99-004378 Department Of Health, Board Of Medicine vs. Agustin Carmona, M.D. Status: Closed Recommended Order on Thursday, June 15, 2000.

Summary: Emergency room medical physician, incarcerated for DUI, was found guilty on several counts including being unable to practice with reasonable safety due to diagnoses of major depression, dysthemic disorder, and alcohol abuse.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-4377

)

AGUSTIN CARMONA, M.D., )

)

Respondent. )

_________________________________)

DEPARTMENT OF HEALTH, )

BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-4378

)

AGUSTIN CARMONA, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This cause came on for a disputed-fact hearing on March 15,

2000, in Malone, Florida, before Ella Jane P. Davis, a duly-

assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Carol A. Lanfri, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Agustin Carmona, M.D., pro se

DC# U03774

Jackson Correctional Institute

5563 Tenth Street

Malone, Florida 32445-3144

STATEMENT OF THE ISSUES

1. The Administrative Complaint in DOAH Case No. 99-4377,

charged Respondent with violating Section 458.331(1)(t), Florida

Statutes (failure to practice medicine with care, skill and

treatment); Section 458.331(1)(m), Florida Statutes (failure to

keep written records justifying treatment); Section

452.331(1)(x), Florida Statutes (violation of a rule of the Board

or Department) by violating Rule 64B8-9.003(2), Florida

Administrative Code, relating to legibility of medical records,

in connection with Respondent's emergency room treatment of

Patient B.W. on July 21, 1995.

2. The Administrative Complaint in DOAH Case No. 99-4378,

charges Respondent with violation of Section 458.331(1)(s),

Florida Statutes (being unable to practice medicine with

reasonable skill and safety to patients by reason of illness, use

of any material, or as the result of any mental or physical

condition).

PRELIMINARY STATEMENT

On or about October 20, 1999, these cases were referred to

the Division of Administrative Hearings due to Respondent's

request for hearing upon disputed issues of material fact.

At all times material, Respondent has been incarcerated at

Jackson Correctional Institute in Malone, Florida, because of his

conviction for "driving under the influence" which is the focus

of DOAH Case No. 99-4378.

Upon information and belief that Respondent would not be

released for several years, that his appeal had been concluded,

and that no further criminal trials were anticipated, and

balancing Respondent's right to remain silent against the

Agency's right to reach finality of the prosecution herein, the

undersigned consolidated these administrative cases and scheduled

the disputed-fact hearing in the Jackson Correctional Institute

with enough time prior to the hearing date to allow Respondent to

obtain legal counsel and to allow both parties to engage in

discovery under difficult circumstances.

On December 13, 1999, Respondent filed a detailed response

to the Administrative Complaints. No response is required at

law.

During a telephonic hearing concerning Petitioner's Motion

in Limine, approximately a week before the scheduled disputed-

fact hearing, the undersigned determined that Respondent had had

the opportunity to be present by telephone at all depositions

scheduled by Petitioner, and had, in fact, been present by

telephone at all such depositions. The undersigned inquired

whether a continuance was requested, and Respondent indicated in

the negative.

However, by the Pre-Hearing Stipulation and at the

commencement of the disputed-fact hearing, on March 15, 2000,

Respondent indicated for the first time that the incident which

was the focus of DOAH Case No. 99-4378, was currently on appeal,

that he was represented by an attorney on that appeal, and that

he wanted a continuance until that appeal was concluded and until

he could obtain some out-of-state medical records. At the

commencement of the hearing, Respondent twice stated that he had

never discussed the instant administrative cases with any lawyer

and had not sought a lawyer to represent him herein, because he

had insufficient funds. He stated that he preferred not to

defend on DOAH Case No. 99-4378, for those reasons. 1 Respondent

ultimately stated to the undersigned that he had everything he

needed to defend.

Petitioner presented a July 1, 1998, letter it had received

from Respondent's original criminal attorney giving notice of

termination of representation and requesting that all further

administrative pleadings be sent directly to Respondent.

