The Issue At issue in this proceeding is whether the proposed amendments set forth in the Notice of Proposed Rule published on May 15, 2013, in the Florida Administrative Register, Vol. 39, No. 95, pages 2609 through 2610 and modified by the Notice of Change, published on March 12, 2015, in the Florida Administrative Register, Vol. 41, No. 49, pages 1236 through 1237, constitute an invalid exercise of delegated legislative authority,1/ and, if so, whether costs and attorney’s fees should be assessed against Respondent and paid to Petitioner.
Findings Of Fact The Petition Petitioners have challenged the Notice of Proposed Rule and Notice of Change as an invalid exercise of delegated legislative authority. The petitions request that a formal hearing be conducted, a final order be entered determining that the proposed rule is an invalid exercise of delegated legislative authority, award petitioners’ costs and attorneys’ fees, and provide such other relief as deemed necessary. The Parties Petitioner Fernandez is a Florida resident and patient with ongoing medical issues that requires him to request and obtain his medical records from his attending or treating physicians from time to time. Petitioner Dax J. Lonetto, Sr., PPLC, is a Florida-based law firm. Dax Lonetto is a Florida-licensed attorney and sole shareholder of the Lonetto PPLC law firm. Eighty-five to 90 percent of Mr. Lonetto’s practice involves social security disability benefits, and the remainder of his practice involves veteran’s benefits and other basic personal injury claims.6/ In order to pursue and obtain social security benefits or veteran’s benefits for clients, Mr. Lonetto must first obtain his clients’ medical records. Petitioner FJA is a statewide, not-for-profit, professional association of approximately 2,500 plaintiff trial attorneys. FJA’s purpose is engaging in advocacy efforts on behalf of its membership, strengthening and upholding Florida’s civil justice system, and protecting the rights of Florida’s citizens and consumers. Paul D. Jess is a Florida-licensed attorney who serves as the general counsel and deputy executive director for FJA. Mr. Jess provided no documentary evidence to support the position that most physician “offices or vendors would charge the maximum [amount] permitted [by the rule].” Mr. Jess admitted that FJA is not “directly injured by this price hike as an association or as a corporation,” because FJA does not order medical records. However, Mr. Jess testified that for the majority of FJA’s members, ordering medical records is a routine practice on behalf of their clients. Further, Mr. Jess believed that a majority of FJA members would be adversely impacted by this proposed rule, based on the increased costs in obtaining their clients’ medical records. Petitioner FCAN is a Florida not-for-profit grassroots organization dedicated to advocating for the rights of Florida consumers. William Newton served as the corporate representative for FCAN. Mr. Newton previously relinquished the full-time executive director’s position and now currently works part-time as FCAN’s deputy director. FCAN currently has about 7,000 individual members. FCAN is a nonpartisan organization which represents Florida consumers in four major issue areas: utilities, insurance, health care, and the environment.7/ With respect to the health care area, FCAN stands for affordable and available health care for everyone, with a focus on trying to improve accessibility, as well as to control the price of health care. Mr. Newton did not know how many of FCAN’s 7,000 members would be affected by the proposed rule change; however, he believed that “almost all of them would be” because they go to the doctor. The Board regulates the practice of medicine in Florida pursuant to chapters 456 and 458, Florida Statutes, and is the agency that is proposing the rule amendments at issue. Intervener BACTES is a release of information (ROI) provider that contracts with physicians in Florida and throughout the country to process and fulfill requests for medical records received by such physicians. William Bailey founded BACTES and served as its CEO from 1991 until July 2013, when he assumed a consultant status with the provider. Mr. Bailey confirmed that BACTES is currently operating in Florida with three offices located in Orlando, Ft. Myers, and Jacksonville. BACTES has no plans to discontinue doing business in Florida.8/ Intervener HealthPort is also an ROI provider that contracts with physicians in Florida and throughout the country to process and fulfill requests for medical records received by such physicians. Kyle Probst, HealthPort’s counsel and director of government relations, confirmed that HealthPort engaged Cynthia Henderson to approach the Board regarding making changes to the rule to “clear up some apparent confusion about how medical records should be billed in the state of Florida.” Intervener FMA is a professional association dedicated to the service and assistance of allopathic and osteopathic physicians in Florida. Approximately 20,000 licensed Florida physicians are members of the FMA. The parties agreed there are approximately 75,000 physicians licensed and regulated by the Board. Not all 75,000 Florida licensed physicians are currently practicing in Florida. The Statute and Current Rule Section 456.057(17), Florida Statutes, provides: A health care practitioner or records owner furnishing copies of reports or records or making the reports or records available for digital scanning pursuant to this section shall charge no more than the actual cost of copying, including reasonable staff time, or the amount specified in administrative rule by the appropriate board, or the department when there is no board. Section 458.309(1) provides in pertinent part: The board has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. Florida Administrative Code Rule 64B8-10.003 is the Board’s rule governing the costs of reproducing medical records. The rule was first adopted on November 11, 1987, as rule 21M-26.003. It was transferred to rule 61F6-26.003, then to rule 59R-10.003, amended on May 12, 1988, amended on March 9, 2009, and then finally transferred to rule 64B8-10.003. The rule currently provides: Costs of Reproducing Medical Records. Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical records may be financially burdensome to some practitioners. Therefore, the following rule sets forth the permitted costs for the reproduction of medical records. Any person licensed pursuant to Chapter 458, F.S., required to release copies of patient medical records may condition such release upon payment by the requesting party of the reasonable costs of reproducing the records. For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than the following: For the first 25 pages, the cost shall be $1.00 per page. For each page in excess of 25 pages, the cost shall be 25 cents. For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page. Reasonable costs of reproducing x- rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication. Specific Authority 456.057(18),9/ 458.309 FS. Law Implemented 456.057(18) FS. History-New 11-17-87, Amended 5-12- 88, Formerly 21M-26.003, 61F6-26.003, 59R-10.003, Amended 3-9-09. This rule was first created in 1987 and was effective in May 1988. In pertinent part, that first rule provided that chapter 458 licensees could condition the release of copies of patient medical records “upon payment . . . of reasonable costs of reproducing the records.” The rule then defined “reasonable costs of reproducing copies . . . [should] not be more than” a $1.00 for the first 25 pages and 25 cents per page in excess of 25 pages. In 2009, the rule was revised to allow patients and governmental entities to get copies of medical records at that same rate. For all other entities the “reasonable costs of reproducing copies . . . [should] not be more than $1.00 per page.” Over the course of 26 months, the Board had access to as much information as the Board staff and interested parties could provide it. The Board heard testimony in no fewer than nine public hearings.10/ The proposed rule language was dissected and discussed on multiple levels, and the Board devoted countless hours to listening to and evaluating those comments. Rule Development In June 2012, the Department of Health (Department) and the Board received an email correspondence on behalf of HealthPort requesting clarification on the costs for reproducing electronic medical records. That correspondence, the current rule 64B8-10.003, and the applicable statutes were placed on the agenda for the Board’s August 2012 Rules/Legislative Committee (RLC or Committee) meeting. At the August RLC meeting, the Committee discussed the requested action and heard from an attorney representing HealthPort. The Committee voted to table the item and seek additional information. The Board commenced rulemaking to amend rule 64B8-10.003 in early October 2012. At the RLC meeting on October 11, 2012, the Committee voted unanimously to recommend noticing this proposed change for rule development. The Board’s counsel was to draft language for a proposed rule change to be presented at the next RLC meeting. On October 30, 2012, a Notice of Development of Rulemaking (Notice) was published in the Florida Administrative Register. The Notice listed the “PURPOSE AND EFFECT: [as] The Board proposed the development of rule amendments to address the cost of reproduction of medical records which are stored in an electronic format.” At the November 2012 RLC meeting, the Committee received a draft rule proposal, excerpts of the October RLC meeting report, and materials from the October meeting. The Committee heard from various speakers on the proposed rule language. One