The Issue The issues in this case are whether the allegations of the Amended Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Respondent is a licensed physician in the State of Florida, holding license number ME 81249. At all times material to this case, the Respondent was board-certified in family medicine. The Respondent held no board certification at the time of the administrative hearing, and, according to his response to the Petitioner's First Request for Admissions, the family medicine certification expired in July 2007. On February 8, 2006, the Respondent prescribed hydrocodone (10/325, generic Norco, 10mg.) to Patient M.R. through an internet service called ERMeds.com. On June 26, 2006, the Respondent prescribed hydrocodone (Hydro/APAP 10/325, generic Norco, 10/325) to Patient M.R. through the internet service called ERMeds.com. Hydrocodone is a Schedule II controlled substance listed in Chapter 893, Florida Statutes. Hydrocodone/APAP is hydrocodone combined with acetaminophen, and the combined drug is a Schedule III controlled substance listed in Chapter 893, Florida Statutes. Both hydrocodone and hydrocodone/APAP have high potential for abuse and addiction. The prescriptions issued to Patient M.R. contained the Respondent's identification including address and DEA number on the prescription form, as well as the Respondent's electronic facsimile signature. The Respondent had no contact with Patient M.R. either before or after the prescription was issued to Patient M.R. The Respondent conducted no health evaluation of Patient M.R. The Respondent did not obtain or review any medical information related to Patient M.R. The Respondent testified during deposition that a physician's assistant for whom the Respondent was the supervising physician was responsible for gathering and reviewing medical information from the patient. According to the Respondent's response to the Petitioner's First Request for Admissions, the physician's assistant obtained patient history, including current medications and complaints, and the "information was available to Respondent at the time the prescriptions were authorized." According to the Respondent's response to the Petitioner's First Request for Admissions, a completed medical questionnaire was available for the Respondent's review. There is no evidence that the Respondent reviewed any information or questionnaire regarding the patient's medical history or complaint either before or at the time the prescriptions were authorized. The Respondent did not know and never met the physician's assistant and was unable to recall the last name of the physician's assistant. There is no evidence that the Respondent had any discussion with any physician's assistant related to Patient M.R. either before or at the time the prescriptions were authorized. At the hearing, the Petitioner presented the testimony of Bernd Wollschlaeger, M.D., a Florida-licensed physician holding board certification in family practice. Dr. Wollschlaeger testified that a physician must evaluate a patient, take a patient's medical history, review any available medical records, and document the findings and diagnosis in a contemporaneous record prior to issuing a prescription for hydrocodone to a patient. Based upon the Respondent's deposition testimony and the responses to the Petitioner's First Request for Admissions, it is clear that the Respondent failed to evaluate Patient M.R. in any respect prior to issuing the prescriptions for hydrocodone to the patient. The Respondent reviewed no medical history or records related to Patient M.R. The Respondent failed to diagnose any medical condition that would support prescribing hydrocodone to Patient M.R. The Respondent failed to document any medical information related to Patient M.R. in any written record.
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 Gerard Romain, M.D., in violation of Subsections 458.331(1)(m), 458.331(1)(q), and 458.331(1)(t), Florida Statutes (2005), and imposing a penalty as follows: a reprimand; a three-year period of probation, the first year of which shall include a prohibition on issuing prescriptions for Schedule II and III controlled substances; an administrative fine of $20,000.00; and such additional continuing education and community service requirements as the Department of Health determines appropriate. DONE AND ENTERED this 23rd day of September, 2008, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 2008. COPIES FURNISHED: Elana J. Jones, Esquire Ephraim D. Livingston, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 Dale R. Sisco, Esquire Stacy Estes, Esquire Sisco-Law Post Office Box 3382 Tampa, Florida 33601-3382 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 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice medicine and for regulating such licensees on behalf of the state. Respondent practices general medicine under license number ME 0042559. The parties stipulated to all material facts alleged in the Corrected Second Amended Administrative Complaint except one. The disputed