00-002545 Department Of Health, Board Of Medicine vs. Carl Fromhagen, Jr., M.D. Status: Closed Recommended Order on Monday, March 5, 2001.

Summary: This is an action to discipline a license to practice medicine for faulty and deceptive medical record keeping.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-2545

)

CARL FROMHAGEN, JR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge ,

Jeff B. Clark, held a formal hearing in this case on

November 29 and 30, 2000, in Clearwater, Florida.

APPEARANCES

For Petitioner : John E. Terrel, Esquire

Erick Scott, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Donald Weidner, Esquire

George Thomas Bowen, II, Esquire

Law Office of Donald Weidner, P.A.

11265 Alumni Way, Suite 201

Jacksonville, Florida 32246

STATEMENT OF THE ISSUE

Whether disciplinary action should be taken against the

license to practice medicine of Respondent ,

Carl Fromhagen, M.D., based on allegations that he violated

Subsections 458.331(l)(k),(m) and (t), Florida Statutes, as

alleged in the Administrative Complaint in this proceeding.

PRELIMINARY STATEMENT

By Administrative Complaint dated April 30, 1999,

Petitioner, Department of Health, Board of Medicine, alleged

that Respondent, Carl Fromhagen, M.D., a licensed physician,

violated provisions of Chapter 458, Florida Statutes, governing

medical practice in Florida. Petitioner alleged that:

1. Respondent made deceptive, untrue, and fraudulent

statements in or related to the practice of medicine in that

Respondent falsified his medical records of Patient K. B. by

rewriting relevant portions in a light more favorable to himself

in violation of Subsection 458.331(1)(k), Florida Statutes;

2. Respondent failed to keep written medical records

justifying the course of treatment of Patient K. B., in that

Respondent's medical records do not justify his failure to order

or perform breast biopsies, refer Patient K. B. for surgical

exploration of her persistent breast mass, or obtain other

appropriate referrals for further evaluation. Moreover,

Respondent altered his medical records to justify his course of

treatment after-the-fact and did not initial or date the

alterations of the records in violation of

Subsection 458.331(1)(m), Florida Statutes;

3. Respondent practiced medicine below the standard of

care, in that Respondent failed to order or perform breast

biopsies, refer Patient K. B. for surgical exploration of her

persistent breast mass, or obtain other appropriate referrals

for further evaluation in violation of Subsection 458.331(1)(t),

Florida Statutes.

Petitioner forwarded the Administrative Complaint to the

Division of Administrative Hearings on June 21, 2000. A Notice

of Hearing was entered on July 20, 2000, setting the case for

hearing on November 29 and 30, 2000, in Clearwater, Florida.

At the final hearing, Petitioner presented five witnesses

including Respondent and Elizabeth Nelson, M.D., who was

qualified as an expert witness. Petitioner offered ten

exhibits. Petitioner's Exhibits Nos. 1-4, 6, 9 and 10 were

admitted. Petitioner's Exhibits Nos. 7 and 8 were prior

depositions of Respondent. Respondent presented Respondent and

James Von Thron, M.D., who were admitted as expert witnesses,

and offered four exhibits which were admitted into evidence.

At the conclusion of the hearing, the Administrative Law

Judge advised each party of their option of providing proposed

recommended orders and memoranda of law. The attorneys for the

parties requested and received thirty (30) days from the filing

of the transcript to file proposed recommended orders and

memoranda of law. The court reporter filed the Transcript on

January 8, 2001. Both parties filed Proposed Recommended

Orders.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of facts are made:

1. Petitioner is the state agency charged with regulating

the practice of medicine in the State of Florida pursuant to

Section 20.43, Florida Statutes, and Chapters 455 and 458,

Florida Statutes.

2. At all times material to this proceeding, Respondent

was a licensed physician in the State of Florida, having been

licensed in 1956 and issued License No. ME 0007027.

3. Respondent is board-certified in Obstetrics and

Gynecology (1967). He is 74 years old and now has an office-

based practice treating only gynecological patients.

4. Patient K. B., a 46-year-old female, first presented to

Respondent on September 6, 1990, with menopausal complaints.

Her patient's history reflects that she reported a family

history of breast cancer.

5. On February 12, 1992, Patient K. B. presented to

Respondent with complaints of a mass in her left breast.

