The Issue The issue in this case is whether the Respondent should be disciplined for not meeting the “standard of care” by not responding appropriately to calls to him, as an on-call obstetrician, to come to the hospital and assist with a delivery.
Findings Of Fact The Respondent is licensed to practice medicine in Florida. He holds license ME 100568. He is board-certified in obstetrics and gynecology by the American Board of Obstetrics and Gynecology. In March 2011, the Respondent was one of two obstetrician-gynecologists (ob-gyns) employed by Family Health Centers of Southwest Florida (Family Health). Family Health also employed certified nurse midwives (CNM) and had agreements with two area hospitals owned by Lee Memorial System, Health Park and Gulf Coast. Health Park is a Level 3 hospital and has the means to provide the medical services needed for premature and high-risk deliveries. Gulf Coast is a Level 1 hospital and does not provide those services. On March 21, 2011, the Respondent was the on-call ob-gyn for the Family Health practice from 7:00 p.m. that evening until 7:00 a.m. the next morning. At 7:53 p.m. on March 21, 2011, Family Health obstetrical patient, M.T., was admitted to Gulf Coast’s emergency room, where she reported that she had been having contractions for two hours and was experiencing pain at the level of nine on a scale of ten. M.T. was a high-risk patient. She suffered a stillbirth in 2008 and a miscarriage in 2009. Yet, she had late and minimal prenatal care for being high-risk (having been seen by the Family Health practice only twice, not until the second or third trimester, and not by one of the doctors). The standard for viability at the time was 24 weeks, assuming good prenatal care and delivery in a Level 3 hospital with all needed specialists available, which was not the case at Gulf Coast. After triage in the emergency department of Gulf Coast, M.T. was admitted to the hospital and taken to labor and delivery. Barbara Carroll, a CNM employed by Family Health, was on duty there. Labor and delivery was busy that evening, and CNM Carroll saw M.T. at approximately 8:55 p.m. CNM Carroll took the patient’s history and noted in the patient’s medical record that an ultrasound done on February 24, 2011, indicated that the patient was 20 weeks and five days pregnant at that time, with a margin of error of plus or minus two weeks. Based on that ultrasound, CNM Carroll noted that the gestational age of the fetus on March 21, 2011, was 23 weeks and four days. (There was no evidence addressing the apparent miscalculation--if the gestational age on February 24 was 20 weeks and five days, it would have been 24 weeks and 2 days on March 21.) CNM Carroll then did a speculum examination, which revealed that the patient was in active labor, fully dilated and fully effaced, with a bulging bag of water (i.e., amniotic fluid). The type of examination performed did not allow CNM Carroll to determine the presenting part. CNM Carroll wrote these observations and impressions in the patient’s medical record. At approximately 9:00 p.m., CNM Carroll telephoned the Respondent, who was at Health Park at the time. It was not clear from the evidence what was said during their conversation. CNM Carroll testified that she reported what she had written in the medical record and asked the Respondent to come to the hospital immediately to assist with the delivery because she was not comfortable doing it herself. She testified that she thought the fetus was potentially viable, with a gestational age of 27 or 28 weeks, based on her examination and fetal heart monitor tracings. However, she did not recall telling the Respondent her belief as to the actual gestational age of the fetus. CNM Carroll testified that, in response to her report, the Respondent told her to start Pitocin, which would accelerate the labor and delivery process, and turn off the fetal monitor. She testified that when she balked, he said, “I told you what to do,” and she responded, “and I told you, I need you to come in.” She testified that it was clear to her that the Respondent knew from this curt exchange that she was not going to follow his orders. She testified that she declined to “argue” with the Respondent, which she had done on other occasions in the past. She testified that she thought he would change his mind and call back with new orders, which she claimed was a pattern of his. The Respondent recalled the conversation somewhat differently. He denied telling CNM Carroll to start Pitocin or to turn off the fetal monitor. He testified that he anticipated active labor would proceed and result in an abortion, since the fetus was not viable and would not survive a delivery at Gulf Coast that night. His plan was to give the patient pain medication for comfort and to manage the patient expectantly-- meaning do nothing, and continue to monitor the patient. He testified that he hoped labor might cease and the baby might possibly get to 24 weeks and be viable, if the labor and delivery could be arranged to occur at a Level 3 facility like Health Park. After the conversation, CNM Carroll completed her entries in the patient’s medical record. She wrote her impression that the patient was in active labor and her plan that the patient would be monitored, that the Respondent was aware and anticipated a spontaneous vaginal delivery, and that she expected a normal spontaneous vaginal delivery. She testified that she wrote “normal” unintentionally due to the stress she was feeling about the prospect of doing the delivery herself, without the Respondent being there to assist. Her notations make no reference to an order to start Pitocin or to turn off the fetal monitor. CNM Carroll testified that in the same approximate timeframe that she talked to the Respondent, she had Health Park’s transport team called to arrange for transportation to that facility’s neonatal nursery immediately after childbirth and had Gulf Coast’s high-risk delivery team (consisting of a neonatologist, a respiratory therapist, and an anesthesiologist) called to be ready for the delivery and transport to Health Park. She did not tell the Respondent she was doing this. CNM Carroll’s testimony about her telephone conversation with the Respondent at or about 9:00 p.m. that night is inconsistent with some of her entries in the patient’s medical record. If CNM Carroll’s testimony was not false in those respects, it may be mistaken, and it could be that CNM Carroll was confusing this telephone conversation with one later in the evening. CNM Carroll was very busy that evening, attending to several patients at the same time. Although not reflected in CNM Carroll’s entries in the medical record, and unbeknownst to her, the Respondent initially ordered an ultrasound and comprehensive blood test. The ultrasound results indicated at about 9:40 p.m. that the baby was in a breech position. The blood test results, which were communicated to the Respondent at about 10:00 p.m., indicated that the patient had an active infection (i.e., chorioamnionitis). At that point, the Respondent no longer believed that expectant management was appropriate and, at 10:05 p.m., ordered Pitocin to be administered to speed the delivery of the fetus before the infection spread. He reasonably did not expect the baby to survive. It is not clear from the evidence that the Respondent was told during these communications, at about 10:00 p.m., that the baby was breech. The Respondent claims that he was not told. It also is unclear whether the Respondent ordered the fetal monitoring to cease at that time. The Respondent said he did not. Some of the other witnesses recalled that he did, but there is no indication of such an order in the medical record. In any event, there was no clear and convincing evidence that it would have been inappropriate to turn off the fetal monitor at that point. At about the same time that the Respondent was ordering Pitocin, CNM Teresa Buckley returned to the hospital. CNM Buckley’s shift had started at 7:00 a.m. that morning, but CNM Carroll covered for her in the middle of the shift, so CNM Buckley could attend a child’s basketball game. CNM Buckley took report from