fact is whether Respondent maintained adequate medical records of her treatment of patient R.W. with Lortab. Lortab is a legend drug within the meaning of Section 465.003(7). It contains hydrocodone. Hydrocodone is a Schedule III controlled substance in Chapter 893. On April 7, 1989, Respondent signed a prescription for 30 Lortab 7.5 mg tablets as an analgesic medication for a toothache. Respondent's medical records contain no entry for R.W.'s office visit on April 7, 1989, and no entries disclosing the nature of R.W.'s complaint, diagnosis, plan of treatment, or justification for prescribing Lortab. On January 5, 1990, Respondent prescribed Indocin 7.5 mg., an anti- inflammatory medication, and Lortab 7.5 mg. for R.W.'s shoulder pain. Respondent's medical records contain no entries documenting the examination of R.W., exam results, or diagnosis. There is no justification in Respondent's medical records for prescribing Lortab for R.W. on January 5, 1990. In addition, Respondent failed to document the number of Lortab tablets prescribed for R.W. on January 5, 1990. On January 26, 1990, R.W. complained of pain in his right shoulder secondary to an injury sustained while pushing a car. Respondent again prescribed Lortab 7.5 mg. Respondent did not document in her medical records the number of Lortab tablets prescribed. On February 25, 1990, R.W. advised Respondent that he had reinjured his shoulder in a fight. Respondent instructed R.W. to wear a sling and rest. Respondent again prescribed Indocin and Lortab 7.5 mg. On May 4, 1990, R.W. again complained of shoulder pain. Respondent performed an x-ray of R.W.'s shoulder. Respondent's medical records do not document that the x-ray was taken or the results of the x-ray. On May 4, 1990, Respondent diagnosed R.W. with possible rotator cuff tear. Respondent prescribed Indocin and Lortab 7.5 mg. Respondent's medical records do not document the number of Lortab tablets prescribed. Respondent did not know the number of Lortab tablets R.W. received or the number he took each day. Respondent's medical records do not document Respondent's instructions concerning the number of tablets to be taken each day or the frequency with which the tablets were to be taken. Respondent's medical records do not document the number of refills R.W. was given. On May 24, 1990, Respondent's medical records document that she warned R.W. of the potential for addiction to Lortab. However, Respondent continued to prescribe Lortab without documenting the amount of Lortab prescribed for R.W. Respondent failed to keep written medical records justifying the course of treatment for R.W., including patient history, examination results, and records of drugs prescribed. Respondent failed to document patient history on April 7, 1989. Respondent failed to document x-ray examination results on May 4, 1990. Respondent failed to document Lortab prescribed, dispensed, or administered from April 7, 1989, through July, 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 458.331(1)(m), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed herein. RECOMMENDED this 21st day of April, 1995, in Tallahassee, Florida. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399 (904) 488 Filed with the Clerk of the Division of Administrative Hearings this 21st day of April 1995.
Findings Of Fact At all times pertinent to the issues herein, Respondent, Anthony Salzano, was a registered nurse licensed as such in Florida. On November 1, 1983, Ms. Fabian was acting as head nurse of the cardiac care unit at James Archer Smith Hospital in Homestead, Florida, where Respondent, Salzano, along with another male nurse, Blakemore, was working as a registered nurse, though on different shifts. At that particular time, Ms. Fabian had no complaints about Respondent's skills or drug control until on this date, she received a call from another nurse to come check the narcotic records on the unit. When she did so, what she saw disturbed her and she immediately contacted Mr. Ellis, the Director of the Pharmacy requesting that he look at the ward narcotic records. Mr. Ellis did so and immediately determined they were not correct. He gathered them together and, along with Ms. Fabian, started to take them to the pharmacy to check them against the pharmacy records. As Fabian and Ellis were getting on the elevator, they saw and were seen by Salzano and Blakemore who immediately left the hospital without signing out. Neither has returned. Hospital records for November 1, 1983, indicate that Salzano checked in at 2:45 p.m. for the 3 to 11 shift, but did not go to the floor or at any time report for duty. Examination of the records in question, which include drug sign-out sheets, medical administration records, and nurses' notes revealed that there were numerous discrepancies thereon as to times, patients' names, nurses' names, and the quantities of demerol and demerol 100 used on the cardiac care unit. Cardiac patients rarely receive doses of demerol or demerol 100. Ms. Fabian compared the Respondent's signatures on the drug