98-004993 Board Of Medicine vs. Lazaro Guerra Status: Closed Recommended Order on Friday, September 24, 1999.

Summary: Physician violated rule provision by failing to countersign physician assistant`s written orders within seven days.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD )

OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-4993

)

LAZARO GUERRA, M.D., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings,

by its duly-designated Administrative Law Judge, William J.

Kendrick, held a formal hearing in the above-styled case on

July 21, 1999, by video teleconference, with sites in Tallahassee

and Miami, Florida.

APPEARANCES

For Petitioner: Carol A. Lanfri, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Mark David Press, Esquire

1801 West Avenue

Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Respondent committed

the offenses set forth in the Administrative Complaint and, if

so, what penalty should be imposed.

PRELIMINARY STATEMENT

On June 16, 1997, Petitioner issued a two-count

Administrative Complaint against Respondent. Count One alleged

that Respondent, while acting in his capacity as supervising

physician for Mariano Martinez, a certified physician's

assistant, violated Rule 59R-30.012(4), Florida Administrative

Code, and therefore Section 458.331(1)(x), Florida Statutes, "by

failing to review and co-sign the written patient medical records

for Martinez." Count Two alleged that Respondent violated the

provisions of Section 458.331(1)( dd), Florida S tatutes, because

he "failed to adequately supervise Martinez's activities in that

Respondent allowed the Physician's Assistant to: improperly wear

a laboratory coat labeled 'Dr. Martinez'; condone . . . [Coral

Gables Hospital] staff's referring to Martinez as 'Dr. Martinez';

and sign written patient records without receiving the

appropriate co-signature from Respondent."

Respondent filed an Election of Rights which disputed the

factual allegations contained in the Administrative Complaint,

and on November 9, 1998, Petitioner referred the matter to the

Division of Administrative Hearings for the assignment of an

administrative law judge to conduct a hearing pursuant to

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

At hearing, Petitioner called Martha Garcia, Dahna Schaubin,

and Jan Bennett, as witnesses, and Petitioner's Exhibits 1, 3,

4 (pages 6-10), 5A, 5B, and 6-8 were received into evidence. 1/

Respondent testified on his own behalf and called

Mariano Martinez as a witness. Respondent's Exhibits A-E were

received into evidence.

The hearing Transcript was filed September 3, 1999, and the

parties were accorded ten days from that date to file proposed

recommended orders. Both parties elected to file such proposals,

and they have been duly considered.

FINDINGS OF FACT

1. The Department of Health, Division of Medical Quality

Assurance, Board of Medicine (Department), is a state agency

charged with the duty and responsibility for regulating the

practice of medicine pursuant to Section 20.43 and Chapters 455

and 458, Florida Statutes.

2. Respondent, Lazaro Guerra, is, and was at all times

material hereto, a licensed physician in the State of Florida,

having been issued license number ME 0029249. Respondent is

board-certified in orthopedic medicine.

3. From on or about November 22, 1993 through at least

October, 1994, Respondent was the supervising physician for

Mariano Martinez, a certified physician's assistant, who was

accorded clinical privileges at Coral Gables Hospital, a health

care facility located at 3100 Douglas Road, Coral Gables,

Florida.

4. On one occasion in or about August 1994, while making a

routine floor inspection at the hospital, Jan Bennett, Director

of Risk Management at Coral Gables Hospital, observed

Mr. Martinez wearing a laboratory coat embroidered "Dr. Mariano

Martinez, Orthopedic Surgery." Ms. Bennett also overheard a

member of the staff address Mr. Martinez as "doctor," without

Mr. Martinez's correcting the staff member. Apart from this

isolated occurrence, Mr. Martinez was not otherwise observed to

have worn such a coat, or to have been addressed as doctor, and

there is no proof that Respondent knew, observed, fostered, or

condoned Mr. Martinez's behavior.

