15-005043PL
Department Of Health, Board Of Medicine vs.
Kenneth Woliner, M.D.
Status: Closed
Settled and/or Dismissed prior to entry of RO/FO on Thursday, March 16, 2017.
Settled and/or Dismissed prior to entry of RO/FO on Thursday, March 16, 2017.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8DEPARTMENT OF HEALTH, BOARD OF
13MEDICINE,
14Petitioner,
15vs. Case No. 15 - 5043PL
21KENNETH WOLINER, M.D.,
24Respondent.
25_______________________________/
26RECOMMENDED ORDER
28Pursuant to no tice, a formal administrative hearing was
37conducted before Administrative Law Judge Mary Li Creasy in West
47Palm Beach , Florida, on February 2 and 3, 2016 .
57APPEARANCES
58For Petitioner: Kristen M. Summers, Esquire
64Louise Wilhite - St. Laurent, Esquire
70Department of Health
73Prosecution Services Unit
76Bin C - 65
804052 Bald Cypress Way
84Tallahassee, Florida 32399
87For Respondent: David Scott Fursteller, Esquire
93W.N. Russell Huseman, Esquire
97Suite 201
999957 Moorings Drive
102Jacksonville, Florida 32257
105STATEMENT OF THE ISSUE S
110Whether Re spondent engaged in medical mal practice, failed to
120keep legible medica l records, exploited a patient for financial
130gain, or accepted or performed the professional responsibilities
138of an oncologist that he knew, or had reason to know, he was not
152competent to perform; and if so, what is the appropriate
162sanction.
163PRELIMINARY ST ATEMENT
166On April 24, 2015, Petitioner, Department of Health, filed a
176Second Amended Administrative Complaint seeking disciplinary
182sanction of the medical license of Respondent, Kenneth Woliner,
191M.D. , arising from his treatment of patient S.S. Respondent
200f iled a request for formal hearing, and the matter was referred
212to the Division of Administrative Hearings (DOAH) on
220September 14, 2015. On the same day, DOAH assigned
229Administrative Law Judge F. Scott Boyd to conduct the proceeding.
239The hearing was init ially set for October 14 and 15, 2015, but
252after two requests for continuances were granted, the hearing was
262ultimately set for February 2 and 3, 2016.
270This matter was transferred to the undersigned on January 6,
2802016, and heard, as scheduled, on Febr uary 2 and 3, 2016. At the
294hearing, Petitioner presented the testimony of four witnesses:
302Robert Federman, M.D., S.S. ' s former primary care physician;
312Gertrude Juste, M.D., the medical examiner that performed the
321autopsy on S.S.; M.S., S.S. ' s mother; and Charles Powers, M.D.,
333an expert witness. Petitioner ' s Exhibits 1 through 7 and 9
345through 11 were admitted into evidence. Included in the admitted
355exhibits was the deposition transcript of Petitioner ' s second
365expert, Dr. Roy Ambinder, which was taken in l ieu of live
377testimony at the final hearing. Petitioner ' s Proposed Exhibit 8
388was proffered with objection, and the ruling was reserved. After
398review and consideration of the party's arguments on this issue,
408Petitioner's Exhibit 8 is admitted. Joint Exhib its 1 through 17
419were also admitted into evidence.
424Respondent testified on his own behalf and presented the
433testimony of two witnesses: Daniel Tucker, M.D., S.S. ' s
443allergist, and Gina Ricciardi, Respondent ' s wife and office
453manager. Respondent ' s Exhibit s 1, 3, 5, 6, 8, 9, 11, and 12 were
469admitted into evidence. 1 /
474A two - volume Transcript of the proceeding was filed with
485DOAH on March 3, 2016. T he parties fil ed timely proposed
497recommended orders , which were given due consideration in the
506preparation of th e Recommended Order. Unless otherwise
514indicated, citations to the Florida Statutes or rules of the
524Florida Administrative Code refer to the versions in effect at
534the time of the alleged violations.
540FINDING S OF FACT
5441. Petitioner is responsible for the in vestigation and
553prosecution of complaints against medical doctors licensed in the
562state of Florida who are accused of violatin g chapters 456 and
574458, Florida Statutes.
5772. Respondent is licensed as a medical doctor in the state
588of Florida, having been is sued license nu mber ME 80412.
5993. At all times material to this proceeding, Respondent was
609the sole owner and sole physician at Holistic Family Medicine
619(HFM), a medical practice located at 9325 Glades Road, Suite 104,
630Boca Raton, Florida 33434.
6344. The charges against Respondent arise from Respondent ' s
644treatment of p atient S.S. (S.S.) from March 17, 2011, until her
656death on February 10, 2013.
6615. M.S., S.S. ' s mother, was present during all of S.S. ' s
675medical appointments and was involved in a ll of S.S. ' s medical
688decisions.
689Facts Related to S.S. ' s Medical History
6976. In the spring of 2011, S.S., a 23 - year - old female
711archeology student from Loxahatchee, Florida, suffered from a
719multitude of medical issues.
7237. At that time, S.S. was frustrated with her cur rent
734primary care physician (PCP), Robert Federman, M.D., and treating
743sub - specialists because she felt that they were ignoring what she
755identified as her most pressing symptom, an excruciating pain in
765her side.
7678. Due to her frustration, S.S. sought a se cond opinion
778from Respondent at HFM on March 17, 2011. M.S. learned about
789Respondent from an employee at Whole Foods grocery store. 2/
7999. During her first appointment at HFM, S.S. told
808Respondent she was recently diagnosed with peripheral t - cell
818lymphoma (PTCL) by the University of Miami (UM) , but that she was
830waiting on a second opinion from the H. Lee Moffitt Cancer Center
842& Research Institute (Moffitt). S.S. expressed ske pticism at the
852PTCL diagnosis.
85410. Approximately nine months before S.S. first presented
862to Respondent, she suffered from unrelenting diarrhea, nausea,
870and vomiting.
87211. In September 2010, Dr. Federman referred S.S. to a
882gastroenterologist to diagnose these complaints.
88712. The gastroenterologist ' s attempt to diagnose S.S. ' s
898persis tent diarrhea, nausea, and vomiting eventually led to the
908discovery of several abnormal masses in S.S. ' s abdomen. This
919discovery initiated a flurry of radiographic studies and biopsies
928that ultimately revealed cancerous cells in S.S. ' s lymph nodes,
939consis tent with PTCL.
94313. S.S. was provisionally diagnosed with PTCL by Deborah
952Glick, M.D., a UM hematologist during a consultation appointment
961on February 3, 2011. During the appointment, Dr. Glick indicated
971to S.S. that PTCL is a very aggressive cancer and that S.S. would
984likely die in a matter of months.
99114. S.S. did not agree with Dr. Glick ' s prognosis , so she
1004decided to see another oncologist/hematologist. S.S. presented
1011to Abraham Schwarzberg, M.D., a new oncologist/hematologist on
1019February 8, 2011, to continue her ongoing work - up and management
1031of her PTCL. 3/
103515. On February 16, 2011, after discussing S.S. ' s biopsy
1046results with UM pathology specialists, Dr. Schwarzberg
1053recommended S.S. ' s slides be reviewed at Moffitt because her case
" 1065ha[d] been a ver y complicated and tough case to make a diagnosis
1078on. "
107916. On February 25, 2011, S.S. traveled across the state
1089for an oncology consultation at Moff itt, located in Tampa,
1099Florida.
110017. Dr. Lubomir Sokol, M.D., an oncologist/hematologist
1107employed by Moffit t advised S.S. that the long - term prognosis of
1120PTCL patients treated with standard chemotherapy is not
1128satisfactory. However, Dr. Sokol suggested that S.S. did not
1137have PTCL, given the aggressive nature of the disease and her
1148lack of symptoms at that time .
115518. Dr. Sokol requested S.S. submit her biopsy slides for
1165review by Moffitt ' s pathologists , as well as by a world - renowned
1179hemapathology expert specializing in lymphoma at the National
1187Institutes of Health/ National Cancer Institute (NCI), Dr. Elai ne
1197Jaffe.
119819. Dr. Sokol also requested S.S. undergo extensive staging
1207exams. These exams, including a bon e marrow biopsy, were
1217negative -- indicating that S.S. ' s disease had not yet progressed
1229to her bone marrow.
1233Initial Meeting with Respondent Î March 1 7, 2011
124220. Of the for e going information provided to Respondent by
1253M.S. and S.S. during the March 17, 2011, initial appointment,
1263Respondent only documented that S.S. ' s bone marrow biopsy was
1274negative; a seemingly insignificant detail compared to S.S. ' s
1284p ending diagnosis of cancer and dire prognosis. 4/
129321. By the time S.S. spoke to Respondent on March 17, 2011,
1305she had been told by various physicians that her biopsies were
1316inconclusive, negative for cancer, and positive for cancer. S.S.
1325was also told tha t she had PTCL and that she may not have PTCL.
1340Finally, S.S. was told that she may die as a result of her
1353malignancy in a matter of months. Any skepticism or doubt
1363harbored by S.S. was completely understandable .
137022. Respondent encouraged S.S. ' s skeptici sm by indicating
1380to her that cancer was " low on his list " of S.S. ' s possible
1394concerns. Respondent shared a story regarding his uncle, a
1403medical doctor who was successfully sued for $ 8.1 million for
1414erroneously providing chemotherapy to a patient who did n ot have
1425cancer. Respondent recommended S.S. undergo additional blood
1432work ordered by him , so that he could have a better understanding
1444of what was going on.
144923. Before her next appointment with Respondent, S.S. ' s
1459abdominal pain intensified, such that she presented to the
1468Emergency Room and was admitted to Palms West Hospital (PWH) on
1479March 28, 2011.
148224. S.S. underwent a CT scan that revealed a distended
1492gallbladder, as well as masses in her abdomen near her liver and
1504pancreas. 5/
150625. Ultimately, S.S. ' s e xcruciating abdominal pain was
1516attributed to a diseased gallbladder that needed to be
1525immediately surgically removed.
152826. When Respondent learned of S.S. ' s upcoming surgery, he
1539told M.S. that he would get S.S. ' s operative report and see S.S.
1553in follow - up after her surgery.
156027. S.S. ' s gallbladder was removed on April 1, 2011, and
1572she was dischar ged with instructions to follow up with her PCP.