Respondent palpated a mass in K. B.'s left breast and, although

he did not note the size of the mass in his office records, the

records contain a diagram showing the location of the mass.

6. Petitioner testified that it was his practice that when

he discovered a mass of less than 2.5 centimeters, he did not

describe the size because its too hard to identify the exact

dimensions smaller than an inch.

7. Respondent ordered a mammogram for Patient K. B . which

was performed on February 19, 1992, and was interpreted as

revealing no evident neoplasm (cancer).

8. Respondent saw Patient K. B. in his office on the

following dates (after the mammogram) : March 30, 1992;

May 21, 1992; August 31, 1992; April 19, 1993; April 27, 1993;

May 4, 1993; May 11, 1993; May 18, 1993; September 21, 1993; and

November 16, 1993. In addition, Patient K. B. had telephone

contact with Respondent's office staff to have prescriptions

refilled and was mailed examination reminder notes.

9. Patient K. B. testified that she and Dr. Fromhagen

discussed the breast mass "every checkup, every time I was

there." She inquired about a follow-up mammogram and

Dr. Fromhagen indicated that she could wait two years. He did

not mention a biopsy, excision, or referral to another physician

at anytime.

10. Patient K. B. and Respondent agr ee that Respondent

examined and palpated the breast mass during her physical

examinations which took place approximately every six months.

11. During civil litigation that preceded the instant

administrative hearing, it became apparent that there were two

different sets of office records for Patient K. B. Patient

K. B. testified that during the civil action she brought against

Respondent in 1996, Respondent had produced medical records,

purported to be hers that did not accurately reflect her

treatment. She recalled that upon comparing the medical records

Respondent had produced in the civil action with the records she

had obtained from Respondent's office in December 1994, she

discovered that Respondent had "augmented" her records, which

she reported to her attorney.

12. In May 1994, the offices of Dr. Paul Straub, who

became Patient K. B.'s new treating physician as a result of a

change in her group health insurance, requested her medical

records from Dr. Fromhagen's office.

13. Dr. Fromhagen testified in the instant hearing that

"at the time . . . I compared the chart [Patient K. B.'s

records] with . . . 'day sheets' and because I felt the records

did not reveal everything that Dr. Straub should be aware of, I

rewrote certain portions of them to reflect things that were on

the day sheets that I hadn't already written down and then [in

May 1994] sent the records to Dr. Straub."

14. Patient K. B. testified that, "the night before my

surgery" [December 1994] she received a call from

Dr. Fromhagen's office asking if they could send her records to

Dr. Straub. In the course of that discussion, Patient K. B.

advised that she had been diagnosed with breast cancer and was

scheduled for surgery.

15. That same evening, shortly after the phone discuss ion

with Dr. Fromhagen's office, Patient K. B. went to

Dr. Fromhagen's office and obtained a copy of her medical

records. These records did not contain the "rewritten portions "

Dr. Fromhagen reported as having been done in May 1994.

16. Dr. Fromhagen testified that he started keeping "day

sheets" when he first started practicing in 1960. The "day

sheets" (Respondent's Exhibit 2) are essentially a daily

calendar organized by time which lists the name of patients to

be seen that day and then notes such as "ovarin cyst,"

"vaginitis," "preg?"

17. These "day sheets" were not mentioned in either of

Dr. Fromhagen's depositions taken in 1996 in the civil action.

18. In Petitioner's Exhibit 10, a July 3, 1997, letter to

M. S. Sutton, an Agency for Health Care Administration

investigator, Dr. Fromhagen attempts to explain his record-

keeping practice for patients, Dr. Fromhagen acknowledges

rewriting his charts and states, "I would carefully review the

chart and address any portions that I felt were not completely

explanatory, or that I thought need information to assist the

subsequent physician. I now understand that I should have noted

the changes as late entries and dated them the date written."

No mention was made of "day sheets" in this letter.

19. Dr. Fromhagen testified during a deposition taken in

the civil action that his standard practice was "to make entries

in the chart right away," that he never put it off, and that he

had not done anything different in Patient K. B.'s case.

20. Dr. Fr omhagen acknowledged that during a deposition

taken in the civil action he had incorrectly testified that he

had not made changes in Patient K. B.'s medical record.

