08-004285PL
Department Of Health, Board Of Medicine vs.
Lucien Armand, M.D.
Status: Closed
Recommended Order on Wednesday, June 17, 2009.
Recommended Order on Wednesday, June 17, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH, BOARD OF )
14MEDICINE, )
16)
17Petitioner, )
19)
20vs. ) Case Nos. 08-4285PL
25) DOH Case No. 2006-38439
30LUCIEN ARMAND, M.D., )
34)
35Respondent. )
37_________________________________)
38RECOMMENDED ORDER
40Pursuant to notice, a formal hearing was held in this case
51before Larry J. Sartin, an Administrative Law Judge of the
61Division of Administrative Hearings, on April 6, 2009, by video
71teleconference between Lauderdale Lakes and Tallahassee,
77Florida.
78APPEARANCES
79For Petitioner: Diane K. Kiesling
84Assistant General Counsel
87Robert A. Milne
90Assistant General Counsel
93Department of Health
964052 Bald Cypress Way, Bin C-65
102Tallahassee, Florida 32399-3265
105For Respondent: Sean Ellsworth, Esquire
110Ellsworth Law Firm, P.A.
1141501 Collins Avenue, Suite 208
119Miami Beach, Florida 33139
123STATEMENT OF THE ISSUES
127The issues for determination are whether Respondent Lucien
135Armand, M.D., violated Section 458.331(1)(v), Florida Statutes
142(2006); Section 458.331(1)(nn), Florida Statutes (2006), by
149violating Florida Administrative Code Rule 64B8-9.009(2) and
156(4), and Section 458.351, Florida Statutes (2006); Section
164458.331(1)(m), Florida Statutes (2006); and Section
170458.331(1)(t), Florida Statutes (2006), as alleged in an Amended
179Administrative Complaint filed by the Department of Health
187before the Board of Medicine on June 20, 2008; and, if so, what
200disciplinary action should be taken against his license to
209practice medicine in the State of Florida.
216PRELIMINARY STATEMENT
218This case began with the filing by the Department of Health
229before the Board of Medicine of a four-count Amended
238Administrative Complaint, DOH Case Number 2006-38439, against
245Respondent Lucien Armand, M.D., an individual licensed to
253practice medicine in Florida. On or about July 20, 2008,
263Respondent, through counsel, filed a Petition for Formal
271Administrative Hearing and an Election of Rights form signed by
281Respondent, disputing the allegations of fact contained in the
290Amended Administrative Complaint and requesting a formal
297administrative hearing pursuant to Sections 120.569(2)(a) and
304120.57(1), Florida Statutes (2008).
308On August 29, 2008, the matter was filed with the Division
319of Administrative Hearings with a request that an administrative
328law judge be assigned to conduct proceedings pursuant to Section
338120.57(1), Florida Statutes (2008). The matter was designated
346DOAH Case Number 08-4285PL and was assigned to the undersigned.
356This case was consolidated with another case involving the
365parties, DOAH Case No. 08-4403PL, DOH Case No. 2005-63004, by
375Order of Consolidation entered September 12, 2008. The two
384cases were consolidated for purposes of hearing only. A
393separate Recommended Order is being entered in DOAH Case No. 08-
4044403PL.
405The final hearing was scheduled to be held on November 7,
4162008, by video teleconference between sites in Miami and
425Tallahassee, Florida, by Notice of Hearing by Video
433Teleconference entered September 12, 2008. The hearing was re-
442scheduled twice at the request of Respondent.
449On March 20, 2009, the parties filed a Joint Pre-Hearing
459Stipulation, in which they identified certain facts and issues
468of law they agreed on. To the extent relevant, those agreed
479upon facts and issues of law have been included in this
490Recommended Order.
492On March 31, 2009, an Order Granting Petitioners Motion
501for Official Recognition was entered.
506During the final hearing, Petitioner presented the
513testimony of Melinda Gray, Patient W.C., Christian Birkedal,
521M.D., and Angela Potter. Petitioners Exhibits 1 through 3, 6,
531and 8 through 14 were admitted. Respondent testified on his own
542behalf and had one exhibit admitted.
548The two-volume Transcript of the final hearing was filed on
558April 24, 2009. By Notice of Filing Transcript entered the same
569day, the parties were informed that the Transcript had been
579filed and that their proposed recommended orders were to be
589filed on or by May 25, 2009. May 25, 2009, was a holiday, so
603proposed orders were actually required to be filed on or before
614May 26, 2009.
617Petitioners Proposed Recommended Order and Dr. Armands
624Memorandum in Support of a Recommended Order Dismissing
632Administrative Complaints were filed on May 26, 2009. The post-
642hearing proposals of both parties have been fully considered in
652rendering this Recommended Order.
656All references to Florida Statutes in this Recommended
664Order are to the 2006 version unless otherwise noted.
673FINDINGS OF FACT
676A. The Parties .
6801. Petitioner, the Department of Health (hereinafter
687referred to as the "Department"), is the agency of the State of
700Florida charged with the responsibility for the investigation
708and prosecution of complaints involving physicians licensed to
716practice medicine in Florida. § 20.43 and Chs. 456 and 458,
727Fla. Stat.
7292. Respondent, Lucien Armand, M.D., is, and was at the
739times material to this matter, a physician licensed to practice
749medicine in Florida, having been issued license number ME 33997.
7593. Dr. Armand is board-certified in general surgery by the
769American Board of Surgery.
7734. Dr. Armands mailing address of record at all times
783relevant to this matter was 2071 Southwest 52nd Way, Plantation,
793Florida 33317. At the times relevant, Dr. Armand practiced
802medicine at 4100 South Hospital Drive, Suite 108, Plantation,
811Florida 33317. The office at which Dr. Armand practiced
820medicine was located very close to Plantation General Hospital
829(hereinafter referred to as Plantation).
8345. Dr. Armand has been the subject of three prior
844disciplinary matters arising out of five separate cases.
