07-000511PL Department Of Health, Board Of Osteopathic Medicine vs. Barry J. Kaplan, D.O. Status: Closed Recommended Order on Friday, September 7, 2007.

Summary: Failure to properly diagnose extent of ptosis results in inappropriate augmentation which fails to remedy problem.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF ) )

OSTEOPATHIC MEDICINE, )

)

Petitioner, )

) Case No. 07-0511PL

vs. )

)

BARRY J. KAPLAN, D.O., )

)

Respondent. )

RECOMMENDED ORDER

On April 19, 2007, a formal administrative hearing in this

case was held in Orlando, Florida, before William F.

Quattlebaum, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: J. Blake Hunter, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802-0753

STATEMENT OF THE ISSUES

The issues in this case are whether the allegations of the

Administrative Complaint are correct, and, if so, what penalty

should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated November 21, 2006, the

Department of Health, Board of Osteopathic Medicine

(Petitioner), alleged that Barry J. Kaplan, D.O. (Respondent),

violated certain Florida Statutes related to the practice of

osteopathic medicine. The Respondent disputed the allegations

and requested a formal administrative hearing. On January 25,

2007, the Petitioner filed a Notice of Scrivener's Error

correcting three "typographical errors" in the Administrative

Complaint. On January 29, 2007, the Petitioner forwarded the

matter to the Division of Administrative Hearings, which

scheduled and conducted the hearing.

At the hearing, the Petitioner presented the testimony of

three witnesses and had Exhibits numbered 1 through 10 admitted

into evidence. The Respondent testified on his own behalf and

had Exhibits numbered 1, 5, 6, 10, and 14 admitted into

evidence. The hearing Transcript was filed on July 7, 2007.

Both parties filed Proposed Recommended Orders that have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times material to this case, the Respondent was

an osteopathic physician, holding Florida license

number OS 4478, with an address of record of 480 North Orlando

Avenue, Suite 118, Winter Park, Florida 32789.

2. On August 10, 2005, Patient B.C. met with the

Respondent in his office. Patient B.C. went to the Respondent's

office with a friend who was present during the consultation

between the Respondent and Patient B.C.

3. At the time of the meeting, Patient B.C., a 42-year-old

female and the mother of three children, was seeking a breast

lift to correct her "drooping" breasts.

4. Prior to meeting with the Respondent, Patient B.C.

completed an information questionnaire. The form directed a

patient to "check off" various topics about which the patient

wanted information. The form listed two topics specifically

related to breasts: "breast augmentation" and "breast

reduction." Patient B.C. checked the box for augmentation.

5. At the hearing, Patient B.C. testified that she was

familiar with breast lift procedures because a family member had

undergone a similar procedure. Patient B.C. testified that

during her consultation with the Respondent, she specifically

told the Respondent that she was not seeking to have her breasts

enlarged, but was unhappy with the drooping appearance and

wanted her breasts lifted to correct the droop.

6. According to Patient B.C., the Respondent told her that

she was not an appropriate candidate for a breast lift and that

he could achieve the result she sought with an implant, with the

possibility of a subsequent "crescent lift" after healing from

the augmentation.

7. The medical term for breast droop is "ptosis." Breast

ptosis is graded according to the "Regnault" scale into one of

three categories based upon the location of the nipple areolar

complex relative to the inframmary fold.

8. Although there was some disagreement among testifying

experts about the grade assigned to Patient B.C.'s ptosis, the

greater weight of the evidence establishes that Patient B.C.'s

ptosis was severe and was classified as Grade III.

9. According to the testimony of Dr. Anthony Dardano, a

grade one ptosis can be treated with augmentation to increase

breast volume. A grade two ptosis should generally be treated

with a breast lift. A grade three ptosis should be treated with

a mastopexy, of either a full-scar or a vertical type.

Augmentation of a grade three ptosis essentially results in a

larger drooping breast.