21. The following is a comparison of the significant

difference between Petitioner's Exhibit 9, Patient K. B.'s

original medical record, and Respondent's Exhibit 3, Patient

K. B.'s "augmented" medical record. Please note : Patient K. B.

became Dr. Fromhagen's patient on September 6, 1990. No changes

were made in the "Gynecologic History and Physical Examination"

(Patient K. B.'s medical record) on any entry until March 30,

1992. Changes are highlighted.

Date: March 30, 1992

Original record: "Mammogram was neg. palpation

indicates mass much smaller. Will follow"

Augmented record: "Mammogram reported as no evidence

of neoplasm . Palpation indicates to me that mass

is smaller. Discussed removing it "

Date: May 21, 1992

Original record: "Dysuria General Malaise. Pelvic

unremarkable. Urine - pus. Rx Macrodantin"

Augmented record: "Dysuria. Mailaise. Pelvic

unremarkable. Urine - pus. Rx Macrodantin"

Date: August 31, 1992

Original record: "Introital lesions. Pelvic area

feels congestion and cramping sensation. Pelvic-

ulcers-blisters at introitus but very small.

Herpes? Rx Zoirax"

Augmented record: "Introital lesions. Lower abd

cramping. Pelvic - herpetic ulcers at introitus.

Rx Ziorax"

Date: April 19, 1993

Original record: "Last mammogram revealed no concern.

Dysuria. Frequent UTI. Had a cysto before.

Rhinorrhea. Vulvar irritation. GenPE. Breasts

unchanged. Pelvic - fungus. Rx She has

Monistat. Urine - pus Macrodantin. RV Cysto"

Augmented record: "Last mammogram revealed no

neoplasm but mass still present and I suggested

another x-ray now or removal of mass if she

wishes . Dysuria. Has frequent UTI s . Had a

Cysto before. Rhinorrhea. Vulvar irritation.

Gen PE - nasal turbinates swollen . Breasts

unchanged. Pelvic-fungus. Rx she has Monistat

for fungus . Macrodantin RV Cysto"

Date: April 27, 1993

Original record: "Cysto: stricutre. Proximal urethra

& trizone inflamed and granules. Bladder

capacity - first desire to void at 200 c.c. RV

dilations"

Augmented record: "Cysto- urethral stricture.

Proximal urethra & trizone inflamed & granular.

Urethra L46 . Bladder capacity - first desire to

void at 200 cc. Rx RV dilations"

Date: May 18, 1993

Original record: "No urinary complaints now. Sounded

#32 irrigated AgNO 3 . This concludes dilations"

Augmented record: "No urinary complaints now.

Sounded #32, irrigated AgNO 3 . This concludes

diations. She has not gotten this years

mammogram yet"

Date: October 11, 1993

Original record: "Rem sent" [entry made by office

staff]"

Augmented record: "Rem inder note sent - Exam due . "

[ entry made by office staff]"

Date: November 16, 1993

Original record: "On Premarin.625. Starting to

awaken in the middle of the night again Nervous.

No flashes. Bladder OK. New glassesouble

adjusting to fidders bifocals. GenPE, breasts &

pelvic unchanged. Pap change to Premarin 1.25"

Augmented record: "On Premarian.625. Starting to

awaken in the middle of the night again. Very

nervous. No flashes. Bladder OK. Finds it hard

to adjust to her new bifocals. Gen PE unchanged.

Breasts - mass still present. Again suggested

she get a yearly mammogram or have mass excised.

She has not arranged for a mammogram as she said

she would . Pelvic unchanged. Rx Increased dose

of Premarian to 1.25"

22. The entries made in patient K. B.'s "augmented" record

(Respondent's Exhibit 3) were not noted to be "late entries" nor

were they dated. Both expert witness opined that this fell

below the standard of care.

23. Most of the "late entries" made by Respondent in the

"augmented" record (Respondent's Exhibit 3) are a self- serving

attempt by Respondent to create the impression that he had

encouraged Patient K. B. to have follow-up mammograms or to have

the breast mass excised. If the "augmented" record

(Respondent's Exhibit 3) was a true reflection of the treatment

rendered Patient K. B. by Respondent, his treatment could

possibly have met the "standard of care." I find that the

"augmented" record does not reflect the treatment Patient K. B.

received, but that the original record ( Petitioner's Exhibit 9)

is the more credible document and accurately reflects

Respondent's treatment of Patient K. B.