158428. After the surgery, S.S. ' s frustration with Dr. Federman
1595peaked, which prompted her to terminate her doctor - pat ient
1606relationship with him. Although no formal notice was sent to
1616Dr. Federman from S.S., Dr. Federman was informed by M.S. that
1627she and S.S. were " going a different way " for her treatment.
1638S.S. never made another appointment with Dr. Federman.
1646Convers ely, S.S. fortified her trust in Respondent and relied
1656nearly exclusively on him for all of her future medical advice,
1667recommendations, referrals, guidance, and treatment.
1672Post - Surgery Follow Up with Respondent - April 7, 2011
168329. Accordingly, on April 7, 2011, S.S. presented to
1692Respondent for a " post - op " follow - up visit, at which Respondent
1705discussed S.S. ' s recent blood work results with her. Notably,
1716Respondent failed to document anything concerning her post - op
1726follow - up, aside from the paltry comment " gallbladder surgery. "
173630. That same day, after S.S. left HFM, Dr. Sokol, from
1747Moffitt, called M.S. and indicated that S.S. ' s diagnosis was
1758changed from PTCL to Hodgkin ' s lymphoma (HL).
176731. HL is a much less aggressive form of cancer and has a
1780very high p otential to be cured when treated .
179032. M.S. immediately updated Respondent about S.S. ' s new
1800diagnosis. Respondent indicated that he was " underwhelmed at the
1809possibility of HL, " but Respondent nevertheless assumed his role
1818as S.S. ' s PCP and attempted to c oordinate care with Dr. Sokol.
1832Request for Referral to May o Î May 16, 2011
184233. Because S.S. had now been presented with two
1851conflicting diagnoses (PTCL and HL), S.S. researched cancer
1859centers in Florida and decided to obtain a third opinion 6/ from
1871the May o Clinic (Mayo) in Jacksonville, Florida.
187934. On May 16, 2011, M.S. informed Respondent that S.S.
1889made an appointment herself for a consultation at Mayo on June 1,
19012011. M.S. requested that Respondent send a letter to Mayo , so
1912he could be listed as a doc tor that Mayo could contact regarding
1925S.S. ' s progress. Respondent wrote " refer to Mayo " on a
1936prescription pad and mailed it the same day.
1944Request for PET Scan Î June 2011
195135. On June 1, 2011, S.S. presented to Vivek Roy, M.D., an
1963oncologist/hematologist at Mayo for consultation. Dr. Roy told
1971S.S. that the Mayo pathologists would review her biopsy slides
1981since there was a debate about the exact diagnosis. Dr. Roy
1992asked S.S. to obtain an updated PET scan. 7/
200136. On June 14, 2011, Respondent again assumed his role as
2012S.S. ' s PCP by attempting to facilitate an updated PET scan for
2025Dr. Roy.
202737. On June 20, 2011, Respondent received the PET scan
2037report indicating that S.S. ' s malignancy progressed to her pelvic
2048region. As of this date, Respondent clearly kne w S.S. was
2059suffering from some form of lymphoma.
206538. On June 22, 2011, Dr. Roy confirmed the HL diagnosis
2076and recommended S.S . receive ABVD chemotherapy. 8/ S.S. elected to
2087receive treatment locally and scheduled an appointment with Neal
2096Rothschild, M.D., an oncologist/hematologist located in Palm
2103Beach Gardens, Florida.
210639. S.S. presented to Dr. Rothschild on June 27, 2011, to
2117discuss chemotherapy and the ongoing management of her HL.
2126Respondent ' s Attribution of S.S. ' s symptoms to Mold Î June 2011
214040. A few days before S.S. ' s appointment with
2150Dr. Rothschild, M.S. asked Respondent if it were possible that a
" 2161toxic something " was causing all of S.S. ' s symptoms, including
2172her swollen lymph nodes.
217641. Instead of telling M.S. that S.S. ' s symptoms, including
2187her swollen lymph nodes, were more likely caused by her untreated
2198cancer, Respondent suggested that S.S. ' s house be tested for
2209mold.
221042. On July 5, 2011, S.S. presented to Respondent for a
" 2221check - up " and to discuss the little bit of mold that was found
2235i n her home. During the appointment, S.S. mentioned to
2245Respondent that she met with Dr. Rothschild to discuss
2254chemotherapy for her HL.
225843 . Respondent reiterated to S.S. that cancer was " low on
2269his list " of possible medical concerns. Respondent indicated
2277that S.S. ' s tests showing she had increased lymphocytes 9/ were not
2290indicative of cancer, especially since he did not see any " Reed -
2302Sternberg " cells. 10/ Respondent insinuated that oncologists often
2310overreact to the presence of lymphocytes and recommend
2318che motherapy before making an actual diagnosis. Respondent
2326further insinuated that Dr. Rothschild may not be a competent
2336oncologist.
233744 . Respondent recommended S.S. pursue her " mold allergy "
2346issues and referred her to Daniel Tucker, M.D., a local
2356allergist.
235745 . Respondent also provided S.S. with a letter addressed
2367to Dr. Rothschild wherein he emphasized that " mold could be
2377causing all of [S.S. ' s] symptoms and exam findings. "
238746 . As instructed, S.S. presented to Dr. Tucker on July 12,
23992011, and continued to follow - up with him until November 2011.
2411Dr. Tucker diagnosed S.S. with mold allergies and recommended a
2421series of life - style modifications to reduce her mold allergy
2432symptoms.
2433Discontinuation of Oncologist/Hematologist Care Î July 2011
244047 . S.S. believed Respondent ' s assessment that her symptoms
2451were actually caused by allergies. Accordingly, S.S. only
2459pursued treatment for her allergies, with the understanding that
2468Respondent would refer her to a new oncologist/hematologist of
2477his choosing if he thought she needed to pursue cancer treatment.
248848 . On July 28, 2011, S.S. cancelled her follow - up
2500appointment with Dr. Rothschild. M.S. indicated to
2507Dr. Rothschild that S.S. wanted to resolve her " mold issues "
2517before pursuing chemotherapy treatment.
252149 . S.S. never returned to Dr . Rothschild or any other
2533oncologist/hematologist for treatment. Instead, S.S. stayed
2539under the care of Resp ondent, who spent the next year and a - half
2554attempting to find the " cause " of S.S. ' s symptomatic complaints.
256550 . In contrast to Respondent ' s previous concern over
2576S.S. ' s " scary " HL diagnosis and his alleged multiple attempts to
2588interact and coordinate care with S.S. ' s oncologists, after
2598July 5, 2011, Respondent never discussed HL, lymphoma, cancer,
2607oncologists, or chemotherapy wi th S.S. again. 11/
261551 . While addressing her symptomatic complaints, Respondent
2623never told S.S. that her symptoms could be caused by untreated
2634HL, even when many of her symptoms were reasonably attributed to
2645her progressive HL.
2648C omplaints of Back Pain Î Aug ust 2011
265752 . On August 30, 2011, S.S. complained to Respondent about
" 2668back pain. " Respondent diagnosed S.S. with lumbosacral
2675neuritis 12/ and prescribed Flector patches to treat the pain.
268553 . Respondent assumed S.S. ' s back pain was caused by mold
2698without ever conducting an appropriate evaluation, including
2705physical examination, or test to determine its cause. S.S. was
2715charged $200.00 for the August 30, 2011, office visit.
2724Complaints of Lymph Node Swelling Î December 2011
273254 . On December 15, 2011, S.S. complained to Respondent
2742about her lymph nodes and swelling. Respondent did not address
2752S.S. ' s lymph node or swelling concerns.
276055. Respondent failed to conduct and document a complete
2769and appropriate physical exam of S.S. ' s lymph nodes. S.S. was
2781char ged $425.00 for the December 15 , 2011, visit .
2791Concern Regarding Lymph Nodes, Pain , and Dysuria Î March 2012
28015 6 . On March 5, 2012, S.S. complained to Respondent about
2813pain in her side, pain in her lymph nodes resulting in sleeping
2825trouble, urgency, and dy suria. 13/
283157 . Respondent treated S.S. ' s painful lymph nodes with
2842low - dose naltrexone.
284658 . Respondent assumed S.S. ' s symptoms of urgency and
2857dysuria were caused by a urinary tract infection (UTI) and
2867prescribed antibiotics to treat the " UTI. "
287359 . UTIs a re diagnosed with a urine culture or urinalysis.
2885These tests are also useful in determining the strain of
2895bacteria, which would dictate the most appropriate type of
2904antibiotic to use. Respondent did not perform a urine culture or
2915urinalysis before prescr ibing an antibiotic to treat S.S. ' s
2926UTI - like symptoms.
293060. Respondent did not perform and document a complete and
2940accurate physical exam of S.S. ' s lymph node swelling, noting
2951where the swollen lymph nodes were located or any other
2961appropriate documentat ion of the exam. S.S. was charged $205.00
2971for the March 5, 2012, appointment.
2977Complaints of UTI - like Symptoms Î May 2012 through January 2013
298961 . S.S. repeatedly complained to Respondent about UTI - like
3000symptoms, including on May 3, 2012, May 10, 2012, Ma y 16, 2012,
3013June 27, 2012, and January 3, 2013.
302062 . Each time, Respondent assumed S.S. ' s symptoms were
3031caused by a UTI and prescribed her antibiotics without ever
3041performing a urine culture or urinalysis to confirm the diagnosis
3051or determine which antibio tic would be most appropriate to
3061prescribe.
306263 . Respondent also considered that S.S. ' s UTI - like
3074symptoms may be caused by an uncommon antibiotic - resistant
3084infection called interstitial cystitis.
3088Continued C oncerns Regarding Lymph Nodes Î May 16, 2012
309864 . On May 16, 2012, S.S. presented to Respondent with
3109comp laints of enlarged lymph nodes.
311565 . Respondent did not examine, document an examination of,
3125or otherwise address S.S. ' s enlarged lymph nodes. However, S.S.
3136was charged $200.00 for the May 16, 2012, appointment.
3145Swollen Legs Î January 3, 2013
315166 . On January 3, 2013, S.S. complained to Respondent about
3162swelling in her legs.
316667 . Respondent assumed S.S. ' s swollen legs were caused by
3178an allergic reaction, without performing any diagnostic
3185examination or tests to confirm his assumption. S.S. was charged
3195$200.00 for the January 3, 2013, appointment.
3202Abdominal Pain and Swelling Î January 2013
320968 . On January 11, 2013, S.S. complained of abdominal pain
3220and swelling. Respondent assumed S.S. ' s pain and swell ing were
3232caused by an allergic reaction and prescribed an allergy
3241medication to treat her pain and swelling.
