96-000024 Board Of Medicine vs. Lehel Kadosa Status: Closed Recommended Order on Friday, September 17, 1999.

Summary: Physician`s advertising found to be deceptive where patient was charged for physical examination despite promise of free initial consultation; physician also claimed board certification in unrecognized areas and ordered unnecessary test for patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 96-0024

)

LEHEL KADOSA, M.D., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on

December 9, 1997, in Tampa, Florida, before Lawrence P. Stevenson,

a duly-designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Agency for H ealth Care Administration

Legal Department

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Christopher J. Schulte, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard

Suite 1000

Tampa, Florida 33629

Salvatore A. Carpino, Esquire

Colonial Square Office Park

8001 North Dale Mabry Highway

Suite 301-A

Tampa , Florida 33614

STATEMENT OF THE ISSUES

The issue for determination in this case is whether

Respondent's license to practice medicine should be revoked or

otherwise disciplined for the alleged violations of Section

458.331(1), Florida Statutes, set forth in the Administrative

Complaint.

PRELIMINARY STATEMENT

On April 12, 1993, Petitioner, Department of Health, filed a

ten-count Administrative Complaint (the "complaint") alleging that

Respondent violated Section 458.331(1), Florida Statutes, during

the course of his examination, diagnosis, and treatment of A.M., a

51-year-old female with a history of back and neck problems. The

specific allegations were that Respondent failed to keep medical

records justifying the course of treatment of the patient, in

violation of Section 458.331(1)(m), Florida Statutes; ordered

unnecessary and excessive testing of the patient, in violation of

Section 458.331(1)(g), Florida Statutes; exercised influence on the

patient in such a manner as to exploit the patient for his own

financial gain, in violation of Section 458.331(1)(n), Florida

Statutes; made or filed a report which he knew to be false, in

violation of Section 458.331(1)(h), Florida Statutes; failed to

practice medicine with an acceptable level of care, skill, and

treatment which is recognized by a reasonably prudent similar

physician as being acceptable under similar conditions and

circumstances, in violation of Section 458.331(1)(t), Florida

Statutes; failed to perform a legal obligation by running a

newspaper advertisement that did not comply with various statutory

and rule requirements, as more fully discussed below, in violation

of Section 458.331(1)(g), Florida Statutes, and former Rule

21M-24.001(2)(i), Florida Administrative Code (now Rule

64B8-11.001(2)(i), Florida Administrative Code); published false,

deceptive, or misleading advertising, in violation of Section

458.331(1)(d), Florida Statutes; employed a trick or scheme in the

practice of medicine, in violation of Section 458.331(1)(k),

Florida Statutes; and printed office stationery falsely implying

that Respondent has received formal recognition as a specialist in

numerous aspects of the practice of medicine, in violation of

Section 458.331(1)(x), Florida Statutes.

Respondent contested the allegations of the complaint, and

filed a timely request for formal hearing. The matter was referred

to the Division of Administrative Hearings on January 4, 1996. The

case was initially set for hearing on March 14-15, 1996, but was

continued several times. Formal hearing was conducted on

December 9, 1997. A Transcript of the hearing proper was filed on

December 31, 1997.

At the conclusion of the formal hearing, the parties agreed to

hold open the record for the taking of several depositions,

including that of Respondent's expert, Nicholas T. Zervas, M.D.

Prior to the deposition of Dr. Zervas, counsel for Respondent,

Mr. Carpino, died suddenly. Respondent was granted a lengthy delay

to secure new counsel. Mr. Schulte ultimately filed a notice of

appearance on October 19, 1998, and the deposition proceeded.

At hearing, Petitioner presented the testimony of Patient A.M.

and, by videotape, the testimony of John McCutchen, M.D., a

board-certified orthopedic surgeon. Petitioner filed the

depositions of Stephen H. Miller, M.D.; Mary Louise Sanderson; and

G. Paul DeRosa, M.D., all taken for the purpose of authenticating

certain of Petitioner's exhibits regarding Respondent's status as a

specialist. Petitioner also presented nine exhibits, all of which

were received in evidence. Petitioner’s Exhibit 9 was the

videotape and transcript of Dr. McCutchen's testimony.

At hearing Respondent presented the testimony of six

witnesses: Joseph Uricchio, M.D., an orthopedic surgeon; Jerry

Lyons, the owner of several magnetic resonance imaging and

diagnostic centers; Thomas M. Reed, the licensed athletic trainer

who performed therapy on Patient A.M.; Janie Reeher, Respondent's

insurance collection and billing clerk; Melinda Kadosa,

Respondent's daughter; and Rodney Thompson, Respondent's employee.

Respondent also filed the deposition of Dr. Zervas, a neurosurgeon

and professor of surgery at Harvard Medical School. Respondent

offered no exhibits.

On March 8, 1999, the Transcript of Dr. Zervas' deposition was

filed. On April 9, 1999, Petitioner filed a Proposed Recommended

Order. On April 13, 1999, Respondent filed a Proposed Recommended

Order.

FINDINGS OF FACT

1. Petitioner, Department of Health, is the state agency

vested with the statutory authority to enforce the disciplinary

standards for the practice of medicine under Chapters 455 and 458,

Florida Statutes.

2. Respondent, Lehel Kadosa, M.D., is, and at all material

times was, a physician licensed to practice medicine in Florida,

having been issued license no. ME 0041277. At all relevant times,

Respondent was the owner and operator of the Tampa Bay Back

Institute, 7208 North Sterling Avenue, Tampa, Florida.