Committee member suggested that the RLC would benefit from knowing what other state medical boards allowed physicians to charge. Another suggested the Board staff look at a different charge for paper versus electronic production. Following the discussion, the Committee approved two motions: one to move to one rate (but undecided on what that rate would be); and the second to have then Executive Director, Alison Dudley, “come back to [the RLC] with the aspects of what costs are elsewhere so that [the RLC could] make that decision about what that rate and particular medium” is, in order to move forward. The Board’s staff prepared a survey that was sent to administrators in medicine via a web portal, asking the following specific questions: Does your board have a rule or law that outlines what a physician can charge for medical records? Flat rate or per page? Does that law or rule delineate different charges for paper medical records versus electronic medical records? What are the charges? Does the law or rule delineate different charges for producing the medical records on paper versus on a CD? What are the charges? Does the law or rule contemplate charges for other services such as diagnostic tests or X-rays? What are the charges? Does your law or rule define “electronic medical record?” If so, what is that definition? Can you share your law and/or rule with us? Thank you for your responses. Of the 50 or so administrators contacted, the Board staff received 13 responses. Those responses were provided to the RLC for review. At the January 31, 2013, RLC meeting, the agenda included multiple items for the Committee’s consideration: the transcript from the November 29, 2013, RLC meeting; excerpts of the RLC report dated December 2012; an email from Ms. Henderson; a 2003 White paper; the costs charged by Florida Clerk of Courts, Florida hospitals, and other Florida health care boards; costs charged by other state medical boards; and all the materials presented at the prior meetings. The Committee received testimony from individuals regarding their understanding of how the proposed changes to the rule would or could affect their patient/clients. As a result of those comments and the RLC’s discussion, the Committee voted to have draft language prepared that included one fee for any records release with the following specific language: “stored and delivered in any format or medium.” The draft language was to be presented at the next RLC meeting. At the April 4, 2013, RLC meeting, the Committee agenda included excerpts from its January meeting, draft language, and an article regarding the federal Health Portability and Accountability Act (HIPAA) requirements. The Committee heard from individuals again and considered the various recommendations regarding the appropriate language for the proposed rule. The draft language presented at this RLC meeting, in the underline/strike-through method, provided the following: Costs of Reproducing Medical Records. Recognizing that patient access to medical records is important and necessary to assure continuity of patient care, the Board of Medicine urges physicians to provide their patients a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged. The Board, however, also recognizes that the cost of reproducing voluminous medical records may be financially burdensome to some practitioners. Therefore, the following rule sets forth the permitted costs for the reproduction of medical records stored and delivered in any format or medium. Any person licensed pursuant to Chapter 458, F.S., required to release copies of patient medical records may condition such release upon payment by the requesting party of the reasonable costs of reproducing the records. For patients and governmental entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than the following: For the first 25 pages, the cost shall be $1.00 per page. For each page in excess of 25 pages, the cost shall be 25 cents. (2)(3) The For other entities, the reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page. (3)(4) Reasonable costs of reproducing x-rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with such duplication. Additionally, the Committee discussed the anticipated financial impact that the proposed changes would have on small businesses, including whether or not a statement of estimated regulatory costs (SERC)11/ was necessary. The Department staff could not say whether the proposed change would increase the Department’s cost in excess of $200,000 a year. Following the discussion, the Committee voted to table the SERC decision until additional information could be brought before the Board and the proposed draft rule language was approved. The full Board met on April 5 and approved the RLC report which included the approval of the draft rule language. Additionally, the Department staff reported that, after conferring with other staff in Tallahassee, the Department did not feel that the cost associated with the draft rule language would exceed $200,000 a year in the aggregate. The Board voted that a SERC was not required. Between the October 2012 Notice and the May 2013 publication of the proposed rule changes, the RLC met in noticed public meetings discussing the potential rule revision. The rule record is clear that the proposed changes were discussed extensively by Committee members with input from attorneys, residents, association representatives and corporate representatives. On May 15, 2013, a Notice of Proposed Rule (using the proposed language found in paragraph 26 above) was published in the Florida Administrative Register, Vol. 39, No. 95. The purpose for the proposed rule was to provide a single fee for reproducing medical records. The Board received a request for a hearing and numerous comments from the public on the proposed changes. The rule hearing was scheduled for the next available Board meeting. On August 2, 2013, the Board held a public hearing on the proposed rule in Deerfield Beach. The Board agenda included: the proposed rule 64B8-10.003; the rule hearing request; the rule hearing notice; a summary of the issue for Board consideration submitted by Ms. Henderson; copies of the notices sent regarding the hearing; meeting reports from the RLC meetings held on August 2, 2012, October 11, 2012, November 29, 2012, January 31, 2013, and April 4, 2013; and over 60 written comments. At the Board meeting over 15 people addressed the Board, expressing either opposition to or support of the proposed changes. As a result of the testimony received, the Board chair directed that the public rule hearing be transcribed and the transcript be sent to the RLC for its consideration and determination. At the Orlando RLC meeting on October 3, 2013, the Committee conducted a rule hearing on the proposed rule language. The RLC’s agenda included: draft proposed language for the rule; a draft RLC meeting report; a transcript from the August 2, 2013, rule hearing; an article regarding Florida doctors and medical records; and additional comments from seven different sources. The Committee was charged to consider the testimony from the August 2013 public rule hearing, as well as the testimony from this rule hearing to make recommendations to the full Board. The Committee heard testimony from individuals who either opposed or supported the proposed rule. The Committee members asked questions of the various presenters, and provided education to those presenters and attendees as to the multiplicity of medical practices, attendant issues, and personal experiences in dealing with medical records requests. The Committee agreed that the rule should be as set forth in the draft rule language. The Committee also agreed that there might be an “adverse impact” on small businesses, and that a SERC should be prepared. In November 2013, Board staff distributed a survey to 1,41912/ Florida-licensed physicians seeking responses to the following questions: Do you handle the copying of your medical records with your own staff? If yes continue to 1a. If no, go to Question 2. Yes. No. 1a. Do you have a designated staff person who only handles the review and copying of medical records? If yes, continue to 1b. If no, continue to 1c. Yes. No. 1b. How much do you pay this person on a monthly basis, including any benefits that are provided? 