02-001307PL Department Of Health vs. Charles S. Eby, Jr., M.D. Status: Closed Recommended Order on Tuesday, December 3, 2002.

Summary: Licensee who assisted unlicensed person to practice medicine violated Section 458.331(1)(f), Florida Statutes, but Board should impose no penalty.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 02 - 1307PL

)

CHARLES S. EBY, JR., M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this case on July 23 and 24, 2002, in

Fort Myers, Florida, on behalf of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: John E. T errel, Esquire

Department of Health

4052 Bald Cypress Way

Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: H. Roger Lutz, Esquire

One Sarasota Tower

Two North Tamiami Trail, 5th Floor

Sarasota, Flo rida 34236

STATEMENT OF THE ISSUES

The issues for determination are w hether Respondent

violated Subsections 458.331(1)(f) and (m), Florida Statutes

(1997), by assisting an unlicensed person to practice medicine

contrary to Chapter 458 and by faili ng to maintain adequate

medical records; and, if so, what discipline, if any, should be

imposed against Respondent's license. (All references to

chapters and statutes are to those promulgated in Florida

Statutes (1997) unless otherwise stated.)

PRELIMINAR Y STATEMENT

Petitioner filed an Administrative Complaint against

Respondent on June 19, 2000. Respondent timely requested an

administrative hearing.

Petitioner referred the matter to DOAH, and DOAH assigned

the case to ALJ Susan B. Kirkland. On Decem ber 6, 2001,

Petitioner moved to relinquish jurisdiction on the grounds that

the parties had entered into a settlement agreement. ALJ

Kirkland granted the motion, and Petitioner presented the

proposed settlement to the Board of Medicine. The Board

reject ed the settlement and proposed a counter - offer that

Respondent rejected. Petitioner referred the matter back to

DOAH for an administrative hearing.

At the hearing, Petitioner presented the testimony of six

witnesses, including one expert witness, and submitted 13

exhibits for admission into evidence. Respondent testified in

his own behalf and submitted five exhibits for admission into

evidence. One of Respondent's exhibits is the deposition

testimony of Respondent's expert witness.

The identity of the witnesses and exhibits, and any

attendant rulings, are set forth in the Transcript of the

hearing filed on September 18, 2002. The ALJ granted

Respondent's unopposed motion for extension of time to file

proposed recommended orders (PROs). Petitioner and Respondent

timely filed their respective PROs on October 9 and 8, 2002.

The Administrative Complaint contains four counts. Two of

those counts are not at issue in this Recommended Order.

Petitioner dismissed one count that charged Respondent with

violating Subsection 458.331(1)(x) by performing surgery in an

out - patient setting when Respondent did not have staff

privileges to perform those procedures at a reasonably proximate

hospital. Petitioner concedes a second count by acknowledging

in its PRO that the evidence does not show that Respondent

advertised his membership in an unapproved specialty board.

Two counts remain at issue. One charges that Respondent

violated Section 458.331(1)(f) by aiding an unlicensed person to

practice medicine contra ry to Chapter 458. The second charges

that Respondent violated Section 458.331(1)(m) by failing to

maintain adequate medical records.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for

regulating the practice of medicine in Florida. R espondent is

licensed to practice medicine in Florida pursuant to license

number ME 0015824.

2. Respondent owns and operates an ambulatory surgical

center doing business as the Dermatologic & Cosmetic Surgery

Center (Surgery Center). The Surgery Center i s located at 2666

Swamp Cabbage Court, Fort Myers, Florida 33901.

3. Respondent is a Board - certified Dermatologist and also

performs cosmetic surgery that includes breast augmentation.

Dermatology and cosmetic surgery involve similar procedures.

The pr ocedures used to remove skin cancers from the face are

similar to those used in face - lifts and eyelid surgery.

Respondent performs approximately a thousand skin cancer

surgeries a year, has been doing cosmetic surgery since 1986,

and has practiced breast surgery since 1989.

4. Respondent is a member of the American Board of

Cosmetic Surgery. That board is not approved by the American

Board of Medical Specialties or the Florida Board of Medicine.

5. Respondent has attended numerous seminars and satisfi ed

relevant continuing education requirements throughout his

career. Respondent has never been sued by a patient and has no

prior discipline against his license.

6. Prior to August 12, 1997, Respondent performed breast

augmentations through the patient's nipple. Respondent made a

small incision in the lower part of the binary nipple. He used

his fingers to separate the overlying breast tissue from the

muscle and create a pocket in which to place an implant. The

incision left a scar at the nipple, and R espondent sought to

develop competency in a different procedure identified in the

record as the axillary method of breast augmentation.