324869 . On January 12, 2013, S.S. again complained of swelling
3259in her legs. Respondent assumed S.S. ' s swollen legs were caused
3271by an allergic reaction and prescribed her an allergy medication.
328170 . On January 14, 2013, S.S. underwent blood work at
3292Respondent ' s request. The blood work cost S.S. $575.00.
330271 . When Respondent received S.S. ' s blood work results,
3313Respondent called S.S. in for an urgent appo intment because he
3324thought her blood work results were " striking " and really
" 3333weird. " 14/
3335Urgent Appointment Î Jan u a ry 24, 2013
334472 . The blood work did not test S.S. ' s iron levels.
3357Regardless, Respondent felt S.S. was iron deficient and
3365instructed his medi cal assistant (MA) to administer 100 mg of
3376iron to her on January 24, 2013.
338373. S.S. ' s blood work revealed that she had high calcium
3395levels. Respondent considered that S.S. ' s potential issue with
3405her parathyroid hormone (PTH) was her " dominant concern " a t that
3416time. Respondent recommended S.S. receive more testing and
3424suggested that she may need PTH surgery in Tampa .
343474. Respondent also determined that S.S. had issues with
3443her DHEA, Vitamin D, and T3 levels and spent considerable time
3454discussing these c oncerns.
345875. D uring the urgent appointment, S.S. complained of
3467swelling in her legs accompanied by weakness. S.S. ' s pain and
3479swelling was so severe that she used a cane to assist her in
3492walking and requested Respondent to assist her in obtaining a
3502tempor ary parking permit.
350676. Respondent now assumed S.S. ' s swollen legs were caused
3517by water retention and prescribed a diuretic to treat S.S. ' s
3529swollen legs.
353177. At no time during this appointment did Respondent
3540inquire about, or suggest , that S.S . ' s symptom s were attributable
3553to HL or its treatment. S.S. was charged $680.00 for the
3564January 24, 2013, urgent appointment.
356978. On the same day , S.S. underwent more blood work at
3580Respondent ' s request. The additional blood work cost S.S.
3590another $355.00.
3592Revie w of Blood work Î February 2013
360079. On February 5, 2013, when Respondent reviewed S.S. ' s
3611second set of blood work results, Respondent was confused by her
3622results and indicated that he was going to review S.S. ' s chart to
" 3636come up with a better idea of what is going on. " Despite
3648knowing of S.S. Ós significant cancer diagnosis since June 2011,
3658Respondent did not consider , or discuss with S.S., the
3667possibility that S.S. had unusual results because she had cancer,
3677or in the alternative, was undergoing chem otherapy treatment.
368680. S.S. ' s blood work revealed that she had normal iron
3698levels. Nevertheless, Respondent felt S.S. was iron deficient
3706and instructed his MA to administer 100 mg of iron to her on
3719February 7, 2013. S .S. was charged $150.00 for t he iron shot.
3732Patient ' s Death Î February 10, 2013
374081. When S.S. went to HFM for her shot, she was in
3752significant distress related to pain and severe swelling in her
3762legs. S.S. rapidly decompensated and died in the hospital three
3772days later, on Febr uary 10, 2013.
377982. Respondent initially thought S.S. may have died either
3788from an adverse reaction to the iron shot or a combination of
3800pneumonia and sepsis causing respiratory failure.
380683. When the medical examiner who performed S.S. ' s autopsy
3817notified Respondent that S.S. died from complications of
3825untreated HL, Respondent responded by saying that S.S. had never
3835been definitively diagnosed with HL.
384084. Despite having reviewed S.S. ' s radiographic, pathology ,
3849and oncology consultation repo rts indicating that S.S. had HL, 15/
3860and having treated her symptoms indicative of progressed HL for
3870nearly two years, Respondent refused to believe that S.S. had HL,
3881choosing instead to believe that she presented " more like a
3891[chronic fatigue] patient alle rgic to mold than a lymphoma
3901patient. "
390285. It was not until Respondent received the final autopsy
3912report, several months after S.S. died, that Respondent was
3921finally " satisfied " that S.S. had HL all along.
3929Facts Related to the Standard of Care Violat ion
393886. Charles Powers, M.D., an expert in family medicine,
3947offered testimony on the standard of care that a doctor providing
3958primary care services to a patient in a family medicine practice
3969setting is required to follow when a young patient is diagn osed
3981with HL, a highly curable malignancy.
398787. Dr. Powers opined that the role of the PCP is to use
4000his or her established relationship with the patient to
4009facilitate and ensure that the patient receives appropriate
4017treatment.
401888. In this ca se, Respondent ' s role as S.S. ' s PCP was to
4034ensure that S.S. receive d chemotherapy, or in the alternative, be
4045fully informed of the consequences of for e going chemotherapy.
405589. Stephen Silver, M.D., testified on behalf of Respondent
4064and opined that R espondent ' s role in S.S. ' s care was as an
4080out - of - network, adjunct holistic doctor, more comparable to an
4092acupuncturist or Reiki specialist than a medical doctor.
4100Dr. Silver suggested that Respondent should not be held to the
4111same standard as other famil y medicine doctors providing primary
4121care services.
412390. Dr. Silver opined that because of Respondent ' s limited
" 4134adjunctive holistic " role, the standard of care in Florida did
4144not require Respondent to be engaged in S.S. ' s care and treatment
4157with rela tion to her cancer. Dr. Silver based his opinion on the
4170incorrect assumption that from March 2011 to February 2013, S.S.
4180was under the care of her former PCP, Dr. Federman, and that
4192Respondent provided strictly adjunctive holistic treatment to
4199S.S. 16/
420191. Dr. Silver defined " holistic therapies " to include
4209acupuncture, massage, nutritional therapies, vitamin therapies,
4215and energetic medicine , such as Reiki. Dr. Silver specified that
4225surgery and pharmaceuticals are not " holistic therapies , " but
4233inst ead fall in the realm of " traditional medical services. "
424392. Respondent did not provide " strictly holistic "
4250treatment to S.S. From March 2011 to February 2013, Responde nt
4261prescribed and recommended 27 substances to S.S. Of those
4270substances, 15 of t hem were drugs (including legend drugs,
4280compounded medications, and over - the - counter medications) and 12
4291were nutritional supplements/vitamins. Respondent also
4296recommended that S.S. undergo surgery, was actively involved in
4305S.S. ' s post - operative care, and ordered two PET CT scans for S.S.
4320Respondent never recommended S.S. receive massage therapy,
4327acupuncture, or Reiki.
433093. Furthermore, it is clear that by May 2011, S.S. severed
4341all ties from her former PCP and relied on Respondent to fulfill
4353the rol e of her PCP. Therefore, Respondent was not providing
4364strictly " adjunctive " care to S.S.
436994. Dr. Silver contends that Respondent could not have been
4379S.S. ' s PCP because he was " out - of - network " with S.S. ' s insurance,
4396did not advertise as a PCP, and ha d a very " holistically -
4409oriented " medical intake form. However, a PCP is not simply
4419defined as the doctor whose name appears on a patient ' s insurance
4432card.
443395. Instead, the definition of a PCP is a fluid concept
4444that includes the doctor whom the pati ent trusts to provide
4455appropriate medical advice, guidance, recommendations, referrals,
4461and treatment. 17/ Under this definition, it is possible for even
4472a sub - specialist to operate as a patient ' s PCP.
448496. Those involved in S.S. ' s medical treatment, including
4494M.S., Dr. Tucker, and Dr. Juste, believed that Respondent was
4504S.S. ' s PCP. Additionally, Respondent adver tised that he offered
4515concierge - level primary care services to his patients on his
4526website.
452797. Respondent operated as S.S. ' s PCP, reg ardless of
4538whether he was out - of - network with her insurance provider,
4550advertised as a PCP, or had a " holistic " intake form .
456198. B ased on the foregoing, Dr. Silver ' s opinion , that
4573Respondent is not required to adhere to the same standard of care
4585as family medicine doctors in Florida , is rejected.
4593Timely Referral
459599 . When a PCP learns that a young patient is diagnosed
4607with a highly curable malignancy, the standard of care in Florida
4618requires the PCP to timely refer the patient to an
4628oncologist/h ematologist for chemotherapy treatment. This
4634standard is applicable as long as the patient is not under the
4646current care of an oncologist/hematologist.
4651100 . From July 2011 to February 2013, Respondent knew, or
4662should have known, that S.S. was not un der the care of a treating
4676oncologist/hematologist and should have timely referred her to
4684one, or ensured that she present to an oncologist/hematologist.
4693101 . Although Respondent suggested that he did refer S.S.
4703to an oncologist, he eventually attemp ted to justify his failure
4714to do so by alternatively asserting : 1) it was not his duty to
4728refer S.S. to an oncologist; 2) it was unnecessary to refer S.S.
4740to an oncologist because she was already under the care of an
4752oncology " team " ; and 3) it was unneces sary to refer S.S. to an
4765oncologist because she adamantly refused to be treated for HL.
4775102 . At the final hearing, Respondent testified that he did
4786not refer S.S. to an oncologist because he assumed she was under
4798the care of Dr. Rothschild, receiving treatment as appropriate,
4807from June 2011 until her death in February 2013 . If it were
4820true, why then would Respondent prescribe countless medications
4828to S.S. without ever con sulting her treating oncologist?
4837Respondent himself testified that the treating oncologist needed
4845every piece of information about the patient ' s concurrent
4855treatment. Respondent ' s testimony in this regard simply is not
4866credible.
4867103 . Respondent ' s testimony was also directly contradicted
4877by his previous statements where he indi cated that S.S. adamantly
4888refused to undergo chemotherapy and that she rebuffed and
4897resisted his attempts to encourage her to follow up with an
4908oncologist.
490910 4 . Respondent further contends that he went above - and -
4922beyond his duty as a " holistic doctor " by " ensuring " S.S. went to
4934Mayo for her consultation by writing " refer to Mayo Clinic " on a
4946prescription pad (after S.S. alre ady scheduled her appointment ) .
4957However, Respondent never provided a definitive explanation for
4965the purpose of this " refer to Ma yo Clinic " document, and even at
4978one point described it as a " back to school note " for S.S. to
4991take to class.
4994105 . Based on the se inconsistencies, Respondent ' s testimony
5005regarding an oncology referral was not credible.