1c. How much do you spend on special equipment and supplies (copier, paper etc.) for the copying of medical records annually? If you send your medical records for copying by a service, how much do you pay each month for this service? On average, how many requests for copies of medical records do you receive each month? The Board staff received 28 responses from the 1,419 surveys sent out. Of those 28 responses, 27 handled the copying of medical records in-house. Twelve practitioners had a designated staff person to review and copy medical records, while 15 did not. Fifteen declined to provide how much their personnel were paid. There was a wide range of pay for the others. The costs associated for special equipment and supplies to provide copies of medical records ranged from $120 to $20,000 per month. Only one practitioner responded that medical records were sent out to a copying service. The number of medical record requests varied from one to more than 600 per month. The next public hearing was held in Orlando on December 6, 2013. The Board materials included: the hearing notice for December 6, 2013; proposed rule language; the transcript of the October 3, 2013, meeting; section 164.524, Access of Individuals to Protected Health Information; new comments received; the survey results; and material from the previous public hearings and meetings. The Board considered the testimony from the public hearings that had been held on August 2 and October 3. Each speaker was afforded the opportunity to express their position and comments received were either “opposed” or “supported” the proposed rule changes. Following the testimony, the Board voted to change proposed subsection (2) by adding the following language, which is underscored: [t]he reasonable costs of reproducing copies of written or typed documents or reports shall not be more than $1.00 per page, but shall not exceed actual costs. Thereafter, the Board again revisited the question of whether a SERC was necessary. The Board considered whether the newly revised language would adversely affect, or was likely to directly or indirectly increase regulatory costs to any entity in excess of $200,000 in the aggregate in Florida within one year of the implementation of the rule. The Board determined that a SERC was necessary. On February 6, 2014, the RLC met in Kissimmee for another public hearing on the proposed rule amendments. The Committee was to consider changes authorized by the Board during its December meeting. The agenda materials included: draft language of the rule; additional correspondence; and the materials from the prior meetings/hearings. If the draft rule language was approved, two questions had to be addressed: would the proposed rule have an adverse impact on small businesses; and would the proposed rule be likely to directly or indirectly increase regulatory costs to any entity in excess of $200,000 in the aggregate in Florida within one year after its implementation? Testimony was received from several individuals. Following the testimony, the Committee members had a discussion about the terms “actual costs” versus “reasonable costs.” The Committee voted to revise the draft rule language to “reasonable costs” and approved a “Notice of Change” to be published. The Committee also determined that the amendment would not have an adverse impact on small businesses, nor was it likely to directly or indirectly increase regulatory costs in excess of $200,000. On April 3, 2014, the RLC held another public hearing in Deerfield Beach on the proposed rule. There remained some inconsistencies in the changes that were approved and the Committee reconsidered the proposed rule language. The material in the RLC’s agenda included: materials presented at previous meetings including correspondence; draft changes to the rule; the hearing notice; an article regarding electronic records; an excerpt of the February 2014 meeting; and the transcript of the February 2014 meeting. The Committee received testimony from several speakers who pointed out concerns about the proposed rule, and provided alternatives to it. After the testimony, the Committee voted to have new language prepared addressing those concerns and, in some instances, incorporated alternative suggestions. Additionally, the Committee understood that an additional public hearing would be necessary, and that the SERC might need to be revised. On June 5, 2014, the RLC met in Tampa for another public hearing to consider the revised draft rule language. The agenda included: the hearing notice; the proposed draft language; a proposed SERC; multiple written comments; transcripts from prior RLC and Board meetings where the proposed rule was discussed; and RLC meeting reports. The Committee voted to table the discussion of the proposed rule until another hearing could be held in South Florida. On October 9, 2014, the RLC met in Deerfield Beach and held a rule hearing regarding the revised rule language. The Committee received additional testimony from concerned individuals. The Committee voted to accumulate all the comments and present everything to the full Board at the December 2014 meeting. In October 2014, Ms. Dudley was asked to speak at the Capital Medical Society in Tallahassee. Ms. Dudley took the opportunity to hand out the survey (found in paragraph 34) to the participants. Although she received four additional responses to the survey, the audience was not physicians, but staff who primarily handled the medical records for medical offices. On December 4, 2014, the RLC met in St. Petersburg for an additional rule hearing on the proposed rule language. The Committee was to review all the comments submitted. The RLC’s agenda material included: the hearing notice; the suggested changes to the draft proposed rule from March and May 2014; the excerpt of the RLC meeting report in October 2014; multiple correspondence from concerned individuals; survey responses from physician offices (including the four additional surveys); materials from the prior hearings and RLC meetings; and the proposed SERC. At the beginning of this rule hearing, the Board’s executive director provided a suggested revision to the proposed rule by adding a new paragraph: “(4) Accessing medical records through patient portals does not constitute the reproduction of medical records.” Testimony was received from various individuals regarding the proposed rule language. The Committee reviewed all the comments submitted. The Committee determined that a SERC should be prepared. The Board held another rule hearing on the proposed rule language on February 6, 2015, in Stuart. The agenda material included: the hearing notice; the draft changes; the excerpt of the RLC meeting; survey responses from physician offices; newly received written comments; a proposed SERC; and materials presented at the previous hearings and meetings. The Board heard testimony from several individuals who either opposed or supported the proposed rule language. The Board reviewed the changes to the proposed rule and the proposed SERC, and heard testimony from presenters. Based on that testimony, the Board members further discussed the proposed rule language and voted to modify it again. After the proposed rule language discussion, the Board then addressed whether it believed, with the latest revision to the draft rule, that a SERC was necessary. The Board voted to accept the SERC as presented. On February 17, 2015, the Joint Administrative Procedures Committee (JAPC) wrote the Board regarding the SERC and inquired as to whether the draft rule would require legislative ratification. As a result of the JAPC inquiry on March 4, 2015, the Board held a telephonic conference meeting. The Board heard from three individuals regarding whether the proposed rule required legislative ratification and the status of the SERC. The Board determined that the rule would require legislative ratification and the SERC needed to be revised. The Board approved the following changes to the proposed rule (the initial paragraph and sections (1) and (2) are found in paragraph 26 above): (4) Reasonable costs of reproducing x- rays, and such other special kinds of records shall be the actual costs. The phrase “actual costs” means the cost of the material and supplies used to duplicate the record, as well as the labor costs and overhead costs associated with duplication, plus postage. Accessing medical records through patient portals does not constitute the reproduction of medical records. On March 12, 2015, the Notice of Change was published in the Florida Administrative Register, and the four petitions were filed. Following the filing of the petitions at DOAH, the parties requested a continuance to allow the Petitioners the opportunity to present their lower-cost alternatives to the Board. At the April 10, 2015, Board meeting, the Board addressed an allegation that the Board had failed to consider five lower-cost regulatory alternatives (Alternatives). The Board had not considered the Alternatives because they had not been filed for the Board’s consideration. Once the Alternatives were filed, they were placed on the next available Board agenda. The first Alternative was to leave the rule in its current state. After hearing from interested parties, the Board determined that it had evaluated the issues around the rule and the costs during the prior hearings and meetings. The Board agreed that the status quo was not viable for a variety of reasons. The Board voted to reject this Alternative. The second Alternative asked that the medical record holder only be allowed to charge the actual cost of copying, including reasonable staff time consistent with section 457.057(17). The Board discussed that through the multiple public hearings it had determined that it would be impossible to determine the actual charge for copying. The actual cost for an urban multi-partner physician would be different than a solo practitioner’s office in a rural location. The Board voted unanimously to reject this Alternative. The third Alternative asked the Board to conduct an evaluation or study regarding what the actual costs of copying are for medical record holders based on the type of request, type of medical record, the format of the record, and the format of the record to be delivered. The Board discussed what it had heard about in the prior meetings: other states allowed higher levels of reimbursing; and hospitals charged $1.00 per page as authorized by statute. The Board attempted to obtain the data sought but was unsuccessful in obtaining any significant response. Further, the Board does not have the statutory authority to require physicians to respond to any data or survey requests. The Board voted unanimously to reject this Alternative. The fourth Alternative asked the Board to eliminate the per-page price and impose a restriction that the prices could not exceed the maximum price authorized by HIPAA. The Board did not concur that HIPAA set an exact amount, and trying to determine the costs for each practitioner in each type of practice would be frustrating to all involved. The Board voted unanimously to reject this Alternative. The fifth Alternative asked the Board to keep the current