5. Following the incident in question, Ms. Bennett looked

at medical records on the floor, as well as records for patients

that had been discharged, to see if Mr. Martinez's written orders

had been countersigned by Respondent (evidencing his review)

within seven days. According to Ms. Bennett, she did find

medical records that had not been countersigned by Respondent

within seven days; however, she did not address the number of

occasions she found that Respondent had failed to countersign

Mr. Martinez's written orders, and she did not produce or

identify any such records at hearing. Indeed, the only proof

presumatively offered to address such particulars were

Physician's Orders for two patients (identified as Patient 1 and

Patient 2), received into evidence (without objection) as

Petitioner's Exhibit 4, pages 8-10; however, these records were

not further discussed or identified at hearing, and the records

for Patient 2 relate to an admission in August 1993, a time

Respondent was not shown to have been a supervising physician for

Mr. Martinez. Under the circumstances, the proof, at best,

supports the conclusion that Respondent failed to countersign

Mr. Martinez's written orders regarding one patient (Patient 1),

within seven days.

6. With regard to such failure, Respondent observed that he

certainly never "knowingly fail[ ed] to sign or countersign any

written patient medical records that were prepared by

Mr. Martinez." Rather, Respondent averred that he had an

established procedure whereby he would countersign Mr. Martinez's

written orders as they made rounds together, or, if Mr. Martinez

made rounds on his own, Respondent would make rounds the next day

and countersign Mr. Martinez's orders. If the patient had been

discharged in the interim, the patient's records were transferred

to the Medical Records Section (from the floor) for storage, and

the Medical Records Section had an established protocol whereby

the staff would flag (mark) the records that required

Respondent's countersignature. With regard to Respondent's

failure to countersign Mr. Martinez's orders for Patient 1, there

is no (known) explanation; however, as likely an explanation as

any other is that the Medical Records Section failed to mark the

orders and Respondent, therefore (inadvertently) failed to

countersign them.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of these proceedings.

Sections 120.569, 120.57(1), and 120.60(5), Florida Statutes.

8. Where, as here, the Department proposes to take punitive

action against a licensee, it must establish grounds for

disciplinary action by clear and convincing evidence.

Section 120.57(1)(h), Florida Statutes (1997), and Department of

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

(Fla. 1996). "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). Moreover, the disciplinary action taken

may be based only upon the offenses specifically alleged in the

administrative complaint. Cottrill v. Department of Insurance ,

685 So. 2d 1371, 1372 (Fla. 1st DCA 1996)("Predicating

disciplinary action against a licensee on conduct never alleged

in the administrative complaint or some comparable pleading

violates the Administrative Procedures Act.") See also Kinney v.

Department of State , 501 So. 2d 129 (Fla. 5th DCA 1987);

Sternberg v. Department of Professional Regulation, Board of

Medical Examiners , 465 So. 2d 1324 (Fla. 1st DCA 1985); and

Hunter v. Department of Professional Regulation , 458 So. 2d 844

(Fla. 2d DCA 1984). Finally, in determining whether Respondent

violated the provisions of Section 458.331, Florida Statutes, as

alleged in the administrative complaint, one "must bear in mind

that it is, in effect, a penal statute. . . . This being true,

the statute must be strictly construed and no conduct is to be

regarded as included within it that is not reasonably proscribed

by it." Lester v. Department of Professional and Occupational

Regulations , 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

9. Pertinent to this case, Section 458.331(1), Florida

Statutes, provides that the Board of Medicine may discipline a

licensee if it has been shown that the licensee is guilty of:

(x) Violating any rule of the board or

department . . . .

* * *

( dd) Failing to supervise adequately the

activities of those physician assistants,

paramedics, emergency medical technicians, or

advanced registered nurse practitioners

acting under the supervision of the

physician.

10. Also pertinent to this case, Rule 64B8-30.012, Florida

Administrative Code, currently provides:

(3) All tasks and procedures performed by

the physician assistant must be documented in

the appropriate medical record. The

supervising physician must review, sign and

date the physician assistant record within

seven (7) days.

Such rule provision was (as observed in the Administrative

Complaint) previously codified at Rule 59R-30.012(4), Florida

Administrative Code, and more recently at Rule 64B8-30.012(4),

Florida Administrative Code.