sign-out sheets with other documents on which his signature appears and concluded that they were the same and that he had signed the control records. As a part of her job, she was required to be familiar with all of her nurses' signatures and was satisfied that the records in question had been made by the Respondent. Specifically, on the dates set out in the Administrative Complaint, times of drug administration were out of sequence, dates were out of sequence, and fictitious names as administering official, the signatures for which appeared to be by Respondent, appeared on the records. Blakemore's name only appeared a few times and there was indication that the Respondent and Blakemore did not work on the same shift. The erroneous record keeping by the Respondent could not have been because of his lack of knowledge of procedures. He had received the entire indoctrination program on the hospital's drug policies and procedures administered by not only Ms. Fabian but also the Director of Nursing and the Chief Pharmacist as well. The records show that Respondent did not properly follow the procedures which include not only accounting for the medication but also reflecting it was administered and the effect it had on the patient. Accounting for the medication would be accomplished on the drug sign-out sheet. Administration of the medication would be shown on the medicine administration record, and the effect on the patient would be shown in the nurse's notes. The failure of the Respondent to keep the required records, in the uncontradicted opinion of Ms. Fabian, constitutes the practice of nursing in a manner far below minimum standards of acceptable and prevailing nursing practice and it is so found.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a registered nurse in Florida be suspended for two years or until he appears before the Board of Nursing to demonstrate he continues to be qualified to practice nursing safely to the satisfaction of the Board, whichever comes first. RECOMMENDED this 19th day of December 1986, at Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 19th day of December 1986. COPIES FURNISHED: Judie Ritter, Executive Director Board of Nursing 111 East Coastline Drive, Room 504 Jacksonville, Florida 32201 William T. Furlow, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Michael L. Cohen, Esquire 1615 Forum Place Barister's Building, Suite 4-E West Palm Beach, Florida 33401 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation =================================================================
Findings Of Fact Dong Hack Koo, M.D., is a licensed physician in the State of Florida, having been issued license number ME 0027494. Koo was so licensed at all times material to the Amended Administrative Complaint. At all times material to this cause, Koo maintained an office at 121 East 8th Street, Jacksonville, Florida, 32206. On July 10, 1985, Diane Rabideau, an Investigator for the Department of Professional Regulation, inspected Koo's offices and found them to be unclean, with evidence of roach eggs present under a sink. Rabideau also found a rectal speculum and two vaginal speculums lying on a sink. Koo told Rabideau that the rectal speculum and the two vaginal speculums had been used. No evidence was presented to indicate how long the speculums had been on the sink. If such instruments are not cleaned quickly and properly following use, there is a high chance of spreading infection to the next patient to use the instrument. Such instruments should be placed in a cleansing solution and scrubbed, then wrapped and sterilized. It is the community practice to clean such instruments as soon as possible after use. According to Dr. Rosin, any physician who performs abortions in an unclean office with instruments lying around that have not been properly cleaned, has practiced below the community standard of care. However, no evidence was presented to show that Koo performed abortions under such circumstances. Koo does perform first trimester abortions in his office. It was not disputed that abortions are a medical and surgical procedure which can be dangerous. Emergency situations can arise during abortions and these emergencies require the presence of emergency equipment such as suction and the ability to start an intravenous medication. Koo does maintain suction equipment and intravenous solutions in his office. However, when possible he immediately transfers emergency patients to another facility. Koo does perform abortions in his office without the presence of an assistant to aid in emergency situations. According to Dr. Rosin, the standard of care in the community requires that an assistant be present during an abortion to assist the physician should an emergency situation arise. Additionally, according to Dr. Rosin, a physician who performs abortions without emergency equipment or without an assistant has failed to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as acceptable under similar conditions and circumstances. When Rabideau visited Koo's office on July 