10. Dr. Dardano testified that Patient B.C.'s ptosis was

of such severity that a full mastopexy procedure was required to

correct it and that an augmentation and crescent lift would not

have corrected the ptosis. Dr. Dardano's testimony was

persuasive and is accepted.

11. During the initial consultation, the Respondent

described the augmentation procedure to Patient B.C., and she

ultimately became convinced that the augmentation and possibly a

subsequent crescent lift would correct the ptosis.

12. The Respondent disputes the patient's recollection of

the initial consultation. The Respondent testified that he

advised Patient B.C., whom he described as a "borderline"

patient, to seek the opinion of a plastic surgeon. He testified

that he did not tell her that she was not a candidate for a

breast lift and that she chose to undergo the augmentation after

being fully informed as to the entire range of surgical

procedures because she wanted to avoid scars from a mastopexy.

13. Patient B.C. had no recollection that the Respondent

had suggested that she seek the opinion of a plastic surgeon.

There was no documentation in the Respondent's medical records

that he advised her to do so.

14. On cross examination, the Respondent was asked a

number of questions related to the specific discussion he had at

the initial consultation with Patient B.C., particularly

regarding whether procedures other than augmentation were

addressed. The Respondent testified that he makes the same

presentation at initial consultations between six and ten times

daily and that he covers the full range of options at each

presentation. He testified that he does not document the

specific discussion that occurs during the initial consultation

as he does not believe that the person is his "patient" at that

time. He does not create a medical record documenting his

interaction with a patient until the patient decides to allow

him to perform surgery.

15. On redirect, he was invited by his legal counsel to

present the presentation he makes to potential patients during

initial consultations. The Respondent's response to the

question was almost wholly a discussion of the augmentation

procedure and the post-augmentation recovery period. Other than

stating that he determines whether someone is a candidate for

breast augmentation, no part of his response to the question

indicated that there was any discussion of the entire range of

mastopexy, which could address the patient's concern or that the

Respondent routinely made referrals outside his area of

expertise.

16. The greater weight of the evidence establishes that

the Respondent discusses with potential patients the procedures

that he performs. There is no credible evidence that the

Respondent advised Patient B.C. to consult a plastic surgeon

about her ptosis. His testimony that he specifically recalled

referring Patient B.C. to a plastic surgeon was not persuasive

or credible and is rejected.

17. Several months after the initial consultation,

Patient B.C. executed consent forms for the breast augmentation.

She paid a total of $4,000 in at least two installments in

advance of the surgery.

18. At the hearing, Patient B.C. acknowledged having

received and read extensive materials provided by the Respondent

as part of the informed consent process. She also researched

augmentation after the initial consultation and was aware of the

procedure prior to the surgery. Informed consent is not at

issue in this proceeding. Patient B.C. went to the Respondent

seeking a breast lift to correct the ptosis, and it is

reasonable to presume that part of the consent process was the

fact that the Respondent dissuaded her from the full breast lift

procedure (which he does not perform) and advised her that he

could achieve the results with the augmentation, perhaps

followed at a time uncertain by a crescent lift.

19. On November 25, 2005, the Respondent performed a

bilateral breast augmentation on Patient B.C. On the day of the

surgery, Patient B.C. was taken to the Respondent's office by

the same friend who had accompanied her on the initial

consultation.

20. Patient B.C. was given medication to "relax" during

the procedure, and the surgical site was numbed, but

Patient B.C. was awake throughout the procedure.

21. The Respondent's surgical note says he placed the

implants under the patient's pectoral muscle. According to the

deposition testimony of Dr. James L. Baker, M.D., a plastic

surgeon, Dr. Baker believes that the implants were placed above

the pectoral muscle. The evidence establishes that in an

appropriate candidate for augmentation, either location would

have been an acceptable placement.

22. The Respondent used Mentor High Profile 380cc saline

implants, which he filled to the maximum of 450cc with saline.

23. After inflating the implants, but before completing

the procedure, the Respondent sat Patient B.C. up and allowed

her to view the result. He also allowed Patient B.C.'s friend

to come into the room and observe the result, at which time the

friend commented on how large the implants appeared to be.