11. Count One of the Administrative Complaint alleged that

Respondent violated Rule 59R-30.012(4), now Rule 64B8-30.012(3),

Florida Administrative Code, and therefore Section 458.331(1)(x),

Florida Statutes, "by failing to review and co-sign the written

patient medical records for Martinez [within seven days]." As

noted in the Findings of Fact, the proof demonstrated, at best,

that Respondent failed to co-sign the written orders of

Mr. Martinez, regarding one patient, within seven days and that

such failure was most likely (given its isolated nature)

inadvertent. Nevertheless, such failure does constitute at least

a technical violation of the law.

12. Count Two of the Administrative Complaint alleged that

Respondent violated the provisions of Section 458.331(1)( dd),

Florida Statutes, because he "failed to adequately supervise

Martinez's activities in that Respondent allowed the Physician

Assistant to: improperly wear a laboratory coat labeled

'Dr. Martinez'; condone . . . [Coral Gables Hospital] staff's

referring to Martinez as 'Dr. Martinez'; and sign written patient

medical records without receiving the appropriate co-signature

from Respondent." Here, since there was no proof that Respondent

knew, observed, fostered, or condoned such behavior, there was no

competent evidence produced to support such charge. See , e.g. ,

Pauline v. Lee , 147 So. 2d 359 (Fla. 2d DCA 1962)(A beverage

license cannot be suspended for a violation of law unless the

licensee is found to be culpably responsible for the violations

as a result of his own negligence, intentional wrongdoing, or

lack of diligence; however, the persistent and practiced manner

of the violations may be sufficient to permit a factual inference

that the violations were either fostered, condoned, or

negligently overlooked by the licensee.).

13. Having reached the foregoing conclusions, it remains to

resolve the appropriate penalty that should be imposed for the

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

to this issue, Rule 64B8-8.001, Florida Administrative Code,

establishes the penalty guidelines, as well as the aggravating

and mitigating circumstances, to be considered by the Board of

Medicine when it elects to take disciplinary action against a

practitioner. Gadsden State Bank v. Lewis , 348 So. 2d 343 (Fla.

1st DCA 1977)(Agencies must honor their own substantive rules

until they are amended or abrogated.); Cf . Williams v. Department

of Transportation , 531 So. 2d 994 (Fla. 1st DCA 1988)(Agency is

required to comply with its disciplinary guidelines in taking

disciplinary action against its employees.). For a violation of

Subsection 458.331(1)(x), Florida Statutes, Rule 64B8-

8.001(2)(x), Florida Administrative Code, provides for a penalty

"[f] rom a reprimand to revocation or denial, and an

administrative fine from $250.00 to $5,000.00."

14. Here, giving due regard to the Board's disciplinary

guidelines, as well as its mitigating and aggravating

circumstances, it must be concluded that Respondent's violation

could warrant a reprimand, but that it would be more appropriate

to withhold the imposition of any penalty. In so concluding, it

is observed that Respondent had an established protocol to assure

he countersigned Mr. Martinez's written orders and that the

failure shown (with regard to Patient 1) was isolated and most

likely inadvertent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be rendered which finds

Respondent guilty of violating Subsection 458.331(1)(x), Florida

Statutes, as alleged in Count One of the Administrative

Complaint, but which withholds the imposition of any penalty for

such violation.

It is further RECOMMENDED that the final order find

Respondent not guilty of the violation alleged in Count Two of

the Administrative Complaint.

DONE AND ENTERED this 24th day of September, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

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 24th day of September, 1999.

ENDNOTE

1/ Petitioner's Exhibit 2 was marked for identification but

rejected (based on Respondent's objection). Petitioner's

Exhibit 4 was a composite consisting of 10 pages. The Motion for

Protective Order of Coral Gables Hospital ( CGH) to pages 1-5 of

Petitioner's Exhibit 4, on the basis of privilege, was sustained,

and those pages have been sealed to maintain their

confidentiality.

COPIES FURNISHED:

Tanya Williams, Executive Director

Board of Medicine

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1703

Carol A. Lanfri, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Mark David Press, Esquire

1801 West Avenue

Miami Beach, Florida 33139

Pete Peterson, General Counsel

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.