3. The business stationery of the Tampa Bay Back Institute

stated that Respondent is "Board Certified" in "Neurological &

Orthopedic Surgery," "Pain Management," and "Neurothermography."

4. Respondent is in fact not board-certified in neurological

or orthopedic surgery by the American Board of Neurological Surgery

or the American Board of Orthopedic Surgery.

5. The American Board of Medical Specialties does not

recognize a board of "pain management" or "neurothermography."

Thus, no physician could claim to be "board certified" in those

claimed specialties.

6. Patient A.M. presented to Respondent on July 3, 1991, with

subjective complaints of extreme pain in her neck, right shoulder,

right arm, lower back, and right leg.

7. Patient A.M. testified that she had suffered back and neck

pain for 26 years, since she had a back spasm requiring

hospitalization. She testified that due to a boating accident and

a fall on the sidewalk, the pain had become more acute in the two

years prior to her coming to Respondent. She testified that she

had gone to at least five doctors over the years for her neck and

back pain, but nothing they did offered her any lasting relief.

8. Patient A.M. testified that she was at her "wit's end"

when she called to make an appointment with Respondent. She needed

something done then and there to help her problem, and was willing

to do whatever was necessary to obtain relief for her back.

9. Respondent was not seeing patients the week of July 1,

1991, because he was planning to leave for a visit to his native

Hungary, and because he was overseeing renovations to his offices.

However, Patient A.M. appeared to be in such severe pain and so

desperate for relief that Respondent agreed to see her on July 3.

10. On June 30, 1991, the Tampa Bay Back Institute had run an

advertisement in the Tampa Tribune , touting its expertise in "non-

surgical treatment of back pain, neck pain & headaches." The

advertisement advised that immediate appointments were available

and offered a "Free Initial Consultation." Respondent’s name did

not appear in the advertisement. The advertisement did not contain

the disclaimer language set forth in Section 455.24, Florida

Statutes. The same advertisement appeared as late as the

August 11, 1991, issue of the Tampa Tribune .

11. Patient A.M. testified that she called Respondent

specifically because of his newspaper advertisement, and that she

knew nothing about Respondent other than the contents of the

advertisement.

12. Patient A.M. testified that the advertisement led her to

expect not to be charged for the initial visit. She could not

recall whether she mentioned the advertisement when she made the

appointment over the telephone, or whether she brought the

advertisement with her at the time of her appointment.

13. Patient A.M. testified that she did remember making a

point of telling Respondent's staff she was there as a result of

the advertisement. She could not recall whether she discussed the

matter directly with Respondent.

14. Melinda Kadosa, Respondent’s daughter, testified that she

was working in the office when Patient A.M. called for her first

appointment. Ms. Kadosa testified that Patient A.M. never

mentioned the advertisement; rather, she told Ms. Kadosa that she

had heard of Respondent through other doctors and patients.

15. Ms. Kadosa testified that the usual practice in

Respondent’s office was to make a notation on the chart of any

patient who mentioned the "free consultation." There was no such

notation on the chart of Patient A.M.

16. Respondent billed Patient A.M. for a "new patient

comprehensive exam" in the amount of $200. Patient A.M. disputed

this amount. She admitted that Respondent conducted a full

physical examination, but believed that this examination should

have been included as part of the "free initial consultation."

17. There was inconclusive expert testimony as to whether the

term "consultation" includes a physical examination. Dr. Joseph

Uricchio testified that it depends on the context of the situation.

Dr. John McCutchen testified that, in his opinion, "consultation"

includes a physical examination, but conceded that there is "room

for debate" on the question.

18. The advertisement containing the questioned language was

not directed at physicians but at laypersons; thus, expert

testimony as to a physician's understanding of the term

"consultation" is beside the point. The question is resolved by

determining whether it was reasonable for Patient A.M., as a

layperson of ordinary intelligence and experience, to believe that

the term "free initial consultation" included the physical

examination to which she admittedly consented.

19. It is found that the term "free initial consultation" is

at best ambiguous as to the services it encompasses, and that it

was reasonable for Patient A.M. to expect that the "free initial

consultation" would include a physical examination.

20. Ms. Kadosa’s testimony that Patient A.M. made no mention

of the advertisement is irrelevant. The advertisement itself made

an unqualified offer of a "free initial consultation." There was

no requirement that the prospective patient make reference to the

advertisement in order to obtain the free services.

21. Mr. Rodney Thompson, an employee of Respondent, testified

that the advertisement was placed by a hired consultant, without

the permission or approval of Respondent. He testified that the

advertisement appeared in the Tampa Tribune three or four times,

only on Sundays.

22. Even crediting Mr. Thompson’s version of events, the

analysis remains the same. Respondent was responsible for the

advertising placed on behalf of his business by his paid

consultant. Patient A.M. was in no position to know that

Respondent had not approved the advertisement. Respondent made no

effort to disclaim the advertisement. Indeed, Ms. Kadosa’s

testimony indicated that Respondent honored the advertisement when

patients specifically mentioned it.

23. Prior to the initial examination, Patient A.M. filled out

a "Patient’s History Form," in which she described her present

complaints as "extreme pain in neck, right shoulder and arm, lower

back, right leg." Patient A.M. also provided Respondent with a set

of X-rays taken by one of her previous physicians.

24. Respondent performed a physical examination on Patient

A.M. of the head, ears, eyes, nose and throat, the thoracic cage,

cervical spine, thoracic spine, and lumbar spine. Respondent also

performed a neurological examination of Patient A.M.