24. After the procedure, Patient B.C. returned for several

follow-up visits to the Respondent's office, and, during the

visits, she expressed her concern that her augmented breasts

were larger than she wanted. She testified that the Respondent

told her it would take time for the implants "to drop" and for

swelling to subside.

25. During the follow-up period, Patient B.C. had a

routine annual gynecological examination and discussed her

augmentation with her gynecologist, who referred her to a

plastic surgeon, Dr. Baker.

26. Patient B.C. went to consult with Dr. Baker in January

2006, by which time Patient B.C. had decided she wanted the

implants removed. She was provided three referrals by

Dr. Baker, and she chose to make an appointment to see Dr.

Orlando Cicilioni.

27. Patient B.C. met with Dr. Cicilioni in February 2006

and discussed removal of the implants, but Patient B.C. lacked

the funds to follow through with the removal. At the time of

the hearing, Patient B.C. had not yet had the implants removed.

28. Patient B.C. described her unhappiness with the

implant procedure performed by the Respondent. She testified

that the implants remained "up higher" with the breast hanging

off of the implants. Patient B.C.'s testimony is consistent

with photographs taken post-augmentation. Patient B.C.

testified that she wanted the implants removed but lacked the

funds to do so, and eventually to have the breast lift she

sought when she first approached the Respondent.

29. Comparison between pre-operative photos and those

taken at various dates following the procedure demonstrate that

ptosis is still clearly present. Although the implants have

somewhat settled into a lower position, the patient's chest area

is essentially thrust forward, the unnatural outline of the

implants visible (especially in the side view), with the

patient's breasts sitting over the implant. Portions of the

breast skin are shiny and appear to be stretched.

30. In reviewing the photographs, the Respondent asserted

that the breasts had been lifted by the augmentation. However,

the nipple-areola complex is in essentially the same position on

the breast as prior to the surgery. Very little, if any, breast

lift was achieved through the augmentation process.

31. The Respondent also testified that although

Patient B.C. could possibly benefit from a post-augmentation

crescent lift, "in all honesty, the left side might need a

little bit of a vertical component," which would require surgery

by a plastic surgeon. Dr. Kaplan testified that a crescent lift

may achieve a lift of 2 to 3 centimeters, although he testified

"I'm usually happy if I get 1 to 2."

32. Dr. Dardano identified the surgical result as a

"Snoopy dog defect," in reference to the nose of the cartoon

character, and described it as a deformity.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2006).

34. The Petitioner is the state agency charged with

regulating the practice of osteopathic medicine. Ch. 459, Fla.

Stat. (2006).

35. The Administrative Complaint charges that the

Respondent violated Subsection 459.015(1)(x), Florida Statutes

(2005), which provides as follows:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(x) Notwithstanding s. 456.072(2) but as

specified in s. 456.50(2):

1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great weight to the provisions of s. 766.102

when enforcing this paragraph. Medical

malpractice shall not be construed to

require more than one instance, event, or

act.

2. Committing gross medical malpractice.

3. Committing repeated medical malpractice

as defined in s. 456.50. A person found by

the board to have committed repeated medical

malpractice based on s. 456.50 may not be

licensed or continue to be licensed by this

state to provide health care services as a

medical doctor in this state.

Nothing in this paragraph shall be construed

to require that an osteopathic physician be

incompetent to practice osteopathic medicine

in order to be disciplined pursuant to this

paragraph. A recommended order by an

administrative law judge or a final order of

the board finding a violation under this

paragraph shall specify whether the licensee

was found to have committed "gross medical

malpractice," "repeated medical

malpractice," or "medical malpractice," or

any combination thereof, and any publication

by the board shall so specify.

36. Section 456.50, Florida Statutes (2005), provides, in

relevant part, as follows:

456.50 Repeated medical malpractice.--

(1) For purposes of s. 26, Art. X of the

State Constitution and ss. 458.331(1)(t),

(4), and (5) and 459.015(1)(x), (4),

and (5):

* * *

(e) "Level of care, skill, and treatment

recognized in general law related to health

care licensure" means the standard of care

specified in s. 766.102.