rule, but separate the costs for electronic versus digital copies. The Board discussed the movement towards all electronic medical records, but paper records and other records will still exist. The Board determined that there is a need for the proposed rule to address the current circumstance. The Board voted unanimously to reject this Alternative. Those opposed to the alleged increase testified there was no basis for the change, that the proposed change quadrupled the price for patients and governmental entities, and that it was arbitrary and capricious, especially with respect to electronic records. These opponents fail to recognize changes in medicine. HIPAA brought patient confidentiality and the need to maintain that confidentiality into sharp focus. Medical practitioners are required to ensure that confidential patient information is not disseminated to unauthorized persons. Physicians must pay to have medical records copied, whether it is done “in-house” or by an ROI provider. Labor costs have increased and the tedious review to ensure that confidential information remains confidential is time-consuming and costly. Medical practices can be quite varied in type, size, sophistication, location, and much more. Petitioners’ claim that the proposed rule should be the “actual cost” to the practitioner is impracticable. A general practitioner in a rural solo practice, who receives one request for medical records, might be able to ascertain the “actual cost” to produce that one medical record. A specialist in an urban multi-partner practice group, who receives multiple requests for medical records, would find it nearly impossible to ascertain the “actual cost” to produce each requested medical record without extensive business record-keeping. This proposed rule retains the suggestion that physicians “provide their patients with a copy of their medical records, upon request, without cost, especially when the patient is economically disadvantaged.” Physicians provide medical records, free of charge, to subsequent or specialty physicians to ensure care. However, physicians are not in the business of repeatedly producing medical records. Those in favor of the proposed rule testified that the cost to physicians for reproducing medical records has not increased in years. The stringent HIPAA requirements placed an additional requirement on health care providers to ensure that private individual health data is kept confidential. The process to release medical records is not simply to pull a paper, digital or electronic medical record, copy it, and send it out the door. The process, as explained, takes valuable time from practitioners and their staff. In a simplified fashion once the request is made: staff must verify the requester’s identity and right to obtain the copy; the request must be logged into a HIPAA log; staff must locate and retrieve the medical record in whatever format it is in; staff must redact confidential information; staff must review for specific health treatment records (mental health, alcohol or drug treatment, HIV status) that cannot be provided pursuant to statute; a copy may need to be made or a paper copy may need to be scanned to an electronic disc; and the practitioner must review it to make sure it can be provided as requested. It is a time-consuming process.
Findings Of Fact At all times pertinent to the issues contained herein, the Respondent was a licensed medical doctor in Florida having been issued license number ME 0041256. Respondent was awarded his medical degree by the University of Tennessee in 1977. He came to southwest Florida in January, 1983 starting his practice in August of that year. He thereafter applied for and was granted privileges at Lee Memorial Hospital and practiced in Lee County until January, 1985 when he moved to Collier County. In January, 1985, Dr. Heiss notified Lee Memorial Hospital that he was moving his practice and that he no longer needed privileges at that facility. This was partly in response to a letter from the hospital asking him to resign which was, at least in part, based on his failure to keep his medical records current. He admits that prior to that time, he had received some notices involving incomplete records at the hospital and went in to work on them as best he could. However, due to his own medical problem which involved a prolonged throat infection that left him tired and weak, he could not accomplish much. This medical problem lasted for several months and when he was feeling better, he tried, to the best of his ability, he claims, during the summer of 1985, to complete the incomplete records. He went to the hospital and worked on some of them, but in late 1986, when he checked with clerical personnel in the medical records section, he was told his records were complete, and coincidentally, he stopped getting delinquency notices. Under the procedure in effect at Lee Memorial Hospital for correcting incomplete records in 1984, once a week, Ms. Lindahl, the assistant manager of the records section, would go through the files to determine which records were delinquent. If dictation was needed, the chart would be declared delinquent in 15 days. If only the signature was missing, the doctor was give 45 days to correct it. When the record was declared delinquent, medical records personnel would send a weekly reminder letter to the physician setting a one week suspense for correction and indicating that if the correction was not made, the doctor's hospital privileges could be suspended. These temporary suspensions, however, were not being enforced. According to Ms. Lindahl, in 1985, Dr. Heiss was identified and placed on the delinquent list 35 times. Because of this, he would have been sent 35 letters. In January, 1985, at the time Respondent left Lee Memorial Hospital, he left incomplete 84 charts. Because of the volume of incomplete records left by Respondent, the hospital Medical Records Committee, on May 2, 1985, authorized Ms. Lindahl to transfer these incomplete records to the permanent records section of the archives, a procedure that would not normally have been done with incomplete records. This transfer was accomplished in August, 1985. After Respondent left the hospital, in January, 1985, up to March, 1985, Ms. Lindahl contacted him both at home and at his new office both by phone and by letter on several occasions, and asked him to come in and complete his records. Each of the letters sent indicated those charts, by name, which needed completion. After the charts were transferred to permanent records in August, 1985, until February, 1987, Ms. Lindahl did not make any further effort to contact Dr. Heiss, nor did he contact her. However, she was informed by the Hospital Administrator that Dr. Heiss was to come in and work on the records. Therefore, she pulled these records for him and, in fact, the Respondent did, on some occasions, come in at night to work on them. Ms. Lindahl agreed to pull records for him as needed but advised him that she could not and would not pull all his incomplete records at one time. Charts are placed on microfilm after a period of years. Some of Respondent's charts were microfilmed before he completed them. However, the hospital made arrangements for him to complete these records as well in an effort to accommodate him. Once the records were placed on microfilm, it was more difficult for Dr. Heiss to complete them since, initially, there was no dictating equipment available in the microfilm reading area. However, it could have been done by Respondent taking notes from the film and thereafter dictating those notes in the records room where dictating equipment was available. However, that was not necessary, since the hospital set up a booth with dictating capability in it for him in the microfilm reading area. An Administrative Complaint was filed against Dr. Heiss in October, 1985, because of his incomplete files. The matter was referred to the Board of Medicine in February, 1987, after a stipulated settlement was reached between the Respondent and Counsel for the Board. On February 11, 1987, the Board of Medicine entered a Final Order which approved and adopted the stipulation entered into between Respondent and counsel for the Board on December 23, 1986. Paragraph 4 of the stipulated Disposition in this case provided that prior to the stipulation being presented to the Board, Respondent would complete all incomplete hospital records that he was responsible for at Lee Memorial Hospital. Dr. Heiss contends that at that time, he understood his medical records to be complete, based upon his inquiry to personnel in the medical records section at the hospital. He indicates he made several inquiries of at least two separate employees who told him they could find no record of any incomplete files charged to him. Once his incomplete records were transferred to permanent storage, they were deleted from the computer and a routine inquiry would not have disclosed them. However, Ms. Lindahl had in her possession a complete list of his still incomplete records and a simple inquiry to her, the person in charge, would have given him the correct information. Dr. Heiss did not check with Ms. Lindahl, who worked days even though he admits he may have been in the hospital for other reasons on several occasions during the day. He would usually come in during the evenings, and on one occasion, spoke with Mr. Shuler, the night records custodian, who checked the computer and found no record of the doctor's delinquency. Mr. Shuler, however, advised Dr. Heiss to check with Ms. Lindahl. Dr. Heiss states he believed that the Stipulation he worked out with counsel for the Board in response to the initial Complaint, took care of the problem. When he went before the Board