7. The axillary method allows the surgeon to access the

breast from the patient's armpit. The surgeon makes a 1.5 inch

incision under the armpit, uses an instrument to create a pocket

in the breast, inserts a partially inflated implant into the

pocket, and repeats the same procedure in the other breast. The

surgeon then checks the breasts for symmetry, fills the

implants , closes the pockets, and concludes the procedure.

8. In the axillary method, a surgeon must use instruments

rather than his fingers to create a pocket for the implant. The

initial incision and placement of the implant do not require

great skill. The gr eater skill is required in reaching the

proper plane in the breast tissue and in creating the pocket.

9. The brachial plexis is just below the incision in the

armpit and contains all of the nerves that make the arm work.

From the armpit, the surgeon mu st proceed over the sternum. If

the surgeon applies too much pressure, the surgeon can cross the

center of the chest and create a condition known as a unibreast.

10. Respondent developed a basic understanding of the

axillary method by watching video tape s for several years and by

attending seminars approved for professional education credit in

the State of Florida. In May of 1997, Dr. Daniel Metcalf taught

one of those seminars in Orlando, Florida.

11. Dr. Metcalf is licensed to practice medicine in

O klahoma. He is qualified by training and experience to perform

the axillary method and to teach the method to other physicians.

For approximately 25 years, Dr. Metcalf has limited his medical

practice to breast surgery and performs approximately 650

surg eries each year.

12. At the time that Dr. Metcalf taught the accredited

seminar in Orlando, his license to practice medicine in Oklahoma

was suspended. On November 13, 1995, Dr. Metcalf pled guilty to

a felony charge that he violated federal interstate c ommerce law

by selling silicon implants during a moratorium on their sale.

13. The federal court fined Dr. Metcalf $5,000 and

sentenced him to six months in federal prison beginning on

April 5, 1996. The State of Oklahoma suspended Dr. Metcalf's

medic al license for one year beginning on the date of his

release from prison. The suspension expired on or about

October 5, 1997.

14. In May of 1997, Respondent discussed the axillary

method with Dr. Metcalf during the seminar in Orlando.

Respondent and Dr. Metcalf had known each other since the early

1980s, and Dr. Metcalf agreed to come to the Surgery Center and

teach the axillary method to Respondent.

15. Respondent scheduled the teaching session at the

Surgery Center for August 12 and 13, 1997. Five of Respondent's

patients agreed to participate. The patients are identified in

the record as B.D., T.R., R.K., M.P., and D.C.

16. Each patient acknowledged in writing that it would be

the first time Respondent would perform the axillary method.

Neith er Respondent nor Dr. Metcalf charged the patients for a

surgeon's fee, and Dr. Metcalf did not charge Respondent.

However, the patients paid the costs of the implant, the

operating room, and the blood work.

17. Respondent conducted a preoperative inte rview with

each patient. He advised the patient that Dr. Metcalf would be

in the operating room teaching Respondent.

18. On August 12 and 13, 1997, Respondent introduced

Dr. Metcalf to each patient. Respondent and Dr. Metcalf then

scrubbed, gloved, a nd proceeded with the teaching session.

19. Dr. Metcalf performed approximately 60 to 70 percent

of the first surgery. Respondent performed progressively more

of each successive surgery until Respondent performed the vast

majority of the surgery. Th e surgery that Dr. Metcalf performed

included at least one incision and pocket, insertion of an

implant, use of the appropriate surgical instruments, and

closure of an incision on at least one patient.

20. Neither Respondent nor Dr. Metcalf caused any h arm to

a patient. The results of all five procedures were positive and

without complication. No patients complained about their

treatment. Two of Respondent's former employees are the

complaining witnesses in this case.

21. The first issue is whethe r Dr. Metcalf practiced

medicine within the meaning of Section 458.305(3). Section

458.305(3) defines the "practice of medicine" as:

[T]he diagnosis, treatment, operation, or

prescription for any human disease, pain,

injury, deformity, or other physical or

mental condition.

22. Dr. Metcalf did not diagnose, treat, or prescribe

medicine for any human disease, pain, injury, or deformity, or

mental condition. The breast augmentations that he participated

in were elective and cosmetic and did not treat any disease,

pain, injury, or deformity. Dr. Metcalf must have performed an

"operation" for some "other physical . . . condition" in order

to practice medicine within the meaning of Section 458.305(3).

