The Issue The issues are whether Petitioner is entitled to repayment of Medicaid reimbursements that it made to Respondent, pursuant to section 409.913(11), Florida Statutes; and, if so, the amount of the repayment; the amount of any sanctions, pursuant to section 409.913(15)-(17), Florida Statutes; and the amount of any investigative, legal, and expert witness costs, pursuant to section 409.913(23)(a), Florida Statutes.
Findings Of Fact During the audit period of March 1, 2001, through February 28, 2003, Respondent practiced medicine in Miami and was an enrolled Medicaid provider with the specialties of vascular surgery, cardiovascular surgery, and thoracic surgery. At the time of the hearing, Respondent had not had a license to practice medicine for several years, nor was he an enrolled Medicaid provider. Under the Medicaid Provider Reimbursement Handbook (Reimbursement Handbook) in effect during the audit period, "records must be accessible, legible and comprehensible[,]" and "[m]edical records must state the necessity for and the extent of services provided." Medicaid Handbook, pp. 2-45 through 2-46. "Medicaid payments for services that lack required documentation or appropriate signatures will be recouped." Id. at p. 2-47. "Medicaid may recoup payment for services or goods when the provider has incomplete records or cannot locate the records." Id. at p. 5-7. Under the Florida Medicaid Physician Services, Coverage, and Limitations Handbook in effect during the audit period (Physicians Handbook), only the services shown in Appendix J are reimbursable. Physicians Handbook, p. 2-2. The Physicians Handbook adds: Medicaid reimburses for services that are determined medically necessary and do not duplicate another provider's service. . . . Id. For Medicaid reimbursement, a physician must use the service and procedure codes contained in the Physicians Current Procedural Terminology® (CPT).1/ Physicians Handbook, p. 3-1. The CPT handbook provides important information for coding certain services, such as initial inpatient consultations and subsequent hospital care: The extent of the history is dependent upon clinical judgment and on the nature of the presenting problem(s). The level of . . . services recognizes four types of history that are defined as follows: Problem focused: chief complaint; brief history of present illness or problem. Expanded problem focused: chief complaint; brief history of present illness; problem pertinent system review. Detailed: chief complaint; extended history of present illness; problem pertinent system review extended to include a review of a limited number of additional systems; pertinent past, family, and/or social history directly related to the patient's problems. Comprehensive: chief complaint; extended history of present illness; review of systems which is directly related to the problem(s) identified in the history of the present illness plus a review of all additional body systems; complete past, family, and social history. * * * The extent of the examination performed is dependent on clinical judgment and on the nature of the presenting problem(s). The level of . . . services recognize four types of examination that are defined as follows: Problem focused: a limited examination of the affected body area or organ system. Expanded problem focused: a limited examination of the affected body area or organ system and other symptomatic or related organ system(s). Detailed: an extended examination of the affected body area(s) and other symptomatic or related organ system(s). Comprehensive: a general multi-system examination or a complete examination of a single organ system. . . . * * * Medical decision making refers to the complexity of establishing a diagnosis and/or selecting a management option as measured by: the number of possible diagnoses and/or the number of management options that must be considered; the amount and/or complexity of medical records, diagnostic tests, and/or other information that must be obtained, reviewed, and analyzed; and the risk of significant complications, morbidity, and/or mortality, as well as comorbidities, associated with the patient's presenting problem(s), the diagnostic procedure(s) and/or the possible management options. * * * Comorbidities/underlying diseases, in and of themselves, are not considered in selecting a level of . . . services unless their presence significantly increases the complexity of the medical decision making. * * * Table 2. Complexity of Medical Decision Making Number of Amount and/or Risk of Type of Diagnoses Complexity of Complications Decision Making or Data to be and/orManagement Reviewed Morbidity orOptions Mortality minimal minimal or none minimal straightforward limited limited low low complexity multiple moderate moderate moderate complexity extensive extensive high high complexity When counseling and/or coordination of care dominates (more than 50%) the physician/patient and/or family encounter (face-to-face time in the office or other outpatient setting or floor/unit time in the hospital or nursing facility), then time may be considered the key or controlling factor to quality for a particular level of . . . services. . . . The extent of counseling and/or coordination of care must be documented in the medical record. CPT handbook, pp. 5-7. Petitioner's auditor selected a random sample of 30 recipients for the audit. For these recipients, the auditor identified 510 reimbursements from Petitioner to Respondent during the audit period. Accordingly, Petitioner's auditor requested and received from Respondent the medical records pertaining to these 510 claims. An MPI nurse reviewer employed by Petitioner examined the medical records and bills for these 510 claims. Next, Petitioner retained a cardiologist, Dr. Potu, who examined the medical records to determine the reimbursability of these 510 claims. As a cardiologist, Dr. Potu was not a "peer" of Respondent, as that word is defined in the Conclusions of Law. On September 15, 2004, Petitioner issued to Respondent a Provisional Agency Audit Report (PAAR). In the PAAR, Petitioner stated that the audit of the 510 claims revealed that Petitioner had overpaid Respondent $11,172.70, which, following statistical analysis, extended to an overpayment of $37,427.80 for the total population. After further review, on August 9, 2005, Petitioner issued the Final Audit Report (FAR). In the FAR, Petitioner stated that the final audit of the 510 claims revealed that Petitioner had overpaid Respondent $10,871.35, which extended to an overpayment of $36,509.18 for the total population. Prior to the hearing, Petitioner retained a cardiovascular surgeon, Dr. Tomas Martin, to review Respondent's medical records and determine the reimbursability of the 510 claims. Dr. Martin is Respondent's "peer," as that word is defined in the Conclusions of Law. Varying freely from the determinations of Dr. Potu, Dr. Martin offered testimony that was uninfluenced by the prior work of Dr. Potu. After the hearing, Petitioner filed ALJ Exhibit 1 with a cover letter dated June 22, 2012. By this means, Petitioner revised its analysis of the 510 claims to conclude that Petitioner had overpaid Respondent $9069.56, which extended to an overpayment of $31,390.30 for the total population. As noted in the letter, this final revision incorporates the testimony of Dr. Martin, but only to the extent that it would raise the reimbursement amount allowed by Dr. Potu. The sampling for the audit and extension performed in the FAR and ALJ Exhibit 1 are pursuant to accepted and valid statistical methodologies and consistent with generally accepted statistical methods. Almost all of the 510 claims at issue in this case arose from procedures or services provided at the South Shore Hospital, which was located in Miami Beach. The hospital closed sometime after the audit period. Respondent testified that important evidence is no longer available to him, but the record does not support this claim. Recipient 1 is A. H., who was 53 years old as of the first date of service. Petitioner claims a total overpayment of $138.52 based on nine reimbursements. On February 5, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On the next day, Respondent billed a CPT code 36013 for an introduction of a catheter to the right heart or main pulmonary artery, which is the sole claim allowed in full for this recipient. For the next seven days, Respondent billed a CPT code 99233 for subsequent hospital care. Finally, on February 14, Respondent billed a CPT code 36010 for an introduction of a catheter to the superior or inferior vena cava. Petitioner downcoded the first claim from CPT code 99255 to 99254. CPT code 99255 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a comprehensive history; a comprehensive examination; and medical decision making of high complexity." CPT code 99255 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 110 minutes at the bedside and on the patient's hospital floor or unit." CPT code 99254 requires the same consultation to satisfy the same three elements, except that the third element is reduced to "medical decision making of moderate complexity." CPT code 99254 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80 minutes at the bedside and on the patient's hospital floor or unit." Petitioner has proved that the February 5 claim is properly a CPT code 99254. Suffering primarily from obesity and cellulitis, A. H. was admitted on February 5 with complaints of pain in her left lower extremity. The treating physician referred A. H. to Respondent for the placement of a central venous pressure (CVP) line with telemetry. In a consultative note of nine lines, Respondent advised against an upper body central line due to the patient's "severe obesity" and recommended instead a right femoral CVP line. Presumably, Respondent made the critical finding of "severe obesity" in a quick glance at the patient; it is likely that the medical decision making took much less than 80 minutes and unlikely that it was of moderate complexity. As noted above, Respondent's claim the following day for a CPT code 36013, which is the introduction of a catheter, was allowed in full. Respondent testified that he was consulted on this patient, as was the case with many patients, for a broad range of cardiovascular issues, not merely for a catheterization. As was the case with all of these patients, though, the medical records do not support this claim of Respondent, whose credibility, as noted below, is very poor. Petitioner downcoded the next seven claims, over the seven succeeding days, from CPT code 99233 to 99232. CPT code 99233 is for "subsequent hospital care, per day, for the evaluation and management of a patient." The care must include two of three elements: "a detailed interval history; a detailed examination; [and] medical decision making of high complexity." CPT code 99233 explains: "Usually, the patient is unstable or has developed significant complication or a significant new problem. Physicians typically spend 35 minutes at the bedside and on the patient's hospital floor or unit." CPT code 99232 requires the same care to satisfy two of three elements: "an expanded problem focused interval history; an expanded problem focused examination; [and] medical decision making of moderate complexity." CPT code 99232 explains: "Usually, the patient is responding inadequately to therapy or has developed a minor complication. Physicians typically spend 25 minutes at the bedside and on the patient's hospital floor or unit." Petitioner has proved that the seven claims from February 7-13 are properly CPT code 99232. According to Respondent's notes, the February 6 procedure was successful and "uneventful." There is no indication that the patient was "unstable" or had developed a "significant complication or . . . new problem." Neither the interval history nor the examination was detailed, and the medical decision making was not of high complexity. As noted above, Respondent's credibility is very poor. He falsified progress notes to support his claims for upcoded services. These spurious records are conveniently identified in the exhibit binder because they are printed on yellow or orange pages. Respondent did not explain why he failed to provide these clear, concise records--here, of daily visits at the bedside of A. H.--with the initial records that he provided Petitioner. Nor did Respondent explain why the progress notes are identical from day to day, as to A. H., and vary little from patient to patient. Also, these progress notes oddly state that A. H. denied "limb pain," even though the main reason that A. H. was hospitalized was cellulitis in the left lower extremity. But the improbable becomes the impossible on closer examination. As Dr. Martin pointed out, a cardiovascular surgeon, who was consulted merely to introduce a CVT line, does not daily visit the patient to look up her nose to report the pink color of her "bilateral nasal mucosa," examine her psychiatric status to report that she "appears sad with flat affect," and perform a neurological exam to report that her cranial nerves II through XII are grossly intact and she is appropriately sensitive to vibration. As Dr. Martin noted dryly, these neurological findings would require a busy cardiovascular surgeon to hurriedly perform his daily rounds equipped with a small reflex hammer and a tuning fork. Petitioner downcoded the last claim, on February 14, from CPT code 36010 to 99232. This appears to have been a mistaken billing by Respondent, as this is the date that A. H. was discharged--her cellulitis "improved," according to the discharge note written by her treating physician. She did not have a catheter introduced on the day of her discharge. Petitioner has proved that it properly downcoded all of the claims discussed above. Recipient 2 is N. R., who was 55 years old as of the first date of service. Petitioner claims a total overpayment of $956.13 based on 19 reimbursements. On October 26 and November 19, 2001, and February 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On October 27, October 30, November 6, November 20, and December 10, Respondent billed a CPT code 36013, except for November 6 and December 10, for which he billed a CPT code 36010, which is an introduction of a catheter to the superior or inferior vena cava. On October 28-29, October 31, November 2-5, December 1, and December 3-9, Respondent billed a CPT code 99233. On November 21-30, Respondent billed a CPT code 99291, which is for the first 30-74 minutes of critical care, evaluation, and management of a critically ill or critically injured patient. Petitioner allowed in whole the billings for services on October 27 and 30, November 6, 20, and 21, and December 1 and 3-10. Petitioner downcoded the first claim from CPT code 99255 to 99251. CPT code 99251 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a problem focused history; a problem focused examination; and straightforward medical decision making." CPT code 99251 explains: "Usually, the presenting problem(s) are self limited or minor. Physicians typically spend 20 minutes at the bedside and on the patient's hospital floor or unit." Petitioner has proved that the October 26 claim is properly a CPT code 99251. The record contains relatively little information about N. R. during her hospitalizations. Suffering from multiple medical problems, including ascitis, liver failure, and edema of the feet, N. R. was a complicated patient, but, as Dr. Martin