10, 1985, she obtained a sampling of drugs kept by Koo for dispensing to patients. The sampling revealed that a majority of the drugs had expired. However, no evidence was presented that this is a violation of Florida Statutes. Rabideau also found that Koo maintained a number of Schedule III, IV, and V, controlled substances in his office which he dispensed to patients. In dispensing these controlled substances, Koo used the instructions for use which are printed on the packaging. He also, at times, taped a small piece of paper to the packaging with his telephone number and the name of the patient. Koo did not completely label these controlled substances, which he dispensed, with his name and address, the date of delivery, directions for use, the name of the patient, and a warning concerning the transfer of the substance. Koo maintains no inventory of the scheduled controlled substances which are kept in his offices and dispensed to his patients. On August 6, 1985, Diane Rabideau again visited Koo's office. While Rabideau waited, a female patient by the name of Mary Green was seen by Koo and left with a prescription. Rabideau then asked Respondent to present the medical records on the patient, Mary Green. Koo was unable to present any medical records for the patient which he had just seen and to whom he had just dispensed medication. Koo's office procedure regarding patient medical records is to record histories and examination results on the patient medical records during the patient's visit. These medical records are kept in individual folders under the name of each patient. When a patient presents for treatment, the medical records for that patient are pulled and given to the doctor. After each visit, the patient's medical records are refiled. On or about March 16, 1986, pursuant to a subpoena from the Department of Professional Regulation, Koo provided the original medical records on ten (10) abortion patients. These original medical records were examined by John F. McCarthy, a questioned documents expert for the Florida Department of Law Enforcement. McCarthy's examination by electrostatic detection apparatus revealed that numerous indentations on the records superimposed with information from other records. For example, Exhibit 6 contained indentations from the writing on the face of Exhibit 10. Further, McCarthy found indentations on Exhibit 6 resulting from the writing on Exhibit 8. Thus, Exhibit 8 was on top of Exhibit 6 when it was prepared. Exhibit 8, however, is dated July 24, 1985, and Exhibit 6 is dated May 29, 1985. McCarthy's expert opinion is that at the time the various documents were prepared, they were on top of each other. It is therefore found that Exhibits 1-10, the original medical records on the ten named abortion patients, were not prepared at the time Koo saw the patients, but were instead all prepared at the same time, in response to the subpoena. It therefore must be found that the records were fabricated by Koo in response to the Department's subpoena. Prior to performing an abortion, a physician needs to verify whether the patient has Rh positive or negative blood type. The physician cannot rely on patients' representations that the Rh factor is positive or negative, but most obtain independent verification. This is because patients know that if they have Rh negative blood, they must receive a shot which is expensive. Koo relied on the patients' statements in ascertaining the Rh factor and did not obtain independent verification. In Dr. Rosin's expert opinion, the failure of a physician to obtain independent verification of the Rh factor poses a potential for harm to the patient and such failure is a failure to practice medicine with that level of care, skill, and treatment that is recognized in the medical community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Board of Medicine enter a Final Order finding Dong Hack Koo, M.D., GUILTY of violating Counts Two, Three, Four, Five, and Six of the Amended Administrative Complaint, and therein SUSPEND his license to practice medicine for a period of six (6) months during which he be required to successfully complete continuing education courses in maintaining, controlling, dispensing, labeling, and inventorying controlled substance, and in maintaining adequate patient records to justify the course of treatment. DONE AND ENTERED this 26th day of August, 1987, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1066 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 Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding of Fact which so adopts the proposed finding of fact: 1 (1) ; 2 (2); 3 (3); 4 (4); 5 (4); 6 (4); 7 (4); 8 (5); 9 (6); 10 (6); 11 (9); 12 (7); 13 (8); 14 (9); 15 (10); 16 (11); 17 (11); 18 (12); 19 (13); 20 (13); 21 (15); 22 (14); 23 (14); 24 (16); 25 (16); 26 (16); 27 (16); 28 (17); 29 (18); and 30 (19) That portion of proposed finding of fact 12 which concludes that Respondent does not maintain emergency equipment in his office is rejected as unsupported by the competent substantial evidence. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dong Hack Koo, M.D. 121 East 8th Street, Suite 7 Jacksonville, Florida 32206 Dorothy Faircloth, Executive DIRECTOR Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 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