23. Respondent's counsel argued during the hearing that

the issue of whether Dr. Metcalf practiced medicine was an issue

of law, rather than fact. Counsel argued that expert testimony

would invade the province of the ALJ.

24. If Respondent's counsel were correct, the result could

be problematic for Sec tion 90.702. Although a physician would

be qualified by training and experience to opine that a peer's

activities satisfy the standard of care applicable to the

practice of medicine, the physician would not be qualified to

know whether he or his peer prac ticed medicine.

25. In an abundance of caution, the ALJ requested the

parties to cite relevant legal authority in their respective

PROs. Neither party cited any direct or analogous legal

authority that resolves the issue raised by Respondent's counsel

or construes the statutory definition of the practice of

medicine in Section 458.305(3).

26. Each party submitted expert testimony concerning the

issue of whether Dr. Metcalf practiced medicine. As the trier

of fact and arbiter of credibility, the ALJ must resolve the

evidential conflicts between the experts. Accordingly, the fact

finder has carefully considered the substance of the testimony

of the two experts and determined the appropriate weight to be

accorded the testimony of each.

27. Respon dent's expert based his opinion on a custom

within the medical profession in which unlicensed persons, such

as members of an emergency medical team, medical students, and

first year residents, train under a physician. Respondent's

expert opined that an un licensed person does not practice

medicine because the person is learning under the auspices of a

physician who has responsibility for the unlicensed person.

28. Respondent's expert relied on facts not in evidence.

Unlike the custom described by Respon dent's expert, the evidence

shows that the person teaching was not licensed to practice

medicine in the state where the teaching occurred. The person

learning was the only person so licensed. While Respondent had

ultimate responsibility, Respondent was n ot teaching Dr.

Metcalf. Dr. Metcalf was teaching Respondent.

29. The custom described by Respondent's expert operates

within a framework of laws and rules that are inapposite to this

case. Residents who are not licensed to practice medicine in

Florida may practice under the supervision of a physician only

if the residents, and the hospitals in which they work, comply

with registration and reporting requirements in Section 458.345

and Florida Administrative Code Rules 648 - 6.008 and 6.009. None

of those provisions apply to the facts in this case. (All

references to rules are to those promulgated in the Florida

Administrative Code on the date of this Recommended Order.)

30. Respondent's expert also testified that doctors

customarily teach other doctors in states where the teaching

doctor is not licensed. In Florida, however, that custom is

limited by Section 458.303(1)(b) to activities that satisfy the

definition of a consultation.

31. A consultation is defined in Rule 64B8 - 2.001(8) to

include the taki ng of a medical history, the examination of a

patient, the review of laboratory tests and x - rays, and the

making of recommendations to a person licensed to practice

medicine in Florida. A consultation is not a set of activities

separate and apart from the practice of medicine. It is a

subset of the "practice of medicine" in Section 458.305(3).

32. The opinion of Respondent's expert is limited, by

operation of law, to that part of the practice of medicine that

is a consultation within the meaning of Sec tion 458.303(1)(b)

and Rule 64B8 - 2.001(8). That part of the practice of medicine

that is not a consultation is the practice of medicine that is

at issue in Section 458.331(1)(f). Further references in this

Recommended Order to the "practice of medicine" refer to those

activities described in Section 458.305(3) that are not a

consultation within the meaning of Section 458.303(1)(b) and

Rule 64B8 - 2.001(8).

33. Some of the activities engaged in by Dr. Metcalf at

the Surgery Center satisfied the defini tion of a consultation.

Other activities comprised the practice of medicine. The

proportion of each is not material in this case.

34. Dr. Metcalf performed at least 60 percent of the first

"operation" for some "other physical . . . condition" within t he

meaning of Section 458.305(3). Dr. Metcalf practiced medicine

progressively less with each successive operation and performed

progressively more consultation.

35. One purpose of the teaching session was for Dr.

Metcalf to first demonstrate the axilla ry method and then to

assist Respondent in the practice of that medicine. As it

turned out, this purpose was more qualitative than quantitative

because Respondent quickly demonstrated competency. However, if

it were unnecessary for Dr. Metcalf to first d emonstrate the

axillary method, Respondent could have gained the competency he

sought by reviewing video tapes, attending seminars, and

consulting with Dr. Metcalf.

36. Respondent aided, assisted, procured, or advised Dr.

Metcalf to engage in the practi ce of medicine for at least 60

percent the first surgery performed on August 12, 1997. The

next issue is whether Dr. Metcalf was an "unlicensed person"

within the meaning of Section 458.331(1)(f).