CNM Carroll on the patient, M.T., and was told the gestational age of the fetus, the status of labor (active), and the imminence of delivery. She probably was told that CNM Carroll thought the fetus could be viable, despite its gestational age based on the heartbeat and monitor tracings, and that the Respondent had been called earlier and asked to come to the hospital to help with the delivery. After taking report, CNM Buckley examined the patient, reviewed the monitor tracings, talked to the patient, palpated the contractions, and examined the patient to determine the position of the fetus. During, or shortly after, the examination, the patient’s membrane ruptured. The rupture of the membrane may have been caused or hastened by CNM Buckley’s examination. Shortly after the membrane ruptured, at approximately 10:20 p.m., the baby’s foot appeared. CNM Buckley attempted to facilitate the breech delivery by sweeping the baby’s arms down and rotating. Both feet and legs and the torso were delivered, but the baby’s head was stuck and could not be delivered. At that point, at about 10:30 p.m., CNM Buckley asked the charge nurse to telephone the Respondent to say she needed him to come in to help with the delivery. The charge nurse telephoned the Respondent. The evidence is unclear exactly what she told him. The medical record states that she asked him to come in to assist with the delivery. The charge nurse testified that she informed him that the patient’s membrane had ruptured and asked if he was coming in. The Respondent’s best recollection is being told that CNM Buckley, who he did not know was on the case, needed his help with a breech delivery. He denies being told that the patient’s membrane had broken or that it was a footling breech delivery with the head stuck. The Respondent testified that he would have immediately agreed to proceed to the hospital had he been told either of those facts. He testified that he interpreted what he was told to mean he was being asked to help the CNM perform a breech extraction and that he said, “no,” his orders were to start Pitocin. The charge nurse testified that the Respondent asked if Pitocin was running, said to make sure it was running, and hung up. It is unclear from the evidence exactly when Pitocin was started. The medical record indicates that it was not started until 10:30 p.m., some 25 minutes after the Respondent ordered it. This would have been about the time when the Respondent asked the charge nurse about it. When the charge nurse reported to bedside, the CNM asked if the Respondent was coming in and if he was almost there. The charge nurse said she didn’t know, he didn’t say. The CNM had her call back to find out. According to the medical record, the charge nurse’s second call was made at 10:33 p.m., the Respondent was asked to “come in for breech delivery,” and the Respondent said, “no.” According to the testimony of the charge nurse, she told the Respondent that the CNM wanted the Respondent at bedside because she was having difficulty with the breech delivery and the baby’s head was stuck. The Respondent denied being told this in either of the two telephone calls. He testified that, still thinking the membrane was intact and the fetus was in the patient’s pelvis, he repeated his instruction, “no,” to a breech extraction. It was not proven by clear and convincing evidence that the Respondent was not being truthful about what he understood from the communications to him in the 10:30 and 10:33 p.m. telephone calls. When the charge nurse heard what the Respondent had to say, she hung up and reported to the CNM and others that the Respondent was not coming in. They paged Dr. Garner, the other ob-gyn employed by Family Health. Dr. Garner promptly answered the page and was asked to come in to assist with the delivery. He proceeded to the hospital and arrived at bedside at 10:55 p.m. The baby died during the delivery process and was delivered at 11:06 p.m. The Respondent testified that notwithstanding his inaccurate understanding of the status of the patient as a result of the telephone calls at 10:30 and 10:33 p.m., and his negative responses to the charge nurse, he actually proceeded to Gulf Coast. He stated that he telephoned the hospital on the way and was told that Dr. Garner was at bedside. At that point, he decided there was no need for him to go to the hospital and turned around to return to Health Park. During the hearing, DOH did not challenge or refute the Respondent’s testimony regarding his last phone call, but DOH’s proposed recommended order questions the Respondent’s veracity on the ground that the medical record does not mention it, and none of the other witnesses testified to knowing about it. Neither party produced other evidence that might establish whether the telephone call actually occurred. On this record, it was not proven by clear and convincing evidence that the Respondent did not proceed to Gulf Coast in response to the telephone call at 10:33 p.m., only to turn around when told that Dr. Garner was at bedside. DOH called an expert, Dr. Babu Veerendra Chitriki, who is a board-certified ob-gyn, to testify that the standard of care required that the Respondent, as the on-call ob-gyn, respond to each and every request for assistance he received from a CNM or nurse on the evening of March 21, 2011, by agreeing to come to the hospital. Dr. Chitriki’s testimony was refuted persuasively by the Respondent’s two experts, also board-certified ob-gyns, Drs. Mark Spence and Allison Thresher. They opined that it would be within the standard of care for the Respondent to ask questions, get an accurate understanding of the medical situation, and exercise medical judgment based on that understanding. Neither thought it was required by the standard of care for the Respondent to drop everything and come to the hospital as a result of the telephone calls he received on March 21, 2011, no questions asked. As to the telephone call from CNM Carroll at 9:00 p.m., it was not proven by clear and convincing evidence that it resulted in a clear request requiring the Respondent to accede and proceed to the hospital immediately. Rather, at most, it appears to have resulted in an unresolved disagreement between the health care professionals as to the appropriate plan of action. As to the 10:30 and 10:33 p.m. telephone calls, Drs. Spence and Thresher, as well as the Respondent, agreed that the standard of care would have required a positive response from the Respondent, had he been told what was occurring with the patient at the time. Instead, they viewed those telephone calls as evidence of an unfortunate failure of communication between the Respondent and the CNMs and nurses. It was not proven by clear and convincing evidence that the Respondent was lying when he testified that he was not told what was occurring at 10:30 and 10:33 p.m. It also was not proven by clear and convincing evidence that the facts were clearly communicated to the Respondent during those telephone calls. Finally, it was not proven by clear and convincing evidence that despite the failure to communicate, the Respondent did not in fact proceed to the hospital in response to those telephone calls, only to turn around when he learned that Dr. Garner was at beside. The Respondent is not without his share of fault for the miscommunications that occurred on March 21, 2011. Conflicts between him and the Family Health practice may have been a factor. He could have been a better listener, and he could have asked more and better questions to make sure he was getting the full picture of what was going on with the patient, particularly at the time of the 10:30 and 10:33 p.m. telephone calls. However, DOH did not charge him with practicing below the standard of care by not communicating. Rather, DOH charged him with failure to come to the hospital to assist with a difficult delivery after receiving a clear request to do so, a charge that was not proven by clear and convincing evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing the charges against the Respondent in this case. DONE AND ENTERED this 18th day of July, 2014, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2014.