Petitioner also effectively argued, with supporting exhibits,

that Respondent's 1997 conviction for driving under the influence

had already been affirmed and that a Rule 3.850 "Appeal" had

likewise been decided against Respondent while he was represented

by a different attorney than the one who withdrew. (Petitioner's

Exhibits 1-4).

Respondent had never been deposed by Petitioner with regard

to either Administrative Complaint herein.

Respondent voluntarily filed his December 13, 1999, Answer

without consulting any attorney.

Upon the foregoing, the undersigned determined that had

Respondent elected to remain silent he could have done so, but he

voluntarily filed his written response which waived any right

against self-incrimination in these administrative cases; that he

had five months to obtain legal counsel or obtain evidence for

use at the disputed-fact hearing, but he did not do so; and that

a continuance of the disputed-fact hearing on these

administrative actions was not mandated by further collateral

criminal appeals, even had it been established that such

collateral appeals were in progress, which it was not.

Accordingly, Respondent's oral motion for continuance to another

date was denied.

Nonetheless, prior to any evidence being prese nted on the

merits, Respondent was twice offered a continuance until later

the same day so that he could return to his living quarters in

the same correctional facility in order to get copies of all

proposed exhibits and depositions which had been provided to him

by Petitioner as well as any exhibits Respondent might wish to

offer. Respondent twice declined. 2 Petitioner's counsel

provided Respondent with copies of all of Petitioner's exhibits

for Respondent's use during hearing.

Upon Petitioner's motion , official recognition was taken of

Rules 64B8-8.001 and 64B8-9.003, Florida Administrative Code

(1992 and currently). 3

Petitioner presented the oral testimony of Raymond M. Pomm,

M.D., and Lija G. Scherer. Petitioner's Exhibits 5-14 were

admitted on the merits. They included depositions of Walter

Muller, M.D.; Lt. Roger Chilton; Selena Bowers, Records Clerk of

Kenneth Stark, M.D.; Dorothy Lee, Manager of Medical Records at

Florida Hospital Waterman; Jennifer Louer, Records Clerk of Louis

Radnothy, D.O., and Robert Tober, M.D., 4 each with attachments.

Respondent testified on his own behalf and had no exhibits

admitted in evidence.

At the conclusion of the disputed-fact hearing on March 15,

2000, Petitioner agreed to provide Respondent with a free copy of

the transcript and the undersigned explained to Respondent that,

pursuant to his oral agreement on the record with opposing

counsel, he would not have to file his proposed recommended order

until 35 days after the transcript was filed with the Division of

Administrative Hearings. One reason for granting 35 days in

which to file proposals was due to an anticipated delay between

the time the Transcript was mailed as "Legal Mail" and delivery

of the Transcript to Respondent by the correctional facility

where he is incarcerated.

On March 31, 2000, Respondent filed a letter of complaint

that he had not been provided with a copy of the Transcript.

On April 10, 2000, the original Transcript was filed with

the Division.

On April 13, 2000, Petitioner's couns el filed a notice of

service on Respondent of a copy of the Transcript.

On April 14, 2000, an Order was entered notifying Respondent

that the Transcript had been filed with the Division and

explaining how to prepare and file proposed recommended orders.

On April 20, 2000, Respondent filed his "Court Directed

Proposal" a/k/a Proposed Recommended Order, with a complaint that

he had not yet received his copy of the Transcript.

On May 1, 2000, Petitioner filed its Proposed Recommended

Order and a Motion to Strike Respondent's Proposed Recommended

Order.

By an Order entered May 12, 2000, only the exhibits attached

to Respondent's proposal were struck.

Thereafter, Respondent also filed various papers/pleadings

which have been addressed by sequential Orders in the file.

Both parties' proposals have been considered in preparation

of this Recommended Order. 5

FINDINGS OF FACT

1. At all times material to the incidents alleged in the

Administrative Complaints, Respondent was a licensed medical

physician in the State of Florida, having been issued License No.

ME 0016828.