5012106 . M.S. testified that Respondent did not refer S.S. to
5023an oncologist/hematologist, even though Respondent knew that S.S.
5031was not under the care of one. M.S. also testified that S.S. was
5044waiting on Respondent to refer her to an oncologist/hematologist
5053if and when he decided t hat S.S. had lymphoma. M.S. testified
5065that had Respondent referred S.S. to an oncologist/hematologist
5073that he trusted, S.S. would have gone to that doctor for
5084treatment.
508510 7 . M.S. ' s testimony was clear, concise, consistent, and
5097credited.
509810 8 . Respondent failed to timely refer S.S. to an
5109oncologist/hematologist for appropriate treatment as soon as he
5117knew or had reason to know that S.S. was not under the care of an
5132oncologist/hematologist.
5133Duty to Educate or Counsel
5138109 . After timely ref erring the patient to an
5148oncologist/hematologist for treatment, if the doctor learns that
5156the patient does not want to receive treatment, either because
5166the patient is in denial of the diagnosis or simply does not want
5179the treatment, the standard of care i n Florida requires the PCP
5191to educate or counsel the patient on the risks, including death,
5202of foregoing potentially life - saving treatment, so that the
5212patient can make a fully - informed decision. As the doctor
5223counsels the patient, he or she must refrain from facilitating or
5234encouraging the patient ' s denial of their diagnosis.
5243110 . Respondent stated that S.S. was in denial of her
5254diagnosis of lymphoma long before she first came to see him and
5266remained in denial of the diagnosis despite his multiple a ttempts
5277to educate and counsel her. Specifically, Respondent claims he
5286educated or counseled S.S. on May 12, 2011, May 16, 2011,
5297March 5, 2012, May 16, 2012, and January 3, 2013. Any reference
5309to these alleged discussions are absent from Respondent ' s no tes.
5321Respondent claims his advice was rebuffed, met with " stiff
5330resistance, " and that S.S. and her mother ultimately refused to
5340believe that she had lymphoma.
5345111 . Respondent ' s statements were not credible because
5355again, in direct contradiction to h imself, Respondent testified
5364at the final hearing that after July 5, 2011, he never spoke to
5377S.S. about her lymphoma because he assumed S.S. was under the
5388care of Dr. Rothschild and was receiving treatment as
5397appropriate.
5398112 . In contrast, M.S. credi bly testified that not only did
5410Respondent never educate or counsel S.S. on the risks of not
5421treating her lymphoma, he continuously undermined the
5428recommendations and advice of the oncologists and facilitated
5436S.S. ' s skepticism toward her diagnosis.
544311 3 . Indeed, instead of using his relationship with S.S. to
5455assuage her fears related to her possibly life - threatening
5465disease, Respondent expressed that he was " underwhelmed " with the
5474possibility that she had lymphoma and repeatedly told S.S. that
5484cancer w as low on his list of p ossible medical concerns.
5496Respondent further undermined the oncologists by indicating to
5504S.S. that it would be potentially deadly to undergo chemotherapy
5514if she did not actually have HL, despite knowing that S.S. ' s
5527confidence in he r diagnosis was already very tenuous.
5536114 . Respondent failed to educate and counsel S.S. on the
5547risks, including death, of failing to receive treatment for
5556her HL.
5558Symptoms
5559115 . When a patient makes a fully - informed decision to
5571for e go treatme nt of an otherwise terminal illness, such as HL,
5584the standard of care in Florida requires the PCP to attribute the
5596patient ' s symptoms that are reasonably caused by the malignancy
5607to the malignancy.
561011 6 . Additionally, the standard of care in Florida
5620p rohibits the PCP from attempting to find an alternate diagnosis
5631for these symptoms , when the PCP knows that treatment for the
5642alternate/secondary diagnosis would not change the patient ' s life
5652expectancy.
565311 7 . A June 20, 2011, Skull to Thigh PET CT sc an of S.S.
5669showed hypermetabolic masses and enlarged lymph nodes throughout
5677S.S. ' s body. These PET CT scan findings can only be attributed
5690to a malignancy and are most consistent with HL. By June 2011,
5702Respondent knew that S.S. ' s HL had significantly pro gressed and
5714included the involvement of her chest, abdomen, and pelvis.
572311 8 . Respondent attributed these exam findings to S.S. ' s
5735allergies to mold, food, and drugs.
57411 19 . As HL progresses throughout the body, it can cause th e
5755lymph nodes to enl arge. S.S. suffered from enlarged lymph nodes,
5766a symptom reasonably attributed to HL. Respondent attributed
5774S.S. ' s enlarged lymph nodes to S.S. ' s mold allergy.
578612 0 . The enlarged lymph nodes can apply pressure on
5797adjacent organs and structures, caus ing irritation and pain.
5806S.S. suffered from back pain, a symptom that is reasonably
5816attributed to HL. Respondent attributed S.S. ' s back pain to
5827S.S. ' s mold allergy.
583212 1 . S.S. suffered from abdominal pain, a symptom that is
5844reasonably attributed to HL. Respondent attributed S.S. ' s
5853abdominal pain and swelling to an allergic reaction to an
5863antibiotic, even though he had never seen this type of an
5874allergic reaction to an antibiotic before.
5880122 . HL can suppress the immune system, making patients
5890m ore susceptible to infections, like UTIs. HL can also mimic UTI
5902symptoms if the lymph nodes in the patient ' s pelvic region are
5915enlarged and pushing on the organs in the urinary tract.
5925123 . S.S. regularly experienced UTI - like symptoms like
5935urgency a nd dysuria. These symptoms, whether they were caused by
5946a UTI or from the pelvic lymph node involvement, are reasonably
5957attributed to HL.
596012 4 . Respondent attributed S.S. ' s UTI - like symptoms to an
5974infection without ever obtaining a urine culture or u rinalysis to
5985confirm his assumption.
598812 5 . HL often causes swelling in patient ' s extremities by
6001affecting the lymphatic system, which is used to transport fluids
6011throughout the body.
6014126 . S.S. experienced extreme painful swelling in her legs,
6024a symptom that was caused by her HL.
6032127 . Respondent attributed S.S. ' s swollen legs to an
6043allergic reaction.
604512 8 . Respondent claims that he was " keenly " aware that
6056S.S. ' s sympto ms could have been caused by HL and that he
6070repeatedly informed S.S. of the same. However, Respondent claims
6079that S.S. may have had concurrent illnesses that were causing
6089similar symptoms and that it was not inappropriate for him to
6100treat those symptoms. Interestingly, Respondent ' s notes do not
6110reflect that he discussed with S.S. that her symptoms could be
6121attributed to her untreated lymphoma.
6126129 . Despite being " keenly " aware that S.S. was suffering
6136from untreated Stage III HL, Respondent often expressed
6144bewilderment as to the cause of S.S. ' s symptoms and repeate dly
6157remarked that he wanted to " find out what was going on " and
6169ordered blood work purportedly for that purpose. Due to the
6179inconsistencies, Respondent ' s testimony is not credible.
6187130 . M.S. credibly testified that Respondent never
6195indicated that an y of these symptoms were likely caused by HL and
6208that he spent time with S.S. trying to find the real cause of her
6222symptoms. Respondent completely ignored S.S. ' s existing HL
6231diagnosis and instead believed that S.S . presented " more like a
6242CFIDS [ 18/ ] patien t allergic to mold than a lymphoma patient. "
625513 1 . Respondent failed to appropriately attribute S.S. Ós
6265symptoms to HL.
6268Facts Related to Medical Records Violation
6274132 . During each office visit, Respondent should have
6283created a progress note that included the subjective complaints
6292of the patient, the objective observations of the patient
6301(including a physical exam), an assessment of the patient ' s
6312medical concerns, and a treatment plan (commonly referred to as
" 6322SOAP notes " ) . Included in these note s should be adequate
6334justification for each diagnosis given and prescription given to
6343the patient.
634513 3 . Respondent failed to create or keep documentation of
6356an adequate medical justification for the diagnoses he made and
6366the treatment he provided to S.S.
637213 4 . On April 7, 2011, July 5, 2011, August 30, 2011,
6385December 15, 2011, March 5, 2012, January 3, 2013, and
6395January 24, 2013, Respondent failed completely to document the
6404objective portion of the exam.
640913 5 . Respondent also routinely fai led to document adequate
6420medical justification for the diagnoses or treatments rendered
6428to S.S.
643013 6 . Respondent failed to create or keep documentation in
6441which he purportedly referred S.S. to an oncologist. Similarly,
6450Respondent failed to create or keep documentation of his alleged
6460educating or counseling of S.S. on the risks of for e going
6472chemotherapy treatment.
6474Facts Related to Scope of Practice
6480137 . Respondent testified that he did not practice outside
6490of the scope of his profession or per form or offer to perform
6503professional responsibilities that he knows he is not competent
6512to practice because he did not treat S.S. for cancer and did not
6525offer to treat her for cancer.
6531138 . Petitioner offered the testimony of Roy Ambinder,
6540M.D., an e xpert in oncology and hematology. Dr. Ambinder
6550testified regarding the scope of practice for an oncologist and
6560the standard of care for oncologists treating HL. Dr. Ambinder ' s
6572testimony was clear, concise, consistent, and credited.
6579139 . It is not w ithin the scope of practice for a family
6593medicine physician to modify or reject an existing diagnosis
6602of HL.
6604140 . Oncology is the study of cancer. A physician needs
6615oncology training, experience, and a background in oncology to
6624modify or reject an existing diagnosis of HL.
6632141 . Before modifying or rejecting an existing di agnosis of
6643HL, a physician with the appropriate train ing, experience, and
6653background would have to perform a physical exam, obtain blood
6663work and additional radiographic studi es, review past reports
6672from the pathologists/oncologists, and revie w and interpret
6680tissue biopsies.
668214 2 . Respondent knew that five oncologists/hematologists,
6690including specialists from Moffitt , NIH, and Mayo diagnosed S.S.
6699with lymphoma.
670114 3 . Respondent knew that he did not have the necessary
6713qualifications, skill, training, education, or experience to
6720modify or reject a diagnosis of HL. Yet, after harboring
6730significant skepticism towards the diagnosis, Respondent reviewed
6737S.S. ' s pathology rep orts and radiographic studies and rejected
6748S.S. ' s HL diagnosis.
675314 4 . Therefore, Respondent acted in the role of an
6764oncologist, regardless of whether he actually treated, offered to
6773treat, or advertised that he could treat S.S. for cancer.