testified, Respondent's involvement on October 26 was to consult in preparation for nothing more than the insertion of an IV line. This consultation required no more than 20 minutes of straightforward medical decision making. Petitioner downcoded to CPT code 99231 two claims, on October 28 and 29, that were billed as CPT code 99233. CPT code 99231 is for "subsequent hospital care, per day, for the evaluation and management of a patient." The care must include two of three elements: "a problem focused interval history; a problem focused examination; [and] medical decision making that is straightforward or of low complexity." CPT code 99231 explains: "Usually, the patient is stable, recovering or improving. Physicians typically spend 15 minutes at the bedside or on the patient's hospital floor or unit." Petitioner has proved that these two claims from October 28 and 29 are properly CPT code 99231. This was routine followup by a consultant who had performed a routine procedure on a patient for whom he was not the primary caregiver. Respondent performed no more than a problem focused interval history and examination and engaged in medical decision making that was straightforward or of low complexity. Petitioner allowed the claim billed as CPT code 36013 on October 30, but downcoded the claims billed on October 31 and November 2-5 from CPT code 99233 to 99231. Although the allowed procedure involved an introduction of a CVP line through the femoral artery, as Dr. Martin testified, the same reasons that justify the downcoding of subsequent hospital care on October 27 and 28 justify the downcoding of subsequent hospital care on October 31 and November 2-5. Dr. Martin and Petitioner have coded the subsequent hospital care following an introduction of a catheter to the right heart or main pulmonary artery differently from patient to patient. For A. H., as noted above, and A. R., as noted below, Dr. Martin and Petitioner coded such care as CPT code 99232. However, for N. R. and, as noted below, M. M. and U. L., Dr. Martin and Petitioner coded such care as CPT code 99231. Although there is some factual variability among these two sets of patients, the better fit is CPT code 99232, but the Administrative Law Judge will not disturb the higher codes allowed by Dr. Martin in the cases of A. H. and A. R. Petitioner has proved that the claims billed on October 31 and November 2-5 are properly CPT code 99231. Petitioner downcoded the claim billed on November 19 from CPT code 99255 to 99253. CPT code 99253 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "a detailed history; a detailed examination; and medical decision making of low complexity." CPT code 99253 explains: "Usually, the presenting problem(s) are of moderate severity. Physicians typically spend 55 minutes at the bedside and on the patient's hospital floor or unit." N. R. had taken a turn for the worse and had been transferred to ICU for profuse gastrointestinal bleeding. She was hypotensive and in such respiratory distress as to require intubation. But the primary caregiver consulted with Respondent strictly for the purpose of obtaining IV access. Dr. Martin correctly testified that this service was of no more than low complexity. Petitioner has proved that the November 19 claim is properly a CPT code 99253. Petitioner downcoded ten successive claims, from November 21-30, from CPT code 99291 to 99233. As noted by Dr. Martin, CPT code 99291 is for the primary caregiver, not a consultant. Here, Respondent's procedure note states that the introduction of a catheter, which was allowed under CPT code 36013, was "[u]neventful." As noted above, Dr. Martin and Petitioner typically allowed, at most, CPT code 99232 for subsequent hospital care following an introduction of a catheter to the right heart or main pulmonary artery. Evidently due to the serious condition of N. R., they allowed a CPT code 99233 for the subsequent hospital care. Petitioner has proved that the ten successive claims, from November 21-30, are properly under CPT code 99233. Lastly, Petitioner downcoded a claim billed on February 13, 2002, from CPT code 99255 to 99252. CPT code 99252 is for an "initial inpatient consultation" of a new or established patient. The consultation must include three elements: "an expanded problem focused history; an expanded problem focused examination; and straightforward medical decision making." CPT code 99252 explains: "Usually, the presenting problem(s) are of low severity. Physicians typically spend 40 minutes at the bedside and on the patient's hospital floor or unit." Petitioner proved, as Dr. Martin testified, that this was merely a consultation involving straightforward medical decision making, so Petitioner proved that the February 13 claim is properly a CPT code 99252. Recipient 3 is M. W., who was 40 years old as of the first date of service. Petitioner claims a total overpayment of $173.38 based on six reimbursements. On November 7, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For each of the next five days, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded the first claim from CPT code 99255 to 99253. Respondent's consultation report states that he was consulted to provide a central venous line to provide IV access for treatment and, if necessary, resuscitation of a critically ill patient with gastrointestinal bleeding. As Dr. Martin testified, the medical decision making is low, not high, so Petitioner proved that this claim is properly a CPT code 99253. Petitioner downcoded the next five claims from CPT code 99233 to 99231. Again, as Dr. Martin testified, the complexity of the medical decision making imposed on Respondent, as a consultant called upon merely to provide IV access to the patient, is low, not high, and no more than a problem focused interval history and examination was required, so Petitioner proved that these claims are properly CPT code 99231. Recipient 4 is R. M. Petitioner has not claimed any overpayments with respect to this patient. Recipient 5 is D. D., who was 65 years old as of the first date of service. Petitioner claims an overpayment of $77.85 based on one reimbursement. On March 12, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. On the next day, Respondent billed a CPT code 99291 for critical care. Of the 15 billings based on D. D., the March 13 billing is the sole one that Petitioner disallowed in whole or in part, as Petitioner downcoded it to 99232. D. D. had been admitted from a nursing home with a malfunctioning gastrostomy tube. Respondent was consulted for venous access only. CPT code 99291 is not available for this level of consultation, which is properly coded CPT code 99232. Petitioner has proved that the March 13 claim is properly a CPT code 99232. Recipient 6 is F. C. Petitioner has not claimed any overpayments with respect to this patient. Recipient 7 is G. B. Petitioner has not claimed any overpayments with respect to this patient. Recipient 8 is R. R., who was 64 years old as of the first date of service. Petitioner claims a total overpayment of $245.50 based on four reimbursements. On February 19, June 20, September 27, and October 18, 2002, Respondent billed a CPT code 99255 for an initial patient consultation. Petitioner downcoded these claims to CPT code 99252, except for the claim on June 20, which Petitioner downcoded to CPT 99253. These various hospital admissions were due to fainting, irregular heart rate, and chest pain. During the initial patient consultation on February 19, Respondent determined that R. R. needed a pacemaker, subject to clearance from cardiology and internal medicine. Respondent was not the primary caregiver for this patient, and, as Dr. Martin noted, his notes for February 19 are not extensive. Absent evidence of more than straightforward medical decision making, Petitioner proved that the February 19 claim is properly a CPT code 99252. During the next three initial patient consultations, as Dr. Martin testified, Respondent served merely as a consultant, not the primary caregiver. Petitioner proved that the June 20 claim is properly no higher than a CPT code 99253, and the September 27 and October 18 claims are properly a CPT code 99252. Recipient 9 is S. G., who was 66 years old as of the first date of service. Petitioner claims a total overpayment of $131.78 based on two reimbursements. On April 30 and October 3, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded each of these claims to CPT code 99252. These hospital visits were to check the status of S. G.'s pacemaker. As Dr. Martin testified, the medical decision making was straightforward, not of high complexity, so Petitioner proved that the April 30 and October 3 claims are properly a CPT code 99252. Recipient 10 is A. C., who was 73 years old as of the first date of service. Petitioner claims an overpayment of $63.89 based on one reimbursement. On November 17, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded this claim to CPT code 99252. As Dr. Martin testified, Respondent was consulted strictly for the purpose of establishing a central venous line. Petitioner has proved that the November 17 claim is properly a CPT code 99252. Recipient 11 is T. F., who was 40 years old as of the first date of service. Petitioner claims a total overpayment of $528.33 based on 29 reimbursements. On July 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation, which Petitioner allowed. Respondent was consulted solely to provide IV access, so, as Dr. Martin testified, the subsequent hospital care from July 14-30 was properly a CPT code 99232. ALJ Exhibit 1 misses this testimony of Dr. Martin, so Respondent is entitled to reimbursement at CPT code 99232, not 99231, for the following dates: July 20-21, 23, 27, and 29, as Dr. Martin testified. As of July 19, 2002, the difference in the amounts allowed for CPT code 99232 and 99231 was $11.65 ($29.73 less $18.08). Multiplied by five dates of service, the sum amounts to $58.25, which is the amount by which Petitioner's claimed overpayment must be reduced. On November 4 and December 25, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded these claims to CPT code 99253. As Dr. Martin testified, Respondent was consulted for matters that required medical decision making of no more than low complexity, so Petitioner proved that these claims are properly CPT code 99253. Petitioner likewise proved that the subsequent hospital care from December 26, 2002, through January 5, 2003, did not rise to CPT code 99233, as billed. However, ALJ Exhibit 1 fails to reflect Dr. Martin's testimony that all of the subsequent hospital care from December 26, 2002, through January 5, 2003, was CPT code 99232, so Respondent is entitled to reimbursement at this higher rate, not at the lower rate borne by CPT code 99231, for December 26 and 29 and January 4-5. During this period, the difference in the amount allowed for each CPT code 99232 and 99231 was $11.65 ($29.73 less $18.08). Multiplied by four dates of service, the sum amounts to $46.60, which is the amount by which Petitioner's claimed overpayment must be reduced. Recipient 12 is V. D., who was 61 years old as of the first date of service. Petitioner claims an overpayment of $1.00 based on one reimbursement. On March 13, 2001, Respondent billed a CPT code 36013 for an introduction of a catheter in the right heart of main pulmonary artery. Petitioner downcoded this claim to CPT code 36010 for an introduction of a catheter in the superior or inferior vena cava. As Dr. Martin testified, this is a simple miscoding of the performed procedure, so Petitioner has proved that the March 13 claim is properly a CPT code 36010. Recipient 13 is A. R., who was 87 years old as of the first date of service. Petitioner claims a total overpayment of $85.28 based on eight reimbursements. From April 21-28, 2002, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded each of these claims to CPT code 99232. The patient was very sick, suffering from heart failure and pneumonia, and she died on April 28. Dr. Martin gave due weight to the complexity of this unfortunate patient when he overrode the PAAR, which had downcoded the initial inpatient consultation to 99251, and allowed the billed CPT code 99255. Of course, Respondent received full reimbursement for the introduction of a central venous pressure line. On the other hand, Respondent's standard, yellow progress notes of April 20, "2006," et seq. represent not only the usual departure from the professional and programmatic dictates of honesty, but also from good taste, given their preparation long after the patient had expired. As Dr. Martin noted, R. A. was in no condition to provide the detailed history that Respondent reported that he obtained on April 20--and again on April 21, 22, 23, 24, 25, 26, 27, and 28. Respondent prepared the fabrication in this case with an unscrupulous lack of care: on the day of A. R.'s death, Respondent's progress note repeats the fiction that A. R. was "resting comfortably, in no acute distress," her vital signs were "stable," her heart displayed a "regular rate and rhythm," her lower extremities showed no signs of swelling, and she appeared "sad with flat affect." As Dr. Martin testified, Respondent was consulted merely for the placement of a central venous line. The medical decision making for the subsequent hospital care was of no more than moderate complexity, and the interval histories and examinations were no more than expanded problem focused. Petitioner has proved that the April 21-28 claims are properly a CPT code 99232. Recipient 14 is R. M., who was 70 years old as of the first date of service. Petitioner claims an overpayment of $51.83 based on one reimbursement. On January 31, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded this claim to a CPT code 99253. Again, Respondent was consulted for limited purposes that involved medical decision making of no more than low complexity. This time, Respondent's yellow progress notes reflect another aspect of their fabrication--that Respondent devoted little thought to his fraudulent effort. The progress note for January 31, 2002, reports that R. M.'s deep tendon reflexes were "equal in upper and lower extremities" and that the popliteal and pedal pulses were "palpable bilaterally"--both findings quite impossible in a patient whose left leg had been previously amputated above the knee. Petitioner has proved that the January 31, 2002, claim is properly a CPT code 99253. Recipient 15 is J. D., who was 63 years old as of the first date of service. Petitioner claims a total overpayment of $130.00 based on nine reimbursements. On January 7, 2002, Respondent billed a CPT code 92555 for an initial inpatient consultation. For the next eight days, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded the January 7 billing to CPT code 99254 and the ensuing billings to CPT code 99232. J. D. was hospitalized for a slow heart rate with syncope and a likely staph infection. Respondent was consulted for a broad cardiovascular examination, which was appropriately coded at no higher than CPT code 99254, as it involved no more than moderate complexity. Respondent's recommendation to rule out sick sinus syndrome by conducting a 24-hour Holter and echocardiogram does not appear to have been the product of more than 80 minutes' time with the patient and on his hospital floor. As Dr. Martin testified, the "moderate need for followup" justified no higher than a CPT code 99232 for the ensuing billings, as the medical decision making was