37. Chapter 458 commonly uses the term "licensed" to refe r

to persons licensed outside of Florida. For example, Section

458.303(1)(b) refers to physicians "licensed" in another state.

Section 458.3115(1) authorizes restricted licenses for "foreign -

licensed" persons. Section 458.313(1)(c) authorizes licensure

by endorsement for those "licensed" in another jurisdiction, and

Section 458.315 authorizes a temporary certificate for persons

"licensed" in any other state.

38. Dr. Metcalf was a licensed person in Oklahoma when he

practiced medicine at the Surgery C enter in August of 1997. A

person licensed to practice medicine is not an "unlicensed

person" while the person's license is suspended. A contrary

finding could be problematic under Florida law.

39. If a person with a suspended Florida license were an

unlicensed person during the suspension and the person violated

the terms of the suspension, the person would have no

professional license against which the Board of Medicine could

take further disciplinary action, including revocation of the

license. Rat her, the Board would be required to seek criminal

prosecution pursuant to Section 458.327(1)(a).

40. During the period of suspension, Dr. Metcalf was a

licensed person in Oklahoma. However, Dr. Metcalf was not

authorized to exercise any privileges unde r the license or to

enjoy the benefits of his license until the suspension expired.

41. Section 458.331(1)(f) does not prohibit Respondent

from aiding, assisting, procuring, or advising an unauthorized

person to practice medicine. Such a statutory prohi bition would

have been broad enough to proscribe the practice of medicine by

a licensed person whose authority to practice was temporarily

suspended. Rather, Section 458.331(1)(f) prohibits Respondent

from "aiding, assisting, procuring, or advising any un licensed

person" to practice medicine. (emphasis supplied) Relevant

terms in Section 458.331(1)(f) must be construed strictly in

favor of the licensee because this is a license disciplinary

proceeding that is penal in nature.

42. A finding that Dr. Metc alf was a licensed person in

Oklahoma does not resolve the issue of whether Dr. Metcalf was

an unlicensed person for the purposes of Section 458.331(1)(f).

An "unlicensed person" in Section 458.331(1)(f) is properly

defined by reference to Section 458.327 (1)(a).

43. Section 458.331(1)(f) prohibits Respondent from

"aiding, assisting, procuring, or advising an unlicensed person

to practice medicine contrary to this chapter . . . ."

(emphasis supplied). Section 458.327(1)(a) prohibits the

practice of me dicine without "a license to practice in Florida."

When the term "unlicensed person" in Section 458.331(1)(f) is

harmonized with Section 458.327(1)(a), an "unlicensed person"

means a person not licensed in Florida.

44. Sections 458.327(1)(a) and 458.33 1(1)(f) operate in

concert. The former proscribes the practice of medicine inside

this state without a Florida license. The latter prohibits a

person licensed inside the state from assisting in the violation

of the former. In August of 1997, Respondent violated Section

458.331(1)(f) by assisting an unlicensed person to practice

medicine contrary to Section 458.327(1)(a).

45. Respondent did not intentionally violate Section

458.331(1)(f) and had no prior knowledge of the violation. The

cause of the vi olation is rooted in multiple instances of

miscommunication, confusing circumstances, and statutory

ambiguity that Respondent did not create.

46. Respondent undertook reasonable efforts to comply with

Florida law. Prior to the surgeries, Respondent cont acted Ms.

Anne Dean. Ms. Dean is the licensed risk manager for the

Surgery Center and is qualified by training and experience to

advise Respondent in matters of regulatory compliance.

47. Ms. Dean owns and operates a risk management company

in Deland, Fl orida. She is the certified risk manager for over

450 domestic and foreign ambulatory surgery centers.

48. Ms. Dean provides a wide range of services including

financial feasibility analysis and the processing of

certificates of need. She also provide s services to ensure that

architectural design, equipment lists, inventories, and policies

and procedures comply with applicable state and federal

regulatory requirements. Ms. Dean also assists ambulatory

surgical centers with other license certification,

accreditation, and regulatory matters.

49. Since 1988, Ms. Dean has been the risk manager

required under state law for the Surgery Center. Ms. Dean was

responsible for the Surgery Center's state licensure and

Medicare certification. She has been pres ent during each

license and risk management survey conducted by the Agency for

Health Care Administration (AHCA). AHCA has never cited the

Surgery Center for a violation. Ms. Dean has assisted

Respondent in ensuring that renovations to the Surgery Center

complied with applicable regulations and, except for the

calendar year 2000, has advised Respondent in all matters of

regulatory compliance and accreditation.