6783145 . Respondent acted beyond the scope of his practice by
6794law and performed professional responsibilities that he knew he
6803was not competent to perform by rejecting S.S. ' s existing
6814diagnosis of HL.
6817Facts Related to Financial Exploitation Violation
682314 6 . Re spondent knew, or should have known, that S.S. had
6836lymphoma. Respondent knew that the only approved effective
6844treatment for HL is chemotherapy and that if left untreated, HL
6855will cause a patient ' s untimely death.
686314 7 . Despite knowing that S.S. had H L, Respondent tried to
6876find an alternate diagnosis to explain S.S. ' s symptoms.
6886148 . M.S. and S.S. trusted Respondent to make medical
6896decisions in S.S. ' s best interest, such that Respondent was able
6908to convince M.S. and S.S. that S.S. ' s symptoms were caused by
6921something other than HL, thus necessitating additional
6928appointments and blood work.
6932149 . Between August 30, 2011, and February 7, 2013,
6942Respondent addressed S.S. ' s symptoms, which were reasonably
6951caused by HL, with a variety of symptomatic treatments that
6961Respondent knew, or should have known, would not have affected
6971S.S. ' s HL or extended her life expectancy.
698015 0 . Respondent ' s MA administered S.S. $300.00 worth of
6992InFed injections when he knew, or should hav e known, that S.S.
7004was not i ron - deficient and that iron would not have addressed
7017S.S. ' s fatal illness. Even if S.S. was iron - deficient, iron
7030supplements would not have extended S.S. ' s life expectancy.
704015 1 . Respondent ordered $930.00 worth of blood work testing
7051for S.S. whe n he knew or should have known that additional blood
7064work would not have affected the established diagnosis of HL and
7075that any diagnosis derived from the lab results would not have
7086extended S.S. ' s life expectancy.
7092152 . Respondent charged S.S. $1,760.00 i n appointment fees
7103ove r a one and a - half year period. During these appointments,
7116Respondent treated S.S. ' s symptomatic complaints with treatments
7125that Respondent knew, or should have known, would not have
7135addressed S.S. ' s HL. Moreover, even if the treatm ents
7146appropriately addressed a secondary diagnosis, Respondent knew,
7153or should have known, that these consultations and recommended
7162treatments would not have extended S.S. ' s life expectancy.
717215 3 . Accordingly, S.S. and her family paid Respondent and
7183H FM approximately $2,990.00, in pursuit of treatment that
7193Respondent influenced them to believe was necessary, appropriate,
7201and would lead to or improve S.S. ' s health.
7211154 . Respondent benefitted financially from the payments
7219remitted to him and HFM by S.S.
7226Facts Related to Aggravating Factors
723115 5 . Respondent ' s conduct resulted in significant harm,
7242including the extended suffering and ultimate death, of patient
7251S.S .
7253156 . Petitioner entered a Final Order against Respondent ' s
7264license in DOH Ca se No. 2008 - 00890 for v iolations of Sections
7278458.331(1)( t), and 458.331(1)(m), Florida Statutes (2003 - 2004).
7287The Final Order constitutes discipline against Respondent ' s
7296license. 19/
7298CONCLUSIONS OF LAW
730115 7 . The Division of Administrative Hearings has pers onal
7312and subject matter jurisdiction in this proceeding pursuant to
7321sections 120.569 and 120.57(1), Florida Statutes (201 5 ).
7330158 . A proceeding to suspend, revoke, or impose other
7340discipline upon a license is penal in nature. State ex rel.
7351Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491 (Fla.
73651973). Petitioner must theref ore prove the charges against
7374Respondent by clear and convincing evidence. Fox v. Dep ' t of
7386Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008)(citing Dep ' t of
7400Banking & Fin. v. Osborn e Stern & Co. , 670 So. 2d 932 (Fla.
74141996)).
7415159 . The clear and convincing standard of proof has been
7426described by the Florida Supreme Court:
7432Clear and convincing evidence requires that
7438the evidence must be found to be credible;
7446the facts to which th e witnesses testify must
7455be distinctly remembered; the testimony must
7461be precise and explicit and the witnesses
7468must be lacking in confusion as to the facts
7477in issue. The evidence must be of such
7485weight that it produces in the mind of the
7494trier of fact a firm belief or conviction,
7502without hesitancy, as to the truth of the
7510allega tions sought to be established.
7516In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.
7528Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983)).
753816 0 . Disciplinary statutes and rules " must always be
7548construed strictly in favor of the one against whom the penalty
7559would be imposed and are never to be extended by construction. "
7570Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 931
7584(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real
7601Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).
7610161 . The grounds proving Petitioner ' s assertion that
7620Respondent ' s license should be disciplined must be those
7630specifically alleged in the Second Amended Administrative
7637Complaint. See e.g. , Trevisani v. Dep ' t of Health , 908 So. 2d
76501108 (Fla. 1st DCA 2005); Kinney v. Dep ' t of State , 501 So. 2d
7665129 (Fla. 5th DCA 1987); and Hunter v. Dep ' t of Prof ' l Reg. , 458
7682So. 2d 842 (Fla. 2d DCA 1984).
7689Count I Î Medical Malpractice
7694162 . Sec tion 458.331(1)(t) provides that it is a violation
7705for a medical doctor to commit medical malpractice, as defined in
7716section 456.50 . Section 456.50(1)(g) defines " medical
7723malpractice " as the failure to practice medicine in accordance
7732with the level of car e, skill, and treatment recognized in
7743general law related to health care licensure.
775016 3 . Petitioner proved by clear and convincing evidence
7760that the standard of care in Florida required Respondent to :
7771timely refer S.S. to an oncologist/hematologist ; educate and
7779counsel S.S. on the risks, including death, of not treating her
7790HL ; and appropriately attribute S.S. ' s symptoms to HL. See Clark
7802v. Dep ' t of Bus. & Prof ' l Reg., Bd. o f Med. , 463 So. 2d 328 (Fla.
78225th DCA 1985)(physician that treated patient ' s c ancer with
7833holistic therapies was still required to abide by standard of
7843care for medical doctors); Ag. f or Health Care Admin, Bd. of Med.
7856v. Richard Plagenhoef, M.D. , Case No. 94 - 3214 ( Fla. DOAH
7868Feb. 5, 1996; AHCA Apr. 12, 1996) (physician was engaged in the
7880practice of medicine even though he used holistic treatments to
7890treat medical conditions).
7893164 . Petitioner proved by clear and convincing evidence
7902that Respondent violated section 458.331(1)(t), by falling below
7910the standard of care for family me dicine medical doctors in the
7922state of Florida by failing to timely refer S.S. to an
7933oncologist/hematologist, by failing to educate and counsel S.S.
7941on the risks, including death , of not treating HL, and by failing
7953to appropriately attribute S.S. ' s symptom s to HL.
7963165 . Respondent argues that there was no need to refer S.S.
7975to an oncologist/hematologist because she was diagnosed with
7983lymphoma by at least five oncologist s / hematologists before and
7994during the time she was a patient of Respondent. Alterna tively ,
8005Responde n t argues he " referred " S.S. to Mayo, ordered two PET
8017scans , and sent a letter to Dr. Rothschild.
8025166 . However, as discussed above, the evidence demonstrated
8034that S.S. referred herself to multiple oncologists/hematologists
8041in an attem pt to get a clear diagnosis. Her understandable
8052confusion and skepticism of her HL diagnosis was only compounded
8062by Petitioner ' s suggestions that her symptoms were as a result of
8075food and/or mold allergies , and that her cancer diagnosis was
" 8085low on his li st " of concerns .
8093167 . Had Respondent once asked S.S. what course of
8103treatment she was undergoing for HL , he would have learned that
8114she was not under the care of any oncologist/hematologist , nor
8124was she receiving likely life - saving chemotherapy . H ad
8135Respondent once picked up the telephone to coordinate care and
8145spoke to Dr. Rothschild or any of the other
8154oncologists/hematologists who ordered tests for S.S. , h e would
8163have learned that S.S. was not under the care of any
8174oncologist/hematologist for he r HL .
8180168 . It is specious that Respondent argues he was not
8191S.S . ' s primary care physician and therefor e had no obligation to
8205refer her to an oncologist/hematologist , yet at the same time
8215argues that his writing a brief note to Dr. Rothschild, orderin g
8227PET scans at the request of S.S. for other doctor s and supplying
8240S.S. with a one - line note to refer to Mayo somehow satisfied any
8254obligation he had to refer her to a specialist. Interestingly,
8264Respondent never communicated t o Dr. Federman, the doctor
8273Re spondent claims he assumed was S.S. ' s primary care doctor, to
8286discuss what treatments, if any, S.S. was undertaking for her HL .
8298169 . Respondent ' s notes are wholly devoid of any reference
8310to a ny purported conversation he had with S.S. or her mother
8322re garding the likely repercussions, including death, of failing
8331to treat her HL . Nor did Respondent provide such advice or
8343counseling in writing. Instead, Respondent sought to diagnose
8351S.S. ' s symptoms as anything other than her HL . It is astounding
8365that R espondent never ask ed S.S. about any chemotherapy treatment
8376she might be receiving which, by itself, could have resulted in
8387some of the symptoms of which she complained.
839517 0 . Respondent suggests that any such discussion would
8405have been futile because S.S. and her mother refus ed to believe
8417her diagnosis, he could not force S.S to go see another
8428oncologist , or to begin treatment that she would refuse . The
8439evidence shows how ever that S.S. ( and her mother ) compl etely
8452trusted Respondent, undertook his dir ection with regard to seeing
8462an allergist, considered going to Tampa to have parathyroid
8471surgery, took unnecessary iron shots, and took antibiotics for
8480likely non - existent UTIs.
8485171 . F rom Respondent ' s very first visit with S.S. until
8498after her death , Respondent downplayed the seriousness of her HL .
8509172 . Respondent began his relationship with S.S. and her
8519mother by regaling them with the story of his uncle who committed
8531malpractice by providing chemotherapy to someone who was
8539misdiagnosed. Res pondent ' s cryptic note on July 5, 2011, to
8551Dr. Rothschild, the oncologist/hematologist, identifies "mold is
8558causing all of these physical symptoms and exam findings" as one
8569of the possible reasons for S.S . ' s symptoms. Even after
8581reviewing the medical exa miner ' s findings that S.S. died from
8593untreated HL , Respondent told M.S. he wasn ' t convinced S.S. had
8605cancer and the slides prior to her death " underwhelming. "
861417 3 . T his course of interaction between R e sponde n t, S.S. ,
8629and M. S. , is utterly inconsistent with Respondent ' s claim that he
8642verbally educated and counseled S.S. about the dangers of not
8652treating her HL or appropriately attributed her symptoms to HL .