852Penalties were imposed in those three disciplinary matters. The
861Department summarized those disciplinary matters in paragraph 37
869of its Proposed Recommended Order:
874In DPR Case Numbers 0019222, 0019123 and
8810091224, Respondent was fined, received a
887reprimand, and was required to complete 30
894hours of Continuing Medical Education (CME)
900in general vascular surgery and risk
906management within the surgical practice. In
912Case Number 94-10100, Respondent was
917required to submit to and comply with an
925evaluation at the University of Florida, to
932pay a fine, was reprimanded, was required to
940complete twenty hours of CME in general
947surgery in performing Laparoscopic
951Cholecystectomy, and was placed on Probation
957for two (2) years. In Case Number 1999-
96558474, Respondent was restricted from
970performing Level II or above office surgery
977as defined in Rule 64B8-9.009(1)(d), Florida
983Administrative Code, until the Respondent
988demonstrated to the Board that he had
995successfully completed the University of
1000Florida Comprehensive Assessment and
1004Remedial Education Service (UF C.A.R.E.S.)
1009course and complied with all
1014recommendations, was reprimanded, was placed
1019on probation for two (2) years, was required
1027to attend the Florida Medical Association
1033Quality Medical Record Keeping for Health
1039Care Practitioners course, was required to
1045perform 100 hours of community service, and
1052was required to reimburse the Department for
1059costs.
10606. Dr. Armand, who is 70 years of age, has been practicing
1072medicine for 46 years. He has practiced medicine in Florida
1082since 1979. During the eight months prior to the final hearing
1093of this matter, Dr. Armand was working in South Sudan pursuant
1104to contract with the United States State Department.
1112B. October 6, 2006, Surgery on Patient W.C .
11217. On September 14, 2006, Patient W.C. presented to
1130Dr. Armand and was diagnosed as having a slow-growing left
1140inguinal hernia.
11428. Dr. Armand scheduled Patient W.C. for surgical repair
1151of the inguinal hernia. The surgery was scheduled for
1160October 6, 2006, at Dr. Armands office and, at the request of
1172Patient W.C., under local sedation.
11779. At approximately 9:30 a.m., October 6, 2006, Patient
1186W.C. arrived as scheduled at Dr. Armands office, accompanied by
1196his wife and child. Patient W.C., who was not asked to execute
1208any paperwork concerning the operation, was taken into a room
1218where he was directed to lie down. There were two nurses in the
1231room.
123210. Patient W.C. was given one shot of some form near the
1244site of the procedure. This shot is the only medication he
1255remembers receiving. He denied any recollection of having
1263received medication intravenously, intramuscularly, or rectally.
126911. According to Dr. Armand, Patient W.C. was given local
1279anesthesia, Xylocaine 1% and ½% during the procedure and I gave
1290some oral sedation, 10mg. of Valium, by mouth. Page 171, Lines
130119-21, Vol. II, Transcript of Final Hearing.
130812. At some point during the surgery, Patient W.C.s
1317intestines eviscerated, pushed themselves out through the
1324hernia, making the hernia impossible to repair in the office.
133413. Due to the evisceration of Patient W.C.s intestines,
1343Dr. Armand eventually closed the incision and decided to
1352transport Patient W.C. to Plantation to complete the procedure.
1361Dr. Armands testimony that he closed and took patient W.C. to
1372Plantation because Patient W.C. began fidgeting is not
1380credited.
138114. While Patient W.C. did not have any clear recollection
1391of the surgery while at Dr. Armands office, he did recall that
1403I was shaking myself and one of the nurses put something on my
1416head and I went to sleep. Page 40, Lines 20-22, Vol. I,
1428Transcript of Final Hearing. Patient W.C. later indicated that
1437[o]ne of the ladies sprayed something on my face, at which
1449point Patient W.C. went to sleep. Page 41, Lines 23-24, and
1460Page 42, Line 8, Vol. I, Transcript of Final Hearing. Patient
1471W.C. did not remember anything else from this point in the
1482surgery until he awoke at approximately 2:00 p.m., October 6,
14922006, in a room at Plantation.
149815. Patient W.C. was transported to Plantation after he
1507fell asleep by Dr. Armand.
151216. When Patient W.C. arrived at the Plantation emergency
1521representation to the emergency room physician, Cornell
1528Calinescu, M.D., was described as somewhat sedated secondary to
1537Valium and Clonidine. Patient W. C. was also described by Dr.
1548Calinescu and an emergency room nurse as able to speak.
155817. Upon admission to Plantation, Dr. Armand performed
1566emergency surgery on Patient W.C. under general anesthesia,
1574completing the procedure he had begun in his office. The
1584surgery was completed without further complication.
159018. As noted above, Patient W.C. has no recollection of
1600arriving at the Plantation emergency room, how he got to the
1611hospital, or anything else that took place after falling asleep
1621in Dr. Armands office, until he awoke in a hospital room later
1633in the afternoon.
1636C. Dr. Armands Medical Records for the October 6, 2006,
1646Surgery .
164819. Dr. Armands office notes for Patient W.C. lack any
1658documentation as to what took place in his office on October 6,
16702006. Dr. Armand did not record the date of the procedure; the
1682type of procedure performed; pre-operative care; any drugs that
1691were prescribed, dispensed, and/or administered; the type and
1699dosage of anesthetic sedation used; or post-operative care.
170720. Dr. Armands medical records for Patient W.C. also
1716failed to include any informed consent for the procedure
1725performed on October 6, 2006.
173021. As noted above, Dr. Armand did complete an operative
1740report after the emergency surgery performed on Patient W.C. at
1750Plantation.
1751D. Office Surgery; Level of Anesthesia .
175822. Florida Administrative Code Rule 64B8-9.009
1764(hereinafter referred to as the Office Surgery Rule)
1772prescribes standards for the performance of office surgery. In
1781providing those standards, the Office Surgery Rule defines three
1790levels of sedation and the conditions under which each level may
1801be achieved and must be performed. Level II and Level III
1812office surgery require registration of the physicians office to
1821perform. Dr. Armands office was not registered to perform
1830Level II or Level III office surgery at the times relevant to
1842this proceeding. Only the first and second levels of office
1852surgery are relevant to this case.