The Issue At issue in this proceeding is whether Respondent, Gainesville Woman Care, LLC, d/b/a Bread & Roses Well Woman Care (“Bread & Roses”), provided services in excess of the scope of its license by providing abortions to five patients beyond the first trimester of pregnancy, as alleged in the Administrative Complaint.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: AHCA is the state agency responsible for the licensing of abortion clinics and the enforcement of the statutes and rules governing their operations in Florida, pursuant to chapter 390 and chapter 408, part II, Florida Statutes. Bread & Roses is a women’s health care clinic licensed to provide first-trimester abortions pursuant to chapter 390, Florida Statutes, and Florida Administrative Code Chapter 59A-9. Kimberly Smoak is AHCA’s field office supervisor. She is based in Tallahassee and supervises the operations of AHCA’s field offices throughout the state. Kriste Mennella is an AHCA field office manager based in Alachua, who reports directly to Ms. Smoak. On or about August 5, 2015, Ms. Smoak directed Ms. Mennella’s office to conduct an unannounced “monitoring” survey of Bread & Roses and to send Ms. Smoak her survey report before the end of the day. Ms. Mennella personally conducted the survey. Ms. Mennella arrived at Bread & Roses at 12:45 p.m. on August 5, 2015, to conduct the survey. She requested and reviewed utilization reports and medical records for 16 patients for whom Bread & Roses had provided abortion services within the previous year. Section 390.0112(1) provides the following reporting requirement: The director of any medical facility in which any pregnancy is terminated shall submit a monthly report to the agency which contains the number of procedures performed, the reason for same, the period of gestation at the time such procedures were performed, and the number of infants born alive during or immediately after an attempted abortion. The agency shall be responsible for keeping such reports in a central place from which statistical data and analysis can be made. (Emphasis added). Chapter 390 does not define the terms “gestation” or “pregnancy.” Section 390.011(11) defines “third trimester” to mean “the weeks of pregnancy after the 24th week of pregnancy.” From this definition, it is possible to infer that the first trimester includes the first 12 weeks of pregnancy and that the second trimester includes the second 12 weeks of pregnancy. Consistent with this inferred definition, rule 59A- 9.019(14) provides as follows: (14) “Trimester” means a 12-week period of pregnancy. First Trimester. The first 12 weeks of pregnancy (the first 14 completed weeks from the last normal menstrual period). Second Trimester. That portion of a pregnancy following the 12th week and extending through the 24th week of gestation. Third Trimester. That portion of pregnancy beginning with the 25th week of gestation. (Emphasis added). Ms. Mennella found the following in the clinic’s utilization reports for five of the 16 patients in the survey sample: Patient #5: no last normal menstrual period (“LNMP”) recorded; ultrasound reflected 13 weeks of pregnancy. Patient #7: no LNMP recorded; ultrasound reflected 13.2 weeks1/ of pregnancy. Patient #8: no LNMP recorded; ultrasound reflected 13.4 weeks of pregnancy. Patient #9: no LNMP recorded; ultrasound reflected 13 weeks of pregnancy. Patient #15: no LNMP recorded; ultrasound reflected 13.4 weeks of pregnancy. During the survey, the clinic manager for Bread & Roses, who prepares the clinic’s utilization reports, explained to Ms. Mennella that the “weeks” reflected on Bread & Roses’ utilization reports reflected the length of pregnancy as counted from the first day of the LNMP. Therefore, all five of the patients’ abortions were within the 14-week window afforded by rule 59A-9.019(14)(a). Ms. Mennella documented her conversation with the clinic manager in her formal survey notes and in her August 5, 2015, formal survey report to Ms. Smoak. At the conclusion of the survey, Ms. Mennella reported to Ms. Smoak by telephone, though Ms. Mennella testified that she could not recall the details of the discussion. At 4:50 p.m. on August 5, Ms. Mennella telephoned Kristin Davy, the owner and director of Bread & Roses. Ms. Mennella told Ms. Davy that AHCA had determined that Bread & Roses had acted in violation of its license by performing second-trimester abortions, based on the clinic’s utilization reports and the medical records reviewed by Ms. Mennella during the on-site survey. Ms. Davy replied that AHCA’s conclusion was incorrect because the weeks and days recorded on the ultrasound reports measured from the first day of the LNMP, meaning that all five of the questioned procedures had been performed within the first trimester of pregnancy. After her discussion with Ms. Davy, Ms. Mennella submitted her formal survey report to Ms. Smoak. Ms. Mennella’s survey notes and her survey report to Ms. Smoak each documented Ms. Davy’s dispute of AHCA’s conclusion and her explanation of the ultrasound reports. At 6:15 p.m. on August 5, Ms. Mennella faxed a letter to Ms. Davy with the heading, “Notice of Activity Without Proper Licensure.” The letter stated that AHCA had determined that Bread & Roses was providing services beyond the scope of its license. The letter did not attach a copy of Ms. Mennella’s survey report nor any other document reflecting the specifics of AHCA’s allegations regarding the clinic’s operation. Ms. Mennella made a follow-up visit to Bread & Roses on August 19 to determine whether there had been any more procedures performed that appeared to be beyond the scope of the clinic’s license. Based on her review of the clinic’s files, she determined that there had not. On September 1, 2015, AHCA faxed to Bread & Roses a letter signed by Ms. Mennella reporting the findings of its survey and requiring the facility to file a corrective action plan. The letter was accompanied by a statement of deficiencies recorded during Ms. Mennella’s August 5 survey. The statement of deficiencies stated that Bread & Roses had performed services beyond the scope of its license as follows: For sampled patients #5, #7, #8, #9 and #15, no date was recorded for the last normal menstrual period (LMP); however, the ultrasound reflected weeks of gestation in excess of 12 as documented in the patients’ records. Ms. Mennella’s documentation of her conversations with the office manager and Ms. Davy were excised from the version of the survey report faxed to Bread & Roses on September 1, 2015. Ms. Mennella had no explanation for this deletion, and testified that she could not recall whether she told Ms. Smoak about the explanations offered by the office manager and Ms. Davy as to the meaning of the ultrasound reports. Ms. Mennella’s letter of September 1 directed Bread & Roses to submit a written corrective action plan to AHCA by the close of business on September 4, 2015. The letter stated that the corrective action plan must do the following, at a minimum: * Demonstrate procedures are in place to ensure that first trimester abortions are not performed: In excess of 14 weeks (up to but not including the 105th day) from the last normal menstrual period (LNMP), and in excess of the 12th week (up to but not including the 91st day) of gestation; or When LNMP is not determined or not documented, abortions are not performed beyond the 12th week (up to but not including the 91st day) of gestation. * Educate staff to ensure that when reporting pursuant to rule 59A-9.034, F.A.C., on the online reporting system, that the field titled “WEEKS OF GESTATION” is correctly completed using “weeks of gestation” as that phrase is used in rule 59A-9.019, F.A.C., and not erroneously using the last normal menstrual period. On September 3, 2015, one day prior to expiration of the deadline for submission of Bread & Roses’ corrective action plan, AHCA filed the Administrative Complaint that initiated this proceeding. The Administrative Complaint seeks to impose an administrative fine of $2,500 on Bread & Roses, or $500 for each instance in which AHCA alleges that the clinic performed an abortion during the second trimester, beyond the scope of its license. Bread & Roses submitted a responsive letter to AHCA shortly after 1:00 p.m. on September 4, 2015. The letter, written and signed by Ms. Davy, stated as follows, in relevant part: This letter responds to your letter dated September 1, 2015, which requested a summary of a corrective action plan demonstrating two things: First, that procedures are in place to ensure that first trimester abortions are not performed in excess of 14 weeks from the last normal menstrual period (LNMP), and Second, that staff are educated to report “WEEKS OF GESTATION”--in the monthly online ITOP reports, filed pursuant to rule 59A- 9.034, F.A.C.