24. Dr. Nelson, who testified as an expert witness,

testified that Dr. Fromhagen fell below the standard of care in

that (relying on both the original record and "augmented"

record) between March 30, 1992, and April 13, 1993, he did not

"deal with the breast mass, did not report discussion of

treatment options with the patient, did not order a follow-up

mammogram within 12 months."

25. Again relying on both records, Dr. Nelson testif ied

that Dr. Fromhagen fell below the standard of care for

maintaining medical records when he failed to record his

examination of Patient K. B.'s breasts and palpation of the mass

which he reported as having been done "every visit she made."

26. Both Dr. Von Thron, who also testified as an expert

witness, and Dr. Nelson agreed that the standard of care

requires that for any revision of medical records, if a change

is made, a line is made through the original so it can be read

and then the correction is made and the change is dated and

initialed. If an additional statement is entered into the

medical record, it should be dated and initialed.

27. Dr. Fromhagen did not date or initial the changes or

additions to Patient K. B.'s medical record when he created the

"augmented" record. Both expert witnesses testified that this

fell below the standard of care for medical record-keeping.

28. Dr. Von Thron, referring to the original record,

opined that Dr. Fromhagen did not comply with the standard of

care for essentially the same reasons as expressed by

Dr. Nelson. He opined that the "augmented" record indicates

that Dr. Fromhagen complied with the standard of care.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to Subsection 120.57(1) and Section 455.225,

Florida Statutes.

30. License revocations and discipline procedures are

penal in nature. Petitioner must demonstrate the truthfulness

of the allegations in the Administrative Complaint dated

April 30, 1999, by clear and convincing evidence. Department of

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

(Fla. 1996) ; Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

31. The "clear and con vincing" 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).

32. Petitioner must set forth the charges against

Respondent with specificity, carrying the burden of proving each

charge, and in the final order, set forth explicit findings of

fact and conclusions of law addressing each specific charge.

Davis v. Department of Professional Regulation , 457 So. 2d 1074

(Fla. 1st DCA 1984) ; Lewis v. Department of Professional

Regulation , 410 So. 2d 593 (Fla. 2d DCA 1982).

33. Where Petitioner charges negligent violations of

general standards of professional conduct, as in this case,

Petitioner must present expert testimony that proves the

required professional conduct, as well as the deviation

therefrom. Purvis v. Department of Professional Regulation , 461

So. 2d 134 (Fla. 1st DCA 1984).

34. Petitioner has charged Respondent with violating the

following relevant provisions of Subsection 458.331(1)(t),

Florida Statutes:

[T ]he 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.

35. Petitioner has proved by clear and convincing evidence

that Respondent failed 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. Both expert witnesses testified

that Respondent's record-keeping fell below the standard of

care. Both agreed that the course of treatment from March 30,

1992, to April 19, 1993, fell below the standard of care.

Dr. Nelson, whose expert testimony I find to be more credible,

opined that Respondent's failure to order a follow-up mammogram

and to explore treatment options fell below the standard of

care.

36. Petit ioner has charged Respondent with violating

Subsection 458.331(1)(k), Florida Statutes,

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.

37. Pe titioner has proved by clear and convincing evidence

that Respondent made deceptive, untrue, or fraudulent

representations in or related to the practice of medicine. In

1994, after Patient K. B. left Respondent's care, Respondent

"augmented" the medical record he had maintained adding largely

self-serving information which attempted to reflect treatment

which would have been undertaken by a reasonably prudent similar

physician. During the civil action, Respondent had initially

denied changing Patient K. B.'s record, but later acknowledged

changing the record. Respondent failed to indicate the changes

he made to the record were, in fact, changes as required by Rule

64B8-9.003(4), Florida Administrative Code, and standard medical

procedure.

38. Rule 64B8-9. 003(4), Florida Administrative Code,

states:

Standards for Adequacy of Medical Records.

* * *

(4 ) All entries made into the medical

records shall be accurately dated and timed.

Late entries are permitted, but must be

clearly and accurately noted as late entries

and dated and timed accurately when they are

entered into the record. However, office

records do not need to be timed, just dated.

39. The Administrative Complaint alleges that Respondent

violated Subsection 458.331(1)(m), Florida Statutes, and

publishes the text of the statute as amended in 1997. The

questioned medical record-keeping occurred in 1993. Subsection

458.331(1)(m), Florida Statutes (1993) reads:

(m) Failing to keep written medical

records justifying 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.