185823. Florida Administrative Code Rule 64B8-9.009(3)
1864describes the types of procedures appropriate for Level I
1873office surgery, which Dr. Armand has argued he performed on
1883Patient W.C., as follows:
18871. Minor procedures such as excision of
1894skin lesions, moles, warts, cysts, lipomas
1900and repair of lacerations or surgery limited
1907to the skin and subcutaneous tissue
1913performed under topical or local anesthesia
1919not involving drug-inducted alteration of
1924consciousness other than minimal pre-
1929operative tranquilization of the patient.
19342. Liposuction involving the removal of
1940less than 4000cc supernatant fat is
1946permitted.
19473. Incision and drainage of superficial
1953abscesses, limited endoscopies such as
1958proctoscopes, skin biopsies, arthrocentesis,
1962thoracentesis, paracentesis, dilation of
1966urethra, cysto-scopic procedures, and closed
1971reduction of simple fractures or small joint
1978dislocations (i.e., finger and toe joints).
1984. . . .
19885. Chances of complication requiring
1993hospitalization are remote.
199624. Florida Administrative Code Rule 64B8-9.009(4)
2002describes the types of procedures appropriate for Level II
2011office surgery, which the Department argues Dr. Armand utilized
2020on Patient W.C., as follows:
20251. Level II Office Surgery is that in
2033which peri-operative medication and sedation
2038are used intravenously, intramuscularly, or
2043rectally, thus making intra and post-
2049operative monitoring necessary. Such
2053procedures shall include, but not be limited
2060to : hemorrhoidectomy, hernia repair ,
2065reduction of simple fractures, large joint
2071dislocations, breast biopsies, colonoscopy,
2075and liposuction involving the removal of up
2082to 4000cc supernatant fat.
20862. Level II Office surgery includes any
2093surgery in which the patient is placed in a
2102state which allows the patient to tolerate
2109unpleasant procedures while maintaining
2113adequate cardiorespiratory function and the
2118ability to respond purposefully to verbal
2124command and/or tactile stimulation.
2128Patients whose only response is reflex
2134withdrawal from a painful stimulus are
2140sedated to a greater degree than encompassed
2147by this definition. [Emphasis added].
215225. While the Department relies in part upon the language
2162of Florida Administrative Code Rule 64B8-9.009(4) that [s]uch
2170procedures shall include, but not be limited to . . . hernia
2182repair . . . to support its argument that the procedure
2193performed by Dr. Armand on Patient W.C. was in fact performed as
2205Level II surgery, this reliance is misplaced. Regardless of the
2215proper interpretation of this language of the Rule (whether it
2225clearly puts physicians on notice that all hernia repair surgery
2235must be conducted as Level II surgery or not), at best it
2247establishes a proscription. Such a proscription, cannot,
2254however, be relied upon to establish the fact that Level II
2265surgery was performed or not. The question of whether Dr.
2275Armand performed the procedure defined as Level II office
2284surgery is the disputed issue of fact in this case. Resolving
2295this factual dispute requires an ultimate factual determination,
2303which involves the application of a legal standard (the Rule) to
2314the historical facts (what Dr. Armand actually did) as found by
2325the trier-of-fact based upon the evidence. The Rule is not
2335evidence of what Dr. Armand did; rather it is the yardstick
2346against which Dr. Armands conduct must be measured and,
2355ultimately, judged.
235726. The evidence either way concerning the level of
2366surgery performed by Dr. Armand consisted of his testimony
2375denying that Level II surgery was performed, the testimony of
2385Patient W.C. concerning his condition, the description of
2393Patient W.C.s condition by emergency room personnel, and the
2402opinion of the Departments expert witness, Christian Brikedal,
2410M.D., as to the level of surgery.
241727. Dr. Armands denial that he performed Level II surgery
2427was not convincing because it was inconsistent with the
2436patients description of his condition on October 6, 2006, and
2446the description of his condition by emergency room staff when
2456arrived at Plantation. Patient W.C. had no recollection of
2465going to the hospital or anything that transpired there until he
2476awoke at about 2:00 p.m. the afternoon of October 6, 2006.
2487Emergency room staff noted that Patient W.C. was able to talk
2498when he arrived. These facts, convincingly proved, are more
2507consistent with what constitutes Level II surgery: the patient
2516is placed in a state which allows the patient to tolerate
2527unpleasant procedures while maintaining . . . the ability to
2537respond purposefully to verbal command and/or tactile
2544stimulation. This finding is further supported by Dr. Brikedal
2553opinion that Patient W.C.s condition was consistent with having
2562undergone Level II sedatopm.
256628. Dr. Brikedal, whose testimony was convincing and
2574uncontroverted, was asked the following question and gave the
2583following answer at Page 22, Lines 7-14, Vol. I, Transcript of
2594Final Hearing:
2596Q Assuming W.C. is going to testify that
2604as soon as the complication occurred that he
2612was put to sleep and didnt wake up until he
2622was in the hospital, are you able to reach
2631any conclusions about the level of sedation
2638that occurred?
2640A He would have to have been given a
2649sedative I.V. or I.M. to be that sleepy.
2657This opinion, as to Patient W.C.s condition on October 6, 2006,
2668supports a finding that Patient W.C. was under Level II
2678anesthesia while surgery was being performed in Dr. Armands
2687office. Having found that Patient W.C. was under the level of
2698sedation described in the definition of Level II office
2707surgery, leads inescapably to the finding that Dr. Armand
2716administered Level II sedation to Patient W.C.
272329. The foregoing finding is further supported by the
2732portion of the Office Surgery Rule quoted, supra , in finding of
2743fact 24. Dr. Brikedal explained during the hearing why it is
2754appropriate and necessary to do an inguinal hernia repair as
2764Level II surgery: Sedation to the point that the patients
2774comfortable so theyre able to or theyre not pushing against
2784you, inhibiting you from performing this very safely. Page 24,
2794Lines 20-22, Vol. I, Transcript of Final Hearing. As a board-
2805certified general surgeon who has previously registered and had
2814his office accredited as an office at which Level II surgery
2825could be performed, Dr. Armand must have been aware of why it is
2838prudent to perform hernia repairs as Level II surgery. While
2848Dr. Armand may have begun the surgery as Level I, when Patient
2860W.C.s intestines eviscerated, Dr. Armand must have realized
2868that taking Patient W.C. to Level II sedation would give him a
2880better opportunity to correct the problem. Unfortunately for
2888Dr. Armand, it was too late.