25. After performing the physical examination, Respondent

ordered X-ray studies of the cervical, thoracic, and lumbosacral

spine, pelvis, and right elbow.

26. Based on the history, examination, and X-rays, Respondent

recorded the following medical impressions: chronic cervical

sprain/strain with myofascitis; chronic lumbosacral sprain/strain

with myofascitis; spondylosis of the cervical and lumbosacral spine

by X-ray studies; chronic lower back pain; right cervical

radiculitis; right lumbosacral radiculitis; chronic sprain of the

right elbow; bursitis of the right knee; degenerate disc disease,

L5-S1; and arthritis of the sacroiliac joints. Respondent recorded

that he expressly ruled out cervical reflex dystrophy of the right

upper extremity.

27. Based on the listed impressions, Respondent ordered the

following tests:

a. Cervical spine: magnetic resonance imaging

("MRI"), X-rays, and thermography.

b. Thoracic spine: X-rays and thermogaphy.

c. Lumbar spine: MRI, X-rays, and thermography.

d. Right upper extremity: X-rays, thermography,

nerve conduction velocity ("NCV") studies.

e. Left upper extremity: X-rays, thermography,

and NCV studies.

f. Right lower extremity: thermography.

g. Left lower extremity: thermography.

h. Sacrum: X-rays.

28. Patient A.M. testified that Respondent informed her,

prior to ordering the listed tests, that they could cost thousands

of dollars. She testified that at the time she didn't know what

some of the tests were. Nonetheless, she agreed to undergo the

tests, telling Respondent that she wanted to do "whatever was

necessary in order to try to get some relief" for her back.

29. Respondent also ordered a one-month course of physical

therapy for Patient A.M. All three testifying experts agreed that

the physical therapy was appropriate and well within the standard

of practice.

30. Patient A.M. did not complete the course of physical

therapy. Patient A.M. only returned to Respondent’s office once,

and never saw Respondent in person after the initial visit.

31. The bulk of the relevant expert testimony concerned the

timing and necessity of the listed tests. Petitioner presented the

deposition testimony of John W. McCutchen, M.D., a Florida-

licensed, board-certified physician in orthopedic surgery.

32. Dr. McCutchen testified that he reviewed Respondent’s

file on Patient A.M., though he did not see the actual X-rays or

MRIs. From his review of the record, Dr. McCutchen saw no medical

problems with the manner in which Respondent performed the physical

on Patient A.M.

33. Dr. McCutchen testified that he questioned the diagnosis

of spondylosis of the cervical lumbosacral spine, because such a

diagnosis requires X-ray studies and he saw no evidence in the

record that X-rays had been taken.

34. Dr. McCutchen was apparently unaware that Respondent was

in possession of X-rays taken by one of A.M.’s previous physicians,

and could have based his initial impression on those X-rays.

35. Dr. McCutchen questioned Respondent’s ordering X-rays of

the cervical, thoracic, and lumbar spine, because the record did

not indicate the requisite complaint by Patient A.M. of mid-

thoracic pain. However, Dr. McCutchen also testified that he did

not have a "big objection" to the X-rays, merely that he would not

have ordered them. He testified that these X-rays were within the

standard of care.

36. Dr. McCutchen testified that he had no argument with

Respondent’s ordering X-rays of the lumbar spine, the pelvis, and

the right elbow.

37. Dr. McCutchen testified that the MRIs of the sacral spine

and cervical spine ordered by Respondent were not indicated at this

juncture of Patient A.M.’s treatment. He testified that he would

first want to review the X-rays, and find that the X-rays show

changes "that are severe in nature." He would also need to see the

results of a neurological examination indicating "nerve root injury

or disc rupture or something like that" to justify an MRI of the

cervical and lumbar spine.

38. The MRI report stated that A.M. had "loss and reversal of

the normal lordotic curvature of the cervical spine, central disc

herniation at the C5-6 level, disc bulges at the C3-4, 4-5

and 6-7." Dr. McCutchen testified that this report merely

confirmed that there were some disc bulges, and that these were

normal for Patient A.M.’s age group.

39. Dr. McCutchen testified that nothing in the MRI report

justified Respondent’s ordering of the MRIs. There were no

neurological symptoms, history, or any other indication for the MRI

of the lumbar spine. He concluded that ordering the MRIs was an

excessive diagnostic tool.

40. Thermography is a technique for sensing and recording on

color film hot and cold areas of the body by means of an infrared

detector that reacts to blood flow, its intended purpose being to

detect disease states that manifest themselves by increased or

decreased blood flow.

41. Dr. McCutchen was dismissive of thermography as a

diagnostic tool. He testified that it was used years ago, but has

been disused for the past ten to twelve years. He testified that

the theory in cases such as Patient A.M.’s would be that the

thermograph would show changes in skin warmth that in turn would

indicate nerve dysfunction; however, he testified that thermography

has proven inaccurate and of no value in providing any information

to assist in the treatment of a patient.

42. Even accepting arguendo that thermography works according

to theory, Dr. McCutchen testified that nothing in the medical

record indicated the neurological changes that would validate the

need for thermography as a diagnostic tool.

43. While Dr. McCutchen believed the thermography was

completely useless, he testified that he was unaware of any

standard in the medical community regarding the use of

thermography.

44. Dr. McCutchen next testified as to the need for the NCV

studies on the arms and legs of Patient A.M. He stated that, to

justify NCV studies, he would expect to see something in the record

concerning nerve dysfunction in the affected areas.