in February, 1987, he had checked with medical records at the hospital and had been told his status was clear. This check was not with Ms. Lindahl, however. When he did so, he found he did have unfinished records. It was at that time, after the stipulation was signed, that he began to bring the records current. Dr. Heiss admits that during the period 1985 - 1986, believed there were some medical records that were incomplete but because they had been filed in the permanent records section, he believed his responsibility for them was fulfilled. As a practicing physician, he relies upon the medical records section to tell him what records need to be completed. When he was advised by that agency that he was no longer delinquent, he felt satisfied. This argument is specious and without merit. Respondent admits he did not make any attempt to work on the records from January to July, 1986. He contends that from July, 1986 to January, 1987, he called the hospital several times to check on his records but could get no indication he had files undone. It was not until after the Board meeting in February, 1987, when Mr. Shuler told him to speak with Ms. Lindahl, that he determined he did have some medical records incomplete. Notwithstanding, he knew he had some dictation that was incomplete and some matters were unsigned and in his opinion, it is more a question of semantics, (what the term, "incomplete" meant), and not knowing what he had to do. He contends he dealt in good faith with the hospital and with the Board of Medicine and was surprised to find out that he was not in good standing. This argument as well, is unbelievable. Dr. Heiss contends he relied on what he was told by the people at medical records but at no time until after he entered into the Stipulation with the Board of Medicine in 1987 did he contact Ms. Lindahl even though he knew she was the one who was in charge of delinquencies and was still employed by the hospital. It was incumbent upon him as the physician to contact the person in charge, especially in light of his suspicion that certain records were incomplete, and not rely on phone calls to anyone who answered. This does not constitute reasonably prudent action or the actions of a reasonable man. It cannot reasonably be claimed that Dr. Heiss' actions were based on an honest and reasonable mistake of fact. As a physician, he should have assumed that the Board wanted and required all records to be completed and it was his responsibility to insure that the records were, in fact completed. This he failed to do. On March 20, 1987, Respondent still had 53 charts incomplete of the 84 charts he had left incomplete when he departed the staff of Lee Memorial Hospital. These 53 charts were completed by November, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Respondent's license as a medical doctor in Florida be suspended for ninety days and that he pay an administrative fine of $1,000.00. RECOMMENDED this 29th day of January, 1988, 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 1st day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2674 The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. BY THE PETITIONER 1 & 2. Accepted and incorporated herein. 3. Accepted 4 - 8 Accepted and incorporated herein. Accepted and incorporated herein. Rejected as contra to the evidence. 11 - 13. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. 17 - 19. Accepted and incorporated herein. Accepted. Accepted. Accepted and incorporated herein. 23 & 24. Accepted and incorporated herein. 25. Argument rather than Finding of Fact. 26 & 27. Accepted and incorporated herein. BY THE RESPONDENT No submittal. COPIES FURNISHED: Dorothy Faircloth Executive Director DPR, Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32399-0750 Susan Branson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dan E. Batchelor, Esquire Post Office Box 1899 Bonita Springs, Florida 33923
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: At all times pertinent to this proceeding, Respondent Martin Kasner was licensed to practice medicine in the State of Florida having been issued license number ME0031141 on August 24, 1977. At all time pertinent to this proceeding, Respondent maintained an office at 1911 North Andrews Avenue, Wilton Manors, Florida 33311. There is no evidence that Petitioner has ever been the subject of prior disciplinary action by the Petitioner, Department of Professional Regulation, Board of Medicine ("the Board"). On June 7, 1988, Detective Robert Trawinski of the Broward County Sheriff's Office visited Respondent's office in an undercover capacity posing as a new patient identifying himself as Robert Conti. Detective Trawinski had never previously worked in an undercover capacity in a doctor's office. Prior to Detective Trawinski's June 7, 1988 visit to the Respondent's office, Detective Trawinski met with Sergeant Clukey of the narcotics division of the Broward County Sheriff's Office and Mel Waxman, an investigator for the Petitioner. Detective Trawinski was instructed to try to obtain a prescription for Valium from the Respondent without giving any valid medical purpose. Valium or Diazepam is a Schedule IV controlled substance that is not an analgesic, but is a potent tranquilizer and skeletal muscle relaxant which can have adverse effects on sensorium. It is indicated for the management of anxiety disorders or for the short-term relief of the symptoms of anxiety. Individual patients taking Valium can become dependent on the drug and withdrawal from addiction to the drug can lead to potentially life-threatening health problems. Detective Trawinski was not advised as to all of the potentially acceptable medical purposes for which Valium could be used. He understood his instructions to mean that he should not voice any complaint of pain. Prior to seeing the Respondent during this first visit, Detective Trawinski filled out a medical questionnaire in Respondent's office using the fictitious name Bob Conti. In filling out the questionnaire, Detective Trawinski did not state any specific medical complaints. The patient's blood pressure was taken by a nurse in the office and recorded at 150/84. That reading tends to confirm the patient's subsequent complaint of anxiety. During the June 7, 1988 visit, Detective Trawinski advised Respondent that he was having problems performing sexually and was experiencing some anxiety as a result of job and family problems. Detective Trawinski also advised the Respondent that he had previously obtained prescriptions for Valium from a doctor up north and the drug had helped calm him down. Detective Trawinski advised the Respondent that the Valium he had previously been taking relaxed him and alleviated many of the symptoms of which he was complaining. During this first visit, the Respondent took a limited medical history from the patient including questions regarding possible alternative sources of the patient's complaints such as diabetes and thyroid problems. The patient denied a history of any such possible alternative causes for his symptoms. During the first visit, the Respondent made preliminary overtures towards conducting a physical examination of the patient. However, the detective told the doctor he did not want a physical. Respondent advised the Petitioner that he should consider having a blood work-up, but the Respondent indicated that because the tests were so expensive, the patient could wait until he had the money. At the conclusion of the June 7, 1988 visit, the Respondent issued a prescription to Detective Trawinski for 30 ten milligram Valium tablets with the ability to refill the prescription three times. The patient was advised to take two Valium per day as needed and one at night as a sleeping pill. At the time of the first visit, Detective Trawinski did not know the therapeutic use for Valium and was not advised of the appropriate use for Valium by his superiors. In actuality, a prescription for Valium was not inappropriate for the patient given his high blood pressure, complaints of anxiety and minor sexual dysfunction which could have been related to anxiety. Detective Trawinski returned for a second visit to the Respondent's office seventeen days later on June 24, 1988 at which time the patient's blood pressure was recorded at 164/80 which could reflect anxiety on the part of the patient. During this second visit, the Respondent questioned the patient regarding his appetite and medical history. Detective Trawinski denied a history of thyroid trouble, hayfever, etc. The Respondent conducted a limited physical examination of the patient checking his lungs and his heart rate. During the June 24 visit, Detective Trawinski advised the doctor that, while he still had some anxious moments, the prescription for Valium was helping him. The Respondent asked the patient whether he had any Valium left. The patient responded that he did not have any and also advised the Respondent that he was taking the Valium as directed and was not sharing them with anyone else. At the conclusion of the second visit, the Respondent provided the patient with a prescription for 50 Valium tablets with two refills. While the medical records of Detective Trawinski's first and second visit are sketchy at best, the Valium prescriptions issued on these two occasions do not fall beneath the standard of a reasonably prudent physician under the circumstances. The third visit by Detective Trawinski to Respondent's office took place twelve days later on July 6, 1988. During that visit, the detective advised the Respondent that the reason the Valium were going so quickly was because he was sharing the prescription with his wife. Detective Trawinski attempted to obtain from Respondent a separate prescription for Valium for his