2894E. Office Surgery Rule Procedures .
290030. Florida Administrative Code Rule 64B8-9.009(2)
2906prescribes requirements for conducting office surgery, taking
2914into account of the level of sedation utilized during a
2924procedure.
292531. The hernia repair performed by Dr. Armand on Patient
2935W.C. constituted surgery as defined in Florida Administrative
2943Code Rule 64B8-9.009(1). Performance of the surgery in Dr.
2952defined in Florida Administrative Code Rule 64B8-9.009(1)(d).
295932. The office surgery performed by Dr. Armand on
2968Patient W.C. failed to comply, as required, with all the
2978requirements of Florida Administrative Code Rule 64B8-9.009(2),
2985applicable to conducting Level II office surgery and, in some
2995instances, Level I office surgery:
3000a. Dr. Armand failed to maintain complete records of the
3010surgical procedure as required by Florida Administrative Code
3018Rule 64B8-9.003, or a written informed consent from the patient
3028as required by Florida Administrative Code Rule 64B8-
30369.009(2)(a)(applicable in part to Level I and Level II surgery);
3046b. No log of Level II surgery was kept as required by
3058Florida Administrative Code Rule 64B8-9.009(2)(c);
3063c. No adverse incident report was filed as required by
3073Florida Administrative Code Rule 64B8-9.009(2)(k). This portion
3080of the rule requires that [t]he surgeon shall report to the
3091Department of Health any adverse incidents that occur within the
3101office surgical setting . . . . (Emphasis added). This
3111requirement is separate from any requirement that a hospital
3120report adverse incidents and the burden of reporting is put
3130directly on the surgeon; and
3135d. Dr. Armand did not have an established risk management
3145program as required by Florida Administrative Code Rule 64B8-
31549.009(2)(j).
3155F. The Standard of Care .
316133. Dr. Birkedal provided an opinion to the Department and
3171testified at the final hearing as to whether Dr. Armands
3181treatment of Patient W.C. met the level of care, skill, and
3192treatment which, in light of all relevant surrounding
3200circumstances, is recognized as acceptable and appropriate by
3208reasonably prudent similar health care providers . . . .
3218(Hereinafter referred to as the Standard of Care).
322634. In his original opinion dated December 22, 2007,
3235Dr. Birkedal indicated that he did not believe that Dr. Armands
3246care of Patient W.C. violated the Standard of Care. There were
3257caveats or assumptions, however, which Dr. Birkedal recognized
3265in his written opinion could change his opinion if not correct.
3276In particular, at the time of his original opinion,
3285Dr. Birkedalk had incorrectly assumed that the procedure
3293performed on Patient W.C. was a Level I procedure. Dr. Birkedal
3304recognized in his original opinion that, if his assumption were
3314incorrect, that his opinion would change: [i]f he did give an
3325IV sedative, then he may have violated the standard of care if
3337his office is not licensed to give IV sedatives.
334635. At hearing, Dr. Birkedal was of the opinion that
3356Dr. Armand had not simply performed Level I surgery and,
3366therefore, opined that he had violated the Standard of Care
3376because his office was not a properly licensed office surgery
3386suite.
338736. Dr. Birkedal also offered other opinions at hearing
3396concerning what he perceived were violations of the Standard of
3406Care, but those violations were not alleged by the Department
3416in the Amended Administrative Complaint.
3421CONCLUSIONS OF LAW
3424A. Jurisdiction .
342737. The Division of Administrative Hearings has
3434jurisdiction over the subject matter of this proceeding and of
3444the parties thereto pursuant to Sections 120.569 and 120.57(1),
3453Florida Statutes (2008).
3456B. The Burden and Standard of Proof .
346438. The Department seeks to impose penalties against
3472Dr. Armands license through the Amended Administrative
3479Complaint that include suspension or revocation of his license
3488and/or the imposition of an administrative fine. Therefore, the
3497Department has the burden of proving the specific allegations of
3507fact that support its charge that Dr. Armand committed the
3517statutory and rule violations alleged in the Amended
3525Administrative Complaint by clear and convincing evidence.
3532Department of Banking and Finance, Division of Securities and
3541Investor Protection v. Osborne Stern and Co. , 670 So. 2d 932
3552(Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);
3563Pou v. Department of Insurance and Treasurer , 707 So. 2d 941
3574(Fla. 3d DCA 1998); Nair v. Department of Business and
3584Professional Regulation , 654 So. 2d 205 (Fla. 1st DCA 1995); and
3595§ 120.57(1)(j), Fla. Stat. (2008)("Findings of fact shall be
3605based on a preponderance of the evidence, except in penal or
3616licensure disciplinary proceedings or except as otherwise
3623provided by statute.").
362739. What constitutes "clear and convincing" evidence was
3635described by the court in Evans Packing Co. v. Department of
3646Agriculture and Consumer Services , 550 So. 2d 112, 116, n. 5
3657(Fla. 1st DCA 1989), as follows:
3663. . . [C]lear and convincing evidence
3670requires that the evidence must be found to
3678be credible; the facts to which the
3685witnesses testify must be distinctly
3690remembered; the evidence must be precise and
3697explicit and the witnesses must be lacking
3704in confusion as to the facts in issue. The
3713evidence must be of such weight that it
3721produces in the mind of the trier of fact
3730the firm belief or conviction, without
3736hesitancy, as to the truth of the
3743allegations sought to be established.
3748Slomowitz v. Walker , 429 So. 2d 797, 800
3756(Fla. 4th DCA 1983).
3760See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re
3773Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida
3784Department of Business and Professional Regulation , 705 So. 2d
3793652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).