50. Respondent asked Ms. Dean to ensure that the teaching

session to be conducted by Dr. Metcal f complied with applicable

state law and any accreditation requirements. Ms. Dean spoke by

telephone with unidentified representatives of both AHCA and

Petitioner. The advice from those representatives was

consistent for two areas of concern.

51. The first area of concern involved the accreditation

needed for Respondent to be certified to perform the axillary

method. Pursuant to the advice of the agency representatives,

Ms. Dean created a surgical proctor report and gave the form to

Respondent. After the teaching session, Dr. Metcalf completed a

report for each patient and provided the reports to Ms. Dean.

Ms. Dean reviewed the reports and met with a three - member

committee for the Surgery Center. The committee certified

Respondent as qualified to pe rform the axillary method.

52. The second area of concern involved the status of Dr.

Metcalf's license to practice medicine. Respondent was

specifically concerned that Dr. Metcalf was not licensed to

practice medicine in Florida and that Dr. Metcalf's Oklahoma

license was suspended. Respondent requested Ms. Dean to ensure

that the teaching session complied with Florida law.

53. Ms. Dean conferred with representatives for Petitioner

and AHCA. Ms. Dean advised Respondent that if the person

teaching w ere licensed in another state, the person would be

entitled to practice medicine in Florida during the teaching

session under the auspices of Respondent, a licensed person in

Florida. However, if the person teaching were not licensed in

another state, the person could not perform any function that

required licensure. Ms. Dean conveyed the advice of the agency

representatives to Respondent.

54. The advice from those qualified by training and

experience in regulatory compliance is consistent with an

educ ational custom among practitioners. It is common for

doctors to practice medicine for educational purposes in states

where they are not licensed.

55. Before Respondent began cosmetic surgery, Respondent

spent four one - week periods with two different co smetic surgeons

in Texas and Virginia. Respondent was not licensed to practice

in Virginia. Respondent obtained similar experience in

California where he is not licensed.

56. Respondent is 66 years old and did not attempt to

become board certified in plastic surgery. That certification

would have required two or three years of general surgery and

plastic surgery. Respondent would have spent his time learning

complex reconstructive procedures, including cleft lips and

pallets, rather than simpler cos metic surgery.

57. The advice from Ms. Dean and representatives for

Petitioner and AHCA was incorrect and based on a mistake of law.

The statement that a person licensed in another state can do

more than consult in Florida purports to amend or modify th e

limited authority in Section 458.303(1)(b) as well as the

prohibitions in Sections 458.331(1)(f) and 458.327(1)(a). An

agency cannot amend, enlarge, or deviate from a statute.

58. The mistake of law arose from ambiguity in Chapter

458. Chapter 458 doe s not define the term "unlicensed person."

An "unlicensed physician" is defined in Rule 64B8 - 6.001 to mean

a medical doctor not licensed by the Board of Medicine.

However, the term "unlicensed physician" applies only to Section

458.345 and does not app ly to Section 458.331(1)(f).

59. The law implemented in Rule 64B8 - 6.001 is limited to

Section 458.345. The rule refers only to interns, residents,

and fellows in a hospital setting. Rule 64B8 - 6.001 does not

define an "unlicensed physician" for any pur pose in Chapter 458

except Section 458.345.

60. A broader reading of Rule 64B8 - 6.001 would conflict

with the definition of a "physician" in Section 458.305(4).

Section 458.305(4) defines a "physician" to mean a person

licensed by the Board of Medicin e. The rule defines an

"unlicensed physician" as a medical doctor not licensed by the

Board. Even if the rule were construed to imply that a medical

doctor is not a person, for purposes of Section 458.305(4), the

implication would not avoid the apparent oxymoron.

61. Any ambiguity between Section 458.305(4) and Rule

64B8 - 6.001 must be resolved in a manner that effectuates the

statute. Section 458.305(4) defines a physician "as used in

this chapter . . . ." (emphasis supplied)

62. Neither the defini tion of an "unlicensed physician" in

Rule 64B8 - 6.001 nor the definition of a "physician" in Section

458.305(4) defines the term "unlicensed person" in Section

458.331(1)(f). Chapter 458 does not expressly state that a

person licensed to practice medicine in another state is an

"unlicensed person." Moreover, Chapter 458 uses the term

"licensed" interchangeably to mean persons licensed inside and

outside of Florida.