* * *

(g) "Medical malpractice" means the failure

to practice medicine in accordance with the

level of care, skill, and treatment

recognized in general law related to health

care licensure. . . .

37. Subsection 766.102(1), Florida Statutes (2005),

states, in material part, that "[t]he prevailing professional

standard-of-care for a given health care provider shall be that

level of care, skill, and treatment which, in light of all

relevant surrounding circumstances, is recognized as acceptable

and appropriate by reasonably prudent similar health care

providers."

38. The Petitioner has the burden of proving by clear and

convincing evidence the allegations set forth in the

Administrative Complaint against the Respondent. Department of

Banking and Finance v. Osborne Stern and Company , 670 So 2d 932,

935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987). Clear and convincing evidence is that which is credible,

precise, explicit, and lacking confusion as to the facts in

issue. The evidence must be of such weight that it produces in

the mind of the trier-of-fact the firm belief of conviction,

without hesitancy, as to the truth of the allegations.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

In this case, the burden has been met.

39. The Respondent takes the position that this matter is

simply the result of a patient dissatisfied with the results of

the procedure. The Respondent asserts that the patient was

fully advised as to the results that could be achieved through

the augmentation, but was told that there were no guarantees;

that the patient had a sufficient amount of time to consider the

risks and benefits of the procedure and decided voluntarily to

undergo the elective surgery; and that the patient is now

unhappy with the result.

40. The issue in this case is not that the patient is

dissatisfied with the results of the procedure. The issue is

whether the Respondent violated Subsection 459.015(1)(x),

Florida Statutes (2005), by advising the patient that an

augmentation, with the possibility of a subsequent crescent

lift, would address the issue of her ptosis.

41. The evidence establishes that the Respondent committed

medical malpractice in violation of Subsection 459.015(1)(x),

Florida Statutes (2005), by failing to properly diagnose the

extent of the patient's ptosis prior to performing the

augmentation, by utilizing implants that were too large when

filled resulting in unnatural stretching of the patient's skin

over the implants, by performing an augmentation procedure on a

patient who did not seek to have the size of her breasts

enlarged, and by incorrectly advising the patient that any

remaining ptosis following the augmentation could be remedied

with a crescent lift.

42. Florida Administrative Code Rule 64B15-19.002 sets

forth the disciplinary guidelines applicable to a violation of

Subsection 419.015(1)(x), Florida Statutes (2005). The penalty

for a first offense ranges from a minimum of a letter of concern

up to one year of probation and a $1,000 fine to a maximum of

revocation and a $10,000 fine. The penalty for a second offense

ranges from a minimum of two years of probation and a $7,500

fine to a maximum of revocation and a $10,000 fine.

43. The Respondent has been the subject of three prior

disciplinary proceedings, which have been resolved through entry

of Final Orders.

44. Department of Health Case Number 96-13724 alleged that

the Respondent had committed violations of Subsections

459.015(1)(g) and (bb), Florida Statutes (1996). The matter was

apparently resolved without an evidentiary hearing, and the

Final Order specifically stated that the Respondent neither

admitted nor denied the allegations.

45. Department of Health Case Number 2000-02429 alleged

that the Respondent had committed violations of Subsections

459.015(1)(x) and (o), Florida Statutes (1999). The matter was

apparently resolved without an evidentiary hearing, and the

Final Order specifically stated that the Respondent neither

admitted nor denied the allegations.

46. Department of Health Case Number 2003-20677 alleged

that the Respondent committed violations of Subsections

459.015(1)(x), (o), and (s), Florida Statutes (2002). The

matter was apparently resolved without an evidentiary hearing,

and the Final Order specifically stated that the Respondent

neither admitted nor denied the allegations.

47. Because none of the prior disciplinary proceedings

resulted in a determination that a statutory violation had

occurred, the instant case is treated as a first offense. As

cited above, Florida Administrative Code Rule 64B15-19.002

establishes that the penalty for a first offense ranges from a

minimum of a letter of concern up to one year of probation and a

$1,000 fine to a maximum of revocation and a $10,000 fine.