3800C. The Charges of the Amended Administrative Complaint .
380940. Section 458.331(1), Florida Statutes, authorizes the
3816Board of Medicine (hereinafter referred to as the "Board"), to
3827impose penalties ranging from the issuance of a letter of
3837concern to revocation of a physician's license to practice
3846medicine in Florida if a physician commits one or more acts
3857specified therein.
385941. The four-count Amended Administrative Complaint
3865alleges that Dr. Armand violated the following provisions of
3874Section 458.331(1), Florida Statutes, in his treatment of
3882Patient W.C.:
3884a. Count One: Section 458.331(1)(v), Florida Statutes;
3891b. Count Two: Section 458.331(1)(nn), Florida Statutes
3898(2006), by violating Florida Administrative Code Rule 64B8-
39069.009(2) and (4), and Section 458.351, Florida Statutes;
3914c. Count Three: Section 458.331(1)(m), Florida Statutes;
3921and
3922d. Count Four: Section 458.331(1)(t), Florida Statutes,
3929the Standard of Care.
393342. In determining whether Dr. Armand committed the
3941alleged statutory violations, only those specific factual
3948grounds alleged by the Department in the Amended Administrative
3957Complaint can form the basis of a finding of violation. See
3968Trevisani v. Department of Health , 908 So. 2d 1108 (Fla. 1st DCA
39802005); Cottrill v. Department of Insurance , 685 So. 2d 1371
3990(Fla. 1st DCA 1996). As the Department acknowledged in its
4000Proposed Recommended Order, [d]ue process prohibits the
4007Department from taking disciplinary action against a licensee
4015based on matters not specifically alleged in the charging
4024instrument, unless those matters have been tried by consent.
4033See Shore Village Property Owners Association, Inc . v.
4042Department of Environmental Protection , 824 So. 2d 208, 210
4051(Fla. 4th DCA 2002); and Delk v. Department of Professional
4061Regulation , 595 So. 2d 966, 967 (Fla. 5th DCA 1992).
4071D. Count One: Section 458.331(1)(v), Florida Statutes .
407943. Section 458.331(1)(v), Florida Statutes, defines the
4086following disciplinable offense:
4089(v) Practicing or offering to practice
4095beyond the scope permitted by law or
4102accepting and performing professional
4106responsibilities which the licensee knows or
4112has reason to know that he or she is not
4122competent to perform. The board may
4128establish by rule standards of practice and
4135standards of care for particular practice
4141settings, including, but not limited to,
4147education and training, equipment and
4152supplies, medications including anesthetics,
4156assistance of and delegation to other
4162personnel, transfer agreements,
4165sterilization, records, performance of
4169complex or multiple procedures, informed
4174consent, and policy and procedure manuals.
418044. In particular, the Amended Administrative Complaint
4187alleges that Dr. Armand violated this prohibition because he
4196performed Level II office surgery on Patient W.C. by attempting
4206to perform a hernia repair in his office in violation of the
4218Office Surgery Rule.
422145. The evidence proved clearly and convincingly that Dr.
4230Armand performed Level II surgery on Patient W.C. on October 6,
42412006, when he knew or should have known that such surgery was
4253beyond the scope of what he was authorized to do under the
4265Officer Surgery Rule because he was not licensed at the time to
4277perform Level II surgery in his office.
4284E. Count Two: Section 458.331(1)(nn), Florida Statutes .
429246. Section 458.331(1)(nn), Florida Statutes, defines the
4299following disciplinable offense:
4302(nn) Violating any provision of this
4308chapter or chapter 456, or any rules adopted
4316pursuant thereto.
431847. In particular, Count Two of the Amended Administrative
4327Complaint goes on to allege that Dr. Armand violated Florida
4337Administrative Code Rule 64B8-9.009(2) and (4), by performing
4345Level II office surgery on Patient W.C. in Respondents office
4355without complying with the requirements of Rule 64B8-9.009 as to
4365informed consent, staffing, equipment, crash cart, medications,
4372and assistance of other personnel.
437748. While the Department admits that it failed to prove
4387whether Dr. Armand violated the standards of the Office Surgery
4397Rule concerning staffing, equipment, crash cart, medications,
4404and assistance of other personnel on October 6, 2006, it did
4415prove that Dr. Armand failed to obtain an informed consent from
4426Patient W.C.
442849. The Departments suggestion that Dr. Armands failure
4436to file an adverse incident report as required by the Office
4447Surgery Rule in violation of Section 458.331(nn), Florida
4455Statutes, is rejected as a basis for discipline because the
4465Department did not specifically make this allegation in the
4474Amended Administrative Complaint. The only allegation in Count
4482Two of the Amended Administrative Complaint concerning Dr.
4490Armands failure to file an adverse incident report was based
4500upon Section 458.351, Florida Statutes.
450550. It is alleged that Dr. Armand violated Section
4514458.331(nn), Florida Statutes, by having violated Section
4521458.351, Florida Statutes, by failing to file an adverse
4530incident report regarding the incident involving Patient W.C.
4538Section 458.351, Florida Statutes, provides, in pertinent part,
4546the following:
4548(1) Any adverse incident that occurs on
4555or after January 1, 2000, in any office
4563maintained by a physician for the practice
4570of medicine which is not licensed under
4577chapter 395 must be reported to the
4584department in accordance with the provisions
4590of this section.
4593(2) Any physician or other licensee under
4600this chapter practicing in this state must
4607notify the department if the physician or
4614licensee was involved in an adverse incident
4621that occurred on or after January 1, 2000,
4629in any office maintained by a physician for
4637the practice of medicine which is not
4644licensed under chapter 395.
4648(3) The required notification to the
4654department must be submitted in writing by
4661certified mail and postmarked within 15 days
4668after the occurrence of the adverse
4674incident.
4675. . . .
467951. While not excusing his failure, the evidence did prove
4689that Dr. Armands failure to file an adverse incident report is
4700somewhat mitigated by the fact that the hospital filed one.