of no more than moderate complexity and the interval history and examination were expanded problem focused. Recipient 16 is C. R., who was 39 years old as of the first date of service. Petitioner claims a total overpayment of $122.48 based on four reimbursements. On October 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Two days later, Respondent billed a CPT code 99233 for subsequent hospital care. One week later, Respondent billed a CPT code 36013 for an introduction of a catheter in the right heart or main pulmonary artery and a CPT code 36493 for repositioning a previously placed central venous catheter under fluoroscopic guidance. Petitioner downcoded the initial inpatient consultation to CPT code 99252 and the subsequent hospital care to CPT code 99232. Petitioner disallowed the two billings on October 22 because they were allowed as part of another procedure on the same date for which Respondent was reimbursed. As Dr. Martin explained, the limited scope of the initial consultation drives the downcoding of the initial patient consultation and subsequent hospital care. Petitioner has proved that these claims are properly CPT codes 99252 and 99232. On October 22, Petitioner reimbursed Respondent $210.53 for a billing under CPT code 36533, which is for the "[i]nsertion of implantable venous access device, with or without subcutaneous reservoir." As Dr. Martin testified, this code includes CPT codes 36013 and 36493, so Petitioner has proved that the CPT codes 36013 and 36493 were properly disallowed. Recipient 17 is J. G., who was 54 years old as of the first date of service. Petitioner claims a total overpayment of $131.51 based on two reimbursements. On May 27, 2001, Respondent billed a CPT code 99255 for an initial patient consultation, and, the next day, he billed a CPT code 99291 for critical care. Petitioner downcoded these claims to CPT codes 99253 and 99232. As Dr. Martin testified, Respondent was consulted to provide venous access, and Petitioner has proved that it properly downcoded both claims. Recipient 18 is M. C., who was 26 years old as of the first date of service. Petitioner claims a total reimbursement of $196.94 based on ten reimbursements. On August 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For eight of the next nine days, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded the August 13 claim to CPT code 99254 and the last four days of subsequent hospital care to CPT code 99232. As Dr. Martin testified, the initial inpatient consultation was for a cardiac problem and involved medical decision making of moderate complexity, so that Petitioner properly downcoded the August 13 billing to CPT code 99254. Dr. Martin testified that the subsequent hospital care from August 19-22 was CPT code 99231. However, in ALJ Exhibit 1 and its predecessor Petitioner Exhibit 21, Petitioner took the position that these billings should be reimbursed under CPT code 99232. Although it is difficult to find any basis in the record to support medical decision making that is more than straightforward or of low complexity, as well as an interval history and examination that is more than problem focused, the Administrative Law Judge declines to credit Dr. Martin's testimony over the position repeatedly taken by Petitioner as to these dates of service--namely, that they are properly CPT code 99232. On January 25, 2003, Respondent billed a CPT code 99255 for an initial inpatient consultation. From January 26- 30, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner allowed the January 26 billing, but downcoded the January 25 billing to CPT code 99253 and the January 27-30 billings to CPT code 99232. Given the limited scope of Respondent's initial consultation, which was providing IV access, these downcodings are proper. Recipient 19 is M. R., who was 57 years old as of the first date of service. Petitioner claims a total overpayment of $676.97 based on 17 reimbursements. On September 3, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. For the next two days, he billed a CPT code 99291 for critical care. For nine of the next ten days, Respondent billed a CPT code 99233 for subsequent health care. Petitioner downcoded the September 3 billing to CPT code 99252, the September 4-5 billings to CPT code 99231, and the remaining billings to CPT Code 99231. As Dr. Martin testified, although the patient was very ill with metastatic ovarian carcinoma, Respondent's consultation was limited to providing IV access. Petitioner has proved that the downcodings set forth in the preceding paragraph were appropriate. On September 6, Respondent billed CPT codes 36533, 36013, and 71090, which is for the insertion of a pacemaker. Petitioner disallowed CPT code 36013 because, as Dr. Martin testified, it is included in CPT code 36533. On October 9, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. The next day, he billed a CPT code 36534, which is for the "[r]evision of implantable venous access device, and/or subcutaneous reservoir." Petitioner downcoded these billing to CPT codes 99253 and 36550, which is the "[d]eclotting by thrombolytic agent of implanted vascular access device or catheter." As Dr. Martin testified, the October 9 date of service required medical decision making of no more than low complexity. As for October 10, Respondent only flushed a catheter, for which most practitioners would not bill. But, in any event, flushing a catheter constitutes no more than declotting a catheter; it is not revising a venous access device. On December 4, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Petitioner downcoded the claim to CPT code 99253. As Dr. Martin testified, given the limited scope of the consultation, the medical decision making was of no more than low complexity, so Petitioner proved that the downcoding is appropriate. For the same reason, Petitioner proved that the downcoding of the claim on December 6 for subsequent hospital care from CPT code 99233 to 99231 was appropriate. Recipient 20 is M. G., who was 64 years old as of the first date of service. Petitioner claims a total overpayment of $253.58 based on eight reimbursements. On August 8, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On August 10 and 12, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded these claims to CPT codes 99253 and 99231. Similarly, on October 5, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. On October 6-9, Respondent billed a CPT code 99233. Petitioner downcoded these claims to CPT codes 99253 and 99231. As Dr. Martin testified, Respondent's scope of consultation, which was providing IV access, justified no higher than the downcoded codes. Recipient 21 is M. R., who was 56 years old as of the first date of service. Petitioner claims a total overpayment of $85.95 based on two reimbursements. On June 13, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. As of the first date of service of the consultation, the patient bore diagnoses of left lower extremity deep vein thrombosis and rule-out arterial embolus. Her left foot was painful and had been cold for four days. Her right femoral pulse was weak. The medical decision making was of moderate complexity, and Dr. Martin and Petitioner properly coded this as CPT code 99254. On January 7, 2003, Respondent billed a CPT code 99245 for an "[o]ffice consultation for a new or established patient." The consultation must include three elements: "a comprehensive history, a comprehensive examination; and medical decision making of high complexity." CPT code 99245 explains: "Usually, the presenting problem(s) are of moderate to high severity. Physicians typically spend 80 minutes face-to-face with the patient and/or family." Dr. Martin and Petitioner downcoded this claim to CPT code 99243, which is an "[o]ffice consultation for a new or established patient." The consultation must include three elements: "a detailed history; a detailed examination; and medical decision making of low complexity." CPT code 99243 explains: "Usually, the presenting problem[s] are of moderate severity. Physicians typically spend 40 minutes face-to-face with the patient and/or family." As Dr. Martin testified, the January 7 office visit was routine followup and involved medical decision making of no more than low complexity. Recipient 22 is I. M.-D., who was 50 years old as of the first date of service. Petitioner claims a total overpayment of $1608.56 based on 18 reimbursements. On June 11, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. For the ensuing 17 days, Respondent billed a CPT code 99291 for critical care. Petitioner downcoded these claims to CPT codes 99252 and 99231. The scope of Respondent's consultation was providing IV access--specifically, in the form of a port-a-cath system. As Dr. Martin testified, the medical decision making was of low complexity, both at the initial and subsequent dates of service. Petitioner proved that these claims are properly downcoded to CPT code 99252 and 99231. Recipient 23 is H. M. Petitioner has not claimed any overpayments with respect to this patient. Recipient 24 is M. M., who was 72 years old as of the first date of service. Petitioner has claimed a total overpayment of $86.20 based on two reimbursements. On March 9, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. Two days later, he billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded these claims to CPT codes 99252 and 99231. The consultation was for the placement of a central venous pressure line and, as Dr. Martin testified, the medical decision making for the initial consultation was no more than straightforward. For the subsequent care, the medical decision making was no more than straightforward, and the interval history and examination were no more than problem focused. Petitioner has proved that it properly downcoded these claims. Recipient 25 is M. S., who was 61 years old as of the first date of service. Petitioner claims a total overpayment of $739.92 based on nine reimbursements. On May 25, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. From May 29 through June 3, Respondent billed a CPT code 99291 for critical care. Petitioner downcoded the first claim to CPT code 99252, the claims for May 29 and 30 to CPT code 99231, and the remaining claims to CPT code 99233. The initial consultation was merely to place a central line, so Petitioner has proved that this claim is properly a CPT code 99252. For the reasons noted above, the subsequent hospital care does not qualify for CPT code 99291. Dr. Martin testified that the May 29-June 3 claims were all CPT code 99231, and he could not explain why the May 31-June 3 claims were CPT code 99233. The better fit is CPT code 99231, but the Administrative Law Judge will not disturb the higher codes allowed by ALJ Exhibit 1. On June 6, 2001, Respondent billed CPT codes 60200 and 31645 for a tracheostomy with the insertion of a tracheostomy tube, incision of the isthmus thyroid, and bronchial washing. CPT code 60200 is for a "[e]xcision of cyst or adenoma of thyroid, or transection of isthmus," and CPT code 31645 is for endoscopy "with therapeutic aspiration of tracheobronchial tree, initial . . .." Petitioner downcoded the CPT code 60200 to a CPT code 31600, which is a "[t]racheostomy, planned," and disallowed the CPT code 31645. As Dr. Martin testified, the tracheostomy performed by Respondent is a CPT code 31645, and the additional procedure is part of a planned tracheostomy. Petitioner has proved that the June 6 claims are properly billed as a single CPT code 31600. Recipient 26 is U. L., who was 35 years old as of the first date of service. Petitioner claims a total overpayment of $973.03 based on 28 reimbursements. On March 9, 2001, Respondent billed a CPT code 99291 for critical care. He billed the same code for March 11-15. These dates of service involved subsequent hospital care following the introduction of a central line. As Dr. Martin testified, the services involved medical decision making of no more than low complexity and no more than a problem focused interval history and examination. Petitioner has proved that these claims are properly a CPT code 99231. On August 10, 2001, Respondent billed a CPT code 99255 for initial inpatient consultation, and, on the next day, he billed a CPT code 36013 for an introduction of a catheter. The inpatient consultation was in connection with the insertion of a central venous line, which, as Dr. Martin testified, involved medical decision making of no more than moderate complexity. Also, the proper code for the catheterization that Respondent performed was CPT 36010. Petitioner has proved that these claims are properly CPT codes 99254 and 36010. From August 14-September 3, 2001, Respondent billed a CPT code 99233 for subsequent hospital care. Petitioner downcoded August 14-24 to CPT code 99231, August 25-27 to CPT code 99232, and August 28-September 2 to CPT code 99231. As Dr. Martin testified, CPT code 99231 is the proper coding for all dates of service, except August 25 and 26, for which CPT code 99232 is proper. Following up on the initial service of providing venous access involved no more than straightforward medical decision making and a problem focused interval history and examination for all these service dates, except for August 25 and 26, where the medical decision making rose to moderate complexity. Although Dr. Martin testified that CPT code 99231 is proper for August 27, the Administrative Law Judge will not disturb the higher code allowed by ALJ Exhibit 1. Recipient 27 is J. T., who was 60 years as of the first date of service. Petitioner claims a total overpayment of $838.54 based on five reimbursements. On August 13, 2002, Respondent billed CPT codes 60200, 31600, and 31645 for an incision of the thyroid isthmus and bronchial washing. Petitioner downcoded the first claim to CPT code 31603, which is for "[t]racheostomy, emergency procedure; transtracheal." Petitioner disallowed the second and third claims. As disclosed by Respondent's notes of August 12 and 13, the procedure of August 13 was an emergency tracheostomy, so Petitioner proved that it was properly billed as a CPT code 31603. As Dr. Martin testified, Respondent's notes do not mention a bronchoscopy, so Petitioner properly disallowed the CPT code 31645. Obviously, billing CPT code 31603, which is an emergency tracheostomy, precludes billing, for the same procedure, a CPT code 31600, which is a planned tracheostomy, so Petitioner properly disallowed CPT code 31600. Also, as Dr. Martin testified, about 60 percent of all tracheostomies require dividing the isthmus, so, even when this procedure is performed, it is included in the tracheostomy code--here, CPT code 31603. On September 27, 2002, Respondent billed a CPT code 99255 for an initial inpatient consultation. This service was placing a central line, so, as Dr. Martin testified, the medical decision making was no more than straightforward, and Petitioner properly downcoded this claim to CPT code 99252. On September 30, 2002, Respondent billed CPT codes 35206 for the repair of a blood vessel, upper extremity; 33208 for the insertion or replacement of pacemaker, atrial and ventricular; and 71090 for radiological supervision and interpretation, by fluoroscopy and radiography, for the insertion of a pacemaker. As Dr. Martin testified, Respondent did not repair a blood vessel, so Petitioner properly disallowed CPT code 35206. The only vessel work performed by Respondent was properly part of the insertion of the pacemaker. Also, as Dr. Martin