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.


View Dockets  
Summary: Physician, who attributed young patient's symptoms to allergies, rather than her previously diagnosed malignancy, committed malpractice, ultimately resulting in the death of the patient due to untreated lymphoma. Recommend license revocation and fine.

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.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/17/2017
Proceedings: Transmittal letter from Claudia Llado forwarding the two-volume Transcript to the agency.
PDF:
Date: 03/16/2017
Proceedings: Order Closing File and Relinquishing Jurisdiction. CASE CLOSED.
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: 02/06/2017
Proceedings: Notice of Substitution of Counsel (Keith Humphrey) filed.
PDF:
Date: 01/12/2017
Proceedings: Order Denying Motion in Limine.
PDF:
Date: 01/11/2017
Proceedings: Order Granting Motion for Abeyance or Continuance of Motion Hearing.
PDF:
Date: 01/11/2017
Proceedings: Petitioner's Motion in Limine filed.
PDF:
Date: 01/11/2017
Proceedings: Petitioner and Movant's Motion for Abeyance or Continuance of Motion Hearing filed.
PDF:
Date: 01/10/2017
Proceedings: Notice of Witnesses filed.
PDF:
Date: 12/30/2016
Proceedings: Respondent's Exceptions to the Recommended Order filed.
PDF:
Date: 12/30/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 12/29/2016
Proceedings: Agency Final Order
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
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: 03/23/2016
Proceedings: Proposed Recommended Order filed.
PDF:
Date: 03/23/2016
Proceedings: Respondent's Proposed Recommended Order filed.
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: 03/14/2016
Proceedings: Respondent's Motion to Re-open Final Hearing filed.
PDF:
Date: 03/10/2016
Proceedings: Undeliverable envelope returned from the Post Office.
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: 03/03/2016
Proceedings: Petition to Review Non-final Agency Action filed.
PDF:
Date: 03/02/2016
Proceedings: Application and Motion for Award of Expert Witness Fees 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: Notice of Ex-parte Communication.
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.
PDF:
Date: 02/26/2016
Proceedings: Application and Motion for Award of Expert Witness Fees filed.
PDF:
Date: 02/26/2016
Proceedings: Notice of Appearance (John Dotterrer) filed.
PDF:
Date: 02/26/2016
Proceedings: (Petitioner's) Petition to Review Non-final Agency Action 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: Joint Pre-hearing Stipulation 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: Order Granting Motion to Determine Reasonable Deposition Fee.
PDF:
Date: 01/20/2016
Proceedings: Order Denying Motion for Reconsideration.
PDF:
Date: 01/20/2016
Proceedings: Petitioner's Response in Opposition to Respondent's Motion for Reconsideration filed.
PDF:
Date: 01/20/2016
Proceedings: Motion for Reconsideration filed.
PDF:
Date: 01/19/2016
Proceedings: Petitioner's Request for Official Recognition 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: Petitioner's Status Update Regarding Order to Compel filed.
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: 01/12/2016
Proceedings: Order Granting Petitioner`s Motion to Compel.
PDF:
Date: 01/11/2016
Proceedings: Order Denying Motion for Continuance of Final Hearing.
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: 01/06/2016
Proceedings: Notice of Transfer.
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: 01/04/2016
Proceedings: 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: 12/10/2015
Proceedings: Petitioner's Second Request for Production 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: Cross Notice of Taking Deposition Duces Tecum 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: 09/25/2015
Proceedings: Unopposed Motion for Continuance of Final Hearing filed.
PDF:
Date: 09/24/2015
Proceedings: Order of Pre-hearing Instructions.
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).
PDF:
Date: 09/21/2015
Proceedings: Joint Response to the Initial Order filed.
PDF:
Date: 09/14/2015
Proceedings: Notice and Certificate of Service of Petitioner's First Set of Interrogatories filed.
PDF:
Date: 09/14/2015
Proceedings: Initial Order.
PDF:
Date: 09/14/2015
Proceedings: Election of Rights filed.
PDF:
Date: 09/14/2015
Proceedings: Second Amended Administrative Complaint filed.
PDF:
Date: 09/14/2015
Proceedings: Agency referral filed.

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

Related Florida Statute(s) (8):

Related Florida Rule(s) (1):