471052. The evidence proved clearly and convincingly that Dr.
4719Armand failed to file an adverse incident report as required by
4730Section 458.351, Florida Statutes.
4734F. Count Three; Violation of Section 458.331(1)(m),
4741Florida Statutes .
474453. Section 458.331(1)(m), Florida Statutes, defines the
4751following disciplinable offense:
4754Failing to keep legible, as defined by
4761department rule in consultation with the
4767board, medical records that identify the
4773licensed physician or the physician extender
4779and supervising physician by name and
4785professional title who is or are responsible
4792for rendering, ordering, supervising, or
4797billing for each diagnostic or treatment
4803procedure and that justify the course of
4810treatment of the patient, including, but not
4817limited to, patient histories; examination
4822results; test results; records of drugs
4828prescribed, dispensed, or administered; and
4833reports of consultations and
4837hospitalizations.
483854. In the Amended Administrative Complaint it is alleged
4847that Dr. Armand failed to keep adequate medical records in
4857violation of Section 458.331(m), Florida Statutes, in that he
4866failed to document one or more of the following:
4875a. A record of the procedure performed;
4882b. The date the procedure was performed;
4889c. A record of the drugs prescribed,
4896dispensed or administered;
4899d. The type and dosage of anesthetic
4906sedation used during the procedure;
4911e. The pre-operative and post-operative
4916care provided;
4918f. The informed consent;
4922g. The adverse incident report.
4927The Department proved clearly and convincingly that Dr. Armand
4936failed to keep medical records documenting these matters as
4945alleged in the Amended Administrative Complaint.
495155. The evidence proved clearly and convincingly that Dr.
4960Armand failed to keep medical records as alleged in the Amended
4971Administrative Complaint in violation of Section 458.331(1)(m),
4978Florida Statutes.
4980G. Count Four: Violation of Section 458.331(1)(t), Florida
4988Statutes .
499056. Section 458.331(1)(t), Florida Statutes, defines, in
4997part, the following disciplinable offense:
5002Committing medical malpractice as defined in
5008s. 456.50. The board shall give great
5015weight to the provisions of s. 766.102 when
5023enforcing this paragraph. Medical
5027malpractice shall not be construed to
5033require more than one instance, event, or
5040act.
504157. Section 456.50(1)(g), Florida Statutes, defines
5047medical malpractice as follows:
5051. . . the failure to practice medicine in
5060accordance with the level of care, skill,
5067and treatment recognized in general law
5073related to health care licensure. Only for
5080the purpose of finding repeated medical
5086malpractice pursuant to this section, any
5092similar wrongful act, neglect, or default
5098committed in another state or country which,
5105if committed in this state, would have been
5113considered medical malpractice as defined in
5119this paragraph, shall be considered medical
5125malpractice if the standard of care and
5132burden of proof applied in the other state
5140or country equaled or exceeded that used in
5148this state.
515058. Section 456.50(1)(e), Florida Statutes, defines level
5157of care, skill, and treatment recognized in general law related
5167to Section 766.102, Florida Statutes, which defines the Standard
5176of Care as [t]he prevailing professional standard of care for a
5187given health care provider shall be that level of care, skill,
5198and treatment which, in light of all relevant surrounding
5207circumstances, is recognized as acceptable and appropriate by
5215reasonably prudent similar health care providers.
522159. In paragraph 39 of the Amended Administrative
5229Complaint, it is alleged that Dr. Armand violated the Standard
5239of Care in his treatment of Patient W.C. in one or more of the
5253following ways:
5255a. By performing inguinal hernia surgery
5261in his office in violation of Rule 64B8-
5269[9].009, FAC;
5271b. By violating Rule 64B8-9.009, FAC, by
5278performing invasive office surgery in an
5284office;
5285c. By administering sedation that
5290prevented the patient from signing the
5296necessary consent to the emergency surgery;
5302d. By failing to document his
5308preoperative, post operative, or operative
5313actions or anesthetic;
5316e. By failing to file an adverse incident
5324report as required by Section 458.351,
5330Florida Statutes (2006);
5333f. By failing to meet the Standards of
5341Practice and Care established by the Board
5348of Medicine in Rule 64B8-9.009, FAC.
535460. The alleged Standard of Care violations of paragraphs
536339a. and b. are essentially the same: Dr. Armand performed
5373surgery in his office in violation of the Office Surgery Rule.
5384The allegations of paragraphs 39c. and d. are more specific
5394failures on the part of Dr. Armand to follow the requirements of
5406the Office Surgery Rule. The allegation of paragraph 39f.
5415simply summarizes the allegations of paragraphs 39 a., b., c.
5425and d. The allegation of paragraph 39e. is the only allegation
5436that does not specifically turn on adherence to the Office
5446Surgery Rule.
544861. The Department has pointed out in its Proposed
5457Recommended Order that the Office Surgery Rule itself
5465establishes the Standard of Care. The Office Surgery Rule is
5475titled Standard of Care for Office Surgery and it prescribes
5485what the Board considers the prevailing professional standard of
5494care for any health care provider performing office surgery.
5503The Departments interpretation of its own rule is persuasive
5512and is accepted.
551562. The Department next argues that Dr. Armand violated
5524the Standard of Care by failing to comply with the Office
5535Surgery Rule. Clearly and convincingly, Dr. Armand performed
5543Whether the surgery was performed at Level I or Level II, it was
5556performed in his office and he was required to comply with all
5568relevant portions of the Office Surgery Rule. His failure to do
5579so constituted a violation of the Office Surgery Rule and,
5589consequently, a violation of the Standard of Care.
559763. Again, regardless of the level of the surgery
5606performed, it was proved clearly and convincingly that he
5615performed inguinal hernia surgery in his office in violation of
5625Rule 64B8-[9].009, FAC and that he violated Rule 64B8-9.009,
5634FAC, by performing invasive office surgery in an office as
5644alleged in the Amended Administrative Complaint.
565064. The Department also proved, again without regard to
5659the level of the surgery performed, that Dr. Armand failed to
5670document his preoperative, post-operative, or operative actions
5677or anesthetic as required by the Office Surgery Rule.