--“using ‘weeks of gestation’ as that phrase is used in rule 59A-9.019, F.A.C.,” and not using LNMP. As to the first requirement, Bread & Roses has always provided abortion care only through and including 13.6 weeks LNMP, or 13 completed weeks and 6 days as measured from LNMP. Our staff records the date that the woman remembers for her LNMP if and only if she remembers such a date (and if she had such a date: some women do not menstruate, such as when using certain contraceptives). If the woman did not have or does not remember the date of her LNMP, we do not include such a date in her record. Regardless of whether she remembers such a date, we do not determine the length of her pregnancy based on that memory. Rather, in accordance with the standard of care, we determine the length of her pregnancy based on ultrasound examinations. Please be aware that--again, as is absolutely standard practice throughout Florida and the U.S.--our ultrasound machine provides a length of pregnancy as measured from LNMP. In other words, based on the measurements of the embryo or fetus, the ultrasound machine produces an estimated length of pregnancy as measured from LNMP. Our corrective plan of action is to ensure that henceforth, in all medical records, all staff include “LMP” [sic] after each indication of length of pregnancy, including when staff record the results of an ultrasound examination. As to the second requirement, for clarity, here is the relevant regulation: “First Trimester. The first 12 weeks of pregnancy (the first 14 completed weeks from the last normal menstrual period).” 59A-9.019(14)(a), F.A.C. Based on your letter dated September 1, 2015, all staff will now report “WEEKS OF GESTATION” in the monthly online [Induced Termination of Pregnancy or “ITOP”] reports using “weeks of gestation” as measured not from LNMP, but from two weeks after LNMP. In other words, we will henceforth report an abortion at 13.1 weeks LNMP as an abortion at 11.1 weeks in the online field for “WEEKS OF GESTATION.” The ITOP form referenced in the letter is a monthly summary report filed by the clinic with AHCA regarding the timing of the abortion procedures performed at the clinic. Printed examples of the forms were submitted into evidence by AHCA. The form sets forth three reporting categories: “up to 12 weeks,” “13 to 24 weeks,” and “25 and over weeks.” The form, at least in the printed version submitted by AHCA, uses neither the term “pregnancy” nor “gestation.” At the hearing, Ms. Davy testified that she wrote the corrective action plan to ensure there would be no more misunderstanding about what Bread & Roses was doing. She was adamant that Bread & Roses was not performing second-trimester abortions. She stated that the clinic was not changing its medical standards, but was clarifying its reports to AHCA. From that point forward, Bread & Roses would include “LNMP” after every notation of length of pregnancy in its medical records, and its ITOP reports to AHCA would subtract the two-week LNMP interval. Ms. Davy testified that the corrective action plan was implemented on the day it was submitted to AHCA. Ms. Davy further testified that Bread & Roses had been submitting its reports to AHCA in the same manner for the ten years in which it has restricted its license to first- trimester abortions. She had always understood that “weeks of gestation” on the ITOP form was meant to be dated from the first day of the last normal menstrual period, which is standard industry practice. No other surveyor ever told her that she was filling the forms out incorrectly or had attempted to infer that the clinic was operating beyond the scope of its license. AHCA’s most recent routine survey of Bread & Roses, prior to the August 5 survey, had been performed on February 14, 2015. No deficiencies had been found. AHCA presented no evidence to counter Ms. Davy’s credible testimony that Bread & Roses had been submitting its ITOP reports in the same manner for the previous ten years without incident. AHCA presented no evidence to explain why it suddenly believed that Bread & Roses’ ITOP reports showed that the clinic was performing second-trimester abortions. Ms. Davy testified that Bread & Roses does not rely on a patient’s reported LNMP to measure length of pregnancy because such reports are inherently unreliable. Thus, whether or not a patient’s medical record includes a patient-reported LNMP is of no importance to the length of pregnancy reported on the ITOP. In all cases, Bread & Roses reports length of pregnancy as measured by the ultrasound machine. Bread & Roses owns the ultrasound machine used in its clinic. Ms. Davy testified that she had the machine calibrated at the time of purchase, about a year and a half ago. The machine is checked annually by North Florida Biomedical Services. Bread & Roses’ written policies and procedures include the following, under the heading “Sonography”: A sonogram will be performed on all patients. Bread and Roses performs abortion procedures in the first trimester, up to 13 weeks 6 days from the last menstrual period. A sonogram will determine how many weeks the patient is from the last menstrual period. If a patient is 14 weeks or over she will be referred to an alternate clinic. Mary E. Raum, M.D., is a gynecologist and has been the medical director at Bread & Roses for 15 years. She has practiced gynecology since 1983. Dr. Raum performs all of the ultrasound and abortion procedures done at Bread & Roses. She performed the ultrasound procedures on each of the five patients at issue in this case. Dr. Raum testified that the “ultimate determinant” as to whether a patient is in the first or second trimester is the ultrasound. She stated that the ultrasound is “definitive” and has become the standard of care for assessing the length of pregnancy. Dr. Raum testified that the ultrasound equipment she was using met standards for such equipment. She had no doubt that the equipment was functioning properly. AHCA offered no evidence to dispute Dr. Raum’s assessment of the ultrasound equipment. Dr. Raum described her manner of performing the ultrasound procedure as follows: The patient is laying [sic] flat. I always hope that I can get an adequate image abdominally so the patient doesn’t have to have a vaginal probe. But there are times when that is necessary. The abdomen is spread with the ultrasonic gel, and then the probe, which is called a transducer--that is what actually emits the sound waves which are higher than the human ear can hear . . . . [A]s soon as I see what I feel to be a good representative picture where I can measure the pertinent structures, it’s frozen, and then I select, on the possible measurements, the appropriate one. Early on, the most appropriate ones are either the gestational sac or the crown-rump length, which is measured from the top of the head to the end of the tailbone, if you will. There is an algorithm that is programmed into the ultrasound machines which then translates those two measurements into the date of the pregnancy from the first day of the last menstrual period. Dr. Raum testified as to the care she takes in performing the ultrasound measurement. If she is uncertain, she will take several measurements until she has the most accurate possible measurement. Dr. Raum frankly tells her patients that if the measurement is even one day beyond the 14-week limit, she will not perform the abortion. AHCA did not call any witness to explain the basis for the Administrative Complaint. The facts alleged are that the medical records for the five patients at issue do not contain an LNMP date, and that the sonogram in the medical record of each of the five patients reflects “weeks of gestation in excess of 12.” AHCA presented no evidence in support of its allegation concerning the length of gestation. It might have been reasonable at the time of Ms. Mennella’s survey for the agency to read the ITOP reports and the patient records and suspect a problem. However, it was not reasonable for the agency to disregard the reasonable explanations provided by the Bread & Roses office manager and by Ms. Davy. Ms. Mennella herself could not say why AHCA decided to file an administrative complaint alleging that Bread & Roses performed five second-trimester abortions, or why her documentation of her conversations with the office manager and Ms. Davy were excised from the final version of her survey report. AHCA’s theory of the case appears to be that the lack of a handwritten notation of “LNMP” in the five medical records at issue requires a conclusion that the days and weeks shown on the face of the sonogram reflect a length of pregnancy as measured from the date of “conception” or “gestation,” rather than the LNMP. This premise is unfounded, and the failure of the premise destroys the logic of AHCA’s theory. The ultrasound measures the same thing, whether or not the medical record contains a patient-reported LNMP date. The evidence presented at the hearing showed that the ultrasound dates the pregnancy from the LNMP, and that Bread & Roses’ ITOP reports were based on the ultrasound results. The missing LNMP notes are a red herring. AHCA’s case consisted largely of an argument premised on applying the dictionary definition of the term “gestation” to the medical records of Bread & Roses, which