40. The version of a statute in effect a t the time grounds

for the disciplinary action arise controls. Childers v.

Department of Environmental Protection , 696 So. 2d 962 (Fla. 1st

DCA 1997) ; Willner v. Department of Professional Regulation,

Board of Medicine , 563 So. 2d 805 (Fla. 1st DCA 1990) ;

Department of Transportation v. James , 403 So. 2d 1066 (Fla. 4th

DCA 1981).

41. The Administrative Complaint alleges that

"Respondent's medical records do not justify this course of

treatment for Patient K. B." In both the 1993 and 1997 revision

of Subsection 458.331(1)(m), Florida Statutes, the following

language appears: "Failing to keep . . . medical records . . .

justifying (that justify) the course of treatment of the

patient."

42. A long existing rule of statutory construction is that

"mere statutory change of language does not necessarily indicate

an intent to change the law, for the intent may be to clarify

what is doubtful and to safeguard against misapprehension as to

the existing law." U.S. Fire Insurance v. Roberts , 541 So. 2d

1297 (Fla. 1st DCA 1989) ; Keyes Investors Series 20, Ltd. v.

Department of State , 487 So. 2d 59 (Fla. 1st DCA 1986) ; Ocala

Breeders Sales Co. v. Division of Pari-Mutuel Wagering,

Department of Business Regulation , 464 So. 2d 1272 (Fla. 1st DCA

1985).

43. The amendatory language of the 1997 revision of

Subsection 458.331(1)(m), Florida Statutes, is intended to

clarify the statute in effect at the time the questioned patient

record-keeping took place. Notwithstanding the use of the

amendatory language in the Administrative Complaint, Respondent

is on notice of the subsection of the statute he was alleged to

have violated.

44. Petitioner has proved by clear and convincing evidence

that Respondent "failed to keep medical records justifying the

course of treatment of the patient" in that Respondent failed to

record in either the original or "augmented" medical record the

fact that, as Respondent himself testified, he "palpated it [the

breast mass] every visit she made. I did not identify it in the

chart, . . . ."

45. Both the courts and the Legislature have recognized

that "the record-keeping aspect of a physician's practice is of

fundamental importance." Subsection 458.331(1)(m), Florida

Statutes, sets forth legislatively mandated minimal standards of

record-keeping by physicians. Rizzo v. Department of

Professional Regulation, Board of Medical Examiners , 519 So. 2d

1019 (Fla. 4th DCA 1988). Both expert witnesses opined that

Respondent's record-keeping failed to meet minimal standards.

Respondent's own testimony confirms this conclusion.

46. Subsection 458.331(2), Florida Statutes (1993),

provides that the Board of Medicine may impose one or more of

the following applicable penalties for violation of each

subsection of Section 458.331(1), Florida Statutes (1993):

(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 a 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

reexamination, 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.

47. In addressing aggravating and mitigating

circumstances, Respondent's apparent attempt to alter Patient

K. B.'s medical record to establish an acceptable standard of

care is abhorrent and undermines the trust upon which the

physician/patient relationship is founded. Initially denying

this activity under oath only compounds the inappropriate

conduct.

48. In mitigation, Respondent has never been disciplined

in a 44-year career as a practicing physician. No evidence was

offered to suggest that his departure from the applicable

standard of care was as a result of failure to diagnose breast

cancer. It is purely speculative to assume that a second

mammogram or a biopsy twelve months after the first would have

detected cancer. No evidence was offered to suggest that the

"augmented" medical record entries were motivated by any reason

other than fear, embarrassment, and shame.

RECOMMENDATION

Based on 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 violating Subsections

458.331(1)(k), (m), and (t), Florida Statutes (1993), and

imposing the following:

1. A $1,000.00 fine for each violation, for a total of

$3,000.00;

2. A one-year suspension followed by two years' probation ;

3. Ten hours of continuing medical education in ethics;

and

4. An appropriate medical education course in medical

record-keeping.

DONE AND ENTERED this 5th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearing s

this 5th day of March, 2001.

COPIES FURNISHED :

George Thomas Bowen, II, Esquire

Law Offices of Donald Weidner, P.A.

11265 Alumni Way, Suite 201

Jacksonville, Florida 32246

John E. Terrel, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, 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.