wife. Detective Trawinski offered to pay Respondent the amount of an additional office visit if Respondent would issue a prescription in his wife's name. However, Respondent refused to accept the additional money or issue a prescription in the wife's name without seeing her. The Respondent stated that he would need to take a medical history and conduct a physical examination prior to prescribing anything for the patient's wife. The Respondent advised Detective Trawinski that his wife should not be taking prescription drugs without having seen a doctor and that, although the prescription seem to be working for him, it may not necessarily be good for his wife. The Respondent advised the patient that, while his wife could take a few of his Valium until she could make an appointment to see the doctor, an appointment should be made as soon as possible and that no one should take prescription medication without being seen by the doctor. Notwithstanding the cautionary statements to the patient regarding sharing the drug, at the conclusion of the third visit, Respondent increased the patient's prescription for Valium from 50 tablets to 100 tablets with 1 refill. In fact, Respondent originally made out the prescription for 50 tablets. However, after being advised that the patient was sharing the pills with his wife, the prescription was increased to 100 tablets. By increasing the prescription in this manner, the Respondent was excessively prescribing a controlled substance and fell below the standard of care expected in this community of a reasonably prudent similar physician under similar circumstances. On July 13, 1988, Detective Trawinski returned to Respondent's office with Deputy Somerall of the Broward Sheriff's Office posing as his wife, Jeanette Conti. Upon arriving at the doctor's office, Deputy Somerall was weighed and her blood pressure was taken. In addition, the doctor performed a limited physical examination including listening to her heart and lungs with a stethoscope. The Respondent took a limited medical history from Deputy Somerall and she stated that she was suffering from stress and that Valium seemed to relieve it. Deputy Somerall advised the Respondent that she had been taking some of the Valium prescribed for her purported husband. In response to questioning by the Respondent, Deputy Somerall stated that she took the Valium on an as needed basis and it did not cause her to be drowsy and seemed to relieve the stress and anxiety she sometimes experienced towards the end of the visit, the Respondent indicated he would issue a separate prescription for Valium for Deputy Somerall and stated that he did not want her taking pills from her husband without her seeing a doctor first. The Respondent issued a prescription in the name of Jeanette Conti for 30 ten milligram Valium tablets with two refills permitted. During the July 13, 1988 visit, the Respondent inquired of Detective Trawinski whether his prescriptions were holding out. After Detective Trawinski indicated that he needed additional prescriptions, the Respondent issued a new prescription in the name of Bob Conti for 100 ten milligram Valium tablets. No refills were indicated. During this fourth visit, Detective Trawinski told the Respondent that he had tried some Percodan and had enjoyed it. He indicated that the drug had helped him to perform sexually and requested the doctor to issue him a prescription for that drug. Percodan is a Schedule II Controlled Substance which is used to relieve moderate to severe pain. It is an opiate narcotic and can be addictive. At the conclusion of this fourth visit, the Respondent issued a prescription to Detective Trawinski for 30 Percodan tablets. The prescription did not provide for any refills. No valid medical reason was provided for the issuance of the Percodan prescription. While Respondent contends that the patient had previously complained of back pain and a prescription for Percodan was issued for that reason, no competent evidence was presented to establish that Detective Trawinski had ever made a serious complaint about back pain. Therefore, the Respondent fell below the standard of care expected of a reasonably prudent physician in this community by issuing the Percodan prescription. Likewise, the issuance of additional prescriptions for Valium in the name of Bob Conti was excessive when considered together with the previous prescriptions issued. Pharmacists in Broward County will sometimes contact a physician to advise him if a patient is attempting to refill a prescription sooner than it should be refilled. The Respondent was never contacted by any pharmacist or advised that his patients were attempting to refill their prescriptions sooner than they should and there is no indication that the Respondent was ever advised that all of the refills allowed under the prescriptions were obtained by the patient. Patients often overlook the ability to refill a prescription and return to the doctor for a new prescription. The Respondent specifically advised Detective Trawinski during one of the visits that he could get the prescriptions refilled without returning to see the doctor. This statement indicates that the Respondent assumed that the patient had not sought all the refills of the earlier prescriptions. While the Respondent might have assumed that the patient had not sought all the refills provided, the Respondent should have been more cautious about issuing so many prescriptions with refills permitted within such a short period of time. However, at no time was the Respondent informed or led to believe that the patient was selling the drugs to others. Although both patients were seen by the doctor and issued prescriptions during the July 13 visit, they were only charged Respondent's typical rate for a single visit, $30.00. On July 19, 1988, both Detective Trawinski and Deputy Somerall returned to the Respondent's office. During this visit, Deputy Somerall advised Respondent she had taken some of the Percodan prescribed for her purported husband and requested a prescription of her own. Deputy Somerall told the Respondent that she was using the drug as an aphrodisiac. Detective Trawinski advised the doctor that he was taking four Percodan per day because it made him feel good. Detective Trawinski advised Respondent that he did not have any Percodan remaining because he had used it during a party with another couple. The Respondent lectured both patients about the dangers of Percodan and told them that the drug was habit forming and should not be taken for recreational purposes. Respondent expressed surprise that the drug was serving as an aphrodisiac for the patients. While Respondent indicated he was reluctant to issue a new prescription for Percodan, he stated that the drug seemed to be providing some benefits to the patients and ultimately issued a prescription in the name of Bob Conti for an additional 30 Percodan tablets. Respondent would not issue a prescription for Percodan in the name of Jeanette Conti. Furthermore, when Detective Trawinski inquired about making an appointment for his brother-in-law to see the Respondent, the Respondent replied that if the intention was to obtain Percodan, he did not want to see the patient. However, he indicated he would be willing to see the brother-in-law if he was simply seeking a prescription for Valium. At no time did the Respondent adequately inform the patients regarding the synergistic effects of the use of Percodan and Valium nor did he adequately explain the risks associated with combining these drugs with alcohol or other substances. Moreover, Respondent failed to explore the possibility that the prescriptions he issued were increasing or exacerbating existing dependency by these Patients on the drugs involved. On July 25, 1988, Detective Trawinski returned to Respondent's office and requested that his prescriptions be renewed. The patient denied any medical complaints and there is no indication that any physical examination was conducted by Respondent. In response to Respondent's inquiries, Detective Trawinski indicated that he was following the Respondent's previous advice and use of the Percodan was "under control." At the conclusion of the July 25 visit, Respondent issued a prescription in the name of Bob Conti for 30 Percodan "for pain" and 50 Valium tablets. One refill was provided for the Valium prescription. No refills were indicated for the Percodan prescription. No valid medical reasons were provided for the prescriptions that were issued following the July 25 visit. There is no evidence indicating any pecuniary gain by the Respondent for writing any of the prescriptions in question. The only remuneration received by Respondent was his typical $30.00 office charge per visit. The written medical records which the Respondent maintained fail to adequately justify the course of treatment of the patients known to Respondent as Bob and Jeanette Conti (collectively referred to as the "Patients"). The records do not reflect repeated evaluation of the persistent symptoms or adequate evaluation and follow-up of the results of medication, either as to effectiveness or possible side effects such as dependency. Respondent's record-keeping with regard to the Patients falls below the acceptable standard. The records fail to include an adequate patient history and initial assessment of the Patients. It is impossible to determine from these records what medicines the patients had taken in the past, what reactions they had to such medications, what medical procedures they had in the past or other important information regarding the Patient's background. In several instances, the Respondent's only notation of treatment is a listing of medications prescribed. His remaining notations are not acceptable to explain or justify the treatment program undertaken, especially with respect to the prescriptions for Percodan. The Respondent's medical records for patient Bob Conti contain a very limited patient history and general background information. For this patient's first two visits, there is a brief notation which includes the patient's blood pressure and weight. On the first three visits, there is a diagnosis of "chronic anxiety" without any further discussion. On the final three visits, only the medication prescribed is noted. The patient's records for these three last visits contain no statements of medical diagnosis, assessment or treatment plan. It is not possible to determine from Bob Conti's medical records the reason that Percodan was prescribed. The Respondent's medical records on the patient Jeanette Conti are similar to those previously described for patient Bob Conti. The office visit notes list no patient complaints or symptoms and no medical diagnosis or comprehensive assessments. While Respondent's counsel suggested that Respondent intended to supplement the medical records with additional information at a later date, no competent evidence was presented to support this claim. The Respondent was examined and tested by a psychiatric expert Dr. Klass. The results of the psychiatric examination indicate that the Respondent is not corrupt, but that he is corruptible, i.e., easily manipulated and overly compliant.