63. The correct meaning of the term "unlicensed person" is

not found in a single provision in Chapter 458. A licensee must

glean the meaning from reading Sections 458.427(1)(a) and

458.331(1)(f) in a manner that harmonizes the two provisions.

64. The following hypothetical further illustrates the

unintended ambiguity in Chapter 458. If Dr. Me tcalf were

licensed in Florida in August of 1997, Section 458.331(1)(f)

would not have prohibited Respondent from assisting Dr. Metcalf

to practice medicine contrary to Chapter 458, including gross

and repeated malpractice. Section 458.331(1)(f) does not

prohibit Respondent from helping a licensed person to violate

Chapter 458.

65. Statutory ambiguity also exists in the distinction

between a consultation and other activities defined as the

practice of medicine. Although Chapter 458 recognizes a legal

dis tinction between the two kinds of activity, the practical

distinctions evidently ebb and flow on a daily basis through a

custom in which practitioners teach others in states where the

practitioners are not licensed.

66. The ambiguity in Chapter 458 gave rise to, confusion,

mistakes of law by individuals qualified by training and

experience in regulatory compliance and miscommunications to

Respondent. Respondent reasonably relied on the advice of those

qualified by training and experience to advise him in his

attempt at regulatory compliance. Respondent did not intend to

violate Section 458.331(1)(f).

67. The remaining issue for determination is whether

Respondent maintained adequate records for the teaching session

at the Surgery Center. The statut ory requirement for adequate

medical records is set forth in Section 458.331(1)(m). In

relevant part, Section 458.331(1)(m) provides that Respondent's

license is subject to discipline if Respondent fails:

[T]o keep . . . 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 . . . supervising,

or billing for each . . . treatment

procedure and that justify the course of

treatment of the p atient. . . . (emphasis

supplied)

68. The parties do not dispute that the medical records

adequately identify Respondent. The contested issue is whether

the medical records justify the course of treatment by

adequately identifying Dr. Metcalf b y name and title.

69. The medical records include operative reports that

identify Respondent by name but do not identify Dr. Metcalf.

Petitioner argues that Section 458.331(1)(m) requires the

operative reports to identify both Respondent and Dr. Metcal f.

Petitioner argues that Respondent was the "licensed physician"

and Dr. Metcalf was the "physician extender and supervising

physician."

70. Dr. Metcalf was neither the " physician extender" nor

the "supervising physician " during the teaching session.

S ection 458.305(4) defines a physician as a person who is

licensed by the Board of Medicine. Dr. Metcalf was not licensed

by the Board and was not a physician under Florida law.

71. Respondent was the "licensed physician." Petitioner

admits that the med ical records adequately identify the

"licensed physician" in accordance with Section 458.331(1)(m).

72. If the definition of a physician in Section 458.305(4)

were disregarded, the ALJ agrees with Petitioner that Section

458.331(1)(m) implicitly distingui shes a "licensed physician"

from a "physician extender and supervising physician." However,

the implicit distinction does not serve the ends that Petitioner

seeks. Rather, the implicit distinction suggests that the

physician extender and supervising phys ician may be someone

other than a licensed physician.

73. If the implied distinction in Section 458.331(1)(m)

were correct, it would need to be construed in pari materia with

Section 458.331(1)(f) in a manner that gives force and effect to

both subsection s. The prohibition in Section 458.331(1)(f)

could not prohibit Respondent from assisting an unlicensed

person who is "physician extender and supervising physician"

without nullifying the implied distinction in Section

458.331(1)(m).

74. The interplay bet ween Subsections 458.331(1)(f) and

(m) does not alter the outcome of this case. However, it

further elucidates the statutory ambiguity that Respondent, his

risk manager, and two different agency representatives faced in

attempting to ascertain whether the teaching session complied

with Florida law.

75. Assuming arguendo that Petitioner's view of Dr.

Metcalf as the physician extender and the supervising physician

were correct, Petitioner's statutory interpretation conflicts

with the literal terms of Se ction 458.331(1)(m). Section

458.331(1)(m) requires the medical records to identify either

the licensed physician or the physician extender and supervising

physician. The statute does not require the medical records to

identify the licensed physician and the physician extender and

supervising physician. Relevant terms in Section 458.331(1)(m)

must be construed strictly in favor of the licensee because this

is a license disciplinary proceeding that is penal in nature.

76. If it were determined that Dr. M etcalf could be a

physician extender without being a physician defined in Section

458.305(4), no statute or rule cited by the parties defines a

"physician extender." Although the term may be a term of art

within the medical profession, Petitioner failed t o adequately

explicate that form of art. The evidence was less than clear

and convincing that Dr. Metcalf was a physician extender.