2. Respondent specialized in internal medicine and

emergency medicine but has never been board certified in any

specialty.

3. Respondent's license has been delinquent since January

31, 2000, but because delinquent licenses may be subject to

renewal, the Petitioner has persisted in prosecuting these cases.

DOAH Case No. 99-4377

4. On July 21, 1995, B.W., a 56-year-old female, presented

to Respondent in the emergency room of Florida Hospital Waterman,

with complaints of chest, epigastric, and left shoulder pain.

B.W. had a history of dermatomyositis, for which she had been

taking 100 mg of Prednisone for a month, along with other

medications. Prednisone in such large doses can cause

gastrointestinal irritation, ulceration, and bleeding. The day

before, B.W. had been prescribed Imuran by her rheumatologist for

immunologic problems.

5. Dermatomyositis is a degenerative disease of skeletal

muscle that can lead to a multitude of complications, including

rheumatologic problems evidenced by abnormal laboratory results.

6. The standard of care in the examination and treatment of

a patient with chest pain requires an emergency physician to

obtain a history including a complete medical history, family

history, and social history. Additionally, in order to meet the

standard of care, the emergency physician must perform a complete

physical examination, including a review of systems.

7. The emergency room records for Respondent's treatment of

B.W. show the information contained above in Finding of Fact No.

4.

8. The emergency room records do not show that Respondent

obtained or documented a complete medical history, family

history, or social history of B.W. Respondent violated the

standard of care in that he failed to obtain or document a

complete medical history, family history, or social history of

B.W.

9. Respondent also violated the standard of care in that he

failed to perform or document a complete physical examination,

including a review of systems.

10. Respondent ordered an electrocardiogram (EKG), a chest

X-ray, a complete blood count (CBC), complete cardiac enzymes

testing (CPK and CKMB), and a metabolic profile or chemistry

panel (MPC). He also did a rectal exam which was negative for

blood. He did all appropriate tests. He did not fail to order

any appropriate tests.

11. The EKG and the chest X-ray yielded normal results, but

B.W.'s blood count revealed several abnormal values, including a

decreased platelet of 21,000 and a markedly elevated white count

of 24,000. A platelet count of 21,000 is extremely low and

grounds for major concern, as is the elevated 24,000 white count.

Together, in the presence of the other symptoms and abnormal

blood values present, which included low RBC, anemic hemoglobin,

and low hemocrit, the standard of care requires that an emergency

physician obtain a consultation with a specialist, such as a

rheumatologist or a hematologist. In light of all the foregoing

results and normal corpuscular volume, which B.W. also had, the

emergency physician should have recognized that B.W. did not have

simple iron deficiency anemia.

12. Under some circumstances, the emergency room

physician's consultation with B.W.'s primary care physician, who

in this case was also a rheumatologist, would have been

sufficient.

13. Respondent maintained that he had obtained a history

from B.W. as set forth in Finding of Fact No. 4, and an oral

report from the hospital lab technician to the effect that a

blood test ordered by B.W.'s treating rheumatologist the

preceding day, July 20, 1995, had shown a platelet count of

18,000, and that because Respondent presumed B.W.'s platelets

were increasing with the use of Imuran plus other factors,

Respondent did not admit B.W. to the hospital, but, instead,

discharged her without even consultation.

14. Despite Respondent's foregoing explanation, it is clear

that Respondent did not record or document on B.W.'s chart his

oral conversation with the lab technician, if, in fact, such a

conversation occurred. This was below the acceptable standard of

medical care and record-keeping for an emergency room physician.

15. Respondent stated that he felt that because the

treating rheumatologist had not admitted B.W. to the hospital or

transfused B.W. the previous day, she should not be admitted or

transfused on July 21, 1995. He stated that he also relied on a

medical text (Merck's Manual) which allegedly states that

platelet transfusions should not be given until the count falls

to 10,000.

16. Respondent stated that he ruled out a myocardial

infarction on the basis that both the CKMB on B.W. and the CKMB

Index were not elevated and B.W.'s EKG was normal.