do contain a “Patient Procedure Record” that makes reference to “gestation” in the section regarding the physician’s examination of the evacuated tissue post-abortion. Indeed, if these abortions had been performed after 13 weeks of “gestation,” as that term is defined in some medical dictionaries,2/ then they would have been beyond the first trimester. However, Ms. Davy testified that, consistent with standard medical practice, the term “gestation” on the Patient Procedure Record means, and has always meant, length of pregnancy as measured from the first day of the LNMP. Ms. Davy stated that she has amended the Patient Procedure Record to add “LNMP” after every indication of length of pregnancy, in order to prevent any future misunderstandings. Dr. Raum testified that medical practitioners generally do not attempt to measure the length of pregnancy from the date of conception because that date is difficult, if not impossible, to determine in an accurate and reliable fashion, except perhaps in cases of in vitro fertilization. AHCA’s own rule appears to recognize this difficulty by defining the “first 12 weeks of pregnancy” as equivalent to the “first 14 completed weeks from the last normal menstrual period.” In light of the overwhelming factual evidence that Bread & Roses did not in fact perform second trimester abortions, the dictionary definition of “gestation” was an insufficient basis for finding a violation. AHCA made no attempt at a factual, as opposed to a logical, demonstration that these were second-trimester abortions. AHCA presented no testimony or documentary evidence refuting the credible evidence presented by Bread & Roses that the sonograms show on their face that the pregnancies for each of the five procedures at issue were first trimester pregnancies and within the scope of Bread & Roses’ license. AHCA has argued that it should be allowed to show, in the alternative, that Bread & Roses’ clinical records were not accurately documented because they showed more than 12 weeks of “gestation” for each of the five sampled patients, in both the sonograms and the Patient Procedure Record, in violation of rule 59A-9.031, which requires that clinical records must be “complete” and “accurately documented.” It is noted that, prior to the hearing, AHCA made a motion to file an Amended Administrative Complaint that would have included a second count alleging a recordkeeping violation. This motion was denied by Order dated February 26, 2016. At the start of the final hearing, AHCA renewed its motion while also arguing that it was not necessary to amend the Administrative Complaint in order to raise the recordkeeping issue. The motion was again denied, but AHCA was given some leeway to pursue its theory that the original Administrative Complaint embraced a recordkeeping allegation. Even if the Administrative Complaint could be said to include an allegation regarding inaccurate recordkeeping,3/ AHCA did not prove anything more than that it misread the clinical records and ITOP reports of Bread & Roses and then refused to listen to Bread & Roses’ explanation. The evidence established that Bread & Roses had submitted the ITOP forms to AHCA every month for ten years in substantially the same form with no indication from AHCA that there was a problem. The evidence also established that the term “gestation” in the Patient Procedure Records was used in its usual medical sense, i.e., the length of pregnancy as measured from the first day of the LNMP. Bread & Roses amended its Patient Procedure Record form and changed its method of reporting the ITOP not because of any recordkeeping failure on its part, but in an effort to appease AHCA and forestall any further misunderstanding.
Recommendation Based on the foregoing, it is, therefore, RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint against Gainesville Woman Care, LLC, d/b/a Bread & Roses Well Woman Care. DONE AND ENTERED this 28th day of April, 2016, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of April, 2016.
Findings Of Fact At all times material hereto, Respondent has been a licensed practical nurse in the State of Florida, having been issued license number PN 0867041. At all times material hereto, Respondent was employed by American Nursing Service, Fort Lauderdale, Florida, and was assigned to work at Broward General Medical Center, Fort Lauderdale, Florida. On July 30-31, 1989, Respondent worked both the 3:00 p.m. to 11:00 p.m. and the 11:00 p.m. to 7:00 a.m. shifts at Broward General Medical Center. She was responsible for 20 patients on that double shift. An hour or two before her double shift ended, she checked the I.V. of a patient near the end of the hall. The I.V. was not running, and Respondent attempted to get it running again by re-positioning the I.V. several times. She then went to the medication room and obtained a syringe to use to flush the I.V. to get it operating again. When she returned to the patient's room, the I.V. was running and Respondent tucked the syringe inside her bra. The syringe was still packaged and unopened. She then continued with her nursing duties. At 7:00 a.m. on July 31, while Respondent was "giving report" to the oncoming nursing shift and making her entries on the charts of the patients for whom she had cared during the double shift she was just concluding, one of the other nurses noticed the syringe underneath Respondent's clothing. That other nurse immediately reported the syringe to her own head nurse who immediately reported the syringe to the staffing coordinator. The head nurse and the staffing coordinator went to where Respondent was still completing the nurse's notes on the charts of the patients and took her into an office where they confronted her regarding the syringe. They implied that she had a drug problem and offered their assistance. Respondent denied having a drug problem and offered to be tested. They refused her offer to test her for the presence of drugs. Instead, they sent her off the hospital premises although she had not yet completed making her entries on the patient's charts. Hospital personnel then went through Respondent's patients' charts and found some "errors." A month later an investigator for the Department of Professional Regulation requested that Respondent submit to a drug test on one day's notice. She complied with that request. She asked the investigator to go with her to Broward General Medical Center so that she could complete the charts on the patients that she had not been permitted to complete before being sent away from the hospital. Her request was denied. At some subsequent time, the Department of Professional Regulation requested that Respondent submit to a psychological evaluation. She did so at her own expense and provided the Department with the results of that evaluation. Respondent has had no prior or subsequent administrative complaints filed against her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty and dismissing the Second Amended Administrative Complaint with prejudice. RECOMMENDED this 18th day of November, 1991, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-1775 Respondent's proposed findings of fact numbered 1-3, 6, and 8 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed findings of fact numbered 4 and 7 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel. Respondent's proposed finding of fact numbered 5 has been rejected as being subordinate. COPIES FURNISHED: Jack McRay, General Counsel Department of CProfessional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Judie Ritter, Executive Director Department of Professional Regulation/Board of Nursing Daniel Building, Room 50 111 East Coastline Drive Jacksonville, Florida 32202 Roberta Fenner, Staff Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Christopher Knox, Esquire 4801 S. University Drive, #302 W. Box 291207 Davie, Florida 33329-1207