45. Dr. McCutchen testified that elements of nerve

dysfunction would be some difficulty in the ability to move the

extremities, or some weakness, atrophy or paralysis, or a loss of

sensation in a nerve root. These elements would be discovered

through the history and physical examination, but Dr. McCutchen

testified that he saw no such documentation in the patient records.

46. Dr. McCutchen testified that the neurological examination

for Patient A.M. was grossly within normal limits for muscle tone,

bulk, and strength of all major muscle groups of the upper and

lower extremities. The deep tendon reflexes were within normal

limits. Patient A.M. was able to walk in steps, on tiptoe, and

heel walk within normal limits. Thus, Dr. McCutchen concluded

there was no justification for ordering the NCV studies of the

upper or lower extremities.

47. Dr. McCutchen also noted that the records for Patient

A.M. show no indication of an interpretation of the thermograms or

of the NCV studies, although the billing records show charges for

those interpretations.

48. Dr. McCutchen concluded that a "variety of things" done

by Respondent in the course of his treatment of Patient A.M. were

"totally excessive." He testified that the patient presented with

some cervical lumbar pain and some right arm pain, and received an

unnecessary MRI of the lumbar spine and NCVs of all four

extremities.

49. Dr. McCutchen concluded that Respondent’s course of

treatment fell below the level of care, skill, and treatment which

is recognized by reasonably prudent similar physicians as

acceptable under similar conditions and circumstances.

50. Respondent presented the expert testimony of Joseph

Uricchio, M.D., an orthopedic surgeon licensed in Florida since

1965. Dr. Uricchio testified that in recent years his practice has

tended to specialize in patients with complaints of chronic pain

similar to those of Patient A.M.

51. After discussing the patient’s complaints and the

diagnostic tests ordered by Respondent, Dr. Uricchio opined that,

based upon his understanding of the facts, the ordering of the

tests was within accepted standards of medical care in the practice

of medicine in the State of Florida.

52. Dr. Uricchio testified that his opinion was based on his

understanding of the discussions that occurred between Respondent

and Patient A.M. as to her complaints and desired outcome.

Dr. Uricchio stated that his impression was that Patient A.M. told

Respondent that her back problems were longstanding and that she

was anxious to investigate any reasonable course of treatment that

might eliminate her problem. Dr. Uricchio's understanding was

generally consistent with the testimony of Patient A.M.

53. Dr. Uricchio agreed that the gradual application of

physical therapy for Patient A.M. was "singularly appropriate."

54. Dr. Uricchio testified that, given this particular

patient and her professed interest in finding the root cause of all

her problems, it was within the range of acceptable medical

practice to order NCV tests of the left arm; X-ray studies of the

coccyx, pelvis, and thoracic spine; and thermography scans of the

cervical spine, thoracic spine, upper extremities, lumbosacral

spine, and lower extremities.

55. Dr. Uric chio testified that it is unusual to order this

array of tests for the typical patient, and admitted that he could

not recall having ordered all these tests at once. However, he

testified that ordering the tests was acceptable in this instance

because Respondent was dealing with a patient who had a 25-year

history of unexplained, chronic problems and a shorter history of

increasing problems with her neck and back, with pain going into

her extremities.

56. Dr. Uricchio recalled Patient A.M.'s statements that she

was "at her wit's end" and desperate to find out "what’s going on."

He testified that this was an unusual set of circumstances and a

difficult diagnostic and therapeutic challenge.

57. Dr. Uricchio testified that NCV studies are legitimate

diagnostic tools appropriate for a patient complaining of an

unexplained pain radiating into an extremity, and that Patient A.M.

had complained of arm, leg, and shoulder pain coupled with her

longstanding neck and back pain. He testified that the NCV studies

of the left arm were appropriate, though Patient A.M. complained of

pain in her right arm.

58. Dr. Uricchio testified that thermography is a test that

has been done for a long time historically, and has enjoyed a

"resurgence of interest" in the past 20 years. This testimony was

in marked contrast to Dr. McCutchen’s testimony that thermography

has fallen into disuse over the past ten years. Dr. Uricchio

acknowledged that thermography is controversial in some areas, but

that it is a well accepted, expected test to be run in cases of

people dealing with chronic pain and chronic pain management.

59. Dr. Uricchio testified that thermogaphy complements NCV

testing. The NCV study tests motor nerves to determine if they are

conducting nerve impulses well, while thermogaphy tests sympathetic

nerves to determine if they are irritated.

60. Dr. Uricchio testified that it was appropriate for

Respondent to order both X-rays and MRIs because they show

different things. X-rays give a picture of the bone. MRIs give a

picture of the dural sac where the spinal cord and nerve roots run,

showing the nerve roots as they go out between the bones.

Dr. Uricchio testified that an X-ray would not reveal a herniated

disc, but that an MRI would.

61. Dr. Uricchio testified that if economy of medical care

were a consideration, then a physician might take the course of

ordering X-rays and examining those before ordering MRIs. However,

because in this instance Patient A.M. appeared unconcerned about

the cost of the procedures and was desperate to learn the cause of

her condition, Dr. Uricchio found it acceptable to order both

X-rays and MRIs at the same time.

62. Dr. Uricchio concluded that the array of tests was

justified because the tests are all different: the thermogram

looks for sensory nerves or reflex sympathetic dystrophy; the X-ray

looks at the integrity of the bone; the MRI finds whether there is

a ruptured disc pinching a nerve; radiography or video fluoroscopy

tests for abnormal motion or subluxations or any other change in

the movement of the neck.