17. However, Dr. Tober, who is certified in emergency

medicine, testified more credibly that he had never seen a CPK

test so high; that interpretation of CPK and CKMB in such a

patient as B.W. would be confounded by the co-existence of the

dermatomyositis, grossly throwing off these tests in an acute

cardiac setting, sometimes causing several EKGs to come back

normal in the course of a myocardial infarction; that B.W.'s

extremely low platelet count should cause great concern about the

hemologic system and clotting response if B.W. started to

hemorrhage; and that the suspiciously low lymphocytes and all

blood parameters should have caused Respondent not to discharge

B.W. prior to a consultation with a specialist.

18. Respondent failed to meet the standard of care by the

treatment he rendered to B.W., in that he did not obtain a

consultation from either the primary care physician, another

rheumatologist, or a hematologist, before discharging her.

19. That standard of care requires an emergency physician

to determine an appropriate diagnosis and treatment as related to

the patient's complaint and results of examinations.

20. Respondent violated the standard of care in that he

merely wrote into B.W.'s chart a portion of her medical history,

"dermatomyositis," instead of a current diagnosis which addressed

her current abnormalities when she presented in the emergency

room. Thus, Respondent did not discern an appropriate diagnosis

while appropriately treating B.W. 6

21. Respondent's chart on B.W. is illegible to the extent

that Dr. Tober was unable to read most of 23 lines of it.

22. Because proper care of patients requires that medical

records be sufficiently legible for successive professionals to

discern what the writer has done and analyzed, I find that

Respondent is guilty of keeping written medical records that are

illegible and difficult to decipher. I do not consider Hospital

Waterman's failure to provide dictation or transcription

equipment and/or personnel to excuse this flaw.

DOAH Case No. 99-4378

23. On or about July 14, 1995, Respondent was convicted of

driving under the influence and placed on probation for 12

months, and his driver's license was revoked for 12 months.

24. About two years later, on July 12, 1997, Respondent's

vehicle collided with another vehicle. Respondent and the driver

of the other car were injured. Blood was drawn from Respondent

at the hospital. Laboratory studies performed by the Florida

Department of Law Enforcement revealed that Respondent's blood

alcohol level was 0.10 grams of ethyl alcohol per 100 ml. Under

Florida law, a driver is legally intoxicated when his blood

alcohol level is 0.08 grams of ethyl alcohol per 100 ml or

higher.

25. On August 12, 1997, Respondent was arrested and charged

with one count of serious bodily injury while driving under the

influence, and two counts of property damage while driving under

the influence. On July 2, 1998, Respondent entered a plea of

guilty 7 to one count of serious bodily injury while driving under

the influence and was sentenced to imprisonment for a period of

seven years, one month, and eight days.

26. On or about January 13, 1998, Walter J. Muller, M.D., a

board-certified psychiatrist, performed a psychiatric evaluation

of Respondent. Dr. Muller diagnosed Respondent with major

depression, dysthymic disorder, and alcohol abuse, pursuant to

The Diagnostic and Statistical Manual-IV. At that time, these

conditions were active and not in remission. The diagnosis of

major depression correlates with impaired social and occupational

functioning.

27. A diagnosis of dysthymic disorder is an indication of

impairment and the inability to practice medicine with skill and

safety to patients.

28. A diagnosis of alcohol abuse can be an indication of

inability to practice medicine with skill and safety to patients,

but would depend upon when the abuse is occurring and how long it

has been since the abuse occurred.

29. In the expert opinion of Dr. Raymond Pomm, who is

board certified in adult psychiatry and general psychiatry, with

added qualifications in addiction psychiatry, and who relied on

Dr. Muller's evaluation, the combined three diagnoses of major

depression, dysthymic disorder, and alcohol abuse revealed that,

to a degree of reasonable medical certainty, Respondent was

unable to practice medicine with skill and safety to patients on

the date of Dr. Muller's report.

