left on vacation. Dr. Namias arranged a meeting with Patient C.C. in the clinic the following Monday. At the meeting, Patient C.C. made statements to Dr. Namias regarding her then-existing physical condition, including that she was not in pain, was tolerating her diet, and had no complaints. Dr. Namias explained to Patient C.C. that her pain may have been caused by the inflamed ovary and fallopian tube or may have been caused by appendicitis that resolved medically, and she might have appendicitis again. He explained that her options were to undergo a second operation at that time and search for the appendix or wait and see if appendicitis recurred. He advised against the immediate surgery option because she was "asymptomatic." The Second Amended Administrative Complaint alleged that Dr. Stahl performed a wrong procedure when he performed an appendectomy which resulted in the removal of Patient C.C.'s ovary and a portion of her fallopian tube instead. The Final Order concluded that the evidence did not clearly show that the wrong procedure was performed. It concluded that it was more likely that exactly the right procedure was performed on Patient C.C. That is, it was likely that an oophorectomy and salpingectomy were the right procedures to remove the inflamed organs and address the abdominal pain that caused Patient C.C. to present at the JMH emergency room, but that the right procedure was initially denominated incorrectly as an "appendectomy," as a result of patient history and erroneous interpretation of the CT scan.
The Issue Whether Respondent is guilty of the isolated Class III deficiency alleged in Count II of the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Respondent is a licensed, skilled nursing home facility located in North Miami, Florida. Respondent was at all times pertinent hereto licensed by Petitioner pursuant to the provisions of Chapter 400 Part II, Florida Statutes. Petitioner is the agency of the State of Florida with the responsibility to regulate skilled nursing homes in Florida. Petitioner surveys nursing home facilities to evaluate their compliance with applicable rules. Petitioner classifies any deficiency noted by a survey according to the nature and scope of the deficiency. The severity of the deficiency determines the amount of any administrative fine and whether the licensure status of the facility should be "standard" or "conditional." A licensee’s failure to comply with an applicable statute or rule is a deficiency. A survey results in a report that lists each deficiency that is found, identifies the applicable regulatory standard that the surveyor believes has been violated, provides a factual basis for the alleged violation, and indicates the scope and severity of the deficiency. A facility is given a deadline to correct each alleged deficiency found during the initial survey. Disciplinary action is typically initiated if a facility has not corrected a deficiency as determined by a follow-up survey. Petitioner conducted a survey of Respondent during the period February 28 - March 3, 2005 (the initial survey). Barbara Catinella, who is a registered nurse and an experienced surveyor, participated in the initial survey on behalf of Petitioner. On March 1, 2005, Ms. Catinella observed perineal care being administered to two female residents (identified as Resident 26 and Resident 27). Each resident was being attended to following an episode of urinary incontinence. The first observation began at approximately 2:00 p.m. and the second began approximately thirty minutes later. Two certified nurses assistants (CNAs) administered the perineal care to Resident 26 and two different CNAs administered the perineal care to Resident 27. In both instances, the CNAs failed to properly perform the perineal care. In each instant, the CNAs performing the perineal care failed to open and clean the labia. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for female residents that conformed to accepted perineal care standards. Paragraph 15 of the policy required Respondent's staff to do the following in sequence for a female resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or both: For a female resident: Wet washcloth and apply soap or skin cleansing agent. Wash perineal area, wiping from front to back. Separate labia and was area downward from front to back. Continue to wash the perineum moving outward to and including thighs, alternating from side to side, and using downward strokes. Rinse perineum thoroughly in same direction, using fresh water and a washcloth. Gently dry perineum. Instruct the resident to turn on her side. Rinse wash cloth and apply soap or skin cleansing agent. Wash the rectal area thoroughly, wiping from the base of the labia and extending over the buttocks. Rinse. Dry area. 8. At all times pertinent to this proceeding, Respondent had a policy as to perineal care for male residents that conformed to accepted perineal care standards. Paragraph 16 of the policy required Respondent's staff to do the following in sequence for a male resident who had suffered an episode of incontinence, whether the episode was of bowel, bladder, or both: For a male resident: Wet washcloth and apply soap or skin cleansing agent. Wash perineal area starting with the urethra and working outward. Retract foreskin of the uncircumcised male. Wash and rinse urethral area using a circular motion. Continue to was the perineal area, including the penis, scrotum and inner thighs. Thoroughly rinse perineal area in [the] same order using fresh water and clean washcloth. Gently dry perineum following [the] same sequence. Reposition foreskin of uncircumcised male. Instruct or assist the resident to turn on his side. Rinse washcloth and apply soap or cleansing agent. Wash and rinse the rectal area thoroughly, including the area under the scrotum, the anus, and the buttocks. i. Dry area. The perineal care policy was adopted ". . . to provide cleanliness and comfort to the resident, to prevent infections and skin irritation, and