8663Count II Î Medical Records Violation
8669174 . Section 458.331(1)(m) provides that it is a viola tion
8680for a physician to fail to keep legible, as defined by Department
8692rule in consultation with the Board, medical records that
8701identify the licensed physician or the physician extender and
8710supervising physician by name and professional title who is or
8720ar e responsible for rendering, ordering, supervising, or billing
8729for each diagnostic or treatment procedure and that justify the
8739course of treatment of the patient, including, but not limited
8749to, patient histories; examination results; test results; records
8757of drugs prescribed, dispensed, or administered; and reports of
8766consultations and hospitalizations.
8769175 . As discussed by Petitioner ' s expert, Dr. Ambinder:
8780I find no evidence in the record that
8788[Respondent] had any documented conversation
8793to the pati ent insisting she get treatment
8801for her cancer... . You ' re falling below the
8811standard of care if not documented that you
8819had a full and legitimate conversation with
8826the patient describing that you feel she had
8834a malignancy, and that the malignancy needed
8841t o be treated, and the malignancy was the
8850cause of many of her symptoms... . His
8858responsibility, as a practicing physician in
8864the state of Florida, is to ensure that his
8873patients get the best care. He would know,
8881from going to medical school, that Hodgkin ' s
8890disease in a young woman, Stage III, is very
8899curative, and they need to be treated with
8907standard therapy in order to be cured. For
8915two years, he took care of the patient.
8923Never once did he specifically document that
8930he inquired whether she was getting active
8937treatment, nor did he document that any of
8945the symptoms which he was treating could
8952possibly be related to chemotherapy. It was
8959like he did not care... . All he cared about,
8969in the notes, it appeared to be, were
8977treating mold symptoms or allergies. He
8983neglected the main cause of this patient ' s
8992death. If this patient were treated earlier,
8999she most likely would have survived. She had
9007an 80 percent to 85 percent chance of being
9016in complete remission.
9019Deposition transcript of Roy Mark Ambinder, M.D. ,
9026pp . 121/1 - 123/3.
9031176 . Petitioner proved by clear and convincing evidence
9040that Respondent failed to keep legible medical records justifying
9049the course of treatment for S.S., including failing to keep
9059legible medical records providing an adequate m edical
9067justification for the diagnoses rendered and treatment provided.
907517 7 . Petitioner proved by clear and convincing evidence
9085that Respondent failed to keep legible medical records
9093documenting that he educated or counseled S.S. on the risks of
9104for e going treatment or that he referred S.S. to an oncologist.
9116178 . As a result, P etitioner proved by clea r and convincing
9129evidence that R espondent violated section 458.331(1)( m).
9137Count III Î Exploitation of the Patient
9144179 . I t is a violation for a medical doctor to exercise
9157influence on a patient or client in such a manner as to exploit
9170the patient or client for financial gain of the licensee or of a
9183third party, which shall include , but not be limited to , the
9194promoting or selling of services, good s, appliances or drugs.
9204§ 458.331 (1)(n) , Fla. Stat .
9210180 . Petitioner proved by clear and convincing evidence
9219that Respondent violated section 458.331(1)(n), by exercising
9226influence on S.S. in such a manner as to exploit her for
9238financial gain by sch eduling appointments, selling and
9246administering drugs, and obtaining blood work from the patient
9255when Respondent knew, or should have known that none of these
9266courses of action would reasonably alter the medical condition,
9275treatment, or life expectancy of S.S. See Hasbun v. Dep ' t of
9288Health , 701 So. 2d 1235 (Fla. 3d DCA 1997) (finding that doctor
9300financially exploited patient by performing procedures and
9307prescribing medications that he knew would not alter the medical
9317condition, treatment or life expectancy of a patient diagnosed
9326with terminal cancer) . Ag. f or Health Care Admin . v. Rene
9339Hasbun, M.D. , Case Nos. 94 - 0607 & 94 - 0778 ( Fla. DOAH Dec. 24,
93551996; AHCA Mar. 13, 1997).
9360Count IV - Scope of Practice
936618 1 . Section 456.072(1)(o) provides that it is a v iolation
9378for a doctor to practice or offer to practice beyond the scope
9390permitted by law or accept and perform professional
9398responsibilities the he knows, or has reason to know, that he is
9410not competent to perform.
9414182 . Respondent readily admits tha t he is not an on cologist
9427or hematologist nor is he qualified to give advice regarding the
9438appropriate treatment for HL . However, the evidence, as
9447discussed above , demonstrates that R espondent certainly
9454minimized, if not outright rejected, S.S. ' s diagnosi s of HL .
9467183 . According to R espondent ' s A nswers to P etitioner ' s
9482R equest for A dmissions, R espondent acknowledged, " I was not
9493board - certified in hematology or oncology and I could not advise
9505patient SS whether she had cancer or not, nor what treatments to
9517undergo. " Yet, R espondent admits at his first visit with the
9528patient , " I did discuss the possibility of a ' false - positive
9540biopsy report, ' stating that there was cancer, when there really
9551was not. I recounted the example of my uncle, Dr. Abraham
9562Rosen berg, who was sued for malpractice and lost $8.1 million, in
9574judgment, for treating a patient with chemotherapy, when the
9583patient never had cancer to begin with. That specific case
9593involved patient, J.P., mis - diagnosed with malignant non -
9603Hodgkin ' s lymphom a who eventually died from complications of
9614chemotherapy. "
9615184 . Petitioner proved by clear and convincing evidence
9624that Respondent violated section 456.072(1)(o), by practicing
9631beyond t he scope permitted by law and accepted and performed
9642professional responsibilities that he knew he was not competent
9651to perform by rejecting S.S. ' s existing diagnosis of HL.
9662Penalty Assessment
966418 5 . Petitioner imposes penalties upon licensees consistent
9673with disciplinary guidelines prescribed by rule. See Parrot
9681H eads, Inc. v. Dep ' t of Bus. & Prof ' l Reg. , 741 So. 2d 1231,
96991233 - 34 (Fla. 5th DCA 1999).
9706186 . Penalties in a licensure discipline case may not
9716exceed those in effect at the time the violations were committed.
9727Willner v. Dep ' t of Prof Ól Reg., Bd. of M ed. , 563 So. 2d 805, 806
9745(Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991).
9757187 . At the time of the incidents, Florida Administrative
9767Code Rule 64B8 - 8.001(2)(t) provided that for a first - time
9779offender committing medical malpractice, as des cribed in section
9788458.331(1)(t), the prescribed penalty range was f rom one (1) year
9799probation to revocation or denial, and an administrative fine
9808from $1,000.00 to $10,000.00. The recommended penalty for a
9819second violation of section 458.331(1)(t) ranged from two years
9828of probation to revocation and an administrative fine from $5,000
9839to $10,000. Id .
9844188 . Rule 64B8 - 8.001(2)(m) provided that for a first - time
9857offender failing to keep required medical records, as described
9866in section 458.331(1)(m), the prescribed penalty range was f rom a
9877reprimand to denial or two (2) years of suspension followed by
9888probation and an administrative fine from $1,000.00 to
9897$10,000.00. The recommended penalty for a second violation of
9907section 458.331(1)(m) range d from proba tion to suspension
9916followed by probation and an administrative fine from $5,000 to
9927$10,000 . Fla. Admin. Code R. 64B8 - 8.001(2)(m) .
9938189 . The recommended penalty for a first violation of
9948section 458.331(1)(n) for exploitation of a patient range d from
9958p robation to two years of suspension followed by probation ,
9968payment of the fees paid by or on behalf of the patient, and an
9982administrative fine from $5,000 to $10,000. Fla. Admin. Code R.
999464B8 - 8.001(2)(n) .
9998190 . The recommended penalty for a first - tim e violation of
10011section 456.072(1)(o) for practicing beyond the scope permitted
10019by law , range d from two years of suspension to revocation and an
10032administrative fine from $1,000 to $10,000. Fla. Admin. Code R.
1004464B8 - 8.001(2)(v) .
1004819 1 . Rule 64B8 - 8.001(3) provided that, in applying the
10060penalty guidelines, the following aggravating and mitigating
10067circumstances should also be taken into account:
10074(3) Aggravating and Mitigating
10078Circumstances. Based upon consideration of
10083aggravating and mitigating factors pres ent in
10090an individual case, the Board may deviate
10097from the penalties recommended above. The
10103Board shall consider as aggravating or
10109mitigating factors the following:
10113(a) Exposure of patient or public to injury
10121or potential injury, physical or otherwise:
10127n one, slight, severe, or death;
10133(b) Legal status at the time of the offense:
10142no restraints, or legal constraints;
10147(c) The number of counts or separate
10154offenses established;
10156(d) The number of times the same offense or
10165offenses have previously been com mitted by
10172the licensee or applicant;
10176(e) The disciplinary history of the
10182applicant or licensee in any jurisdiction and
10189the length of practice;
10193(f) Pecuniary benefit or self - gain inuring
10201to the applicant or licensee;
10206(g) The involvement in any violati on of
10214Section 458.331, F.S., of the provision of
10221controlled substances for trade, barter or
10227sale, by a licensee. In such cases, the
10235Board will deviate from the penalties
10241recommended above and impose suspension or
10247revocation of licensure.
10250(h) Where a lic ensee has been charged with
10259violating the standard of care pursuant to
10266Section 458.331(1)(t), F.S., but the
10271licensee, who is also the records owner
10278pursuant to Section 456.057(1), F.S., fails
10284to keep and/or produce the medical records.
10291(i ) Any other rele vant mitigating factors.
10299192 . A significant aggravating factor is that Respondent ' s
10310actions exposed S.S. to severe injury or death. Aggravating
10319factor (c) applies because Petitioner established four separate
10327offenses committed by Respondent. A dditi on ally , under
10336paragraph (h), Respondent was charged with violating the standard
10345of care and it was found that he failed to keep adequate medical
10358records . Aggravating factor (f) also applies because Respondent
10367received pecuniary gain (albeit minimal) from providing
10374unnecessary treatments and testing to S.S.