63. Respondent also presented the testimony of Nicholas T.

Zervas, M.D., a board certified neurosurgeon and the director of

neurosurgery at Massachusetts General Hospital, Harvard Medical

School. Dr. Zervas testified that his specialty is patients with

brain tumors, though he also deals with spinal problems, disc

problems, spinal tumors, peripheral nerve tumors, and general

neurosurgery. Dr. Zervas testified that in his practice at Harvard

Medical School he tends to treat difficult and complicated cases in

which patients have seen a number of doctors without success and

have moved "up the ladder of expertise."

64. Dr. Zervas reviewed the patient records regarding Patient

A.M., and concluded that she was a "problem patient" in that she

had chronic pain for many years and had apparently seen a number of

physicians without a specific diagnosis ever having been made.

65. Dr. Zervas testified that with such a "problem patient,"

it is appropriate to do every reasonable, non-invasive test

available to "cover the waterfront" and make sure that everything

possible is being done to isolate the causes of the patient’s

problems.

66. Dr. Zervas testified that he has made little use of

thermography in the last ten years. He further testified that in

1991, when Respondent ordered the tests, thermography was

recognized within the medical community as an appropriate

diagnostic study and was widely used. Dr. Zervas stated that his

research indicated that the medical community’s reliance on

thermography began to wane in about 1994, but that prior to that

time there was "tons of literature on the value of thermography."

67. Dr. Zervas testified that the thermography was the only

test he would not have ordered. He disagreed with the suggestion

that thermography went into disuse because it was inaccurate.

Dr. Zervas stated that when MRIs and CT scanning came on the scene,

they presented an easier way of finding things through direct

imaging, replacing reliance upon the circumstantial evidence

provided by thermography.

68. Dr. Zervas justified Respondent’s ordering thermography

as a "resort to secondary testing" to give him a hint as to whether

this was nerve root disease, "since he wasn’t able to find a

specific, positive, objective finding."

69. Dr. Zervas’ justification for thermography in this case

cannot be credited. The thermography was ordered at the same time

as the other tests, before the results of the X-rays and MRIs could

be read and interpreted to find "a specific, positive, objective

finding." Thus, this "resort to secondary testing" was at best

premature.

70. Dr. Zervas testified that all of the tests ordered by

Respondent were medically appropriate and within the standard of

care, in light of Patient A.M.’s condition at the time she was

examined by Respondent. Dr. Zervas testified that he often takes

the same approach with such patients, utilizing all tests available

that might show where an abnormality might lie, so that he can move

ahead and begin treatment as soon as possible.

71. Dr. Zervas found the numerous X-rays justified because it

is difficult to isolate the source of chronic neck and back pain,

meaning that X-rays of the cervical, thoracic, and lumbar spine,

the pelvis, the sacrum, and the coccyx would be required to ensure

that all possibilities were covered.

72. Dr. Zervas found the MRIs of the cervical and lumbar

spine an appropriate, non-invasive means of "trying to sort out

what is present in the spinal canal and bones around it," as well

as a means of ensuring that the cause of the pain is not a disc or

a tumor.

73. Dr. Zervas was questioned as to why NCV studies of both

the left and right arms were appropriate, given that Patient A.M.

complained of pain only in the right arm. Dr. Zervas answered that

one of the first things taught in medical school is to compare side

to side. If readings were done only on the right side, there would

be no comparative basis for determining whether the readings were

abnormal.

74. Dr. Zervas testified that the X-rays and MRIs revealed

extensive degenerative spinal disease in the neck and lumbar

regions, more extensive in the cervical region, with extensive

narrowing of the intervertebral frame, and bulging discs at several

levels of the cervical and lumbar regions. Dr. Zervas believed

these findings would be significant once correlated with the

clinical syndrome.

75. Dr. Zervas noted that the findings were significant

enough to indicate surgery once she was seen by a neurosurgeon at a

later date. He could not offer his own opinion on whether surgery

was justified, saying that his own course would have been extensive

physiotherapy and referral to a pain clinic.

76. Dr. Zervas testified that in his opinion Respondent did

not exercise influence on Patient A.M. to exploit her for his own

financial gain.

77. Dr. Zervas testified that Respondent did not deviate from

the accepted standard of care in treating Patient A.M.

78. Dr. Zervas testified that the records kept by Respondent

justified his course of treatment of Patient A.M.

79. It is found that the weight of the expert evidence

establishes that all of the tests ordered by Respondent were

clinically justified, except for the thermograms.

80. All of the experts agreed that it is somewhat unusual for

a physician to order X-rays, MRIs, and NCV studies simultaneously

after a patient’s initial visit. However, it is found that these

orders were clinically justified under the peculiar circumstances

presented at Patient A.M.: longstanding back and neck pain having

recently increased to the point where the patient described the

pain as nearly unbearable; years of visits to various physicians

without either relief from the pain or a specific diagnosis; and

the patient’s express statements that she was unconcerned with the

cost of treatment.

81. It is found that Petitioner proved clearly and

convincingly that thermography was an unnecessary diagnostic test.

Even granting Dr. Zervas’ statements that thermography may be a

useful "secondary" test in instances where primary tests are

inconclusive, Respondent prematurely ordered the thermograms.

Thermography might have been justified had the MRIs and NCV studies

previously been reviewed and found inconclusive, assuming that

thermography is of value at all.

82. Dr. McCutchen’s testimony that thermography is of no

value in providing information useful in patient treatment is

credited, in part because even Dr. Zervas testified that he has

made little or no use of thermography over the past decade, and

Dr. Uricchio's endorsement was tempered by his acknowledgement that

thermography is controversial.