testified, the radiological work in CPT code 71090 is not allowable to Respondent in the same procedure that he is billing for the insertion of a pacemaker. So, Petitioner properly disallowed CPT codes 35206 and 71090. Dr. Martin testified that Respondent is allowed CPT code 33208 and noted that, after disallowing the pacemaker billed as CPT code 35206 on the same day, Petitioner improperly "halved" Respondent's reimbursement for this procedure. According to ALJ Exhibit 1, which is credited, the unreduced payment for CPT code 33208 is $297.92 Petitioner already allowed $141.76 for the service, and Respondent is owed another $156.16 for this billing. Recipient 28 is J. G., who was 60 years as of the first date of service. Petitioner disallowed a total overpayment of $78.41 based on two reimbursements. On June 26 and July 10, 2001, Respondent billed a CPT code 99255 for initial patient consultations. Petitioner downcoded these claims to CPT code 99253. As Dr. Martin testified, the June 26 consultation was for a central line, but was complicated by an infected abdominal wound, evidently the result of past surgery, according to Respondent's notes. Dr. Martin testified that this claim should be downcoded to CPT code 99254, not 99253, as reflected on ALJ Exhibit 1. Respondent is owed the difference, if any,2/ between the procedure allowed by Petitioner--a CPT code 99253--and the amount that Dr. Martin testified that he should have been allowed--a CPT code 99254. The July 10 consultation, which was strictly for the placement of a CVP line, appears relatively uncomplicated and, as Dr. Martin testified, Petitioner properly downcoded it to CPT code 99253. Recipient 29 is A. B., who was 48 years old as of the first date of service. Petitioner claims a total overpayment of $417.20 based on three reimbursements. On April 18, 2002, Respondent billed a CPT code 35456, which is a balloon angioplasty. Petitioner disallowed the claim on the ground of a lack of documentation. As Dr. Martin testified, Respondent's records contain no mention of this procedure, so Petitioner properly disallowed it. On June 28, 2002, Respondent billed CPT codes 27880, which is an "amputation, leg, through tibia and fibula"; 27705, which is an osteotomy of the tibia; and 27707, which is an osteotomy of the fibula. As Dr. Martin testified, the procedures described under CPT codes 27705 and 27707 are included within CPT code 27880, so Petitioner properly disallowed the claims under these two codes. Recipient 30 is V. B., who was 60 years old as of the first date of service. Petitioner claims a total overpayment of $432.78 based on seven reimbursements. On July 25, 2001, Respondent billed a CPT code 99255 for an initial inpatient consultation. From July 26-29, Respondent billed a CPT code 99291 for critical care. Dr. Martin testified that he did not address the July 25 claim because Petitioner had failed to include it in his folder. The basis for denial is upcoding, not the absence of documentation, so there appears to have been a miscommunication between Petitioner and its expert witness. As explained in the Conclusions of Law, the burden of proof and burden of going forward with the evidence remain with Petitioner, so Petitioner has failed to prove this downcoding. This results in the allowance of an additional $28.72, which is the difference between the $104.66 billed and the $75.94 allowed. However, Dr. Martin testified that the subsequent care provided by Respondent, which could not qualify for CPT code 99291, could qualify for no more than CPT code 99232. Notes for this care are in the record, and Dr. Martin's testimony is credited. Petitioner has proved that the July 26- 29 claims are properly a CPT code 99232. On June 20 and November 7, 2002, Respondent billed a CPT code 99255 for initial inpatient consultations. Petitioner downcoded these claims to CPT code 99254. As Dr. Martin testified, the medical decision making on these consultations was of no more than moderate complexity, so Petitioner has proved that these claims are properly a CPT code 99254. As noted above, the total overpayment stated in ALJ Exhibit 1 is $9225.56 must be reduced by the following sums: $104.85 for Recipient 11 (two adjustments), $156.16 for Recipient 27, and $28.72 for Recipient 30.3/ Petitioner has thus proved a total overpayment on the 510 audited claims of $8935.83 ($9225.56 - $289.73), which Petitioner may extend, pursuant to the statistical methods used in the FAR and ALJ Exhibit 1, to the total population.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order requiring Respondent to repay Petitioner an overpayment extended by the accepted and valid statistical methods used in FAR and ALJ Exhibit 1 from the sampled overpayment of $8935.83,5/ to pay a fine of $1500, and to repay Respondent all of its investigative, legal and expert witness costs, which may be determined by subsequent DOAH hearing, if necessary. DONE AND ENTERED this 16th day of August, 2012, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of August, 2012.
The Issue The issue in this case is whether Petitioner wrongfully revoked the Respondent's Pinellas County paramedic certification.
Findings Of Fact The Director is responsible for, inter alia, providing paramedic certifications in Pinellas County. Respondent, Adam C. Baginski, was duly-certified as a paramedic by Pinellas County in February 2005. Respondent was employed by Sun Star, n/k/a Paramedics Plus (hereinafter referred to as "Sun Star"), and had filed an application through his employer for certification by Pinellas County. Respondent had first entered the general health care field as a life guard; he then became an EMT in 1994. After training received at the University of Toledo, Respondent became a paramedic in 2001. He held three positions in Ohio before coming to Florida, where he became employed by Lee County. After approximately nine months, he resigned his position with Lee County and went to work with Sun Star. The application process in Pinellas County to obtain paramedic certification entails a training seminar and a background check. The requisite background check is performed and attested to by the employer. At the training seminar, applicants are required to submit written responses to a two- page questionnaire. The questionnaire contains the following preface: Please answer the following questions so that we may gather the necessary data to provide a positive, educational and stress- free learning experience. All information will be confidential. At the end of the questionnaire, this statement is found: By signing this release, I understand that any falsification, incomplete or misleading information contained on this application or in any documents presented to obtain County Certification may be grounds for immediate suspension and/or revocation of may [sic] County Certification. The Director processed Respondent's application for certification by first reviewing the questionnaire. On the first page of the questionnaire, Respondent listed all of his work experience in Ohio, but did not list his Lee County experience. He does not remember why he omitted that employment history, but thinks it may have been due to lack of adequate space on the line provided.1 A cursory review of the questionnaire would show that appropriate space is provided. Notwithstanding the omission, the Director issued a paramedic certification to Respondent.2 Upon receipt of his certification, Respondent began performing paramedic services for Pinellas County through his employer. He was generally partnered with one particular EMT for ambulance runs, but sometimes had a different partner if circumstances so dictated. (E.g., if his partner was ill or on vacation, he may be temporarily assigned to another EMT. It was generally the duty of the EMT to drive the ambulance and for the paramedic to perform direct care to the patient.) On July 11, 2007, Respondent was on duty with Kristin Burns as his EMT for that shift. Respondent cannot remember why his regular partner was not there on that day.3 Respondent and Burns were responding to an emergency call when they were interrupted by dispatch and told to go to a different location. The new location was a doctor's office located at 929 First Avenue North in downtown St. Petersburg. Before arriving on the scene, Respondent and Burns received telephone/radio reports indicating the fire department was already on the scene. Fire department employees had assessed the patient (William Newcomb) and determined him to be stable. As a result, the call was "downgraded" so that Respondent and Burns could proceed to the scene without lights or siren. A downgrade indicates the situation is no longer critical. Upon arrival, Respondent talked to a firefighter and was told that the patient believes he has had a seizure and wants to go to the VA hospital. It was again confirmed that the situation was not an emergency. The patient had walked to his eye doctor's office because he was having vision impairment. When the doctor could not see him, the patient called 911 and asked for an ambulance to take him to the hospital. There was no distress noted by the firefighters or Respondent. The patient came out of eye doctor's office building and, using a walker, walked himself directly towards the waiting ambulance. Respondent began to question the patient at that time, attempting to assess his condition. All he was able to ascertain was that the patient wished to go to the VA hospital. The cot was taken out of the ambulance, the patient was strapped in, and the ambulance headed toward the VA hospital.4 During the trip to the VA hospital, Respondent and the patient were in the rear of the ambulance; Burns was driving. Respondent was seated in the "CPR seat" which is the seat to the right of the patient. There is a window between the driver compartment and the back of the ambulance that allows some visual contact between the driver and the paramedic. Burns did not actually see Respondent provide any care to the patient (but it is unclear how well she could have seen into the rear of the vehicle due to its configuration). Newcomb does not remember what care was rendered to him during the trip to the hospital. He believes his pulse and temperature may have been taken; his oxygen level was taken. He does not specifically remember what else was done. He cannot remember who helped him into the ambulance or much else about the trip. He does maintain that Respondent talked to him a lot about Newcomb's not needing the ambulance, but remembers little other than that. Newcomb signed the patient care report (twice) acknowledging Sun Star's billing practices and receipt of--or offer of--a Notice of Privacy Rights. The patient care report filled out by Respondent to officially record the Newcomb case indicates Newcomb's vital signs were taken three times in the ambulance trip. In addition, a visual check was done to track any changes in the patient's eyesight. Respondent noted that Newcomb had no facial droops, he was speaking clearly, and he was using purposeful movements of his extremities. Each of these is a visual means of ascertaining a hostile patient's condition. Newcomb doesn't remember the trip well, and Burns did not see Respondent taking vital signs, but Respondent maintains he took the vital signs, and they are recorded on the patient care report. There is no clear evidence as to whether that happened or not. The conversations between Respondent and Newcomb were only partially overheard by Burns. She was driving an ambulance with a diesel engine in mid-day traffic. The window between the cab of the ambulance and the back was not open. There was no radio communication between Burns and Respondent during the ride to the VA hospital. Burns could maintain some partial visual contact with Respondent during the ride. She could see through the window by turning her head around or she could glance in the rear view mirror. She remembers seeing Respondent sitting in the CPR seat at the patient's head. Respondent remembers sitting in the CPR seat at the patient's side. Newcomb remembers Respondent sitting at his right side. Whether Burns was able to see substantially all of Respondent's actions was not well established in the record. When the ambulance reached the VA hospital, Newcomb walked under his own power to the triage area in the emergency room. Respondent walked in front of Newcomb, Burns walked behind. Whether Newcomb walked voluntarily or because Respondent told him to do so is not clear. Burns testified that Respondent told the patient to walk; the patient testified that he was more or less able to get out of the ambulance on his own and walk; and Respondent testified that the patient moved out of the cot on his own accord. What actually transpired is unclear, but Newcomb expressed several times that EMT Burns was attentive to him. There is no evidence that he asked Burns for a wheelchair or other assistance. When the ambulance arrived at the hospital, Newcomb was reported to be stable with no apparent distress. He ended up remaining at the hospital for about three hours, after which he walked out on his own power (using his walker), caught a taxi, and went home. Back at the doctor's office, Newcomb had advised either the firefighters or Respondent that he (Newcomb) was HIV positive. Newcomb is extremely emotional and sensitive about his condition. It appears he drew conclusions about Respondent's feelings concerning the condition even though it was not discussed in any detail. Respondent must deal with HIV positive and AIDS patients regularly in the course of his work; it is unlikely this particular situation was significantly repulsive to him. The dialogue between Respondent and Newcomb during the ride to the hospital was sometimes loud, sometimes heated, and not necessarily friendly. Burns heard some words exchanged concerning whether the ambulance was necessary. Respondent remembers the patient as uncooperative; Newcomb's recollection is that Respondent was rude. There is insufficient evidence to ascertain anything other than that Respondent and Newcomb were not on amicable terms as patient and caregiver. Respondent's demeanor and "bedside manner" were considered relevant by the Director in making a decision to revoke the paramedic certification. Past allegations against Respondent were discussed but none of them were founded; thus, they have no weight in this proceeding. Respondent had, however, been counseled by his employer regarding his relations with patients. The counseling came about as a result of complaints by patients, family members, and other caregivers. Sun Star also disciplined Respondent based on the Newcomb complaint, denying him a full week's worth of work shifts. The basis of the discipline was that Respondent had allegedly treated Newcomb unkindly because of the fact that Newcomb was HIV positive. It is clear from Respondent's demeanor in the final hearing that he may not be a "people person." However, he is very knowledgeable about his work and possesses all the necessary medical skills. There was no evidence to support the allegation that he treated Newcomb unprofessionally due to Newcomb's HIV status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Pinellas County Emergency Medical Services, Office of the Medical Director, reversing the decision to terminate Respondent's certification as a paramedic in Pinellas County. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 14th day of February, 2008.