1038019 3 . Petitioner argues that the prior discipline against
10390Respondent ' s license , aggravating factor (d), should be taken
10400into consideration. Respondent asserts that the prior discipline
10408was the res ult of a settlement in which there was no finding that
10422he, in fact , committed the alleged violations, and he did not
10433admit any wrongdoing. The undersigned finds it unnecessary to
10442rule on this issue because the other aggravating factors cited
10452herein are mo re than sufficient by themselves, without reference
10462to prior discipline, to support a recommendation for the proposed
10472penalty.
10473RECOMMENDATION
10474Based on the foregoing Findings of Fact and Conclusions of
10484Law, it is RECOMMENDED that the Board of Medicine ent er a final
10497order finding that Respondent violated sections 458.331(1)(t),
10504458.331(1)(m), 458.331(1)(n), and 456.072(1)(o), Florida
10509Statutes, as charged in Petitioner ' s Second Amended
10518Administrative Complaint; imposing a fine of $16,000.00;
10526requiring repaym ent of $2,990.00 to the estate of S.S. ; revoking
10538Respondent ' s license to practice medicine; and imposing costs of
10549the investigation and prosecution of this case. The undersigned
10558reserves jurisdiction to rule on Daniel TuckerÓs Application and
10567Motion for A ward of Expert Witness Fees.
10575DONE AND ENTERED this 29 th day of April , 2016 , in
10586Tallahassee, Leon County, Florida.
10590S
10591MARY LI CREASY
10594Administrative Law Judge
10597Division of Administrative Hearings
10601The DeSoto Building
106041230 Apal achee Parkway
10608Tallahassee, Florida 32399 - 3060
10613(850) 488 - 9675
10617Fax Filing (850) 921 - 6847
10623www.doah.state.fl.us
10624Filed with the Clerk of the
10630Division of Administrative Hearings
10634this 29 th day of April , 2016 .
10642ENDNOTE S
106441/ Respondent ' s E xhibits 3, 5, 6, 8, 9 , 11, and 12 were
10659duplicative of Petitioner ' s Exhibits 5, 11, 10, 9, 2, 3, and 4,
10673respectively.
106742 / Respondent advertises that he specializes in " difficult - to -
10686treat " symptoms, which he describes to include conditions that
10695people " have been frustrated with despite multiple attempts at
10704different physicians to be diagnosed or treated. "
107113/ In 2008, S.S. presented to Dr. Glick regarding the viscosity
10722of her blood. At that time, Dr. Glick told S.S. that further
10734hematological work - up was not indicated. S.S. d id not agree with
10747Dr. Glick ' s diagnosis since Dr. Glick had recently evaluated
10758S.S. ' s blood and determined that there was nothing wrong.
107694/ Bone marrow biopsies are used as staging exams to determine
10780the extent to which a disease has progressed throughou t the body.
10792A negative bone marrow biopsy does not contradict a positive
10802biopsy ; it only shows that the disease has not progressed from
10813the site of the first biopsy to the bone marrow.
108235/ A Computerized Axial Tomography scan, also referred to as a
" 10834CT " or " CAT " scan, is a specialized X - ray test that produces
10847cross - sectional images of the body.
108546/ Dr. Glick and Dr. Schwarzberg based their diagnoses on the
10865same pathology review of the biopsy slides. Therefore, they will
10875be considered as a composite " fir st opinion. " Dr. Sokol ' s
10887diagnosis, the " second opinion " was based on review of the biopsy
10898slides by NCI and Moffitt.
109037/ Positron Emissions Tomography (PET) .
109098/ AB V D is an abbreviation for the combination of chemotherapy
10921drugs: Adrianmycin, Bleomyci n, Velban , and DTIC .
109299/ White blood cells .
1093410/ Reed - Sternberg cells are large, multi - nucleated cells
10945commonly seen in HL. Biopsies often do not reveal Reed - Sternberg
10957cells because they are relatively rare, compared to reactive
10966lymph ocytes. While the presence of Reed - Sternberg cells are an
10978indicator for HL, the absence of Reed - Sternberg cells does not
10990preclude a n HL diagnosis. However, S.S. ' s pathology reports
11001indicated that there were Hodgkin ' s cells, a va riant of a
11014Reed - Sternberg cell.
1101811/ Respon dent stated that he did not reference HL in the
11030progress notes because he was not treating S.S. for HL. However,
11041Respondent routinely referenced " mold " and mold - related issues ,
11050even though he was not treating her mold allergies. Notably,
11060S.S. ' s allergist did include HL as a diagnosis in his notes, even
11074though he was not treating S.S. for HL either.
110831 2/ Lower back pain caused by inflammation of spinal nerves.
1109413/ Painful or difficult urination .
1110014/ Respondent finally tested S.S. ' s urine on January 1 4, 2013,
11113revealing S.S. did not have a UTI.
1112015/ Documents reviewed by Respondent included: 11/22/10 CT Scan;
1112912/8/10 UM Cytology Report; 12/27/10 PET CT scan; 1/14/11 UM
11139Pathology Report; 2/15/11 PET CT scan ; 3/24/11 NCI Pathology
11148Report; 4/8/11 Telepho ne Contact from Moffitt HL diagnosis;
111575/11/11 Abdominal CT Scan; 6/1/11 Hematology Consultation from
11165Mayo; 6/10/11 Pathology Report from Mayo; 6/22/11 Hematology
11173Consultation from Mayo.
1117616/ Dr. Silver failed to review and therefore consider in the
11187formul ation of his opinion, the audio recording (and/or
11196transcript) of S.S. ' s January 24, 2013, appointment; Neal
11206Rothschild ' s patient records for S.S. (aside from the
11216consultation report); the transcript of Respondent ' s deposition
11225taken in this matter; and the transcript of M.S. ' s deposition
11237taken in this matter.
1124117 / Section 381.026, Florida Statutes, entitled the " Florida
11250Patient ' s Bill of Rights and Responsibilities " defines a primary
11261care provider in very broad terms, as " a health care provider
11272licensed und er chapter 458, chapter 459, or chapter 464 who
11283provides medical services to patients which are commonly provided
11292without referral from another healthcare provider, including
11299family and general practice, general pediatrics, and general
11307internal medicine. " By Respondent ' s own admission, Respondent ' s
11318services at HFM do not require referral by another healthcare
11328provider.
1132918/ Chronic Fatigue Immunodeficiency Syndrome .
1133519/ Petitioner ' s Proposed Exhibit 8 was proffered with objection,
11346and the ruling was res erved . After careful review and weighing
11358the arguments of counsel, Petitioner ' s Exhibit 8 is admitted.
11369COPIES FURNISHED:
11371David Scott Fursteller, Esquire
11375Suite 201
113779957 Moorings Drive
11380Jacksonville, Florida 32257
11383(eServed)
11384W.N. Russell Huseman, Esquire
11388Suite 201
113909957 Moorings Drive
11393Jacksonville, Florida 32257
11396Kristen M. Summers, Esquire
11400Louise Wilhite - St. Laurant, Esquire
11406Department of Health
11409Prosecution Services Unit
11412Bin C - 65
114164052 Bald Cypress Way
11420Tallahassee, Florida 32399
11423(eServed)
11424Claudia Kemp, J.D., Executive Director
11429Department of Health
11432Bin C03
114344052 Bald Cypress Way
11438Tallahassee, Florida 32399 - 3253
11443(eServed)
11444Nichole C. Geary, General Counsel
11449Department of Health
11452Bin A02
114544052 Bald Cypress Way
11458Tallahassee, Florida 32399 - 1701
11463(eServed)
11464NOTI CE OF RIGHT TO SUBMIT EXCEPTIONS
11471All parties have the right to submit written exceptions within
1148115 days from the date of this Recommended Order. Any exceptions
11492to this Recommended Order should be filed with the agency that
11503will issue the Final Order in t his case.
- Date
- Proceedings
- PDF:
- Date: 03/17/2017
- Proceedings: Transmittal letter from Claudia Llado forwarding the two-volume Transcript to the agency.
- PDF:
- Date: 03/13/2017
- Proceedings: Department of Health's Status Report Re: Movant's Application and Motion for Award of Expert Witness Fees filed.
- PDF:
- Date: 01/11/2017
- Proceedings: Order Granting Motion for Abeyance or Continuance of Motion Hearing.
- PDF:
- Date: 01/11/2017
- Proceedings: Petitioner and Movant's Motion for Abeyance or Continuance of Motion Hearing filed.
- PDF:
- Date: 12/06/2016
- Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for January 12, 2017; 10:00 a.m.).
- PDF:
- Date: 11/29/2016
- Proceedings: Motion to Decide Daniel N.Tucker, MD, A Subpoenaed Expert Witness', Application and Motion for Award of Expert Witness Fees filed.
- PDF:
- Date: 05/02/2016
- Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's volumes I-V proposed exhibits to Respondent.
- PDF:
- Date: 05/02/2016
- Proceedings: Transmittal letter from Claudia Llado forwarding Respondent's Exhibits numbered R4 and R7, which were not admitted into evidence to Respondent.
- PDF:
- Date: 05/02/2016
- Proceedings: Transmittal letter from Claudia Llado forwarding a Telephonic Transcript on a motion of a non-party Dr. Neal Rothschild, to determine reasonable deposition fees, to the agency.
- PDF:
- Date: 04/29/2016
- Proceedings: Recommended Order (hearing held February 2 and 3, 2016). CASE CLOSED.
- PDF:
- Date: 04/29/2016
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- PDF:
- Date: 03/21/2016
- Proceedings: Order on Pending Motions Regarding Respondent`s Proposed Exhibits 4, 7, and 13.
- PDF:
- Date: 03/18/2016
- Proceedings: Petitioner's Response to Respondent's Motion to Reopen Final Hearing filed.
- PDF:
- Date: 03/14/2016
- Proceedings: Respondent's Response in Opposition to Petitioner's Motion to Exclude filed.
- PDF:
- Date: 03/08/2016
- Proceedings: Order Granting Respondent`s Motion for Reconsideration of Motion for Extension of Time to File Proposed Recommended Order.
- PDF:
- Date: 03/08/2016
- Proceedings: Petitioner's Response to Respondent's Motion for Reconsideration of Motion for Extension of Time to File Proposed Recommended Order filed.
- PDF:
- Date: 03/08/2016
- Proceedings: Respondent's Motion for Reconsideration of Motion for Extension of Time to File Proposed Recommended Order filed.