83. It is found that Respondent failed to keep sufficient

records to fully explain the course of treatment that he ordered.

The experts were forced to derive much of their information

regarding the course of treatment from Respondent’s itemized

billing records, because the actual medical records created by

Respondent were too cursory to provide useful information.

84. On a related issue, Pet itioner alleged that Respondent

billed Patient A.M. for services that were not rendered.

Specifically, it is alleged that Patient A.M. was billed for

interpretations of the X-rays, NCV studies, and thermographic

scans, when these interpretations are not documented in the medical

record.

85. The weight of the evidence indicates that the

interpretations were in fact performed, but that Respondent failed

to document those interpretations in his medical records.

CONCLUSIONS OF LAW

86. The Division of Adm inistrative Hearings has jurisdiction

over the parties and subject matter of this cause, pursuant to

Sections 120.569, 120.57(1), and 455.225, Florida Statutes.

87. License revocation and discipline proceedings are penal

in nature. The burden of proof on Petitioner in this proceeding

was to demonstrate the truthfulness of the allegations in the

complaint by clear and convincing evidence. Section 458.331(3),

Florida Statutes; Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987);

Department of Banking and Finance v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996).

88. The "clear and convincing" standard requires:

[T]hat the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion as

to the facts in issue. The evidence must be

of such weight that it produces in the mind

of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

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

findings in this case were made based on the Ferris standard.

89. Pursuant to Section 458.331(2), Florida Statutes, the

Board of Medicine is authorized to revoke, suspend, or otherwise

discipline the license of a physician for violating the following

relevant provisions of Section 458.331, Florida Statutes:

(1)(d) False, deceptive, or misleading

advertising.

(1)(g) Failing to perform any statutory or

legal obligation placed upon a licensed

physician.

(1)(h) Making or filing a report which the

licensee knows to be false, intentionally or

negligently failing to file a report required

by state or federal law, willfully impeding or

obstructing such filing or inducing another

person to do so. Such reports or records shall

include only those which are signed in the

capacity as a licensed physician.

(1)(k) Making deceptive, untrue, or fraudulent

representations in or related to the practice

of medicine or employing a trick or scheme in

the practice of medicine.

(1)(m) Failing to keep legible, as defined by

department rule in consultation with the board,

medical records that identify the licensed

physician or the physician extender and

supervising physician by name and professional

title who is or are responsible for rendering,

ordering, supervising, or billing for each

diagnostic or treatment procedure and that

justify the course of treatment of the patient,

including, but not limited to, patient

histories; examination results; test results;

records of drugs prescribed, dispensed, or

administered; and reports of consultations and

hospitalizations.

(1)(n) Exercising influence on a patient or

clinic in such a manner as to exploit the

patient or client for financial gain of the

licensee or of a third party, which shall

include, but not be limited to, the promoting

or selling of services, goods, appliances, or

drugs.

(1)(t) Gross or repeated malpractice or the

failure to practice medicine with that level of

care, skill, and treatment which is recognized

by a reasonably prudent similar physician as

being acceptable under similar conditions and

circumstances. . . . As used in this

paragraph, "gross malpractice" or "the failure

to practice medicine with that level of care,

skill, and treatment which is recognized by a

reasonably prudent similar physician as being

acceptable under similar conditions and

circumstances," shall not be construed so as to

require more than one instance, event, or act.

Nothing in this paragraph shall be construed to

require that a physician be incompetent to

practice medicine in order to be disciplined

pursuant to this paragraph.

(1)(x) Violating any provision of this

chapter, a rule of the board or department, or

a lawful order of the board or department

previously entered in a disciplinary hearing or

failing to comply with a lawfully issued

subpoena of the department.

90. When the board finds any person guilty of any of the

grounds set forth in Section 458.331(1), Florida Statutes, it may

enter an order imposing one or more of the following penalties:

(a) Refusal to certify, or certification with

restrictions, to the department an application

for licensure, certification, or registration.

(b) Revocation or suspension of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine not

to exceed $5,000 for each count or separate

offense.

(e) Issuance of a reprimand.

(f) Placement of the physician on probation

for such period of time and subject to such

conditions as the board may specify, including,

but not limited to, requiring the physician to

submit to treatment, to attend continuing

education courses, to submit to re-examination,

or to work under the supervision of another

physician.

(g) Issuance of a letter of concern.

(h) Corrective action.

(i) Refund of fees billed to and collected

from the patient.

91. Count One of the complaint alleged that Respondent

violated Section 458.331(1)(m), Florida Statutes, by failing to

keep written records justifying the course of treatment of Patient

A.M. Petitioner proved this allegation by clear and convincing

evidence. Respondent’s records did not include examination results

and test results sufficient in themselves to demonstrate that

Respondent performed an interpretation of the X-rays, NCV studies,

or thermograms.

92. Count Two of the complaint alleged that Respondent

violated Section 458.331(1)(g), Florida Statutes, by ordering

Patient A.M. to undergo the following unnecessary and excessive

testing: an NCV study of the left arm; X-ray studies of the

coccyx, pelvis, and thoracic spine; and thermography. Petitioner

proved by clear and convincing evidence that the thermographic

tests ordered by Respondent were unnecessary and excessive.

Petitioner failed to prove by clear and convincing evidence that

the other cited tests were unnecessary and excessive.