The Issue The administrative complaint charged Respondent in Count I with violating Section 458.331(1)(t), F.S., failure to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances, and in Count II with violating Section 458.331(1)(m), F.S., failure to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient histories, examination results, and test results.
Findings Of Fact At all times material, Respondent was a licensed medical physician in the State of Florida, having been issued license number ME004552. On October 24, 1988, Patient #1, a 67 year old female, presented by wheelchair at the Physicians Referral Center (PRC) emergency room of the Marion Community Hospital in Ocala, Florida. Respondent was on duty there at that time. Patient #1, arrived at the emergency room at approximately 1:50 a.m. complaining of gas, no bowel movements for three days, feeling weak, and a highly elevated blood sugar of 412 as of 5:00 p.m. the evening before. Patient #1 was accompanied by her husband, who provided some of the foregoing information. Alicia Ables, R.N., attended Patient #1 when she arrived, took her vital signs which appeared to be within normal limits, and noted in the patient medical records, at the bottom of the nurse's notes, that the patient had heart problems, diabetes, kidney problems, and was taking medications. The nurse attached to the patient's medical records a list of the patient's current medications which had been provided by the husband. These medications included Isordil, Trental, Ascriptin, Lasix, Lanoxin, Depyridamole, Capoten, Riopan Plus, Mylicon 800, Pilocarpine eye drops, Tylenol and Humulin N-100, 30 units in the morning and 6 units in the evening. Humulin N-100 is a low level prescription for insulin diabetic maintenance. Mylicon is an anti-gas preparation. The foregoing history was on the patient chart when Respondent saw the patient a few minutes later. Respondent saw the patient at approximately 2:10 a.m. At that time, only the patient, her husband, and Respondent were present in the examining room. No nurse was present in the examining room with them, but Ms. Ables testified that the absence of a nurse during a rectal examination of a female patient occurred occasionally if not regularly at PRC. Nurse Ables was not present in the examination room at the time of the examination and is without knowledge of the extent of Respondent's examination of Patient #1. The patient, who is now deceased, did not testify. The patient's husband did not testify. The only person who was present in the examining room on October 24, 1988 who did testify was Respondent, and his testimony is unrefuted that he performed a routine examination of the patient's chest, abdomen, and skin, that he also performed a rectal examination during which he found the patient's rectal vault "empty," and that he concluded that there was no fecal impaction but some retention of gas. He concluded that a soap suds enema was not warranted, given the patient's condition. He stated that despite believing that the patient had some retention of gas, he considered her to be "fixated" in her mind on the gas problem. When the Respondent examined the patient on October 24, 1988, he contemporaneously noted on her chart that her chief complaint was accumulation of gas, that she wanted a soap suds enema, and that she had spoken earlier with Dr. Sunkavalli, who had referred her to the emergency room. Dr. Sunkavalli was the patient's primary treating physician. Respondent also noted on the chart at 2:25 a.m. on October 24, 1988 that Dr. Sunkavalli would follow the patient as an outpatient. He also wrote down that he diagnosed her as having "gas retention fixation." He ordered Mylicon 80 to be administered to her. She was not given a soap suds enema, was not admitted to the hospital, and was not transferred to another hospital. Respondent did not order any laboratory tests or x-rays. Administration of the Mylicon 80 was noted on the patient's chart by a nurse other than Ms. Ables at 2:40 a.m. That nurse also noted on the patient records that Patient #1 was discharged home at 3:00 a.m., in stable condition. None of the typically observable symptoms of ketoacidosis in the patient were observed or noted by Respondent or by Ms. Ables while the patient was at PRC. Patient #1 was admitted to Citrus Memorial Hospital six and one-half hours after being discharged from Respondent's care. Three hours after her admission to Citrus Memorial, the patient died. After autopsy, the principal pathologic diagnosis and cause of death was listed as "marked three vessel artherosclerosis with large, old myocardial infarction." The gross summary reads, "Death of this 67-year old, white female was due to marked three vessel arteriosclerosis secondary to arteriosclerotic