The Issue The issues in this case are whether Respondent violated Section 458.331(1)(m), and/or (1)(t), Florida Statutes (Supp. 1996), and, if so, what discipline should be imposed.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings of fact are made: Findings regarding the parties The Board of Medicine (Board) is the regulatory board within the Department of Health that is responsible for the regulation of the practice of medicine in Florida. Respondent is, and was at all times relevant to this proceeding, a licensed physician, Board-certified in plastic surgery. His license number is ME 0030449. At all times relevant to this proceeding, Respondent practiced at the Florida Center for Cosmetic Surgery (FCCS), which was an office surgery center in Ft. Lauderdale, Florida. Respondent performed cosmetic surgery at FCCS about two to three days a week while still maintaining his own office surgery center in Winter Park, Florida, where Respondent currently practices. From the beginning of the professional relationship between Respondent and FCCS, it was contemplated by all concerned that the relationship would be a part-time, short-term relationship; Respondent was merely providing plastic surgery services and follow-up care on a temporary basis until FCCS could make a more permanent arrangement with a plastic surgeon who wanted to work full-time for FCCS. Respondent never had any role in the business practices of FCCS, never had any managerial role at FCCS, and never had any ownership interest in FCCS. The agreement between Respondent and the principals at FCCS included an understanding that all patients who sought services at FCCS were patients of the clinic; not patients of the individual surgeon who performed the surgery on a patient. Consistent with that understanding, FCCS also insisted that it was entitled to custody and control of all of the medical charts, and Respondent was not allowed to remove any medical charts from the premises of FCCS. Respondent performed surgery at FCCS for approximately six weeks. General findings about the relevant surgical procedures A brow lift is a cosmetic surgery procedure that involves an incision in the patient’s scalp. The incision goes quite deeply into the forehead. After the incision, the scalp is dissected and loosened all the way down to the eyebrows, with the intent of this procedure being to raise up the eyebrows to some degree to give a rejuvenated appearance to the forehead. The incision in the scalp bleeds easily. In order to minimize the scalp bleeding, an electrocautery device is used for cauterization at the site of the bleeding. An electrocautery device may either be monopolar or bipolar. A monopolar cauterization device utilizes a “grounding plate” or a “grounding pad” to ground the electric current. The grounding plate or pad is attached to the patient on a fleshy part, typically along the side of a patient’s thigh or on a patient's buttock, away from any bony prominence. "Bovie" is the trade name of a major brand of monopolar cauterization devices. The grounding plate or grounding pad for a monopolar cauterization device is commonly referred to as a "Bovie pad." In contrast, a bipolar cauterization device does not need and does not have a grounding pad. Liposuction is a medical procedure in which fat is removed from an area of a patient's body by means of a suction device. A cannulus, which is a narrow tube with a sharp tip, is inserted into the desired areas of the body. The cannulus is connected to a vacuum-like device and once the cannulus is inserted into the operative area, it is manually maneuvered by the physician to remove the fat within reach of the cannulus with vacuum suction. General findings about Patient F. V. This case arises from surgical procedures performed by Respondent on February 6, 1997, on a patient identified in the record of this case as Patient F. V. Patient F. V. is a white female, who at the time of the relevant surgery was 43 years old. Patient F. V. wished to improve her facial features and wished to reduce the fat in her thighs. She went to FCCS to seek cosmetic surgery for those purposes. Patient F. V. had previously undergone cosmetic surgery performed by Dr. Myron Persoff, also at FCCS, on August 23, 1995. Pre-operative contact between Patient F. V. and FCCS On January 28, 1997, Patient F. V. contacted FCCS (probably by telephone) and someone at FCSS filled out a consultation form about that contact. The form listed the requested procedures of a facelift/browlift and liposuction. The form also noted a prior facelift by Dr. Persoff, a plastic surgeon also with FCCS. Finally, the form indicated a confirmation note of January 29, 1997, for an appointment date and time of January 30, 1997, at 3:00 p.m. On January 30, 1997, Patient F. V. went to FCCS for consultation regarding cosmetic surgery. On that date, Patient F. V. filled out a “Patient Information” form. The form asked Patient F. V. basic questions relating to her medical history and relating to her social history. Patient F. V.’s next visit to FCCS was on February 3, 1997. February 3, 1997, was the first and only time that Respondent met with Patient F. V. prior to the surgery on February 6, 1997. On February 3, 1997, a presurgical and anesthesia evaluation form was completed by Certified Registered Nurse Anesthetist (CRNA) Charlotte Filip. This form detailed some history of Patient F. V. and listed the prior surgery to the breast, face, and eyes. The Patient and Nurse Filip signed the form. During Patient F. V.’s February 3, 1997, visit to FCCS, Respondent conducted an initial physician/patient consultation. During the course of the consultation on February 3, 1997, Respondent conducted a thorough pre-operative consultation with Patient F. V. His activities during that consultation included taking a history and conducting a physical examination. Respondent discussed with Patient F. V. what she wished to have done, and he also discussed with her the risks and benefits of the proposed procedures. During the course of that consultation Respondent made a plan for the surgical procedures to address Patient F. V.'s concerns and desires. Thereafter, Respondent approved Patient F. V. for a brow lift and thigh liposuction. At the conclusion of the consultation on February 3, 1997, Respondent dictated a pre-operative report. The transcription of that dictation is not in F. V.'s medical chart maintained at FCCS. The fate of that dictated pre- operative consultation report is presently unknown.6 At the time of the Patient F. V.'s 1997 surgery, it was the practice of FCCS to prepare, and to maintain in the patient's medical records, a financial check list. For reasons not explained in the record in this case, the financial check list for Patient F. V.'s 1997 surgical procedures is missing from Patient F. V.'s medical chart at FCCS. At that same time, it was also the practice at FCCS for the physician to either provide the patient with pain medications or with a prescription for pain medications prior to surgery, and to document such delivery of medications or prescription for medications in the patient's medical chart. For reasons not explained in the record in this case, such documentation is missing from Patient F. V.'s medical chart at FCCS. At the time of Patient F. V.'s 1997 surgery, it was also the practice at FCCS to provide each patient with a pre- surgery instruction sheet listing numerous things the patient should do prior to surgery, as well as things the patient should not do prior to surgery. It was also the practice of FCCS to place a copy of the instruction sheet in the patient's medical chart. For reasons not explained in the record in this case, the copy of the instruction sheet given to Patient F. V. is missing from her medical chart at FCCS. At the time of the pre-operative consultation on February 3, 1997, FCCS was experiencing delays with the transcription of dictated reports. Such transcriptions often took as long as one or two weeks. Some of the information generated at the pre-operative conference needed to be promptly communicated to the financial staff at FCCS so that the costs of the procedures to be performed could be determined and so that arrangements for payment could be made with the patient. In some manner not presently remembered, Respondent provided the FCCA financial staff with the information they needed to make the necessary financial arrangements with Patient F. V.7 Patient F. V.’s medical records at FCCS do not contain adequate documentation of Respondent’s pre-operative consultation on February 3, 1997, with Patient F. V. Further, Respondent could not produce any adequate documentation of his February 3, 1997, consultation with Patient F. V. Day of Patient F. V.’s surgery Respondent performed surgery on Patient F. V. on February 6, 1997, which consisted of a brow lift and liposuction of her thighs. Before Respondent began the surgical procedure, CRNA Filip (Nurse Filip) conducted her own physical assessment of Patient F. V. for her purposes as the anesthetist. Nurse Filip also documented the results from the lab tests. Nurse Filip documented her results by hand writing notes on the bottom left portion of the Pre-Operative Checklist. As evidenced by the anesthesia record in Patient F. V.’s records, Nurse Filip also performed her duties as the anesthetist for the surgery and documented her pre-operative care of Patient F. V. In the anesthesia record, Nurse Filip documented information including a cursory patient history (allergies, medication being taken, and blood pressure), date, type of surgery, and surgeon. Respondent had no part in documenting any information on the anesthesia records. The anesthesia records for Patient F. V.'s surgery on February 6, 1997, appear to be complete. The circulator who participates in a surgical procedure has the recordkeeping responsibility of creating an operating room record, which should include a detailed description of the equipment used during the surgical procedure, as well as an itemization of all significant events from the time the patient enters the operating room until the patient goes to the recovery room. During 1997 it was the practice of FCCS to keep the circulator's operating room records in the patient's medical chart. For reasons not explained in the record in this case, the circulator's operating room record is missing from Patient F. V.'s medical chart at FCCS. The progress note for the day of surgery, February 6, 1997, is a de minimus notation that lists little more than the type of surgery performed, the surgeon's name, the weight of the patient, the names of the scrub nurse, the circulating nurse, and the CRNA, and the total amount of fat removed. This de minimus progress note is not in Respondent's handwriting.8 In addition to a progress note summarizing the basic details of a surgical procedure, once the surgery is complete the surgeon should also prepare a detailed operative report which describes in detail the manner in which the surgical procedure was performed, including all significant events that occurred during the surgery. Such an operative report should include a description of the type of liposuction and the type of brow lift performed. Such an operative report should also detail the manner in which the surgery was performed and should note any burns, injuries, or other complications arising from the surgery. A sufficiently detailed operative report is especially important in the event of post-operative complications, because details regarding the methods and techniques employed during the surgery can often facilitate an understanding of, and facilitate treatment of, any post- operative complications. There is no clear and convincing evidence as to whether Respondent did or did not prepare a detailed operative report of the type described in the immediately preceding paragraph. What is clear is that such an operative report is missing from Patient F. V.'s medical chart at FCCS.9 Respondent's recollection of the details of the subject surgery on February 6, 1997, is not very good. Although he seems to have a clear recollection of some details, he does not appear to recall some other equally important details. He does, however, remember that after the surgery he wrapped Patient F. V.'s forehead with Ace wrap and placed a strip of tape along the forehead to immobilize the Ace wrap. He also applied Ace wrap to the patient's thighs at the conclusion of the surgery. The Ace wraps on the thighs were also secured with strips of tape. At the conclusion of the surgical procedures on February 6, 1997, there were no visible blisters at the locations where blisters were visible on February 7, 1997. During the surgical procedures performed on February 6, 1997, on Patient F. V., Respondent did not use a monopolar catherization device. Therefore, no grounding pads were used during that surgery. Findings regarding post-operative care FCCS’s post-operative policy in effect in February of 1997 required the patient to return for post-operative follow up as follows: one day, one week, two weeks, and one month. Patient F. V. returned the next day, February 7, 1997, and was seen by Respondent. On February 7, 1997, the patient’s head dressing was removed, the bandages on the patient's thighs were removed, and the patient was advised to follow up in 5 days to have sutures removed. Respondent’s notes for this visit included a notation that the patient was "doing great," and that the patient should return for staple removal. Respondent's notes also mention a "forehead blister" which is noted to be "clean," and a "tape blister" on the left thigh. On February 7, 1997, Patient F. V. had a blister on her left thigh. This thigh blister was located on the front of the thigh, a few inches above the