- PDF:
- Date: 03/07/2016
- Proceedings: Respondent's Response in Opposition of Daniel Tucker's Motion for Award of Expert Witness Fees filed.
- PDF:
- Date: 03/07/2016
- Proceedings: Order Granting Petitioner`s Unopposed Motion to Expand Page Limit for Proposed Recommended Order.
- PDF:
- Date: 03/07/2016
- Proceedings: Petitioner's Unopposed Motion to Expand Page Limit for Proposed Recommended Order filed.
- PDF:
- Date: 03/07/2016
- Proceedings: Order Granting Respondent`s Unopposed Motion for Extension of Time to File Response to Petitioner`s Motion to Exclude.
- PDF:
- Date: 03/04/2016
- Proceedings: Respondent's Unopposed Motion for Extension of Time to File Response to Petitioner's Motion to Exclude filed.
- Date: 03/03/2016
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 03/03/2016
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- PDF:
- Date: 03/02/2016
- Proceedings: Petitioner's Response to Daniel Tucker's Application and Motion for Award of Expert Witness Fees filed.
- PDF:
- Date: 03/01/2016
- Proceedings: Order Denying Respondent`s Motion for Extension of Time to File Proposed Recommended Order.
- PDF:
- Date: 02/29/2016
- Proceedings: Petitioner's Response to Respondent's Motion for Extension of Time to File Proposed Recommended Order filed.
- PDF:
- Date: 02/29/2016
- Proceedings: Respondent's Motion for Extension of Time to File Proposed Recommended Order filed.
- PDF:
- Date: 02/29/2016
- Proceedings: Petitioner's Motion to Exclude Respondent's Proposed Exhibits 4, 7, and 13 filed.
- Date: 02/18/2016
- Proceedings: Transcript of Proceedings (not available for viewing) filed.
- Date: 02/10/2016
- Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
- Date: 02/04/2016
- Proceedings: Received Petitioner's Hearing Exhibits (2 boxes) filed (exhibits not available for viewing).
- Date: 02/02/2016
- Proceedings: CASE STATUS: Hearing Held.
- PDF:
- Date: 01/29/2016
- Proceedings: Order Denying Respondent`s Motion for Leave to Reply to Petitioner`s Response to Respondent`s Motion in Limine.
- PDF:
- Date: 01/29/2016
- Proceedings: Order Granting Petitioner`s Motion to Strike Respondent`s Reply to Petitioner`s Response Opposing Respondent`s Motion in Limine.
- PDF:
- Date: 01/29/2016
- Proceedings: Respondent's Motion for Leave to Reply to Petitioner's Response to Respondent's Motion in Limine filed.
- PDF:
- Date: 01/29/2016
- Proceedings: Petitioner's Motion to Strike Respondent's Reply to Petitioner's Response Opposing Respondent's Motion in Limine filed.
- PDF:
- Date: 01/29/2016
- Proceedings: Response to Petitioner's Response Opposing Respondent's Motion in Limine filed.
- PDF:
- Date: 01/28/2016
- Proceedings: Petitioner's Corrected Response in Opposition to Respodnent's Motion in Limine to Limit and Exclude Testimony and Evidence Related to Respondent's Prior Administrative Complaint filed.
- PDF:
- Date: 01/28/2016
- Proceedings: Petitioner's Response in Opposition to Respondent's Motion in Limine to Limit and Exclude Testimony and Evidence Related to Respondent's Prior Administrative Complaint filed.
- PDF:
- Date: 01/28/2016
- Proceedings: Respondent's Motion in Limine to Limit and Exclude Testimony and Evidence Related to Respondent's Prior Administrative Complaint filed.
- PDF:
- Date: 01/26/2016
- Proceedings: Petitioner's Motion in Limine to Limit and Exclude Expert Testimony filed.
- PDF:
- Date: 01/25/2016
- Proceedings: Notice of Intent to Seek to Admit Records Pursuant to Section 90.8003(6)(c), Florida Statutes filed.
- PDF:
- Date: 01/21/2016
- Proceedings: Order Limiting Respondent`s Use of Documents at Final Hearing as a Sanction for Failure to Comply with Order Compelling Production of Documents.
- PDF:
- Date: 01/20/2016
- Proceedings: Petitioner's Response in Opposition to Respondent's Motion for Reconsideration filed.
- PDF:
- Date: 01/19/2016
- Proceedings: Order Granting Petitioner`s Motion in Limine to Exclude Testimony and Evidence Related to the "HCG Diet".
- PDF:
- Date: 01/19/2016
- Proceedings: Notice of Taking Deposition Duces Tecum (Charles K. Powers, M.D.) filed.
- PDF:
- Date: 01/19/2016
- Proceedings: Notice of Taking Deposition Duces Tecum (Robert J. Federman,M.D.) filed.
- Date: 01/13/2016
- Proceedings: CASE STATUS: Motion Hearing Held.
- PDF:
- Date: 01/08/2016
- Proceedings: Cross Notice of Taking Deposition Duces Tecum (of Stephen Silver) filed.
- PDF:
- Date: 01/08/2016
- Proceedings: Cross Notice of Taking Deposition Duces Tecum (of Robert Federman) filed.
- PDF:
- Date: 01/08/2016
- Proceedings: Cross Notice of Taking Deposition Duces Tecum (of Daniel Tucker)filed.
- PDF:
- Date: 01/08/2016
- Proceedings: Cross Notice of Taking Deposition Duces Tecum (of Roy Ambinder) filed.
- PDF:
- Date: 01/05/2016
- Proceedings: Notice of Taking Deposition Duces Tecum in Lieu of Live Testimony (of Roy Ambinder) filed.
- PDF:
- Date: 01/05/2016
- Proceedings: Petitioner's Motion in Limine to Exclude Testimony and Evidence Related to the "HCG DIET" filed.
- PDF:
- Date: 01/04/2016
- Proceedings: Notice of Taking Deposition Duces Tecum (of Daniel Tucker) filed.
- PDF:
- Date: 01/04/2016
- Proceedings: Notice of Taking Deposition Duces Tecum (Stephen Silver, M.D.) filed.
- PDF:
- Date: 01/04/2016
- Proceedings: Notice of Taking Deposition Duces Tecum (of Robert Federman) filed.
- PDF:
- Date: 01/04/2016
- Proceedings: Petitioner's Response to Respondent's Motion for Continuance of Final Hearing filed.
- PDF:
- Date: 12/31/2015
- Proceedings: Notice of Taking Telephonic Deposition Ad Testificandum (of Spring Riccardi) filed.
- PDF:
- Date: 12/31/2015
- Proceedings: Notice of Taking Telephonic Deposition Ad Testificandum (of Julie Gill) filed.
- PDF:
- Date: 12/31/2015
- Proceedings: Notice of Taking Telephonic Deposition Ad Testificandum (of Gina Ricciardi) filed.
- PDF:
- Date: 12/31/2015
- Proceedings: Notice of Taking Telephonic Deposition Ad Testificandum (of Sue Woliner) filed.
- PDF:
- Date: 12/31/2015
- Proceedings: Notice of Taking Telephonic Deposition Ad Testificandum (of Francine Brown) filed.
- PDF:
- Date: 12/22/2015
- Proceedings: Petitioner's Motion to Compel Responses to the Petitioner's First Request for Production of Documents filed.
- PDF:
- Date: 12/22/2015
- Proceedings: Petitioner's Notice of Service of Expert Interrogatories to Respondent filed.
- PDF:
- Date: 12/22/2015
- Proceedings: Petitioner's Response to Neal Rothschild's Motion to Determine Reasonable Deposition Fee filed.
- PDF:
- Date: 12/21/2015
- Proceedings: Respondent's Response to Petitioner's Motion for Determination of Waiver, and Respondent's Demand for Attorneys Fees (FILED IN ERROR) filed.
- PDF:
- Date: 12/09/2015
- Proceedings: Cross Notice of Taking Deposition Duces Tecum (of Kenneth Woliner) filed.
- PDF:
- Date: 12/09/2015
- Proceedings: Notice of Taking Deposition Duces Tecum (of Complainant M.S.) filed.
- PDF:
- Date: 12/07/2015
- Proceedings: Neal Rothschild, M.D.'s Motion to Determine Reasonable Deposition Fee filed.
- PDF:
- Date: 11/24/2015
- Proceedings: Notice of Taking Deposition Duces Tecum (of Dr. Neal Rothschild) filed.
- PDF:
- Date: 11/17/2015
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for February 2 and 3, 2016; 9:00 a.m.; West Palm Beach, FL).
- PDF:
- Date: 11/06/2015
- Proceedings: Notice of Taking Deposition Duces Tecum (of Kenneth Woliner, M.D.) filed.
- PDF:
- Date: 11/06/2015
- Proceedings: (Petitioner's) Unopposed Motion for Continuance of Final Hearing filed.
- Date: 10/30/2015
- Proceedings: Fax from University of Miami Health Systems regarding non-acceptance of subpoena directed to the Custodian of Records, Dr. Robert Federman filed. Confidential document; not available for viewing.
- PDF:
- Date: 10/19/2015
- Proceedings: Notice of Postponing Deposition Duces Tecum (Kenneth Woliner M.D.) filed.
- PDF:
- Date: 10/16/2015
- Proceedings: Notice of Taking Deposition Duces Tecum (Kenneth Woliner, M.D.) filed.
- PDF:
- Date: 09/29/2015
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for January 7 and 8, 2016; 9:00 a.m.; West Palm Beach, FL).
- PDF:
- Date: 09/24/2015
- Proceedings: Notice of Hearing (hearing set for October 14 and 15, 2015; 9:00 a.m.; West Palm Beach, FL).
Case Information
- Judge:
- MARY LI CREASY
- Date Filed:
- 12/06/2016
- Date Assignment:
- 01/06/2016
- Last Docket Entry:
- 03/17/2017
- Location:
- West Palm Beach, Florida
- District:
- Southern
- Agency:
- ADOPTED IN PART OR MODIFIED
- Suffix:
- PL
Counsels
-
John C. Dotterrer, Esquire
Address of Record -
David Scott Fursteller, Esquire
Address of Record -
W.N. Russell Huseman, Esquire
Address of Record -
Brynna J. Ross, Esquire
Address of Record -
Kristen M. Summers, Esquire
Address of Record -
Louise Wilhite-St Laurent, Esquire
Address of Record -
Keith C. Humphrey, Esquire
Address of Record