568665. The Department failed to prove, however, that failure
5695to comply with Section 458.351, Florida Statutes, while a
5704violation of Section 456.331(nn), Florida Statutes, constitutes
5711a violation of the Standard of Care. The Office Surgery Rule,
5722while also requiring that adverse incident reports be filed,
5731does not refer to Section 358.351, Florida Statutes, and the
5741Department did not specifically allege in support of the charged
5751violation of the Standard of Care that Dr. Armands failure to
5762file the report violated any provision other than Section
5771458.351, Florida Statutes.
577466. In addition to alleging that Dr. Armand violated the
5784Standard of Care by failing to adhere to the requirements of the
5796Office Surgery Rule, the Department has argued in its Proposed
5806Recommended Order that Dr. Brikedals opinions at hearing
5814support a finding that the Standard of Care was violated
5824independent of the Office Surgery Rule. While Dr. Brikedals
5833testimony does support such a finding, the allegations of the
5843Amended Administrative Complaint concerning the Standard of Care
5851did not put Dr. Armand on notice that he was being charged with
5864any violation of the Standard of Care other than his failure to
5876comply with the Office Surgery Standard.
588267. The Department has proved clearly and convincingly
5890that Dr. Armand violated the Standard of Care as alleged in
5901Count Four of the Amended Administrative Complaint as more
5910specifically alleged in paragraph 39.a., b., c., d., and f. of
5921the Amended Administrative Complaint.
5925F. The Appropriate Penalty .
593068. In determining the appropriate punitive action to
5938recommend to the Board in this case, it is necessary to consult
5950the Board's "disciplinary guidelines," which impose restrictions
5957and limitations on the exercise of the Board's disciplinary
5966authority under Section 458.331, Florida Statutes. See Parrot
5974Heads, Inc. v. Department of Business and Professional
5982Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).
599169. The Board's guidelines are set out in Florida
6000Administrative Code Rule 64B8-8.001(2), which provides for the
6008following range of penalties:
6012a. For a violation of Section 458.331(1)(v), Florida
6020Statutes: from two years' suspension to revocation and an
6029administrative fine from $1,000.00 to $10,000.00;
6037b. For a violation of Section 458.331(1)(nn), Florida
6045Statutes, second offense: from probation to revocation and an
6054administrative fine from $5,000.00 to $10,000.00;
6062c. For a violation of Section 458.331(1)(m), Florida
6070Statutes, second offense: from probation to suspension followed
6078by probation and an administrative fine of from $5,000.00 to
6089$10,000.00; and
6092d. For a violation of Section 458.331(1)(t), Florida
6100Statutes, second offense: from two years' probation to
6108revocation and an administrative fine from $5,000.00 to
6117$10,000.00
611970. Florida Administrative Code Rule 64B8-8.001(3)
6125provides that, in applying the penalty guidelines, the following
6134aggravating and mitigating circumstances are to be taken into
6143account:
6144(3) Aggravating and Mitigating
6148Circumstances. Based upon consideration of
6153aggravating and mitigating factors present
6158in an individual case, the Board may deviate
6166from the penalties recommended above. The
6172Board shall consider as aggravating or
6178mitigating factors the following:
6182(a) Exposure of patient or public to
6189injury or potential injury, physical or
6195otherwise: none, slight, severe, or death;
6201(b) Legal status at the time of the
6209offense: no restraints, or legal
6214constraints;
6215(c) The number of counts or separate
6222offenses established;
6224(d) The number of times the same offense
6232or offenses have previously been committed
6238by the licensee or applicant;
6243(e) The disciplinary history of the
6249applicant or licensee in any jurisdiction
6255and the length of practice;
6260(f) Pecuniary benefit or self-gain
6265inuring to the applicant or licensee;
6271(g) The involvement in any violation of
6278Section 458.331, Florida Statutes, of the
6284provision of controlled substances for
6289trade, barter or sale, by a licensee. In
6297such cases, the Board will deviate from the
6305penalties recommended above and impose
6310suspension or revocation of licensure;
6315(h) Any other relevant mitigating
6320factors.
632171. In its Proposed Recommended Order, the Department has
6330suggested that there are no mitigating circumstances and the
6339following aggravating circumstances in this case:
6345Based on the previous serious disciplinary
6351history of the Respondent, including
6356multiple violations of the standard of care,
6363the fact that W.C. was exposed to potential
6371harm, the fact that this is a four count
6380complaint, and because Respondent has been
6386disciplined in three previous cases for the
6393violation of Section 458.331(1)(m), Florida
6398Statutes, and on five previous occasions (in
6405seven cases) for violation of Section
6411458.331(1)(t), Florida Statutes, the level
6416of aggravating factors is high. . . .
6424This summary of aggravating circumstances is accurate.
643172. The Department overlooks, however, that, while there
6439was potential for harm to Patient W.C., in fact the surgery
6450ultimately was concluded without any actual physical harm to
6459Patient W.C. The Department also has failed to acknowledge the
6469fact that the violations concerning Dr. Armands failure to file
6479an adverse incident report are mitigated by the fact that the
6490hospital filed one. Finally, consideration should be given to
6499the fact that Dr. Armand has ceased performing Level II and
6510Level III surgery in an office setting and that he has
6521effectively closed his office practice.
652673. The Department has requested that it be recommended
6535that Dr. Armands medical license be revoked. As an
6544alternative, the Board may want to consider suspending Dr.
6553Armands right to practice medicine in Florida, while allowing
6562him keep his Florida medical license in order for him to
6573continue to practice medicine outside the United States through
6582his relationship with the United States Department of State.
6591Such an arrangement should be conditioned upon full disclosure
6600to the United States Department of State and should be
6610considered only if his continued licensure is a condition of his
6621employment by the United States Department of State.