kneecap. On February 7, 1997, the patient also had a smaller blister on her forehead above her left eye.10 Respondent’s post-operative progress note of the February 7, 1997, visit does not document a treatment plan for the injuries on the forehead or the thigh. However, in this regard it must be noted that there is no evidence that either blister required treatment on February 7, 1997, or that either blister appeared to require any future treatment other than follow-up observation.11 Patient F. V. returned to FCCS on February 13, 1997, and was seen again by Respondent. The written progress note for that day recorded her weight, but no other subjective or objective complaints were noted. The progress note mentions a "possible tape blister" on the patient's upper left thigh. On this occasion the top of the thigh blister had come off and an unprotected layer of skin was at that site. The thigh blister needed treatment to prevent infection. The progress note also mentions that Bacitracin, an antibiotic, was applied to the thigh blister and that the blister site was covered by a 4” x 4” piece of gauze held in place by a small piece of paper tape. There are no notes concerning the lesion on the forehead. In this regard it must again be noted that there is no evidence that the forehead blister required any treatment at the time of this visit.12 Patient F. V. was advised to come back in one week to have the staples removed. The next entry in the progress notes states that Patient F. V. returned three days later, on February 16, 1997. Although the matter is not entirely free from doubt, the visit recorded as having occurred on February 16, 1997, probably actually took place on February 17 or 18, 1997.13 The progress note for that visit first notes that the patient was happy. It also notes that the stitches and the staples were removed. The progress note concludes with the following: "Script given for Silvadene 1% due to burn on leg and forehead." It is not clear from the progress notes who saw the patient at this visit, but it was probably one of the physicians (other than Respondent) who worked at FCCS, inasmuch as a prescription was written during this visit. Both Bacitracin and Silvadene were appropriate antibiotics for the patient's thigh and forehead lesions. Silvadene has a more penetrating quality to it and can penetrate scabs better. On February 24, 1997, Patient F. V. called the FCCS regarding the lesion on her leg. A dermatologist friend of hers had advised her to discontinue the Silvadene cream and to contact her physician about the lesion. Patient F. V. wanted Respondent to see her. She was advised to come in the next day to see one of the other physicians employed at FCCS. The next day (February 25) Patient F. V. returned to FCCS for further follow up treatment. She was seen by Dr. Alexander, one of several physicians employed by FCCS, who advised her to leave the lesion dry and see how it heals. The lesion on the thigh was described as "dry and scabbed." The patient was very unhappy during this visit. On February 26, 1997, Patient F. V. returned to FCCS and was seen by Respondent. Respondent noted that she was doing very well “except for left leg burn.” Respondent also noted as a possible cause of the lesion on the patient's left leg: “probable ground plate sensitivity.” There are no subjective complaints recorded. The record also does not contain any type of plan concerning the left leg burn. In this regard it should be noted that on the previous day Dr. Alexander had advised the patient to leave the burn dry and see how it heals. In all probability, during the following 24-hour period there was no change to the lesion on Patient F. V.'s thigh that required any additional treatment plan other than the "wait and see" plan noted by Dr. Alexander the day before. Photographs were taken on the visit of February 26, 1997. There are several post-operative photographs of the left leg lesion. On March 20, 1997, Patient F. V. returned to FCCS and was seen by Respondent. Respondent noted that she was doing better and that her leg lesion was improving. There are no clearly documented objective or subjective complaints. There is no plan documented other than return ASAP. Respondent’s medical record of March 20, 1997, does not document a plan for the course and scope of treatment for Patient F. V. Although Respondent documents a concern with the forehead, he did not document what concerns he had or how he planned to treat the concerns.14 After the visit of March 20, 1997, Patient F. V. did not return to the FCCS for over a year. On June 4, 1998, Patient F. V. was seen by two physicians at FCCS. Both physicians examined Patient F. V. and then prepared progress notes reporting what they had observed and proposing a plan to address what they had observed. Respondent discontinued his professional relationship with FCCS on or about April 1, 1997. Prior to leaving FCCS, Respondent reviewed all of his charts and had the opportunity to make sure all the histories and physicals were complete. To the best of Respondent's recollection, when he left FCCS there were no charting problems in any of the medical charts of any of the patients who had been treated by Respondent at FCCS. Patient F. V. returned to FCCS on June 4, 1998, and was seen by Dr. Alexander. Dr. Alexander was another plastic surgeon who worked at FCCS. Following his examination of Patient F. V. on June 4, 1998, Dr. Alexander prepared a progress report reading as follows: "6/4/98. Depressed area above the left eye on the forehead, dime size. Second degree burn, one- inch long depigmented burn scar left medial thigh. Also two- inch wide scar, medial forehead lift scar. Plan, revise all scars." On June 4, 1998, patient F. V. was seen by another physician identified in progress notes as "Dr. H."15 Following his examination of Patient F. V. on June 4, 1998, the second physician ("Dr. H") prepared a progress note reading as follows: Dr. H, 6/4/98 1.7 x .8 centimeter hypopigmented scar with surrounding hypopigmentation 2mm. flat non-tender .8 x .6 centimenter thin skin left upper forehead appears like lower dermis mobile to touch but doesn't animate on her own. Can't really see scar - just notice conture deformity. Rec - Excise leg scar vertically. ? Alloderm under depressed scar left forehead. Discuss with patient. G.L.A.D. Patient F. V. has elected not to have scar revision surgery. When Respondent discontinued his professional relationship with FCCS, he left all of the medical records concerning his care and treatment of Patient F. V. in the possession and custody of FCCS. Respondent did not take any copies of any medical records concerning Patient F. V. when he discontinued his relationship with FCCS. It was not until the latter part of 1999 that Respondent first obtained possession of a copy of the FCCS medical records concerning Patient F. V. He obtained those copies by means of a discovery request. As of the time of the final hearing in this case, several documents were missing from the medical records concerning Patient F. V. maintained by FCCS. The missing documents included the following: a detailed pre-operative report; a detailed operative report prepared by Respondent or prepared by someone acting pursuant to Respondent's direction and control; a financial check list; written documentation of medications provided to or prescribed for the patient; and a sheet of pre-surgery instructions regarding what the patient should and should not do. At several times during the period from 1998 through 2002, the medical records at FCCS concerning Patient F. V. were searched in an effort to locate a detailed pre-operative report and/or a detailed operative report. Such documents could not be found in the FCCS records on those occasions. Without an operative note (or some other form of detailed information regarding the manner in which the surgical procedures at issue were performed) it is virtually impossible to reach a reliable determination as to what caused the injuries on the patient's left thigh and forehead. On the basis of the record in this case, the causes of the forehead and thigh lesions observed on Patient F. V. on February 7, 1997, are unknown. Because the causes are unknown, it is also unknown whether such lesions were caused by act or omission by Respondent. And, because no specific act or omission by Respondent has been identified as the cause of either lesion, it is impossible to determine whether any such unidentified act or omission, if any, might or might not have constituted a departure from the applicable standards of care. There is no clear and convincing evidence that Respondent "fail[ed] to properly administer liposuction, causing full-thickness burns to Patient F. V.'s left thigh area." There is no clear and convincing evidence that Respondent "fail[ed] to properly perform the brow lift, causing full-thickness burns to Patient F. V.'s forehead." There is no clear and convincing evidence that Respondent "improperly plac[ed] or fail[ed] to appropriately supervise the placement of the grounding pads of the Bovie unit." There is no clear and convincing evidence that Respondent did "not adequately maintain[ ] his surgical equipment relating to liposuction and brow lift procedures." There is no clear and convincing evidence of Respondent's "failing to properly document Patient F. V.'s preoperative consultation." There is no clear and convincing evidence of Respondent's "failing to properly document a post-operative report of the procedures." There is no clear and convincing evidence of Respondent's "failing to complete or create an appropriate operative report for the procedures."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine issue a final order in this case dismissing all parts of both counts of the Amended Administrative Complaint because none of the violations alleged in the Amended Administrative Complaint have been proved by clear and convincing evidence. DONE AND ENTERED this 31st day of December, 2003, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 31st day of December, 2003.
Findings Of Fact Petitioner, Richard W. Merritt, D.C. is a chiropractic physician licensed under Chapter 460, Florida Statutes, and is actively practicing chiropractic in the State of Florida. By this action Petitioner challenges the validity of Rule 61F2- 17.007(6)(a), F.A.C.. The pertinent portions of the challenged Rule purport to define several terms to be utilized by the peer Review Committee in evaluation of chiropractor performance as brought before it. Specifically in issue are provisions of Rule 61F2-17.007: (6)(a) "Appropriate medical treatment" as used in Section 460.4104, Florida Statutes, is defined as a determination made of treatment and other services performed, which by virtue of a substantiated and properly diagnosed condition, appears to be of a type consistent with that diagnosis as reviewed by the peer review committee. "Properly utilized services" as used in Section 460.4104, Florida Statutes, means a determination made of appropriate medical treatment services rendered including frequency and duration which are substantiated as being necessary and reasonable by clinical records and reports of the provider as reviewed by the peer review committee. "Appropriate costs" as used in Section 460.4104, Florida Statutes, mean a determination made of charges submitted for properly utilized services performed which appear to be necessary and reasonable charges for similar provider services in the judgement of the peer review committee. As a licensed chiropractic physician subject to Chapter 460, Florida Statutes, Petitioner is substantially affected by the challenged rule because: he is a "health care provider" as defined by Section 460.403(5), Florida Statutes, and as used in Section 460.4104, the specific authority for and statute implemented by the challenged rule; the challenged rule expressly applies to health care providers and establishes definitions of statutory standards applicable to the peer review of the practice of chiropractic by chiropractic physicians including Petitioner; and the rule, when applied in conjunction with Section 460.4104, Florida Statutes, may subject chiropractic physicians, including Petitioner, to potential penal sanctions for the practice of chiropractic which violates the definitions incorporated in the challenged rule applied consistent with the statutory standard. The Respondent, Department of Business and Professional Regulation, (now Agency for Health Care Administration), Board of Chiropractic, (Board), promulgated the challenged rule and has the responsibility for implementing it as well as the whole of Chapter 460, Florida Statutes and Chapter 61F2, F.A.C..
The Issue As stipulated by the parties at the commencement of the hearing, the following cases were settled and are no longer at issue in the proceeding: Case No. 88-0642 Patient - R. G. 88-0643 J. G. 88-1261 L. C. 88-1879 P. C. 88-2327 K. P. The remaining cases and amounts at issue are: AMOUNT RETROACTIVELY AMOUNT PAID DENIED BY PATIENT CASE NO. BY MEDICAID MEDICAID F. C. 88-1154 $ 6,288.49 $ 6,288.49 C. M. 88-1155 $ 2,418.65 $ 2,418.65 D. M. 88-1258 $ 8,707.14 $ 8,707.14 A. J. 88-1259 $ 6,772.22 $ 1,451.19 S. F. 88-1260 $14,511.90 $14,511.90 Lottie C. 88-1379 $14,028.17 $14,028.17 The parties stipulated that all the patients were personally eligible for Medicaid and that the disallowances were not based on lack of quality of care or Orlando General's failure to meet all quality standards. (Prehearing Stipulation, filed August 29, 1988) The issue for determination is whether in the cases above (except for A. J.) the admission and treatment at Orlando General were "medically necessary". For A. J., HRS contests the medical necessity of the last three days only.