The Issue The issue presented is whether Respondent is guilty of the allegations set forth in the Administrative Complaint, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact At all times material hereto, Respondent has been a physician licensed to practice in the State of Florida, having been issued license number ME 0020248. Respondent is a board- certified pathologist who completed a residency in obstetrics and gynecology in Venezuela and practiced in the field of obstetrics and gynecology in South America for almost five years before coming to the United States. On April 20, 1991, patient J. B., a 27-year-old female, came to A Woman's Care, where Respondent was then employed, for the purpose of terminating her pregnancy. She indicated on a patient history form that the date of her last menstrual period was January 30, 199l. According to the medical records from A Woman's Care, she did not express any uncertainty or equivocation with respect to that date. One method of determining gestational age is based on calculating from the last menstrual period, assuming that the patient's history is reasonably reliable. With a history of a last menstrual period on January 30, 1991, the gestational age of the fetus on April 20, 1991, based upon a calculation by dates, was seven weeks. After obtaining a history from the patient with respect to the date of the last menstrual period, the physician needs to perform a bi-manual examination of the patient in order to assess the size of the uterus and to confirm the history given by the patient. Although the bi-manual examination is a reasonably reliable method of assessing the stage of pregnancy, it is a subjective examination and can sometimes be difficult. There is an acknowledged inaccuracy with respect to that clinical evaluation. The most accurate method of determining the gestational age of a fetus is through ultrasound examination. An ultrasound is performed when there is uncertainty as to the gestational age, such as when the patient does not know the date of her last menstrual period or when there is inconsistency between the patient's disclosed date and the physician's bi-manual examination. There is a general correlation between the size of the uterus in centimeters on bi-manual examination and gestational age in weeks. It is important to determine the gestational age of the fetus before performing a termination of pregnancy because the gestational age is the determining factor in deciding the size of the instruments to be used in the procedure and the amount of tissue to be removed. Respondent performed a bi-manual examination of the patient and recorded that his examination revealed a uterus consistent with an approximately seven-week gestation. Because the gestational age by dates and the results of the bi-manual examination both indicated a seven-week pregnancy and were consistent, Respondent did not order an ultrasound examination for the purpose of determining gestational age. On April 20, 1991, Respondent performed a termination of pregnancy on patient J. B. after the patient was informed of the possible risks of the procedure and after the patient signed a Patient Informed Consent Form. That Form detailed the possible risks, including infection and incomplete termination. Based upon the patient's history and the bi-manual examination and his conclusion that the patient was approximately seven-weeks pregnant, Respondent used an 8 mm Vacurette to terminate patient J. B.'s pregnancy. An 8 mm Vacurette is an appropriately-sized device to terminate a seven-week pregnancy. After completing the procedure, Respondent submitted the tissue obtained to a pathologist who determined that three grams of tissue had been submitted, consisting of products of conception and chorionic villi. The pathology report revealed what would reasonably be expected as a result of the termination of a seven-week pregnancy. After the procedure, the patient was given written instructions for her care and was discharged from A Woman's Care at 10:35 a.m. On April 21, 1991, at approximately 6:30 a.m., the patient's grandmother telephoned A Woman's Care to advise that the patient was complaining of dizziness and pain. The patient was advised to take Tylenol and call back if she continued to feel sick. At approximately 7:30 a.m., the patient's grandmother called again to advise that the patient was going to go to the hospital. On April 21, 1991, at 1:25 p.m., patient J. B. arrived at the Emergency Room at North Shore Medical Center with a temperature of 104.3 degrees, an elevated white blood cell count, chills, lower abdominal pain, and spotting. The patient was seen during her North Shore admission by Dr. Ramon Hechavarria, a physician certified in obstetrics and gynecology, and by Dr. Tomas Lopez, a general surgeon. Dr. Lopez noted in his consultation report that a pelvic bi-manual examination that he performed on April 21 showed an enlarged uterus corresponding to approximately 11-12 weeks' gestation. An ultrasound examination done on April 21 revealed a uterus measuring 11.0 x 7.8 x 7.8 centimeters and a viable intra- uterine pregnancy which was estimated by the radiologist to be 13-14 weeks' gestational age. On April 22, the patient underwent termination of her pregnancy by Dr. Hechavarria who noted in his operative report that both the pelvic ultrasound and a bi-manual examination revealed an intra-uterine pregnancy of about 11 weeks with a live fetus. An ultrasound performed intra-operatively confirmed that all fetal tissue had been removed and that there were no perforations. Infection and an incomplete termination are two of the recognized complications resulting from terminations of pregnancy. The fact that a patient suffers an infection or an incomplete termination does not, per se, indicate any negligence on the part of the physician. Respondent did not fall below the recognized standard of care by failing to perform an ultrasound on patient J. B. His examination revealed a gestational age consistent with the date identified by the patient as the date of her last menstrual period. Accordingly, there was no need to perform an ultrasound. Respondent did not fall below the recognized standard of care by misjudging the gestational age of the fetus. It is not uncommon for a physician to misjudge the length of gestation by several weeks. For example, Drs. Lopez and Hechavarria concluded the fetus had a gestational age of 11 weeks; yet, the ultrasound reported 13-14 weeks. Respondent did not fall below the recognized standard of care by using the wrong size of equipment to perform the termination of pregnancy. He used the proper equipment consistent with his judgment as to the length of gestation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT a Final Order be entered finding Respondent not guilty of the allegations and dismissing the Administrative Complaint filed against him in this cause. DONE AND ENTERED this 25th day of July, 1997, at Tallahassee, Leon County, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 25th day of July, 1997. COPIES FURNISHED: Hugh R. Brown, Esquire Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jonathon P. Lynn, Esquire Stephens, Lynn, Klein & McNicholas, P.A. Two Datran Center, Penthouse II 9130 South Dadeland Boulevard Miami, Florida 33156 Dr. Marm Harris, Executive Director Board of Medicine Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue Is Respondent subject to discipline for his actions in relation to Patient J.N.?
Findings Of Fact Stipulated Facts and Admitted Facts: Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes, Chapter 456, Florida Statutes and Chapter 458, Florida Statutes. Respondent is and has been at all times material hereto, a licensed physician in the State of Florida, having been issued License No. ME0063587. Respondent rendered medical care and treatment to Patient J.N. Additional Facts: As of October 15, 1999, Patient J.N. had been Respondent's long-standing patient. On that date she came to Respondent's office in Perry, Florida, without an appointment. Her principal purpose for the visit was to ascertain whether she was pregnant. Although J.N. had no appointment, she was seen by Wendy Brannen, C.N.A., who worked in Respondent's office. Ms. Brannen administered a pregnancy test. The results were negative. On the subject of the pregnancy test, J.N. had commented to Ms. Brannen that if the results were negative from the pregnancy test, that J.N. was interested in obtaining diet pills to address weight gain not attributable to pregnancy. Her weight on this visit, as confirmed by a weigh-in, was not extraordinary. When Ms. Brannen had concluded her preliminary patient work-up concerning J.N.'s blood pressure, pulse, respiration and temperature, J.N. was taken to Examining Room 5 within the office and left there. The door was open to the examining room and remained open during the time J.N. was there. On October 15, 1999, Respondent saw J.N. in Examining Room 5. While in the room he explained that the results of the pregnancy test that had been administered on that day were negative. He told J.N. that she was not gaining weight. J.N. asked Respondent about diet pills. Respondent told J.N. that she did not need diet pills, that she was not over weight. He also mentioned an existing moratorium from the Board of Medicine on the prescription of diet pills. Contrary to the allegations in the Administrative Complaint, the evidence was insufficient to prove that Respondent "pulled J.N. by the arm and started kissing her and then took her left hand and pressed it against his penis" or that Respondent in any other manner engaged in conduct with sexual overtones directed to Patient J.N. on the date in question. This determination is made having in mind the full hearing record, to include the "Williams Rule" evidence from Patient J.F., who had been under Respondent's care in the past.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which dismisses the Administrative Complaint. DONE AND ENTERED this 6th day of February, 2002, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of February, 2002.
The Issue Whether Respondents violated Sections 458.331(1)(k), (m), (n), and (t), Florida Statutes, and if so, what penalty should be imposed.