93. Count Three of the complaint alleged that Respondent

violated Section 458.331(1)(n), Florida Statutes, by exercising

influence on Patient A.M. in such a manner as to exploit the

patient for his own financial gain by billing Patient A.M. for

unnecessary and excessive testing. Petitioner failed to prove this

allegation by clear and convincing evidence. While Respondent did

order one unnecessary and excessive test, Respondent failed to

demonstrate that this "exercise of influence" was undertaken for

any reason other than Respondent’s sincere, if incorrect, belief

that the thermography was a legitimate test to order under the

circumstances.

94. Cou nt Four of the complaint alleged that Respondent

violated Section 458.331(1)(h), Florida Statutes, by billing

Patient A.M. for interpretations of X-rays, NCV tests, and

thermographic scans when those interpretations were not documented

in Respondent’s medical records. Petitioner failed to prove this

allegation by clear and convincing evidence. As noted above, the

weight of the evidence was that Respondent performed the

interpretations but merely failed to document them. It is

concluded that this failure constituted a violation of the

recordkeeping requirement of Section 458.331(1)(m), Florida

Statutes, but not of Section 458.331(1)(h), Florida Statutes, which

implies bad faith or deceptiveness that was not proven in this

case.

95. Count Five of the complaint alleged that Respondent

violated Section 458.331(1)(t), Florida Statutes, by ordering

Patient A.M. to undergo "a number of inappropriate tests which were

not in fact substantiated by Respondent’s history or physical

examination" of the patient. Petitioner proved this allegation by

clear and convincing evidence, but only insofar as the ordering of

the thermogram.

96. Count Six of the complaint alleged that Respondent

violated Section 458.331(1)(g), Florida Statutes, by his violation

of Section 455.24, Florida Statutes (1991), which required that in

any advertisement for a free, discounted fee, or reduced fee

service, examination, or treatment by a licensed health care

provider, the following statement shall appear in capital letters

clearly distinguishable from the rest of the text:

THE PATIENT AND ANY OTHER PERSON RESPONSIBLE

FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY,

CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT

FOR ANY OTHER SERVICE, EXAMINATION, OR

TREATMENT WHICH IS PERFORMED AS A RESULT OF AND

WITHIN 72 HOURS OF RESPONDING TO THE

ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR

REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT.

The operative language of Section 455.24, Florida Statutes (1991),

is now found in Section 455.664, Florida Statutes (1997). See

Chapter 97-261, Laws of Florida, Sections 29 and 81, for the

relevant statutory amendments.

97. Respondent's advertisement in the Tampa Tribune offering

a "free initial consultation" did not contain the required

disclaimer concerning the patient's rights regarding payment for

such advertised free services and thus violated Section 455.24,

Florida Statutes (1991). Further, Respondent billed Patient A.M.

in the amount of $200 for a "new patient comprehensive

examination."

98. Former Rule 21M-24.001( 2)(i), Florida Administrative Code

(now Rule 64B8-11.001(2)(i), Florida Administrative Code),

provided:

(2) No physician shall disseminate or cause

the dissemination of any advertisement or

advertising which is in any way false,

deceptive, or misleading. Any advertisement or

advertising shall be deemed by the Board to be

false, deceptive, or misleading if it:

(i) Fails to conspicuously identify the

physician by name in the advertisement.

99. Respondent's advertisement in the Tampa Tribune did not

identify Respondent by name and thus violated former Rule

21M-24.001(2)(i), Florida Administrative Code.

100. Former Rule 21M-24.001(2)(f), Florida Administrative

Code (now Rule 64B-11.001(2)(f), Florida Administrative Code),

provided, in relevant part:

(2) No physician shall disseminate or cause

the dissemination of any advertisement or

advertising which is in any way false,

deceptive, or misleading. Any advertisement or

advertising shall be deemed by the Board to be

false, deceptive, or misleading if it:

(f) States or implies that the physician has

received formal recognition as a specialist in

any aspect of the practice of medicine unless

he has in fact received such recognition and

such recognizing agency is approved by the

Board. For purpose of this rule, the Board

approves the specialty boards of the American

Board of Medical Specialties as a recognizing

agency, and such other recognizing agencies as

may receive future approval by the Board.

101. Respondent's business stationery claimed that Respondent

was board certified in three specialties: "neurological and

orthopedic surgery," "pain management," and "neurothermography."

Respondent was not board certified in the first specialty. The

American Board of Medical Specialties does not recognize a board

for either of the latter two specialties. Respondent therefore

violated former Rule 21M-24.001(2)(f), Florida Administrative Code.

Petitioner proved the allegations contained in Count Six of the

complaint by clear and convincing evidence.

102. Count Seven of the complaint alleged that Respondent

violated Section 458.331(1)(x), Florida Statutes, through his

failure to comply with the rule requirement that his advertisement

identify him clearly by name. Petitioner proved this allegation by

clear and convincing evidence.

103. Count Eight of the complaint alleges that Respondent

violated Section 458.331(1)(d), Florida Statutes, by disseminating

false, deceptive, or misleading advertising. Petitioner proved

this allegation by clear and convincing evidence.

104. Count Nine of the complaint alleges that Respondent

violated Section 458.331(1)(k), Florida Statutes, in that his

advertisement constituted a "trick or scheme" in the practice of

medicine, designed to attract new patients for the purpose of

ordering expensive testing following the initial examination.

Petitioner failed to prove this allegation by clear and convincing

evidence. The evidence was ambiguous regarding Respondent's actual

knowledge of the contents of the advertisement. While Respondent

was ultimately responsible for the contents of the advertisement

and his staff's actions in honoring the terms of the advertisement,

the undersigned concludes that some measure of actual knowledge

must be demonstrated before Respondent can be found to have

employed a "trick or scheme" in the practice of medicine.