30. Respondent was evaluated at Menninger Clinic in Kansas,

on or about May 26, 1998, and diagnosed with alcohol dependence.

31. After six weeks of treatment at the Menninger Clinic,

Respondent was released as being "in early remission." The

treating physician made a number of recommendations for

rehabilitation of Respondent, including treating his alcohol

dependence by entering into a monitoring contract with the

Physician's Resource Network in Florida and requiring a further

evaluation by a neurologist of Respondent's apparently diminished

cognitive skills.

32. Dr. Pomm did not have the opportunity to read the

entire evaluation by the Menninger Clinic, and did not rely upon

it in forming his opinion of Respondent's inability to practice

medicine with skill and safety to patients. However, according

to Dr. Pomm, there is no cure for alcohol dependence. It is a

life-long illness, which is incurable, and which at best, can

only be "in remission." In Dr. Pomm's opinion, one who is

alcohol-dependent cannot practice with skill and safety to

patients without undergoing a monitoring program.

33. While I accept Respondent's testimony that he has

remained sober since approximately May 27, 1998, because he has

been in prison, I also note that Respondent has not entered into

a monitoring contract or been monitored in a recovery program

because he has been in prison.

34. Accordingly, there is no evidence that Respondent's

circumstances have changed sufficiently since January 13, 1998,

so as to demonstrate that he is able to practice medicine with

skill and safety to patients in the real world.

CONCLUSIONS OF LAW

35. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Subsection 120.57(1), Florida Statutes.

36. The Board of Medicine is empowered to discipline the

license of a medical physician, such as Respondent, for the

following violations of Section 458.331(1), Florida Statutes:

(m) Failing to keep written medical records,

justifying the course of treatment of the

patient. Including, but not limited to,

patient history; examination results; test

results; records of drugs prescribed,

dispensed, or administered; and reports of

consultations and hospitalizations.

(t) Failing to practice medicine with that

level of care, skill and treatment which is

recognized by reasonably prudent similar

physicians as being acceptable under similar

conditions and circumstances.

(s) By being able to practice medicine with

reasonable skill and safety to patients by

reason of illness or use of alcohol, drugs,

narcotics, chemicals, or any other type of

material or as a result of any mental or

physical condition.

(x) By violating a provision of Chapter 458,

a rule of the Board or Department, or a

lawful order of the Board or Department

previously entered in disciplinary hearing or

failing to comply with a lawfully issued

subpoena of the Department.

37. Rule 64B8-9.003(2), provides as follows:

A licensed physician shall maintain patient

medical records in a legible manner and with

sufficient detail to clearly demonstrate why

the course of treatment was undertaken or why

an apparently indicated course of treatment

was not undertaken.

38. The Board of Medicine may impose one or more of the

penalties as set out in Section 458.331(2), Florida Statutes.

39. Herein, Petitioner must go forward and prove by clear

and convincing evidence the alleged violations. Department of

Banking and Finance v. Osborne Stern , 670 So. 2d 932 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1st DCA 1987).

40. Petitioner has proven by clear and convincing evidence

the allegations of Count I of the Administrative Complaint in

DOAH Case No. 99-4377, in that Respondent violated Section

458.331(1)(t), Florida Statutes, by practicing medicine below the

acceptable standard of care in that Respondent discharged B.W.

from the emergency room without implementing proper treatment,

making an appropriate diagnosis, or obtaining the necessary

consultation, despite the fact that B.W. had a dangerously low

platelet count and a significant history.

41. Petitioner has proven by clear and convincing evidence

the allegations of Count II of the Administrative Complaint in

DOAH Case No. 99-4377, that Respondent violated Section

458.331(1)(m), Florida Statutes, in that Respondent failed to

keep written medical records justifying treatment. The evidence

proves this violation in that the history Respondent recorded in

the medical records was marginal, test results were not

documented, and an assessment was not recorded.