Findings Of Fact Orlando General is a state-licensed acute-care hospital in Orange County, Florida. Orlando General participates in the Florida Medicaid program. Randall Greene, D.O., is now, and was at all relevant periods, Director of Orlando Generals 28-day inpatient chemical dependency (CD) program. The program treats both alcohol and drug abuse patients. Dr. Greene is certified as an addictionologist by the American Society of Physicians Treating Alcohol and Chemical Dependencies. Dr. Greene has no pecuniary interest in admitting Medicaid patients to the CD program. He is reimbursed by Medicaid, but only at 10 to 20 percent of his usual and customary fee, an amount which does not cover his administrative costs of the paperwork for Medicaid. In addition, the unit has 26 beds. The acceptance of a Medicaid patient precludes the use of that bed for a commercially insured, more lucrative, patient. In the first 72 hours after admission to Orlando General's CD program, the patient is evaluated to see whether he or she is appropriate for continued hospitalization or whether it is possible to simply complete detoxification and refer the patient to an outpatient program. The evaluation includes the taking of a history, a physical examination and a psychosocial evaluation by a certified counselor. In a staffing after the evaluations the decision is made to retain the patient in the program, or to refer the patient to a residential or outpatient program. The goals of Orlando General's CD program are medical detoxification, medical evaluation and treatment of ancillary medical problems and introduction to the 12-step recovery program called Alcoholics Anonymous (AA) or Narcotics Anonymous (NA). The patient is also introduced to the disease concept of chemical dependency and is provided the tools to lead a chemical-free life style. Upon discharge, the patient is often referred to a non-hospital residential program or to an outpatient program. The patients who are admitted to Orlando General's CD program are "end- state" abusers. This means their disease of alcoholism or drug abuse has progressed to the stage where they have lost control and the alcohol or drug becomes an obsession. Liver disease and other medical problems are prevalent. They are unable to function socially, are morally degraded, and have impaired thinking. They are paranoid and experience hallucinations. If untreated, the next stage is death. F. C. was a 36-year old male patient who was treated at Orlando General for chemical dependency from December 12, 1986, until January 2, 1987. He used heroin, cocaine and marijuana and was spending from $70 to $300 per day on his habit. He was inducing the heroin and cocaine intravenously. He had been involved in criminal activity to support his addiction and had been in prison. Prior outpatient treatments were unsuccessful. In the initial medical work-up he tested positive for AIDS-related complex and for hepatitis. He was placed on detoxification using methadone, but did not tolerate the drug and was switched to Catapres. Catapres must be closely supervised, as it can cause life-threatening low blood pressure. In addition to his detoxification and his counselling, F. C. received symptomatic treatment by a specialist for his infectious diseases. He was maintained on body and fluid precautions. He was progressing and had accepted the fact that he would need additional treatment in a residential setting after discharge from Orlando General; however, he was confronted in a group session with regard to his need to avoid contact with other patients involving exchange of bodily fluids. He then left the hospital against medical advice. (Petitioner'S Exhibit 1, discharge summary). C. M. was a 28-year old female who was treated at Orlando General from October 10, 1986, until October 14, 1986. She was unemployed and spending $200 a day on whisky and free- base cocaine. She had syphilis and gonorrhea and a trichomonas infection. She had blood in her urine and was malnourished. She also had a skin infection. She suffered from organic brain syndrome and experienced memory loss. C. M. was medically detoxed from the alcohol and cocaine. She was treated for the skin disease, venereal disease and the gynecological condition. She resisted change in her thinking and behavior and did not bond with the other patients. She was given a 3-hour pass when she said that she had to go sign some papers for her 2- month old baby. She did not return, and was discharged against medical advice. D. M. was a 27-year old female who was treated at Orlando General for chemical dependency from August 6, 1986, until August 24, 1986. She was addicted to cocaine and reported free-basing. At the time of her admission, D. M. complained of a variety of medical problems, including abdominal pain, pain on urination, constipation, and a vaginal discharge. She gave a history of thyroid disease and a deformed pancreas. She was also malnourished. She was treated for the urinary tract infection and vaginal infections. She did not require "psycho-pharmacological intervention" for her detoxification. The radiology report in her record revealed an unremarkable gall bladder and pancreatic ultrasound. Her progress notes indicate that she frequently was excused from counselling sessions when she complained of illness. A progress note dated 8/23/86 reflects that she was not cooperating: "...seems to feel ill everytime there is a group session or activity. May be reluctant to attend meetings...". (Petitioner's Composite Exhibit #1). D. M. was therapeutically discharged on August 24, 1986. Dr. Green's discharge summary states that she was difficult to deal with and failed to make significant changes. A. J. was a 24-year old male patient who was treated at Orlando General from July 9, 1986, until July 23, 1986. He was dependent on cocaine and used it intravenously and by smoking. He had a $100 to $300 a day habit and was also drinking. He had a history of blackouts. His record does not document the number of medical problems experienced by the other patients. A. J. was defiant and did not cooperate. He slept when he was supposed to be on the unit with a group. He was found in a female patient's room and was admonished. He lied about going to NA meetings. After being warned that further infractions would result in discharge, he immediately violated the rules again. He was therapeutically discharged as medically stable. S. F. was a 21-year old female patient treated at Orlando General from September 6, 1986, until October 6, 1986. She was dependent on free-base cocaine and alcohol. She was malnourished and had significantly low protein and- albumin levels. She also had tachycardia (increased heart rate) and a history of vaginitis and pelvic inflammatory disease. S. F. was referred to Orlando General by HRS, who had taken custody of her children. S. F. was therapeutically discharged when she was found to have used cocaine and alcohol while on a temporary pass. L. C. was a 54-year old female who was treated at Orlando General from December 17, 1986, until January 15, 1987. She was an alcoholic and schizophrenic. She was referred to Orlando General by Lake Sumpter Mental Health Clinic. At the time of her admission, she had a variety of medical complaints including headaches, chest pains, and abdominal pains. It was difficult to predict what complications would arise during her treatment because her mental-problems made her a poor historian. She had problems with fluctuating blood pressure and required a cardiology work-up. Her treatment was complicated by her need for medication for her schizophrenia at the same time that she needed withdrawal from chemical dependency. L. C. was discharged when she was determined to be medically stable. The plan, according to her discharge summary, was for her to be involuntarily committed under the Myers Act to a long-term residential facility. Every hospital that is a Medicaid provider must have an approved utilization review mechanism in place. This must include an admissions criteria and continued stay criteria. The mechanism must be approved by HRS' Peer Review Organization (PRO), an organization with whom HRS has contracted to conduct the state's utilization review responsibilities. One aspect of Orlando General's approved mechanism is the use of a review "screen", called an "ISD", outlining examples of the intensity of services needed to justify continued hospital treatment, the severity of illness to justify admission, and discharge criteria. This screen is used for every admission by a registered nurse on the staff of the hospital who is designated as the utilization review coordinator. If, in the nurse's opinion, the patient does not meet the criteria, the medical record is referred to a physician on the hospital's utilization review committee. This physician reviews the record to determine whether, in his judgment, medical necessity is present. If he has questions, he can discuss the case with the attending physician. If the two disagree, a third physician is consulted, also a member of the utilization review committee at the hospital, and his opinion is the tie-breaker. A further review is conducted when the hospital submits a claim for reimbursement after the patient is discharged. A list of paid claims is sent to the PRO office in Tampa, and a sample is selected for oversight review. In those cases, the PRO applies the same mechanism as the hospital, with the use of the screen by a nurse reviewer, then reference to PRO utilization review physicians. If the PRO physicians do not see a medical necessity for the admission or treatment, the attending physician is notified and is given an opportunity to respond in writing. After that response, the PRO makes its final decision. In the cases at issue here, the final PRO decision was that medical necessity was not present for the admissions, except in A. J. `s case, where only the final three days of treatment were questioned. The approved ISD screen applied to these cases was developed for psychiatric cases and is not specific to chemical dependency cases, although some criteria apply to both types of cases. Compliance with the screen is considered presumptive evidence of medical necessity and the screen is utilized by the nurse reviewer as a tool to determine which cases require further physicians' review and professional judgment as to medical necessity. The screen is not binding, therefore. Under the category, "severity of illness", the ISD screen requires such conditions as a "comatose or impending comatose patient", recent onset of"...suicide attempt, assaultive behavior, self-mutilative behavior, deliria and/or mania hallucinations (visual or auditory), total body rigidity or immobility...", and like symptoms. (Respondent's Exhibit #1). Dr. Greene concedes that the patients at issue do not meet those criteria. In support of its position that medical necessity justified Orlando General's reimbursement for each of the six patients in issue, the hospital presented Dr. Greene's testimony and that of Daniel C. Glennon, M.D. Dr. Glennon is presently Medical Director of the dual diagnosis unit at Laurel Oaks Hospital, a licensed psychiatric hospital for children and adolescents in Orange County, Florida. The dual diagnosis unit treats chemically dependent adolescents. Dr. Glennon is a certified addictionologist. Dr. Glennon is familiar with non-hospital alternatives in the area and from April 1979, until January 1986, he was Medical Director of the Metropolitan Alcoholism Council (MACO), one of the two residential treatment facilities with whom the state had a contract in the Orlando area during the relevant period. Dr. Glennon had personal knowledge of some of the patients at issue, but based his opinion at hearing on his review of their medical records and his knowledge of alternative treatment facilities. In each case, in Dr. Glennon's opinion, the admission and treatment of the six patients at Orlando General was medically necessary. Each were end-stage chemical dependents with a variety of related and unrelated medical complications, or the imminent threat of medical complication. Not all end stage chemical dependents need acute care hospitalization, but the frequency or intensity of intravenous drug usage and the use of free-base or "crack" cocaine found in most of these patients indicated the need for medical evaluation and treatment in a hospital. Not all detoxification needs occur in an acute care hospital, but the presence or the high probability of complications in each of these patients indicates the medical necessity for the treatment they received. Peter M. Macaluso, M.D., testified as an expert witness on behalf of HRS. Dr. Macaluso is also a certified addictionologist and practices in Tallahassee, Florida. Dr. Macaluso reviewed the medical records of the six patients and concluded that most needed a good, structural residential program with medical backup, but not treatment in an acute hospital setting. For his opinion, Dr. Macaluso relied, in part, on the ISD screens. Dr. Macaluso admitted that he had no knowledge of the residential programs available in the Orange County area. Residential programs vary widely in the kind and quality of services provided. During the relevant period, there were two non- hospital residential programs under state contract in the Orlando and adjacent areas, MACO, and the Center for Drug-Free Living (also known as Phoenix South). The state paid approximately $45 a day for the services in those facilities, substantially less than the approximately $500 per diem reimbursed to Orlando General. The opinions of Dr. Greene and Dr. Glennon were more credible than that of Dr. Macaluso on the necessity of admission and treatment and the availability of alternatives for the six patients. The admission and treatment of each at Orlando General was proven medically necessary. The record does not support HRS' position that Orlando General failed to comply with its approved utilization review plan with regard to the patients. Although Dr. Greene does not personally use the ISD screen, the CD program which he directs does have admission criteria. Dr. Greene does not remember whether a hospital utilization review committee physician contacted him about the cases, but under the process described by HRS nurse consultant, Nedra Mansager, the attending physician would be brought in only if the first reviewing physician had questions or disagreed that there was a medical necessity for the patient's admission and treatment at the hospital. (Transcript, p.121).
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a final order be entered approving Medicaid reimbursement in cases 88-1154, 88-1155, 88-1258, 88- 1259, 88-1260 and 88-1379, and disposing of the remaining cases in a manner consistent with the agreement of the parties. DONE and ENTERED this 23rd day of February, 1989, in Tallahassee, Leon County, Florida. MARY CLARK, 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 23rd day of February, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-0642 The following constitute my rulings on the findings of fact proposed by each party. Petitioner's Proposed Findings of Fact Adopted in paragraph #1. Adopted in paragraph #2. Adopted in paragraph #3. Adopted in paragraph #4. Adopted in paragraph #2. Adopted in paragraph #5. 7.-15. Rejected as unnecessary. 16.-30. Adopted in substance in paragraph #6 31.-35. Rejected as cumulative and unnecessary. The conclusion as to medical necessity is adopted, however, in paragraph #23 36.-55. Adopted in substance in paragraph #7 56.-72. Adopted in substance in paragraph #8. 73.-84. Adopted in substance in paragraph #9. 85.-97. Adopted in substance in paragraph #10. 98.-113. Adopted in substance in paragraph #11. 114.-115. Rejected as inconsistent with the weight of evidence. (The patient's chart does not support these finding.) 116. Adopted in paragraph #23. 117. Adopted by implication in paragraph #16. 118. Adopted in paragraphs #5 and #20. 119. Adopted in paragraph #22. 120. Rejected as ambiguous. The record establishes only that MACO did not have a methadone license and did not "routinely provide drug services." Transcript, p.116, lines 2-4. 121. Adopted in paragraph #16. Respondent's Proposed Findings of Fact Addressed in background. Addressed in conclusion of law #3. Adopted in paragraphs 1 and 2. Rejected as immaterial. Substance abuse patients can be treated in a non-hospital setting, as found in paragraph #20.The issue, however, is the need of these six patients. HRS failed to rebut the competent testimony by Drs. Greene and Glennon that these patients needed the acute-care hospital treatment. HRS' witnesses could not provide specific information on the alternate programs in Orlando. They could only describe alternate types of treatment facilities generally. Adopted in part in paragraph #22, otherwise rejected as irrelevant. Rejected as contrary to the evidence. If no alternatives available, the patient must be treated in the hospital. Rejected as contrary to the evidence. Rejected as immaterial. 9.-16. Rejected as contrary to the weight of evidence. Adopted in paragraphs #12 and #13. Adopted in paragraph 13, except that the evidence (Ms. Mansager's testimony) does not establish that the attending physician is consulted in every case by the "physician advisor." Adopted in paragraph 17, except for the conclusion that the plan required consultation with the attending physician. Rejected as immaterial. Rejected as unsupported by the record. Rejected as contrary to the evidence (the conclusion that medical necessity was not met), otherwise adopted in paragraph 16. 23.-26. Rejected as cumulative and immaterial. 27. Rejected as contrary to the weight of evidence. 28.-30. Rejected as irrelevant. COPIES FURNISHED: James A. Burt, Esquire Scott A. Satell, Esquire 118 East Jefferson Street Orlando, Florida 32801 Jay Adams, Esquire Richard Bellak, Esquire 101 North Monroe Street Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 S. Power, Clerk Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether Respondent should be determined to be found in violation of Florida's Medical Practice Act for gross negligence or failure to practice medicine with that level of care, skill, and treatment recognized by a reasonably prudent similar physician as being acceptable under the circumstances or for _ ) failure to keep written medical records justifying the course cf treatment of a patient throughout seven months of her pregnancy? ( If so as to either charge, what is the appropriate discipline to be imposed by the Board of Medicine?