77. If it were determined that Dr. Metcalf could be a

supervising physician without being a physician defined in

Section 458.305(4), the definitions of "direct supervision and

control" and "direct responsibility" in Rule 64B8 - 2.001(1) and

(6) and Rule 64B8 - 4.026(1) aren't probative. The rules merely

define the quoted terms by reference to physical proximity.

Both Responde nt and Dr. Metcalf were physically proximate.

78. The evidence shows that Respondent was ultimately

responsible for the surgeries. Respondent had actual control of

each surgery, could have stopped each surgery at any time, and

was responsible for billi ng each patient.

79. Unlike the operative reports, the anesthetist reports

identify Respondent and Dr. Metcalf by name and title. The

parties agree that the anesthetist reports are part of the

medical records.

80. Petitioner argues that the identifi cation of Dr.

Metcalf solely in the anesthetist reports is inadequate.

Petitioner claims the operative reports must also identify Dr.

Metcalf.

81. Each party submitted expert testimony concerning the

issue of whether the identification of Dr. Metcalf s olely in the

nurse anesthetist reports was adequate. Petitioner's expert was

tendered and accepted "as a physician, in general, and as a

plastic surgeon." Respondent's expert practices emergency

medicine, rather than cosmetic or plastic surgery, but is a n

expert in quality assurance. Respondent's expert is better

qualified by training and experience, within the meaning of

Section 90.702, to assist the trier of fact in a determination

of whether the medical records are adequate.

82. The testimony of Re spondent's expert is consistent

with the record - keeping requirements in Section 458.331(1)(m)

and Rule 64B8 - 9.003. Neither the statute nor the rule requires

medical records to identify Dr. Metcalf in multiple parts of the

medical records or to identify Dr . Metcalf in any specific

document. The anesthetist reports comprise adequate medical

records that identify both Respondent and Dr. Metcalf.

83. Petitioner argues that the patient consent forms do

not identify Dr. Metcalf; and that Respondent did not tel l his

patients that Dr. Metcalf would be operating on them or that Dr.

Metcalf's license to practice medicine was suspended. No

finding is made concerning these issues because they are not

relevant to any allegation contained in the Administrative

Complai nt. The Administrative Complaint does not allege that

Respondent failed to obtain informed consent from his patients.

84. If it were determined that Section 458.331(1)(m)

requires the operative reports to identify Dr. Metcalf when the

anesthetist repor ts already do so, Respondent did not cause the

omission of Dr. Metcalf's name from the operative reports.

Respondent instructed his circulating nurse and surgical

supervisor (circulating nurse) to identify Dr. Metcalf in the

operative reports that Respond ent signed but did not read. The

regular duties of the circulating nurse included the

identification of surgeons in the operative reports. Respondent

reasonably relied on the circulating nurse to perform her

assigned duties correctly. The Administrative Complaint does

not charge Respondent with failure to supervise his employee or

with failure to review the operative reports he signed.

85. The circulating nurse failed to identify Dr. Metcalf

in the operative reports she prepared for Respondent. Sometime

after the teaching session in August of 1997, the circulating

nurse abruptly terminated her employment at the Surgery Center

following several employment problems.

86. When Respondent hired the circulating nurse in July of

1996, she was in an imp aired physician or nurses (IPN) program

for treatment of a previous addiction to Xanex and Demerol that

she developed during her divorce. However, representatives of

the IPN program assured Respondent that the circulating nurse

was successfully completing the program.

87. After the circulating nurse terminated her employment,

Respondent discovered that drugs were missing from the Surgery

Center. Respondent also learned that the circulating nurse had

stopped going to the IPN program in August of 1997 an d had

stopped taking her urine tests. In October, 1997, the IPN

program dismissed the circulating nurse.

88. Sometime between August 13 and September 11, 1997, the

circulating nurse told Respondent that she suspected the

anesthetist of being addict ed to drugs because he was falling

asleep during surgeries. The circulating nurse also thought

some drugs were missing from the Surgery Center.

89. Respondent barred the anesthetist from further

surgeries and asked the circulating nurse to conduct a drug

count. Respondent left the next day with his wife on a

previously scheduled vacation but stayed in communication with

the circulating nurse.

90. The circulating nurse conferred with the risk manager

and conducted a drug count but did not comply with pre scribed

procedures. The circulating nurse entered her drug count on a

form but did not make any written findings. The circulating

nurse told Respondent that she thought some drugs were missing.