42. Petitioner established by clear and convincing evidence

the allegations of Count III of the Administrative Complaint in

DOAH Case No. 99-4377, that Respondent violated Section

458.331(1)(x), Florida Statutes, in that Respondent is guilty of

violating Rule 64B8-9.003(2), Florida Administrative Code, by

failing to maintain patient medical records in a legible manner

and with sufficient detail to clearly demonstrate why a course of

treatment was undertaken, or why an apparently indicated course

of treatment was not undertaken.

43. Petitioner established by clear and convincing evidence

the Administrative Complaint in DOAH Case No. 99-4378, to the

effect that Respondent violated Section 458.331(1)(s), Florida

Statutes, in that Respondent is unable to practice medicine with

reasonable skill and safety to patients because Respondent has

been diagnosed as suffering from major depression, dysthymic

disorder, and alcohol abuse.

44. The disciplinary guidelines of the Board of Medicine,

set out at Rule 64B-8.001, Florida Administrative Code, provide a

range of penalties for violations of the provisions of Section

458.331, Florida Statutes, including suspension.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is

RECOMMENDED that the Board of Medicine enter a final order

finding Respondent guilty of all violations charged, and as a

penalty therefore, suspending Respondent's license to practice

medicine in Florida until such time as Respondent presents to the

Board and proves that he can practice with skill and safety.

DONE AND ENTERED this 15th day of June, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The De Soto 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 15th day of June, 200 0.

ENDNOTES

1 / The undersigned notes that during Dr. Muller's deposition,

page 24, Respondent told Petitioner's counsel that he was

represented by a lawyer in a collateral criminal case, was not

represented in these administrative cases, and had been advised

not to speak in these cases.

2/ Much later in the proceedings, Petitioner requested to go

back to his dormitory to get another exhibit. This motion was

denied at that time on the basis of his two prior waivers before

evidence began to be presented.

3/ Respondent did not object timely to the request for official

recognition. His objections contained in his Proposed

Recommended Order are late, without merit, and denied.

4/ Dr. Tober is board certified in emergency medicine.

Respondent's Motion to Strike contained in his Proposed

Recommended Order is denied.

5/ Petitioner's "challenges" of Section 458.331(1)(s) and

(1)(m), Florida Statutes, first contained in his Proposed

Recommended Order are untimely and are denied for that reason and

because determinations of constitutionality vel non are outside

the jurisdiction of the Division of Administrative Hearings.

Likewise, Respondent's attacks on the sufficiency of the

Administrative Complaint(s) first raised in his Proposed

Recommended Order, are untimely under Rule 28-106.204, Florida

Administrative Code, and the prayer to dismiss/strike based

thereon is denied. Respondent is not charged with "wrongful

death" under Chapter 766, Florida Statutes, or any other statute.

6/ Respondent defended in part on the basis that four days after

B.W.'s emergency room visit with Respondent, another physician

also did not admit B.W. to the hospital and begin transfusions of

platelets. The evidence shows that ultimately B.W. was admitted

and transfused but that the source of her internal bleeding was

never definitively pinponted and B.W. died. Respondent is not

charged with allowing B.W. to die. However, Respondent's actions

or lack thereof also are not necessarily excusable due to actions

or inactions of other physicians at a later date, under different

circumstances. He is held to a standard of care for emergency

room physicians.

7/ Despite Lt. Chilton's testimony that he testified at a

"trial," I have relied on other exhibits showing that Respondent

pled guilty. I can only assume that Lt. Chilton testified in

some proceeding prior to the entry of the guilty plea due to a

plea bargain.

COPIES FURNISHED:

Carol A. Lanfri, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32399-4229

Agustin Carmona-Legal Mail

DC# U03774

Jackson County Correction Institution

3563 Tenth Street

Malone, Florida 32445-3144

William Large, General Counsel

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Tanya Williams, Executive Director

Board of Medicine

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Dr. Robert G. Brooks, Secretary

Department of Health

Bin A00

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk

Department of Health

Bin A02

2020 Capital Circle, Southeast

Tallahassee, Florida 32399-1703

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.