heart disease. A contributing factor was diabetic acidosis." There was also evidence of a gastro-intestinal bleed. When Patient #1's death became an issue the next day, Respondent was unable to recall the patient or his examination and treatment of her. The Respondent reviewed the emergency room records and spoke with Ms. Ables in order to recall the care he had rendered to the patient. Respondent prepared an addendum to the patient's medical records three days after he actually examined Patient #1. Only at that late date, October 27, 1988, did Respondent document a history, document that he had made a physical examination, and document that he had had a telephone consultation with Dr. Sunkavalli on October 24, 1988 while the patient was in the emergency room, and further document that he and Dr. Sunkavalli had concurred at that time in treating the patient with Mylicon. Adding the addendum was deemed appropriate under the circumstances by Marion Community Hospital personnel, and Petitioner's expert did not specifically find that adding it was inappropriate or improper. Respondent had not documented the telephone consultation with Dr. Sunkavalli or a history or physical examination of Patient #1 at the time he examined her on October 24, 1988. Neither on the date of examination/treatment nor in his later addendum did Respondent ever document that he had performed a rectal examination on Patient #1. In his testimony at formal hearing, Respondent explained and supplemented his October 27, 1988 addendum notation of a telephone conversation with Dr. Sunkavalli on October 24, 1988 to add that Dr. Sunkavalli was aware at that time of Patient #1's elevated blood sugar reading the previous evening but, hearing Respondent's examination results, Dr. Sunkavalli had recommended no further tests and had said nothing to disagree with Respondent's assessment and treatment of the patient and that while Respondent had not deferred to Dr. Sunkavalli, he had relied on the consultation. Dr. Sunkavalli was not called to corroborate or refute Respondent's testimony on this score. Jack Kareff, M.D., was accepted as an expert in emergency room medicine. He opined that, under similar circumstances, and particularly with an elderly diabetic patient, the minimal acceptable level of care, skill, and treatment of a reasonably prudent similar physician would have been to examine Patient #1's abdomen, perform a rectal examination, and perform a dipstick of urine for both glucose (sugar) and acetone. Dr. Kareff also expressed the opinion that the rectal examination should have been made to eliminate the chance of fecal impaction and that such rectal examination should have included treating a sample of fecal matter found in the rectal vault with a paper reagent to determine if there were occult blood in the patient's stool so as to rule out gastro-intestinal bleeding. Dr. Kareff testified that there is sufficient fecal matter for such a test in the rectal vault 99% of the time. He conceded that an enema might not be warranted and could be potentially traumatic, given such a patient's condition. Dr. Kareff indicated that the urine dipstick test should be done to ensure that the patient was not headed for diabetic ketoacidosis. The urine dipstick test proposed as a minimal requirement by Dr. Kareff was also described by him as actually "problematic" in that he admitted that such a dipstick test can "fool you" occasionally because not enough aceto acetate is formed to tell the patient's true condition. According to Dr. Kareff, ketoacidosis may take anywhere from 2 hours to several weeks to develop in a diabetic. On the foregoing information, the efficacy of a dipstick test was not established. Because he believed that Respondent had not done the abdominal examination, rectal examination with stool testing, and urine dipstick test, Dr. Kareff further opined that Respondent had fallen below the acceptable level of care, skill and treatment as recognized by a reasonably prudent similar physician under similar conditions and circumstances. In forming his foregoing opinions, Dr. Kareff had not had the benefit of hearing Respondent's unrefuted testimony that Respondent had, in fact, performed a rectal examination, determined that there was no fecal impaction, and found the patient's rectal vault empty. Accordingly, the record is devoid of Dr. Kareff's opinion, if any, as to what should have or could have been done as regards a fecal test when the patient's rectal vault is "empty." Dr. Kareff's opinions assumed and relied on some material contrary to the facts established in this proceeding. Dr. Kareff's opinion also relied upon much uncorroborated hearsay evidence, such as the agency's investigative report. These reliances and assumptions on Dr. Kareff's part detract from the weight and credibility of his opinion on minimal professional treatment, and therefore that opinion is not persuasive. The parties have stipulated that Respondent's medical records were inadequate. This stipulation and Dr. Kareff's opinion that Respondent failed to keep written medical records justifying the course of treatment are accepted.