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Department of Professional Regulation, Board of Medicine, enter a Final Order which finds Respondent guilty of the violations alleged in Count One, Three and Four of the Administrative Complaint, dismisses Counts Two and Five, imposes an administrative fine in the amount $5000.00 and suspends Respondent's license for a period of two years followed by a three (3) year term of probation during which time Respondent's prescribing practices should be closely monitored. DONE and ORDERED this 3 day of May, 1990, in Tallahassee, Florida. J. STEPHEN MENTON 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 3 day of May, 1990. APPENDIX Both parties have submitted Proposed Recommended Orders. To the extent that the proposed findings of fact can be isolated, they are addressed below. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Subordinate to Findings of Fact 4-33. Subordinate to Findings of Fact 23, 24, 26, 29, 31 and 32. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a finding of fact. This subject matter is covered in Findings of Fact 34-37. The Respondent's Proposed Findings of Fact Proposed Finding Paragraph Number in the Findings of Fact of Fact Number in the Recommended Order Where Accepted or Reason for Rejection. Adopted in substance in Findings of Fact Adopted in substance in Findings of Fact 2. The first sentence is adopted in substance in Findings of Fact 33. The second sentence is adopted in part in Finding of Fact 27. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Subordinate to Findings of Fact 34-37. Rejected as irrelevant. No evidence was presented to establish that the Respondent intended to further supplement the medical records. Rejected as not constituting a finding of fact. Subordinate to Findings of Fact 4-7 and 12. Rejected as a summary of testimony rather than a finding of fact. This subject area is covered in Findings of Fact 6-10. Subordinate to Findings of Fact 16. Rejected as a summary of testimony rather than a finding of fact. This subject area is addressed in Findings of Fact 27. Rejected as irrelevant and because it is merely a summary of testimony rather than a finding of fact. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 27. Rejected as constituting argument and a summary of testimony rather than a Finding of Fact. This subject area is addressed in Findings of Fact 16. Subordinate to Findings of Fact 13-15. Subordinate to Findings of Fact 17 - 19. Rejected as constituting argument rather than a finding of fact. This subject area is addressed in Findings of Fact 19. Subordinate to Findings of Fact 20-23, 25, 26, and 28. Subordinate to Findings of Fact 29. Subordinate to Findings of Fact 30-33. Rejected as constituting argument and a summary of testimony rather than a finding of fact. Rejected as constituting argument. Rejected as constituting argument. Subordinate to Findings of Fact 38. 30. (SIC) Rejected as constituting argument. COPIES FURNISHED: Joseph Harrison, Esquire Senior Attorney Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 C. Craig Stella, Esquire Attorney at Law 200 S. Andrews Avenue Suite 300 Mercede City Center Fort Lauderdale, Florida 33301 Kenneth E. Easely General Counsel 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 =================================================================
The Issue As stated in the Order of Remand entered March 26, 1999.
Findings Of Fact On or about March 7, 1994, Mark Leibowitz, an attorney representing Patient E.G., sent a Notice of Intent to the Agency for Health Care Administration (AHCA) which advised of his client's intent to file a malpractice action against Respondent. The Notice of Intent was reviewed by Marie Kokol, an employee of AHCA. During the course of his representation of Patient E.G., Mr. Leibowitz obtained a copy of Respondent's medical records for Patient E.G. On or about April 5, 1994, Ms. Kokol requested that Mr. Leibowitz provide her with a copy of those medical records. Those medical records were received by Ms. Kokol at AHCA on or about April 18, 1994. The medical records received from Mr. Leibowitz were incorporated as part of Petitioner's investigative record as pages numbered 234 and 235. These records included Respondent's medical records for Patient E.G. for July 17, 1992, and July 29, 1992. In or about June 1994, the medical records received by Ms. Kokol were sent to AHCA's investigative office in Miami, Florida. On July 14, 1994, Georgina Jorge, an investigator employed by AHCA, issued a subpoena to Respondent for all medical records of Patient E.G. Respondent provided the medical records of Patient E.G. to Ms. Jorge, which were included in the investigative record as pages numbered 293 through 296. Included in the medical records received by Ms. Jorge pursuant to her subpoena issued July 14, 1994, were Respondent's medical records for Patient E.G. dated July 17, 1992, and July 29, 1992. These records were numbered pages 294 and 295. The medical records of Patient E.G. obtained from Mr. Leibowitz (pages 234 and 235) and the medical records received by Ms. Jorge pursuant to her subpoena (pages 294 and 295) should have been identical, but they were not. The subpoenaed medical records (pages 294 and 295) contain handwritten notations not found on the medical records obtained from Mr. Leibowitz (pages 234 and 235). Respondent's medical records for Patient E.G. for July 17, 1992, received pursuant to the subpoena contain the following handwritten notations not found on the medical records obtained from Mr. Leibowitz: unable to dilate today (illegible word) r/o (rule out) retinopathy Respondent's medical records for Patient E.G. for July 29, 1992, received pursuant to the subpoena contain the following handwritten notations not found on the medical record obtained from Mr. Leibowitz: Martha Delgado 326-6421 Pt. Did not keep appt. at BEIP as recommended. The additional notations contained in the medical records obtained pursuant to the subpoena were not dated or signed by Respondent. Dr. William Cobb served as the Petitioner's expert witness at the initial formal hearing. Dr. Cobb reviewed the medical records obtained from Respondent by the agency investigator and based the opinions expressed at the initial formal hearing on those records. A review of his deposition reveals that Dr. Cobb had access to the two sets of medical records and that he observed that there were discrepancies between the two sets of records. Dr. Cobb did not base the opinions he expressed at the initial hearing on the fact that there were two sets of medical records, one with the notations and the other without. Both before and after the Order of Remand, Dr. Cobb expressed the opinion that Respondent practiced within the standard of care on July 17, 1992. His opinions that Respondent committed the violations alleged in the Administrative Complaint were unaffected by the existence of the additional notations on the subpoenaed medical records. A physician may make additional notations to a medical record when the record is reviewed after the initial examination at the end of the day without dating or signing the additional notation. A physician making additional notations to a medical record more than one day after the initial examination must date and sign the additional notation. Dr. Cobb expressed the opinion in his deposition, taken after the remand, that the failure to date and sign additional notations made more than one day after the initial examination would be a violation. 1/ The only plausible explanation for the additional notations on the medical records for July 17 and July 29, 1992, is that Respondent made the notations after Mr. Leibowitz obtained his copy of E.G.'s records. While Dr. Cobb may be correct in his opinion that Respondent's failure to date and sign these notations would be a violation, the Administrative Complaint filed against Respondent did not charge him with that violation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order consistent with the findings of fact, conclusions of law, and recommendations contained in the Recommended Order entered January 8, 1999. DONE AND ENTERED this 29th day of November, 1999, in Tallahassee, Leon County, Florida. 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 29th day of November, 1999.