Findings Of Fact The Parties Petitioner, the Agency for Health Care Administration, is within the Department of Business and Professional Regulation, together with the Board of Medicine, the regulatory authority charged with regulating the practice of medicine in the State of Florida. Section 20.42 and Chapter 458, Florida Statutes. Respondent, Neville Clement Jack, M.D., is the holder of a license to practice medicine in Florida, license number ME 0046020. Prior Discipline by the Board of Medicine .. While holding license number ME 0046020, Dr. Jack has ) been disciplined twice by the Board of Medicine. He was first disciplined by a final order dated August 26, 1994. He had been charged by administrative complaint with ( violating Section 458.33l(l)(c), Florida Statutes, in that he had entered a plea of nolo contendere in the Thirteenth Judicial Circuit Court for Hillsborough County to seven counts of petit theft. The plea was based on criminal charges in which he was accused of defrauding Medicaid of $11,227.00 by billing Medicaid for services he had not provided. Dr. Jack did not contest the factual allegations in the administrative complaint. Dr. Jack was fined $2,500.00 and ordered to subject his practice to procedures designed to achieve quality assurance in the practice. Dr. Jack was disciplined again by a final order entered December 13, 1995. In this second proceeding, Dr. Jack was charged with twelve counts of violating the disciplinary C provisions of Chapter 458, Florida Statutes. Six of the counts charged Dr. Jack with failure to practice medicine with reasonable safety, two charged him with medical records violations, one with making deceptive representations in the course of his practice and one with inappropriate prescription of legend drugs. In entering a consent order with the Agency for Health Care Administration, Dr. Jack neither admitted nor denied the charges. The final order disposed of the case by fining him $5,000 and placing him on probation for a two year period effective December 5, 1995. Of the seven cases of patients whose treatment by Dr. Jack led to the twelve counts of violations of the Medical Practice Act in the administrative -"- ) complaint, issued in this second proceeding, three -cases, in part, consist of charges involving failure to respond to telephone calls or pages in a timely manner; three also consist of charges Dr. Jack failed to be present at critical moments in obstetrical care, including delivery, and follow-up or postpartum care. Failure to respond to pages or telephone calls at critical moments of need by an obstetrical patient is at the heart of this case, a case involving prenatal care of A.W., a woman who had entrusted her first pregnancy to Dr. Jack. Patient A. W.'s Obstetrical Care Prior to October 1992 In early 1990, Dr. Jack admitted a new patient to his practice of gynecology: A.W. Dr. Jack and A.W. had know each other prior to establishment of their physician-patient relationship because they were members of the same church. A little more than two years later, when Patient A.W. suspected that she might be pregnant, she made an appointment with Dr. Jack's office. If pregnant as she suspected, A.W. thought Dr. Jack would be the ideal person to provide her with obstetrical care. She been his gynecological patient for more than two years. In addition, she had known him for some time and had always believed him to be a reputable physician. In fact, she had seen Dr. Jack's name listed in her Humana provider publication as both a gynecologist and an obstetrician. In addition to thinking Dr. Jack would be an ideal obstetrician for prenatal care and delivering the baby, A. W., ) knew that if she were pregnant, she did not want the baby to be delivered a birthing center. She wanted the baby to be delivered at a hospital by a reputable obstetrician. In her mind, Dr. Jack was that obstetrician. He was the obstetrician whom she felt she could trust with a moment extremely important to her and her child-to-be: the baby's birth. A.W. presented to Dr. Jack's office on May 8, 1992 with indications of pregnancy. Dr. Jack conducted a full physical examination of her, including a sonogram. She was diagnosed as pregnant with an expected delivery date of December 21, 1992. Dr. Jack accepted A.W. as a prenatal patient. Unbeknownst to A. w., however, Dr. Jack, in May of 1992, did not have privileges at any hospital. He was not able and knew he was not able, therefore, to deliver A. W.'s baby at a hospital. It is not clear from the record why Dr. Jack did not have privileges at any of the local hospitals. It may have been because he had been convicted of seven criminal counts of petit theft involving medicaid fraud. It may have been because of the charges in the two cases for which he was disciplined several years later by the Board of Medicine. Whatever the basis for the loss of privileges, however, the fact remains: from the moment A.W. presented in May of 1992 throughout the course of care he provided A.W. while she was pregnant, Dr. Jack did not have privileges at any local hospital at which he could have delivered A.W.'s baby. At her initial visit the time most appropriate for the information to be communicated to a pregnant woman, A.W. was ' - \ not informed by either Dr. Jack's office staff or Dr. Jack, himself, that Dr. Jack did not have privileges at a local hospital. Nonetheless, for th·e next few months, A.W.'s pregnancy and prenatal care proceeded uneventfully. Dr. Jack provided A.W. with appropriate prenatal care, such as checking fetal heart tone, analysis of weight gain, checking growth of the fetus by measuring the patient's abdomen, and performing urinalyses. But, Dr. Jack did not refer A.W. to an obstetrician for the expected delivery. And A.W., not knowing that Dr. Jack could not conduct the delivery at a hospital, made no attempt to contact an obstetrician. During several of the visits to Dr. Jack's office prior to October of 1996, A.W. made known her intention to have ) the baby delivered at University Community Hospital ("UCH") in discussions with Dr. Jack's staff. It may be that staff members who participated in these discussions thought A.W. had been informed as part of standard office procedure of the lack of Dr. Jack's privileges. But, such procedure had not been followed in the case of A.W. At none of the times A.W. discussed delivery at UCH did the staff inform A.W. that Dr. Jack did not have privileges at UCH or, for that matter, at any other hospital in the area. Neither did Dr. Jack inform her of the status of his privileges at local hospitals. A.W.'s pregnancy continued to·proceed uneventfully until mid-October. ) Prenatal Care in October and November, 1992 On October 16, 1996, A.W., then close to commencement of her eighth month of pregnancy, presented to Dr. Jack with complaints of a urinary tract infection. Two weeks later, she presented a second time with symptoms which Dr. Jack diagnosed as a urinary tract infection and for which he prescribed Bactrim. Dr. Jack saw A.W. for the infection on November 2, 9 and 11, 1992. Following the November 2 office visit, Dr. Jack prescribed Amoxicillin. Following the November 9 visit, he prescribed Amoxicillin again. On November 11, 1992, Dr. Jack ordered a culture to determine the origin of the infection because A.W. was not responding to the prescribed antibiotics. On one of these visits, little more than one month prior to the expected delivery of the baby, Aw. was accompanied ( by W.W., her husband. W.W. expressed to Dr. Jack his concern about the antibiotic treatment received by A.W. and asked why she wasn't being hospitalized. W.W. thought his wife should be monitored in a hospital since the infection had lingered so long and seemed serious. W.W. was especially concerned since the infection was occurring while A.W. was experiencing a first-time pregnancy. The meeting between A.W., W.W., and Dr. Jack lasted twenty minutes. At no time during the meeting did Dr. Jack inform W.W. that he did not have privileges at any hospital. Nor did Dr. Jack inform W.W. that he was providing prenatal care only and that it was going to be necessary for him and his wife to obtain an obstetrician for the delivery. On November 13, 1996, A.W. saw Dr. Jack at his office again in order to have performed a sonogram, a procedure standard near the commencement of the last month of a full-term pregnancy. At the November 13 office visit, the staff informed A.W. that Dr. Jack "was not delivering right now, so ... he had other doctors who were delivering for him." Tr. 29. This was the first time that A.W. had ever heard or been informed that Dr. Jack did not have hospital privileges and would not be delivering the baby. When asked whether she wanted the delivery at UCH or another hospital, A.W., consistent with her earlier discussions with Dr. Jack's staff, answered UCH. In response, Dr. Jack's ) staff told A.W. that an appointment would be made in the first week of December for A.W. to see Dr. Reimer, an obstetrician with privileges at UCH. Consistent with the default up until November 13, 1992, by Dr. Jack and his staff in informing A.W. of his lack of privileges, Dr. Jack's records do not reflect that he ever informed A.W. that he did not have privileges. Likewise, on the November 13, 1992, when A.W. was finally and for the first time informed of the status of his privileges, Dr. Jack's records do not reflect that A.W. was informed. In light of the revelation on November 13, 1992, that Dr. Jack would not be delivering her baby, A.W. accepted the appointment made for her with Dr. Reimer. It was not A.W.'s \ // independent decision, however, to avail herself of Dr. Reimer's obstetr ical care at this late stage in her pregnancy. The decision to accept the appointment was thrust upon A.W. by the ( circumstances of the late revelation of the status of Dr. Jack's privileges. A.W made none of the arrangements to see Dr. Reimer. The arrangements were handled solely by Dr. Jack's staff. A.W. was told by Dr. Jack's staff that her records were being copied and sent to Dr. Reimer. Contrary to this representation, however, none of A.W.'s records were transmitted to Dr. Reimer's office. Obstetrical Care in December 1992 On the day of her appointment with Dr. Reimer during the first week of December, A.W. attempted to see Dr. Reimer but she could not find his office. She went to Dr. Jack's office for directions but, by the time she reached his office, the time ( for the appointment with Dr. Reimer had passed. A.W. had an appointment scheduled with Dr. Jack for the upcoming Friday afternoon, December 4, at 3:30. Dr. Jack's staff made a second appointment with Dr. Reimer for one hour before: 2:30 p.m., the afternoon of December 4. With the benefit of the new directions, A.W. found Dr. Reimer's office in time for her 2:30 appointment that Friday afternoon. Dr. Reimer's office refused, however, to allow A.W. to see Dr. Reimer because it did not have her prenatal records or any other medical records of hers. A.W. returned to the office in order to obtain the records, herself, and to transport them back to Dr. Reimer's office. In addition she intended to ( --, see Dr. Jack for her 3:30 appointment. When she arrived at the ) Dr. Jack's office, however, it was closed. A.W. attempted to reach Dr. Jack by telephone in the hope that his answering service would be able to inform him of the need to return her call, but this attempt, too, proved unsuccessful. At hearing, A.W. described her predicament on the afternoon of December 4, 1992, in the ninth month of her pregnancy and little more than two weeks from the expected birth of her child, in response to the question, "[h]ow were you feeling on that day?" A bit heavy [and in slight discomfort] and I just knew it was three weeks I hadn't seen a doctor, and I knew I had to see somebody if Dr. Reimer didn't see me ... (Tr. 32.) ) December 5, 1992 In the early morning of December 5, A.W.'s slight discomfort of the day before had become abdominal pain. At approximately 7 a.m., A.W. made the first telephone call of many calls she made throughout the day to Dr. Jack's office. As the day wore on with no response from Dr. Jack, the pain grew worse. Finally at 5 p.m., Dr. Jack returned the call. Over the telephone, Dr. Jack diagnosed A.W.'s condition as false labor. After the diagnosis by telephone, the abdominal pain continued to grow worse until it became excruciating. At approximately 8:50 p.m., A.W. reached Dr. Jack by telephone and told him that she wanted to go_ to the hospital. At this moment of A.W.'s worsening condition and what certainly sounded from A.W.'s description of symptoms to be a serious situation, Dr. Jack responded by telling her to call Dr. Reimer. In response to a question on direct examination about whether Dr. Jack had met the standard of care in this case, the agency's expert witness, Dr. Pierre Bouis, testified, that to meet the standard of care an obstetrician not able to deliver must "do everything possible to make sure that the patient is cared for by an appropriate facility and/or physician." (Tr. 140.) Without the required standard of care, that is without any assurance whatsoever of being cared for by an appropriate physician, A.W. presented to the emergency room at UCH at 9:00 C p.m. She asked the attendants to call Dr. Reimer. Dr. Reimer was called but because he had not seen A.W. and did not have any of her records, he declined to come to the hospital. Nurses at UCH examined A.W. Observing that her abdomen was very hard and unable to detect a fetal heart tone, the nurses called Dr. Commedore, the emergency on-call obstetrician for UCH. Dr. Commedore admitted A.W. to UCH and conducted an examination. There were no fetal heart tones. Furthermore, after conducting ultrasound at bedside and other diagnostic procedures, Dr. Commedore detected no fetal movement. Dr. Commedore diagnosed A.W. as having suffered abruptio placenta, premature separation of a normally implanted placenta. Abruptio placenta places an unborn child in great jeopardy because of loss of oxygen in the baby's bloodstream. A Cesarean section was performed after the failure of ) inducement of labor. Dr. Commedore delivered a stillborn baby boy. An autopsy revealed the stillborn child to have no congenital abnormalities, a normal three vessel umbilical cord and lungs with congestion and meconium aspiration. Abruptio placenta suffered on December 5, 1992, a day spent by A.W. beginning at 7 in the morning until 5 p.m. that evening trying to contact Dr. Jack, had caused the stillbirth of the child of A.W. and W.W.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: that the Board of Medicine enter a final order finding Respondent to have violated both paragraphs (m) and (t) of Subsection 456.331(1), Florida Statutes and revoking his license to practice medicine. If the Board should choose a penalty less severe than revocation, Dr. Jack should be prohibited from practicing obstetrics, including the provision of prenatal care, for the remainder of his practice as a physician licensed by the Board of Medicine. DONE AND ENTERED this 24th day of December, 1996, in Tallahassee, Leon County, Florida. - , v--z (fLJiL. - ClvID M. MALONEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1996. COPIES FURNISHED: Steven Rothenberg, Esquire Agency for Health Care Administration 9325 Bay Plaza Blvd., Suite 210 Tampa, Florida 33619 Neville Clement Jack, M.D. 6814 Rosemary Drive Tampa, Florida 33625 Dr. Marm Harris E ecutive Director Agency for Health Care Administration Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 )