Findings Of Fact Petitioner, Agency for Health Care Administration (Agency), is the state agency charged with regulating the practice of medicine pursuant to Section 20.42 and Chapters 455 and 458, Florida Statutes. Respondent, Alan K. Roberts, M.D. (Roberts), is and has been at all times material to this proceeding a licensed physician in the State of Florida having been issued license number ME 0030398 in 1977. He is a Board Certified family practice physician. Respondent, Peter R. Genovese, M.D. (Genovese) is and has been at all times material to this proceeding a licensed physician in the State of Florida having been issued license number ME 0013626. He is a Board Certified family practice physician. Roberts and Genovese are the co-owners of Sunshine Medical Center (SMC) which operates three separate offices located in the Miami area at Sunset Drive, Port of Miami, and Port Everglades. Jose R. Menendez, M.D. (Menendez) has been a licensed physician in the State of Florida since 1973. Menendez began working for SMC in 1992 and worked there for approximately six months. Menendez worked at the Sunset Drive and Port of Miami locations. Aside from his salary, Menendez received no other remuneration and had no financial interest in SMC. PATIENT C.W. In 1985, SMC had a contract with the Public Employees Service Company (PESCO) whereunder SMC would perform routine screening physicals on Dade County teachers and administrators. The physicals were called VISTA examinations. Patient C.W., a clerk with the Dade County School System, went to SMC for a VISTA examination on October 16, 1985. She filled out a patient information form indicating her home address, home telephone number, name of employer, and her work telephone number. C.W.'s examination consisted of blood tests, urinalyses, chest x-rays, EKG, hearing function tests and a spirometry. All of the tests were administered by a female employee of SMC. After completion of the tests, C.W. met with a man whom she believed was a doctor, who in her presence, looked at the x-rays. C.W. did not see the x-rays herself. She was advised that "everything looked fine." She was not told that she had a problem with her lungs or that the x-rays showed that she had any suspicious tumors or masses on her lungs. In reality, the x-rays indicated abnormalities in her chest. C.W.'s spirometry test results were abnormal and her white blood cell count was low, but she was not informed of these abnormalities. C.W.'s charts show that she was seen at SMC on October 16, 1985, but do not indicate what doctor was responsible for supervising and administering the tests and what doctor met with C.W. after the tests were completed. There are no physical findings recorded in the clinical data portion of C.W.'s chart and no notes are in the chart as to the results of the tests performed. Neither Dr. Genovese nor Dr. Roberts examined C.W. on October 16, 1985. SMC used a pre-printed form letter to notify its patients of the results of the VISTA examination. The form letter contained the stamped signatures of the Respondents. On October 21, 1985, an undated form letter was sent to C.W. advising her that the results of the VISTA examination were normal and satisfactory and that no medical follow-up was necessary. A handwritten notation on the form letter stated, "Please increase the iron intake. Your blood work show (sic) decrease iron. Also, stop smoking." C.W. received the letter. The form letter contained stamped signatures of the Respondents. On November 4, 1985, the Respondents were conducting a routine review of patients' charts and x-rays, including those of C.W. The Respondents noted the abnormality on C.W.'s x-ray. C.W.'s charts did not mention the abnormality. On November 4, 1985, Respondents sent a second preprinted and presigned form letter to C.W. which advised C.W. that the results of the VISTA examination required a follow up visit. The form letter contained the following handwritten note: Review of our records reveals that your lab reports were omitted from our report of 10-21-85. A copy is enclosed for your family doctor. Also, your chest x-ray is abnormal and you should see your family doctor immediately for a second x-ray and follow-up care. The second letter was sent by first class U.S. mail. C.W. did not receive the second letter informing her of the abnormal x-ray. On November 12, 1985, the laboratory supervisor for SMC placed a telephone call to C.W. at her home but did not get an answer. On November 14, 1985, Genovese placed a telephone call to C.W.'s home but did not receive an answer. On November 19, 1985, Roberts called C.W. at home and received no answer. On November 19, 1985, Roberts called PESCO and advised a PESCO staff member that C.W. had an abnormal chest x-ray. No further attempt was made by Respondents to contact C.W. The purpose of the telephone calls to C.W. was to make certain that she got follow-up treatment for the mass in her lung. After the examination at SMC, C.W. began having a fever and generally felt ill. In February, 1986, C.W. consulted with a doctor and was advised that she had a tumor in her lung. The lower lobe of her right lung was surgically removed; however, the cancer spread to other parts of her body. C.W. died as a result of lung cancer. When the October 21 and November 4, 1985 letters were sent under the Respondents' preprinted signatures, the Respondents became involved in the care of Patient C.W. Patient C.W. was advised by a form letter from Respondents that her examination was satisfactory, when a review of C.W.'s x-ray showed a gross abnormality. To so advise the patient gave the patient a false reassurance that she was physically well except for her anemia. The document did not accurately reflect the test results of the patient. Respondents again involved themselves in the care of Patient C.W. when they reviewed her x-rays and discovered the abnormality in her lung and sent a second letter to notify her that the x-ray was abnormal and that she should see her family doctor. Although the letter was sent first class U.S. mail and was not returned to Respondents, Respondents should have either sent the letter by certified mail or made personal contact with C.W. Failure to do so constituted a level of care and treatment which fell below that level which is recognized by a reasonably prudent similar physician as being acceptable under similar conditions and circumstances. INSURANCE BILLINGS In order to start the billing process for services provided at SMC, each doctor generates a "super bill" which reflects the services provided such as office visit, x-rays, laboratory work and electrocardiograms. The charges are placed on the super bill by clerical staff and returned to the doctor at the end of the day to be checked for accuracy. The super bill is then transmitted to the billing department at SMC where it is encoded by a clerk and an insurance claim form is generated. As part of the encoding process, either a doctor's name or SMC's name is placed on the form. As part of SMC's quality assurance program, the insurance claims are reviewed in batches to check that the diagnoses, procedures and charges are appropriate. It is common for the insurance claims to be backed up for 7 to 10 days in the billing department. The money collected for the insurance billings goes directly to SMC. SMC submitted insurance claims for treatment of the following five patients during March 1993 through May 1993: J.V., R.L., L.W., P.Z., and D.W. SMC submitted a claim form dated March 31, 1993 to Metropolitan for services rendered to patient J.V. on March 25 and 29, 1993. The claim form stated that the physician was J.R. Menendez. Part of the services rendered to on March 25, 1993 was an injection of terramycin. Menendez did not work on March 25, 1993. He has never administered any Terramycin intramuscularly or intravenously to a patient in his professional career. Menendez did not provide any services to patient J.V. on March 25, 1993. The services listed on the claim form were provided to patient J.V. on March 25, 1993, by staff at SMC; however it was by someone other than Menendez. Menendez did provide follow-up services for J.V. on March 29, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient R.L. on March 30, 1993. The claim form stated that the physician was J.R. Menendez. Menendez did not work on March 30, 1993 and did not provide any services to patient R.L. on that date. However, the services listed on the insurance claim form were provided to patient R.L. by someone at SMC on March 30, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient D.W. on March 31, 1993. The claim form stated the physician was J.R. Menendez. Menendez did not work on March 31, 1993, and did not provide any services to patient D.W. on that date. Someone at SMC, other than Menendez, provided the services to patient D.W. on March 31, 1993. