The Issue The issues in this case are whether Respondent committed the allegations contained in the Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed osteopathic physicians such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Osteopathic Medicine has found probable cause to suspect that the licensee has committed one or more disciplinable offenses. At all times material to this proceeding, Respondent was licensed to practice osteopathic medicine in the State of Florida, having been issued license number OS 10658. Background On February 3, 2012, T.S., a 26-year-old single mother, presented to Respondent's medical office as a new obstetrical patient. At that time, T.S. was carrying her third child. For the next five months, T.S. and Respondent enjoyed what was, by all appearances, a productive and appropriate physician-patient relationship. However, as discussed below, Respondent would transgress the bounds of that relationship during an office visit on the evening of July 11, 2012. First, though, it is necessary to sketch the relevant background. On the morning of July 11, 2012, T.S.——who was then nine months pregnant——appeared at Respondent's office for a routine examination. During the visit, T.S. advised Respondent that she was experiencing substantial cramping and discomfort. In response to these complaints, Respondent performed a pelvic examination and a sonogram, both of which yielded normal results. Later that day, at approximately 4:00 or 4:30 p.m., T.S. telephoned Respondent's office and informed his staff of a new symptom: namely, that significant pain was making it difficult to lift her right arm. Although a member of the staff advised T.S. that she could be seen immediately, logistical constraints made it impossible for her to report to Respondent's office prior to the close of business. Over the course of the next several hours, T.S. communicated with Respondent by phone and text (his cell number was available to all patients) concerning the new symptom and her preference to be seen that evening. Ultimately, Respondent informed T.S., via a text message sent at approximately 6:15 p.m., that she could meet him at his office for an examination. The Misconduct T.S. arrived at the office at 6:30 p.m., whereupon Respondent unlocked the front door and invited T.S. inside. Upon entering the lobby area, which was only partially illuminated, T.S. saw no sign of Respondent's office staff. At that point, Respondent asked T.S. to sign a form that read as follows: I give consent to be seen at Dr. Miller's office, by Dr. Miller, without an assistant present, at my request, in order to have a medically urgent need addressed. The foregoing document, although signed by T.S., is of dubious propriety, as obstetrical treatment without a chaperone present is rarely, if ever, appropriate.3/ This issue is of no moment, however, for most of what occurred next——as established by the credible testimony of T.S. and Petitioner's expert witness——was not a legitimate medical examination but, rather, nonconsensual sexual contact perpetrated under the guise of an examination. Upon the execution of the "consent" document, Respondent directed T.S. to an examination room and informed her that the likely cause of her arm pain was either a clogged milk duct or the positioning of the fetus. Respondent then requested that T.S. disrobe her upper body, at which point he left the room for a few moments. Upon his return, Respondent asked T.S. to recline on the examination table, purportedly so he could examine her right breast to rule out the possibility of a clogged duct. T.S. complied and, for the next 30 to 45 seconds, Respondent squeezed her breast in a manner quite dissimilar to examinations she had undergone in the past. In particular, T.S. thought it peculiar that Respondent "cupped" her entire breast with his hand——as opposed to examining the breast from the outside in with the pads of his fingers.4/ Even more troublingly, Respondent asked T.S., while his hand was still in contact with her breast, whether "it felt good."5/ After removing his hand from T.S.'s breast, Respondent remarked to T.S. that her arm pain was not the result of a clogged milk duct. Respondent further stated that her symptoms would be assuaged upon the baby's delivery, an event which, according to him, could be facilitated by sexual activity. Before proceeding further, it is important to note that T.S.'s symptoms of arm pain arguably warranted, at most, a legitimate breast examination. In other words, there were no symptoms or aspects of T.S.'s history that justified a pelvic examination at that time,6/ particularly since Respondent had performed such a procedure (along with a sonogram) earlier in the day. Nevertheless, Respondent informed T.S. that he "needed" to measure the dilation of her cervix; then, in a disturbing and conspicuous departure from accepted obstetrical practice,7/ Respondent applied lubricant to one of his ungloved hands. Moments later, Respondent inserted two fingers into T.S.'s vagina and, for the next 30 seconds or so, positioned his penetrating hand in such a manner that his thumb was in continuous contact with T.S.'s clitoris——something that would never occur during a proper examination.8/ Tellingly, this was not the only physical contact incongruous with a legitimate pelvic examination, for at one point Respondent used his free hand to pull on one of T.S.'s nipples.9/ By now suspicious of Respondent's conduct, T.S. attempted to maneuver her body toward the head of the examination table. As she did so, Respondent began to remove his fingers from T.S.'s vagina while stating that she "needed to have sex" in order to induce labor. This could be accomplished, Respondent further suggested, by having sex with him, an invitation T.S. sensibly declined.10/ On the heels of this rejection, Respondent told T.S. that the only other means of inducing labor would be to "strip her membranes." Owing