6629RECOMMENDATION
6630Based on the foregoing Findings of Fact and Conclusions of
6640Law, it is
6643RECOMMENDED that the a final order be entered by the Board
6654of Medicine finding that Lucien Armand M.D., has violated
6663Section 458.331(1)(v), Florida Statutes (2006); Section
6669458.331(1)(nn), Florida Statutes (2006), by violating Florida
6676Administrative Code Rule 64B8-9.009 and Section 458.351, Florida
6684and Section 458.331(1)(t), Florida Statutes, to the extent found
6693in this Recommended Order; and indefinitely suspending his
6701license to practice medicine in Florida, but allowing him to
6711continue to practice medicine outside the United States through
6720his relationship with the United States Department of State
6729after full disclosure of the Boards final order to the United
6740States Department of State. Should a medical license not be a
6751condition of employment by the United States Department of
6760State, his license should be revoked.
6766DONE AND ENTERED this 17th day of June, 2009, in
6776Tallahassee, Leon County, Florida.
6780___________________________________
6781LARRY J. SARTIN
6784Administrative Law Judge
6787Division of Administrative Hearings
6791The DeSoto Building
67941230 Apalachee Parkway
6797Tallahassee, Florida 32399-3060
6800(850) 488-9675 SUNCOM 278-9675
6804Fax Filing (850) 921-6847
6808www.doah.state.fl.us
6809Filed with the Clerk of the
6815Division of Administrative Hearings
6819this 17th day of June, 2009.
6825COPIES FURNISHED:
6827Diane Kiesling
6829Assistant General Counsel
6832Robert A. Milne
6835Assistant General Counsel
6838Department of Health
68414052 Bald Cypress Way, Bin C-65
6847Tallahassee, Florida 32399-3265
6850Sean Ellsworth, Esquire
6853Ellsworth Law Firm, P.A.
68571501 Collins Avenue, Suite 208
6862Miami Beach, Florida 33139
6866Larry McPherson, Executive Director
6870Board of Medicine
6873Department of Health
68764052 Bald Cypress Way
6880Tallahassee, Florida 32399-1701
6883Josefina M. Tamayo, General Counsel
6888Department of Health
68914052 Bald Cypress Way, Bin A02
6897Tallahassee, Florida 32399-1701
6900Dr. Ana M. Viamonte Ros, Secretary
6906Department of Health
69094052 Bald Cypress Way, Bin A00
6915Tallahassee, Florida 32399-1701
6918R. S. Power, Agency Clerk
6923Department of Health
69264052 Bald Cypress Way, Bin A-02
6932Tallahassee, Florida 32399-1701
6935NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
6941All parties have the right to submit written exceptions within
695115 days from the date of this recommended order. Any exceptions
6962to this recommended order should be filed with the agency that
6973will issue the final order in these cases.
- Date
- Proceedings
- PDF:
- Date: 09/03/2009
- Proceedings: Response to Dr. Armand's Exceptions to the Recommended Order filed.
- PDF:
- Date: 09/03/2009
- Proceedings: Dr. Armand's Exceptions to the Administrative Law Judge's Recommended Orders filed.
- PDF:
- Date: 06/17/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 05/26/2009
- Proceedings: (Petitioner's) Proposed Recommended Order (filed in Case No. 08-004403PL).
- PDF:
- Date: 05/26/2009
- Proceedings: Dr. Armand's Memorandum in Support of a Recommended Order Dismissing Administrative Complaints filed.
- Date: 04/24/2009
- Proceedings: Transcript of Final Hearing (Volumes I&2) filed.
- PDF:
- Date: 04/13/2009
- Proceedings: Notice of Filing (Respondent`s Exhibit 1, exhibit not available for viewing) filed.
- Date: 04/06/2009
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 03/31/2009
- Proceedings: (Petitioner`s) Exhibit List (exhibits not available for viewing) filed.
- PDF:
- Date: 03/17/2009
- Proceedings: Notice of Taking Telephonic Deposition of Witness in Lieu of Live Testimony filed.
- PDF:
- Date: 03/16/2009
- Proceedings: Petitioner`s Motion for Leave to Take Telephonic Deposition filed.
- PDF:
- Date: 01/09/2009
- Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for April 6, 2009; 9:30 a.m.; Lauderdale Lakes and Tallahassee, FL).
- PDF:
- Date: 01/08/2009
- Proceedings: Joint Response to Request for Dates for Rescheduled Hearing filed.
- PDF:
- Date: 01/05/2009
- Proceedings: Respondent`s Reply to Department`s Opposition to Motion for Continuance filed.
- PDF:
- Date: 01/05/2009
- Proceedings: Response in Opposition to Respondent`s Motion for Continuance filed.
- PDF:
- Date: 12/23/2008
- Proceedings: Corrected Notice of Taking Deposition in Lieu of Live Testimony filed.
- PDF:
- Date: 10/30/2008
- Proceedings: Notice of Serving Petitioner`s Response to Respondent`s First Set of Interrogatories filed.
- PDF:
- Date: 10/16/2008
- Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for January 26, 2009; 9:30 a.m.; Lauderdale Lakes and Tallahassee, FL).
- PDF:
- Date: 10/01/2008
- Proceedings: Lucien Armand, M.D.`s Objection to Petitioner`s Request for Admissions & Interrogatories 6-20 filed.
- PDF:
- Date: 10/01/2008
- Proceedings: Respondent, Lucien Armand, M.D.`s Notice of Serving First Set of Interrogatories filed.
- PDF:
- Date: 09/15/2008
- Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for November 7, 2008; 9:30 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to Amended as to issues).
- PDF:
- Date: 09/12/2008
- Proceedings: Notice of Hearing by Video Teleconference (hearing set for November 7, 2008; 9:30 a.m.; Lauderdale Lakes and Tallahassee, FL).
Case Information
- Judge:
- LARRY J. SARTIN
- Date Filed:
- 08/29/2008
- Date Assignment:
- 09/02/2008
- Last Docket Entry:
- 09/03/2009
- Location:
- Lauderdale Lakes, Florida
- District:
- Southern
- Agency:
- ADOPTED IN TOTO
- Suffix:
- PL
Counsels
-
Sean Michael Ellsworth, Esquire
Address of Record -
Diane K. Kiesling, Esquire
Address of Record -
Robert Antonie Milne, Esquire
Address of Record