The Issue The issue in this proceeding was whether Respondent violated Subsections 458.331(1)(g) and (t), Florida Statutes, between June 26, 1980 and September 16, 1983, by prescribing 4,100 Percocet to a single patient, failing to attempt other modalities of pain treatment for that patient and failing to refer the patient to a consulting physician.
Findings Of Fact At all times relevant, Robert G. Gilbert, M.D., Respondent, was licensed as a physician with license number ME0005030 from the Florida Board of Medical Examiners. He has been continually licensed since 1952. (Petitioner's Exhibit #3, T-13, 18) Neither the Department nor any hospitals have ever taken any action against his license. (T-13) Dr. Gilbert admitted at the hearing that he prescribed 4,100 pills of Percodan to his patient, George Watson, for the period of time in question. (T-9) He also stated that he prescribed for Mr. Watson 100 Percocet a month for the last five years that he treated him. (T-20-21) These admissions are consistent with Petitioner's evidence consisting of medical records and original prescription forms retrieved from the pharmacies. (Petitioner's Exhibits #1, 2 and 4) Percodan and Percocet both contain oxycodone; Percodan includes aspirin, and Percocet includes acetaminophen. (T-31) Both Dr. Gilbert and Petitioner's expert, Dr. John Handwerker referred to the PDR (Physicians' Desk Reference) regarding the drugs. The warning in that widely-accepted medical reference is: "May be habit forming"; the indications are "For the relief of moderate to moderately severe pain"; and, * * * Dosage should be adjusted according to the severity of the pain and the response of the patient. It may occasionally be necessary to exceed the usual dosage recommended below in cases of more severe pain or in those patients who have become tolerant to the analgesic effect of narcotics. The usual dosage is one tablet every six hours for pain. PDR, 1984 Edition, p. 928. The Oxycodone content in these drugs places them in the Schedule II, severely restricted medical category. (T-31), See Subsection 893.03(2)(a), Florida Statutes. Dr. Gilbert did not admit that the drugs were the only mode of treatment for this patient. Rather, he and other physicians treating Mr. Watson used ultrasound, heat, cold, massage, transcutaneous neural stimulation ("TNS") and muscle relaxants. (T-9-10) The patient was 6'2" and weighed 210 lbs. He was injured on his job as a City of Miami police officer and for a lengthy period, from 1974 until 1985, Dr. Gilbert was his authorized worker's compensation physician. At no time while Mr. Watson was under Dr. Gilbert's care did he ask for an increase in dosage or exhibit any unusual behavior. The treatment, other than drugs, was utilized from 1974 until about 1977 regularly and then intermittently, as needed, until February 1985. (T-10, 12) The records of George Watson obtained by the D.P.R. from Dr. Gilbert's office, consist primarily of cards reflecting various visits of the patient, correspondence regarding the workers' compensation claim and workers' compensation billing and report forms. The records are replete with references to physiotherapy, often several times a month and, for several months in 1977, on a daily basis. George Watson continually complained of pain. (Petitioner's Exhibit #1) Also included in the records is a three-page report on the patient, dated July 30, 1977, from Ledford Gregory, M.D., an orthopedic surgeon. The report reflects the patient's complaints of severe pain and Dr. Gregory's recommendation to the patient regarding surgery: I am however impressed by the degree of pain he is having and I believe that he is a candidate for surgical therapy. Before a decision would be made in this regard however, he should have an electromyelogram of the lower extremity, a CAT scan of the lumbar spine and a myelogram. We could then decide whether a Gill procedure and decompression would be sufficient or whether there would have to be added a posteriolateral fusion procedure. I have discussed this with the patient. I have explained to him that the odds are fairly good that the operation would give him considerable relief but that there is a chance that his condition would remain unchanged, and there is a slight chance that he might be worse. He will have to make the decision himself as to whether he desires the surgical intervention or not. (Petitioner's Exhibit #1, p. 171). Dr. John Handwerker was qualified as an expert witness for Petitioner. He heard Dr. Gilbert's testimony and reviewed the medical records, including the prescriptions for George Watson. (T-30,31) In his opinion the prescriptions for Percocet/Percodan were inappropriate and excessive as there were other treatment modalities that could have been tried before risking addiction. In his opinion, the TNS unit should have been utilized continually, rather than just in the office, and Dr. Gilbert's records were inadequate to justify the continuing use of the drugs for his patient's pain. (T-32, 33, 38).
Recommendation For the foregoing reasons, it is, therefore, RECOMMENDED: That the Administrative Complaint against Respondent, Robert G. Gilbert, M.D., be dismissed in its entirety. DONE and RECOMMENDED this 23rd day of May, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of May, 1986. COPIES FURNISHED: Dorothy Faircloth Executive Director 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, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Cecilia Bradley, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Robert G. Gilbert, M.D. 2617 Cardena Street Coral Gables, Florida 33134 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Paragraph 1. Adopted in Paragraph 2. Rejected as unnecessary. Rejected as unnecessary. 5-7. Rejected as unnecessary. While the veracity of the witness is not in question, the testimony of the Respondent under oath and substantiated by the medical records introduced as Petitioner's exhibit #1 is more competent evidence that other modalities were tried. Without the actual questions asked by the investigator, it is not possible to determine the context or meaning of the seemingly inconsistent prior statements of Respondent during the investigator's interview. Adopted in part in Paragraph 3, the transcript reference does not support the finding proposed in this paragraph. Adopted in Paragraph 6, except as to the characterization of the testimony as "uncontroverted", this is specifically rejected. Adopted in general in Paragraph 6. Rejected as cumulative and unnecessary. Rejected as inconsistent with the evidence. Adopted in general in Paragraph 6. Adopted in general in paragraph 6. But see Conclusions of Law #4 regarding violations which are not included in the complaint. Adopted in paragraph 2. Rejected as cumulative. Rejected as cumulative. Rejected as unnecessary. This conclusion by the expert is rejected as discussed in the Conclusions of Law. 23-25. Rejected as unnecessary. 26. Rejected as irrelevant in this proceeding. Incapacity is not charged in the complaint before me. See Conclusion of Law #4.