perhaps to an urgent desire to give birth——the reader should recall that she was nine months pregnant and in significant discomfort——T.S. acceded to Respondent's suggestion. Respondent then penetrated T.S.'s vagina with his (ungloved) hand for a second time and, prior to the removal of his fingers, repeatedly implored T.S. to engage in sexual intercourse with him.11/ When T.S. refused and tried to move to the other end of the table, Respondent grabbed her by the hips and pulled his midsection into her exposed vaginal area. By virtue of this aggression, T.S. could feel that Respondent's penis, albeit clothed, was erect.12/ Wishing to extricate herself from this situation, T.S. pushed Respondent away, at which point he attempted to "laugh off" his abhorrent behavior. T.S. dressed herself and, a short time later, drove to the home of an acquaintance to seek advice. Later that evening, T.S. made a report of the incident to the appropriate authorities,13/ which ultimately resulted in the filing of the Complaint at issue in this proceeding. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Respondent is guilty of violating section 459.015(1)(l), as charged in Count I of the Complaint. It is further determined, as a matter of ultimate fact, that Respondent is guilty of violating section 456.072(1)(v) and, in turn, section 459.015(1)(pp), as alleged in Count II of the complaint.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Osteopathic Medicine finding Respondent guilty of Counts I and II of the Administrative Complaint; revoking Respondent's license to practice osteopathic medicine; and imposing a fine of $10,000.00. DONE AND ENTERED this 30th day of July, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 30th day of July, 2014.
The Issue The question presented is whether Respondent violated Section 456.072(1)(bb), Florida Statutes (2006), or Section 458.331(1)(nn), Florida Statutes (2006), by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b), and if so, what penalty should be imposed?
Findings Of Fact Petitioner is the state agency charged with the licensing and regulation of medical doctors pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. At all times material to the Administrative Complaint, Respondent was a medical doctor licensed by the State of Florida, having been issued license number ME 70981. Respondent is also certified by the American Board of Internal Medicine with a subspecialty in interventional cardiology. No evidence was presented to indicate that Respondent has ever been disciplined by the Florida Board of Medicine. On March 12, 2007, Dr. Elsakr was caring for two patients at Halifax Medical Center (Halifax). Patient M.D. was an 84-year-old Caucasian female born on March 22, 1922. F.E. was an 82-year-old Caucasian female born on February 5, 1925. Both women were scheduled for cardiac procedures to be performed on March 12, 2007, but only F.E. was scheduled for a cardiac catheterization. M.D. and F.E. shared the same semi-private room at Halifax. During the night before the scheduled procedures, one of the patients asked to be moved away from the window, and as a result, the two patients' bed locations were reversed. Halifax had procedures in place related to the transport of patients from one area of the hospital to another. The policy required that a staff member referred to as a transporter was required to check at least two patient identifiers on the patient's arm band to confirm a patient's identity. The arm band contains four identifiers: the patient's name, date of birth, a medical record number and a visit number. While any of the four may be used, the patient's name and date of birth are preferred. Patient M.D. was supposed to be transported for a heart catheterization the morning of March 12. However, the hospital policy regarding patient identification was not followed, and the wrong patient, M.D. as opposed to F.E., was transported to the catheterization lab (cath lab). Apparently, the transporter relied on the room and bed placement of the patient as opposed to following the protocol for affirmatively checking the patient identifiers. Once a patient was transported to the cath lab for a procedure, Halifax had a separate "pause" or "time out" protocol designed to ensure that the correct patient was present and the correct procedure was performed. The procedure was designed to be consistent with standards provided by the Centers for Medicare and Medicaid Services (CMS) and the Joint Commission for Accreditation of Hospitals, and the practices used by other hospitals. After transport and before a sterile field was created, the patient would be prepared for the procedure. As part of that preparation, a nurse was supposed to verify the patient's identity and confirm with another staff member that the patient's chart was the appropriate chart. The chart would then be provided to the person referred to as the recorder located in the adjacent control room outside the sterile field. The control room is separated from the sterile field by a plexi-glass wall, through which the recorder can observe everything taking place in the cath lab. The recorder would create a chronological log of the procedure, documenting the exact time when events took place. The physician performing the procedure would not necessarily be in the cath lab at the time the nurse verified the patient's identity. The chronological log for M.D. does not indicate that the patient's identity was confirmed or if it was confirmed, who confirmed it. Once a patient was prepped and draped, and the sterile field created, the recorder would call out the patient's name, procedure, procedure equipment, site and side of the procedure to be performed. The accuracy of the information was to be confirmed by a staff member saying "yes" or nodding his or her head. This procedure was considered by the hospital to be its "time out" procedure. The physician would be