48. Florida Administrative Code Rule 64B15-19.003 provides

as follows:

64B15-19.003 Aggravating or Mitigating

Circumstances.

When either the petitioner or respondent is

able to demonstrate aggravating or

mitigating circumstances to the board by

clear and convincing evidence, the board

shall be entitled to deviate from the above

guidelines in imposing discipline upon an

applicant or licensee. Absence of any such

evidence of aggravating or mitigating

circumstances before the hearing officer

prior to the issuance of a recommended order

shall not relieve the board of its duty to

consider evidence of mitigating or

aggravating circumstances. Aggravating and

mitigating circumstances shall include, but

not be limited to the following:

(1) The danger to the public;

(2) The length of time since the

violations;

(3) The number of times the licensee has

been previously disciplined by the Board;

(4) The length of time the licensee has

practiced;

(5) The actual damage, physical or

otherwise, caused by the violation;

(6) The deterrent effect of the penalty

imposed;

(7) The effect of penalty upon the

licensee’s livelihood;

(8) Any effort of rehabilitation by the

licensee;

(9) The actual knowledge of the licensee

pertaining to the violation;

(10) Attempts by the licensee to correct or

stop violations or refusal by licensee to

correct or stop violations;

(11) Related violations against licensee in

another state, including findings of guilt

or innocence, penalties imposed and

penalties served;

(12) The actual negligence of the licensee

pertaining to any violations;

(13) The penalties imposed for related

offenses;

(14) The pecuniary gain to the licensee;

(15) Any other relevant mitigating or

aggravating factors under the circumstances.

Any penalties imposed by the board may not

exceed the maximum penalties set forth in

Section 459.015(2), F.S.

49. In this case, the Respondent has been disciplined on

three prior occasions, and penalties have been imposed in each

instance, most recently in 2003.

50. The Respondent's actions in the instant case

ultimately resulted in creating a deformity of the patient's

breasts. Additional surgery will be required, at the patient's

expense, to resolve the problem exacerbated by the Respondent's

performance of an augmentation. The patient had to marshal her

financial resources to pay for the Respondent's initial

malpractice and will have to do so again to repair the damage.

51. There has been no effort towards rehabilitation; in

fact, the Respondent has attempted to shift culpability to the

patient by asserting that the case is based merely on the

complaint of a patient who was unhappy with the results

obtained. The Respondent testified that he believed that

Patient B.C. was a "borderline" patient in terms of whether the

augmentation would resolve her ptosis, yet he performed the

procedure anyway.

52. Prior to the augmentation, he told Patient B.C. that

the augmentation would resolve the ptosis with the possible

future crescent lift. The evidence establishes that the

patient's ptosis was not amenable to correction through the

course of action suggested by the Respondent. There is no

credible evidence that any medical professional who actually

examined the patient concurs that the matter is simply one of an

unhappy patient.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Osteopathic Medicine, enter a final order finding Barry J.

Kaplan, D.O., in violation of Subsection 459.015(1)(x), Florida

Statutes (2005), and imposing a fine of $6,500; a probationary

period of three years, with such conditions as determined

appropriate by the Department of Health, including additional

educational requirements; and requiring that the Respondent

refund to Patient B.C. the $4,000 fee she paid to him.

DONE AND ENTERED this 7th day of September, 2007, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 7th day of September, 2007.

COPIES FURNISHED :

J. Blake Hunter, Esquire

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Thomas E. Dukes, III, Esquire

McEwan, Martinez & Dukes, P.A.

Post Office Box 753

Orlando, Florida 32802-0753

Pamela King, Executive Director

Board of Osteopathic Medicine

Department of Health

4052 Bald Cypress Way, Bin C-06

Tallahassee, Florida 32399-1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A-02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, Secretary

Department of Health

4052 Bald Cypress Way, Bin A-00

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.