105. Count Ten of the complaint essentially repeats the

allegations regarding the business stationery falsely holding

Respondent out as "board certified," and alleges that this act also

constitutes a violation of Section 458.331(1)(x), Florida Statutes.

Petitioner proved this allegation by clear and convincing evidence.

106. In summary, Petitioner proved by clear and convincing

evidence the violations alleged in Counts One, Two (as to the

thermogram), Five (as to the thermogram), Six, Seven, Eight, and

Ten. The statutory provisions violated were Section 458.331(1)(d),

(g), (m), (t), & (x), Florida Statutes.

107. Current Rule 64B8-8.001, Florida Administrative Code

(formerly 21M-20.001, Florida Administrative Code), sets forth the

disciplinary guidelines of the Board of Medicine applicable to

violations of Section 458.331(1), Florida Statutes, and in relevant

part, provides as follows:

(1) Purpose. Pursuant to Section 2, Chapter

86-90, Laws of Florida, the Board provides

within this rule disciplinary guidelines

which shall be imposed upon applicants or

licensees whom it regulates under Chapter

458, F.S. The purpose of this rule is to

notify applicants and licensees of the ranges

of penalties which will routinely be imposed

unless the Board finds it necessary to

deviate from the guidelines for the stated

reasons given within this rule. The range of

penalties provided below are based upon a

single count violation of each provision

listed; multiple counts of the violated

provisions or a combination of violations may

result in a higher penalty than that for a

single, isolated violation. Each range

includes the lowest and highest penalty and

all penalties falling between. The purposes

of the imposition of discipline are to punish

the applicants or licensees for violations

and to deter them from future violations; to

offer opportunities for rehabilitation, when

appropriate; and to deter other applicants or

licensees from violations.

108. Penalty guidelines for violation of disciplinary statutes

are set forth at Rule 64B8-8.001(2), Florida Administrative Code

(formerly Rule 21M-20.001, Florida Administrative Code).

109. The penalty for each violation of Section 458.331(1)(d),

Florida Statutes, ranges from a reprimand to a one-year suspension,

and an administrative fine from $500 to $5,000. The penalty for

each violation of Section 458.331(1)(g) ranges from a reprimand to

revocation, and an administrative fine from $250 to $5,000. The

penalty for each violation of Section 458.331(1)(m) ranges from a

reprimand to two years' suspension followed by probation, and an

administrative fine from $250 to $5,000. The penalty for each

violation of Section 458.331(1)(t) ranges from two years' probation

to revocation, and an administrative fine from $250 to $5,000. The

penalty for each violation of Section 458.331(1)(x) ranges from

reprimand to denial, and an administrative fine from $250 to

$5,000.

110. Based upon consideration of aggravating and mitigating

factors present in an individual case, the Board may deviate from

the disciplinary guidelines. The aggravating and mitigating

factors which the Board shall consider are stated in Rule

64B8-8.001(3), Florida Administrative Code (formerly Rule

21M-20.001(3), Florida Administrative Code), as follows:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the offense:

no restraints, or legal constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction and

the length of practice;

(f) Pecuniary benefit or self-gain inuring

to the applicant or licensee;

(g) Any other relevant mitigating factors.

111. The undersigned concludes that mitigating factors are

that the patient was exposed to little or no potential physical

injury and that, except for the ordering of unnecessary and

medically dubious thermograms, the actual care provided by

Respondent to Patient A.M. was within the standard of care as

established by the weight of the evidence adduced at hearing.

112. The only clearly aggravating factor is the number of

counts established in this case: seven counts establishing

violations of five separate prohibitions found in Section

458.331(1), Florida Statutes. Petitioner urges that the elements

of fraud, deceit, and disregard for proper credentials constitute

aggravating factors. However, the undersigned concludes that these

elements are subsumed within the statutory violations and range of

penalties established therefor, and do not constitute "aggravating"

factors to justify deviation from the range of penalties.

113. The undersigned also takes into account that most of the

proven charges relate to Respondent's misleading marketing

practices rather than his capabilities or actions in the practice

of medicine. It is, therefore, concluded no purpose would be

served by removing Respondent from the practice of medicine via

suspension or revocation. A supervised probation, accompanied by a

significant administrative fine, would be a more appropriate

penalty than suspension of Respondent's license to practice

medicine.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it

is recommended that the Department of Health, Board of Medicine,

enter a final order finding the Respondent, Lehel Kadosa, guilty of

violating Section 458.331(1)(d), (g), (m), (t), and (x), Florida

Statutes, as alleged in the complaint, and imposing upon the

Respondent the penalty of a reprimand, supervised probation for a

period of three years, and an administrative fine in the amount of

$20,000.

DONE AND ENTERED this 17th day of September, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of September, 1999.

COPIES FURNISHED:

Albert Peacock, Esquire

Agency for Health Care Administration

Legal Department

Post Office Box 14229

Tallahassee, Florida 32317-4229

Christopher J. Schulte, Esquire

Shear, Newman, Hahn & Rosenkranz, P.A.

201 East Kennedy Boulevard, Suite 1000

Tampa, Florida 33629

Sam Power, Agency Clerk

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

Julie Gallagher, General Counsel

Agency for Health Care Administration

Fort Knox Building 3, Suite 3431

2727 Mahan Drive

Tallahassee, Florida 32308

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.