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient P.Z. on March 31, 1993. The claim form stated the physician was J.R. Menendez. Menendez did not work on March 31, 1993, and did not provide any services to patient P.Z. on that date. P.Z. was provided the services on March 31, 1993, by someone at SMC other than Menendez. SMC submitted an insurance claim form dated March 31, 1993, for services provided to patient L.W. on March 30, 1993. Part of the services rendered to L.W. was an injection of terramycin. Menendez did not work on March 30, 1993, and did not provide any services to patient L.W. on that date. Someone else at SMC provided the services to patient L.W. on March 30, 1993. SMC submitted an insurance claim to Central States Southeast and Southwest Areas Health and Welfare Fund for services provided to patient P.W. on February 3, 1993. The claim form stated that the physician was Jose M. Menendez and contained the purported signature of J. Menendez, MD. Menendez did not provide services to P.W. on February 3, 1993, and did not sign the insurance claim form. P.W. was a regular patient of Roberts. Roberts examined and treated on February 3, 1993. As of August 12, 1993, SMC had not received payment from Central States for services provided to P.W. on February 3, 1993. SMC submitted a second claim for the February 3 services, but this time the physician was listed as Dr. Modesto Ordoqui. Some time in April, 1993, one of the Respondents gave Menendez a folder containing some insurance claim forms to review to make sure the services correlated with the diagnoses. After reviewing the files, Menendez concluded that he had not provided services to patients J.V., R.L., L.W., P.Z. and D.W. listed on the insurance claim forms given to him by Roberts. On April 15, 1993, at a dinner meeting with Respondents, Menendez told them that he had not provided the services to the patients on the insurance claims that Roberts had given him to review. The Respondents told him that they did not know what he was talking about. Menendez resigned that evening.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered dismissing the Administrative Complaints in Case Nos. 94-3430 and 94-3757; finding Respondent Dr. Kenneth Alan Roberts guilty of violating Sections 458.331(1)(m) and (t), Florida Statutes in Counts One and Two of Case No. 94-3759, finding Respondent Dr. Peter R. Genovese guilty of violating Counts One and Two in Case No. 94-2142; and imposing the following penalty as to each Respondent: (1) one year probation with terms and conditions to be set by the Board, (2) an administrative fine in the amount of $3,000, and (3) a reprimand. DONE AND ENTERED this 27th day of December, 1995, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND, 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 27th day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2142 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: The second sentence is rejected as unnecessary. The remainder is accepted. Paragraphs 3-4: Accepted. Paragraphs 5-8: Accepted in substance. Paragraph 9: Rejected as unnecessary. Paragraph 10: Accepted. Paragraph 11: The first, second, fourth, fifth, sixth, and seventh sentences are accepted in substance. The remainder is rejected as unnecessary. Paragraph 12: The first and fourth sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 13: Rejected as unnecessary based on the finding that Menendez did not work on March 25, 30, and 31, 1993. Paragraph 14: Accepted that Menendez did not work on March 25, 30, and 31, 1993. The remainder is rejected as unnecessary. Paragraph 15: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 16: The first two sentences are rejected as unnecessary. The third and fourth sentences are accepted in substance. The fifth, sixth, seventh, and eighth sentences are rejected as unnecessary. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 17: The first sentence is rejected as unnecessary. The second sentence is accepted in substance. The last sentence is rejected as not supported by the record. The remainder is rejected as constituting argument. Paragraph 18: The first sentence is rejected as unnecessary. The second and third sentences are accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 19: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraph 20: The first two sentences are rejected as unnecessary. The third sentence is accepted in substance. The last sentence is rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraphs 21-22: Accepted in substance. Paragraph 23: Rejected as subordinate to the facts found. Paragraph 24: The first sentence is accepted. The remainder is rejected as unnecessary. Paragraph 25: Rejected as unnecessary. Paragraph 26: Sentences 1-8, 10, and 11 are accepted in substance. Sentences 9 and 12 are rejected as unnecessary. The last sentence is rejected as subordinate to the facts found. Paragraph 27: The second and third sentences are accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraph 28: Rejected as subordinate to the facts found. Paragraph 29: Accepted in substance. Paragraph 30: The first sentence is rejected as not supported by the evidence. The billing practices may not have been proper in that the correct treating physician's name was not listed on some of the insurance claims but the evidence does not support a finding that the incorrect billing was anything other than a clerical mistake. The last sentence is rejected as subordinate to the facts found. Paragraph 31: The first two sentences are rejected as unnecessary. The third and fourth sentences are accepted in substance. The remainder is rejected as constituting argument. Paragraph 32: Accepted in substance that the second billing was a rebilling. The documentary evidence established that the second billing was in Dr. Ordoqui's name. The last sentence is rejected as constituting argument. Paragraph 33: The last sentence is accepted in substance. The remainder is rejected as subordinate to the facts found. Paragraphs 34: The first through the fourth sentences are accepted in substance. The last two sentences are rejected as not supported by the evidence. The remainder is rejected as constituting argument. Paragraphs 35-38: Accepted in substance. Paragraph 39: The second sentence is rejected as subordinate to the facts found. The remainder is accepted in substance. Paragraph 40: The first sentence is accepted in substance. The remainder is rejected as unnecessary. Paragraph 41: Accepted in substance. Paragraph 42: Accepted in substance that Respondents met on November 4, 1985 and discovered the abnormality in the x-ray. Paragraph 43: The last phrase of the last sentence is rejected as unnecessary. The remainder is accepted in substance. Paragraph 44: Accepted. Paragraph 45: Accepted in substance. Paragraph 46: The evidence did not establish that Rene Bravo saw Patient C.W. The remainder is irrelevant based on the findings of fact. Paragraphs 47-49: Accepted in substance. Respondents' Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-6: Accepted in substance. Paragraph 7: The last sentence is accepted. The first sentence is rejected to the extent that the evidence does not establish that either Respondent gave either claim form for P.W. to Menendez. Given that one of the claim forms was not generated until after Menendez resigned, at least one of the forms could not have been given to Menendez. It is accepted that Menendez did not recognize the signature on one of the claims as his. Paragraph 8: Accepted in substance. Paragraph 9: The last sentence is rejected as not necessary. The remainder is accepted in substance. Paragraph 10-11: Rejected as subordinate to the facts found. Paragraph 12: The first sentence is accepted. The second sentence is rejected as unnecessary. Paragraph 13: Rejected as subordinate to the facts found. Paragraph 14: Accepted in substance. Paragraph 15: Accepted that the second billing was a rebilling for services for which no payment had been received. Based on the bill under Dr. Ordoqui's name, it appears that the first bill was under Menenedez's name and the second bill was under Dr. Ordoqui's name. Paragraphs 16-23: Accepted in substance. Paragraph 24: Accepted in substance that neither Respondent examined C.W. on October 16, 1985. Paragraph 25: Rejected as subordinate to the facts found. Paragraph 26: The first sentence is accepted in substance. The second sentence is accepted in substance to the extent that the use of a form per se does not constitute notification below the prevailing standard of care. Paragraph 27: Accepted in substance. Paragraph 28: Rejected as irrelevant since the Respondents adopted that method to inform the patients and by sending it out under their signature became responsible for the care of the patient. Paragraph 29: Accepted in substance that it was customary for the Respondents. Paragraphs 30-31: Accepted in substance. Paragraph 32: Rejected as subordinate to the facts found. Paragraph 33: Accepted in substance. Paragraph 34: The first sentence is rejected as not supported by the evidence. The second sentence is accepted in substance except as to treated. Paragraphs 35-36: Rejected as not supported by the evidence. COPIES FURNISHED: Joseph A. Garwood, Esquire Agency For Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth J. Metzger, Esquire Agency For Health Care Administration 1940 North Monroe Street allahassee, Florida 32399-0792 Harold M. Braxton, P.A. Suite 400, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156-7815 Dr. Marm Harris Executive Director Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jerome W. Hoffman, Esquire General Counsel Agency For Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