to observe the resident's skin condition." Respondent's staff is trained to adhere to the perineal care policy. The perineal care provided Resident 26 and Resident 27 as observed by Ms. Catinella failed to adhere to Respondent's policy and constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. Respondent argued that the failure to adhere to its policy by failing to spread and cleanse the labia would not cause a urinary tract infection as alleged in the Administrative Complaint. Respondent correctly argues that urine, in the body, is sterile and would not by itself cause a urinary tract infection. Most, but not all, urinary tract infections are caused by the e-coli bacteria found in feces. Respondent established that incontinent residents typically receive perineal care from Respondent's staff 10 times during a 24-hour period. Respondent also established that the facility uses only anti-bacterial soap for perineal care. Based on those considerations, Respondent argued that the perineal care observed by the surveyors may have led to a skin irritation, but that it would not have resulted in a urinary tract infection as alleged in the Administrative Complaint. The greater weight of the credible evidence established clearly and convincingly that the failure to spread and cleanse the labia has the potential for various adverse consequences for the resident, including urinary tract infection.3 If staff does not spread and cleanse the labia, the fact that anti-bacterial soap is being used is irrelevant. If the soap does not reach the labia, that area will not be cleansed, regardless of the number of times perineal care is administered during a typical day. Petitioner established the Class III violations pertaining to perineal care as to the initial survey by the requisite evidentiary standard. Petitioner also established that the violations should be considered "isolated" since there were some 55 incontinent residents in Respondent's facility at the time of the initial survey and only two episodes of improper perineal care were observed. Respondent was provided with a correction date thirty days from the conclusion of the initial survey to correct the noted deficiencies by coming into substantial compliance with accepted perineal care standards. The first follow-up survey occurred April 19-20, 2005. Eleanor Kennedy participated in that follow-up survey and testified, in her deposition, as to three incidents of perineal care that she observed. During the course of the follow-up survey, Ms. Kennedy observed two CNAs administering inappropriate perineal care to a female resident referred to as Resident 15. Ms. Kennedy observed that this resident had suffered an episode of incontinence involving both bowel and bladder. In the course of administering the perineal care, the CNAs failed to open and clean the labia. In addition to observing perineal care to Resident 15, Ms. Kennedy observed perineal care administered to a female resident referred to as Resident 16 and a male resident referred to as Resident and to a male resident referred to as Resident The perineal care administered to Resident 16 and to Resident 17 were inconsistent with Respondent's perineal care policy. The CNAs performing the perineal care for Resident 16 did not follow the proper sequence for cleaning. They first washed the resident's abdominal folds and thigh creases and then opened and washed the labia with the same disposable cloth. Ms. Kennedy testified that the sequence of the cleaning is significant because it risked the transfer of bacteria from the areas first washed to an area that could result in a urinary tract infection. The CNAs who performed the perineal care for Resident 17 first washed the resident's face, underarms, and back. Then, without changing water, the CNAs took a clean cloth and washed the resident's groin area, his retracted foreskin area, and the urinary urethral meatus. The CNAs then dried the resident, but failed to follow the required sequence. As with Resident 16, Ms. Kennedy testified that the incorrect sequence followed by the CNAs risked the transfer of bacteria to an area that could result in a urinary tract infection. Although this sequence clearly violated Respondent's perineal care policy, Respondent established that the potential for urinary tract infection as a result of the sequence was reduced because anti-bacterial soap was used. Ms. Kennedy was uncertain as to whether the use of anti-bacterial soap would alleviate the concerns she had as to the care given these two residents. Because of that uncertainty, it is found that Petitioner did not prove that the perineal care provided Resident 16 and Resident 17 constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. The perineal care provided Resident 15 as observed by Ms. Kennedy failed to adhere to Respondent's policy and constituted a failure to provide care and services to prevent potential urinary tract infection as alleged in the Administrative Complaint. On May 26, 2005, Petitioner conducted a second follow- up survey and determined that Respondent was in substantial compliance with applicable regulations.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order adopting the Findings of Facts and Conclusions of Law set forth herein. It is recommended that Count I of the Administrative Complaint be dismissed. It is further RECOMMENDED that Petitioner find Respondent guilty of an isolated, Class III deficiency based on Count II of the Administrative Complaint. It is further RECOMMENDED that Petitioner assess an administrative fine against Respondent in the amount of $1,000.00 for the Class III deficiency found in Count II of the Administrative Complaint and that Petitioner's records reflect that Respondent's licensure was classified "conditional" for the period April 20 - May 19, 2005, and that Respondent's licensure was classified as "standard" before and after those dates. DONE AND ENTERED this 6th day of February, 2006, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2006.