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Medicine enter a final order: Finding that Respondent is not guilty of violating Section 458.33(1)(t), F.S. and dismissing Count I of the Administrative Complaint; Finding that Respondent is guilty under Count II of the Administrative Complaint of violating Section 458.331(1)(m), F.S., failure to keep written medical records justifying the course of treatment of the patient, including but not limited to, patient histories, examination results, and test results; and Reprimanding Respondent for the single violation, fining him $1000.00, and requiring him to complete one basic level continuing medical education course in record keeping responsibilities and techniques within one year of the entry of the final order. DONE and ENTERED this 24th day of April, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 24th day of April, 1992. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-5014 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1-12 Except as to subordinate, unnecessary or cumulative material, accepted. 13-14 Rejected because it is largely subordinate to the facts as found in FOF 18-21. 15 Rejected as a conclusion of law but also for the reasons set forth in FOF 18-19. Respondent's PFOF: 1 Covered in the preliminary statement, the FOF, or the Conclusions of Law. Accepted as covered in the rulings on Petitioner's PFOF. Rejected as legal argument. 4-6, 20-21, 37-38, 44, 46-48 Accepted but subordinate to the facts as found. 7-8 Covered in FOF 3-4. 9 Accepted with time adjustment per greater weight of the evidence. 10-11, 13-18, 22-24, 39-40, 45, 49-63, 66 Except as to subordinate, unnecessary, or cumulative material, accepted. 12 Accepted, except as to characterization "necessary". 19 Covered in FOF 17. 25 Covered in FOF 8. 26-28 Covered in FOF 18-21. 41-42 Covered in FOF 18-21. 29, 31 Rejected as irrelevant. 30 Covered in FOF 15. 32-36, 67 These proposals are irrelevant, out of context, or misleading as stated, since Dr. Kareff did not specifically advocate a soap suds enema and Respondent did not feel it was warranted. To the extent necessary, the subject matter is covered in FOF 7-9, 14-17, and 18-22. 43 Covered in FOF 7. 64-65, 68 Rejected as unnecessary and/or unproven. COPIES FURNIISHED: Louis Kwall, Esquire Gross and Kwall, P.A. 133 North Ft. Harrison Avenue Clearwater, Florida 34615 Susan E. Lindgard, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Dorothy Faircloth Executive Director Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Medical Examiners, enter a Final Order dismissing the charge of violation of Section 458.331(1)(aa), finding Manuel M. Fajardo, M.D., guilty of violating Section 458.331(1)(g), (n), (t), and (w), Florida Statutes, and Section 893.07, Florida Statutes, and suspending Manuel M. Fajardo's license to practice medicine for a period of six (6) months to be followed by a probationary period of two (2) years during which Fajardo shall be permitted to practice medicine and dispense drugs only under the supervision of another licensed physician, who shall supervise Fajardo's record keeping and drug prescription and dispensing practices. DONE and ORDERED this 13th day of June, 1986, in Tallahassee, Florida. DIANE K. KIESLING, Division of Administrative Hearings Hearing Officer The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1986. COPIES FURNISHED: David Bryant, Esquire 1107 East Jackson Street Suite 104 Tampa, Florida 33602 Michael I. Schwartz; Esquire 119 North Monroe Tallahassee, Florida 32301 Dorothy Faircloth Executive Director Department of Professional Regulation, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino General Counsel 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all proposed findings of fact submitted by the parties to this case. Rulings on Proposed Findings of Fact of Petitioner Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 4 is adopted in substance as modified in Finding of Fact 13. Proposed Finding of Fact 5 is adopted in substance as modified in Findings of Fact 3-12. Proposed Findings of Fact 2, 3, 6-10, and 12-14 are rejected as being argumentative and conclusory. Proposed Finding of Fact 11 is rejected as unnecessary. Rulings on Proposed Findings of Fact of Respondent. Proposed Finding of Fact 1 is adopted in substance as modified in Finding of Fact 1. Proposed Finding of Fact 6 is adopted in substance as modified in Finding of Fact 14, except that the last sentence is rejected as being argumentative and not supported by the competent; substantial and credible evidence. Proposed Findings of Fact 2 and 11 are rejected as unnecessary. Proposed Findings of Fact 3, 4, 5, 7-10 and 12-15 are rejected as not supported by the competent, substantial and credible evidence and as being subordinate to the facts found in the Recommended Order. Additionally, large portions of the proposed Findings of Fact are merely summaries of testimony and are not properly proposed findings.