present but not actually participate in the time out, and would observe the time- out taking place. In this case, although the recorder called out F.E.'s name and the procedure she was scheduled to have, M.D. was actually present. Notwithstanding this error, an unidentified staff member either nodded or verbally confirmed that the information recited by the recorder was correct. Dr. Elsakr arrived at the cath lab after the patient was prepped but before the time out called by the recorder. He was present, but did not verbally participate, in the time out process. Before it took place, he met with the recorder in the control room to review the medical chart prior to the procedure. The medical chart reviewed was for F.E. After the time out, Dr. Elsakr approached the patient and stood near her head. By this time, the patient was fully draped, with blankets and surgical drapes covering all of her body except the surgical entry area (in this case her groin) and a portion of her face. Dr. Elsakr spoke to the patient, calling her by the first name of the patient F.E., and telling her, "[F.], this is Dr. Elsakr. I'm going to get started with your heart cath. Okay?" This interaction was consistent with his standard practice before he began a procedure, in order to give patients a level of comfort. M.D. did not initially respond to the name F., but said "yes" in response to Dr. Elsakr's question. He then moved down to the groin area, again called her by name (F.E.'s first name), and told her what she would feel as he started the procedure. She nodded her head and the procedure was begun. A catheterization was completed on the right side of the heart and begun on the left side. At that point, staff reported to Dr. Elsakr that the patient was the wrong patient. The procedure was immediately stopped. Dr. Elsakr immediately informed the patient, the patient's daughter, and the patient's primary care physician. He also noted the mistake on M.D.'s medical chart. Halifax Hospital undertook an investigation of the events leading to the procedure. The purpose of its investigation was to determine whether there was a breach in hospital safety protocols and to prevent any recurrence of the error. Dr. Donald Stoner, Halifax's Chief Medical Officer, testified that the fault lay with hospital staff, and not with Dr. Elsakr, and that if he had been the doctor involved, he likely would have done the same things as Dr. Elsakr. Halifax accepted full responsibility for the incident and independently compensated the patient for the incident. The hospital also determined that it would be inappropriate for Dr. Elsakr to be subject to any discipline for the incident by Halifax with respect to his privileges. Immediately after discovering that the wrong patient had the heart cath, Dr. Elsakr instructed that the patient should not be charged in any way for the procedure. While patient M.D. clearly could have been harmed by having to undergo the procedure, information about her condition was obtained that was actually a benefit to her.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Medicine enter a Final Order finding that Respondent, Ashraf Elsakr, M.D., violated Section 456.072(1)(bb), Florida Statutes, and Section 458.331(nn), Florida Statutes by means of violating Florida Administrative Code Rule 64B8-9.007(2)(b). As a penalty, it is recommended that the Board issue a letter of concern, and impose a $5,000 fine. In addition, Respondent should be required to obtain five hours in continuing medical education in the area of risk management, perform 25 hours of community service, and give a one-hour lecture on performing procedures on the wrong patient. DONE AND ENTERED this 30th day of June, 2010, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 2010.
Findings Of Fact At all times material hereto, Respondent Jorge Macedo, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in 1954, and practiced in Brazil for one year thereafter. He then came to the United States, where he has practiced from 1956 until the present date. On February 13, 1976, Maury Braga came to Respondent's office in Hialeah, Florida. Respondent had never before met Braga and had never heard of him. Braga advised Respondent that he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: I, Jorge Macedo, M. D., of 1060 E. 4th Ave., Hialeah, Florida, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Falcudade de Ciencias Medicas de Santos and did lawfully practice the pro- fession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977. No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee7 Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NO. 82-114 JORGE MACEDO, M.D. License Number: 10095 Respondent. /
Findings Of Fact At all times, material hereto, Respondent Antonio J. Maniglia, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in December, 1962. He came to the United States in 1963, and has practiced from then until the present date. He was licensed as a medical doctor by the State of Florida in 1971. On or about February 11, 1976, Maury Braga appeared at Respondent's office requesting to see him. Respondent had never before met Braga and had never heard of him. Braga brought with him a letter of introduction from a processor in Brazil whom Respondent knew. Braga advised Respondent that, he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of, obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: - I, Antonio J. Maniglia, M. D., F.A.C.S., of 1776 NW 10th Ave, Miami, Florida 33136, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Faculdade de Ciencias Medicas de Santos and did lawfully prac- tice the profession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same, profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents, Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. "On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977 No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301