91. Respondent requested the circulating nurse to fax him

t he portion of the Surgery Center manual that prescribed drug

audit procedures. The circulating nurse faxed the material and

then terminated her employment. When Respondent returned from

his vacation, the office keys used by the circulating nurse were

in Respondent's mailbox. The circulating nurse quit her job

because she felt Respondent expected too much of her.

92. Prior to January 1998, Respondent requested a pharmacy

consultant to assist Respondent and his wife in a second

narcotic count. The pharma cy consultant confirmed that some

drugs were missing from the Surgery Center. The missing drugs

included Versed, Demerol, Tylox, and Valium.

93. Respondent reported the missing drugs to the risk

manager, and the risk manager reported the incident to the

state. The appropriate state agency began an investigation in

January of 1998 that included the potential involvement of the

anesthetist and the circulating nurse. The anesthetist died

shortly after January 1998, and the agency concluded the

investigatio n without charging the circulating nurse.

94. The circulating nurse and Respondent's former

insurance secretary are the complaining witnesses in this case.

On September 11, 1997, the insurance secretary altered the

computer entrees for the employee manua l so that the number of

hours needed to be eligible for insurance benefits conformed to

the number of hours that the insurance secretary worked.

95. Respondent's wife is the office administrator. She

discovered the changes and corrected them. She then instructed

the insurance secretary not to come into the Surgery Center

while Respondent was on vacation.

96. When Respondent and his wife returned from their

vacation, they discovered that the insurance secretary had

copied all of the patient charts for August 12 and 13, 1997, and

had resigned from her job. Neither Respondent nor his wife

could locate any of the copied charts. The proctor forms that

had been completed by Dr. Metcalf and reviewed by the risk

manager and accreditation committee were missi ng from their

files. Whole parts of the surgery manual were missing.

97. The risk manager conducted an independent search for

the missing records without success. The risk manager had

helped compile the compliance files, was familiar with the

records, and would have recognized any misfiled records.

CONCLUSIONS OF LAW

98. DOAH has jurisdiction over the parties and subject

matter of this proceeding. Sections 120.569, 120.57(1),

456.073. DOAH provided the parties with adequate notice of the

administra tive hearing.

99. Petitioner has the burden of proof in this proceeding.

Petitioner must show by clear and convincing evidence that

Respondent committed the acts alleged in the Administrative

Complaint and the reasonableness of any proposed penalty.

Sections 120.57(1)(h) and 458.331(3); Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern Company , 670 So. 2d 932 (Fla. 1996).

100. The evidence is less than clear and convincing that

Respondent failed to m aintain adequate medical records in

violation of Section 458.331(1)(m). This proceeding is penal in

nature, and the ALJ must strictly construe statutory terms in a

manner that favors the person sought to be penalized. Munch v.

Department of Business and Professional Regulation , 592 So. 2d

1136, 1143 (Fla. 1st DCA 1992); Fleischman v. Department of

Business and Professional Regulation , 441 So. 2d 1121, 1123

(Fla. 3d DCA 1983); Lester v. Department of Professional and

Occupational Regulations , 349 So. 2d 92 3 (Fla. 1st DCA 1977).

101. In order for evidence to be clear and convincing:

The evidence must be of such weight that it

produces in the mind of the trier of fact a

firm . . . 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 evidence is less than clear and convincing that

Respondent failed to keep adequate medical records.

102. Evidence relevant to the remaining issue is clear and

convincin g. Petitioner showed by clear and convincing evidence

that Dr. Metcalf practiced medicine at the Surgery Center in

August of 1997 and that Respondent assisted, procured, and

advised Dr. Metcalf to practice medicine.

103. By operation of law, Dr. Metcal f was an "unlicensed

person." Section 458.331(1)(f) prohibits Respondent from

assisting an unlicensed person to practice medicine contrary to

Section 458.327(1)(a).

104. When the Board of Medicine finds a person guilty of

violating any part of Section 458.331(1), Section 458.331(2)

authorizes a range of penalties. The authorized penalties

include revocation or suspension of a license, restriction of

practice, imposition of an administrative fine for each count or

separate offense, issuance of a reprima nd, placement of the

physician on probation, and issuance of a letter of concern.

105. Rule 64B - 8.001 promulgates disciplinary guidelines

for a violation of Section 458.331(1)(f). For a first offense,

Rule 64B8 - 8.001(2)(f) prescribes a minimum penalty of probation

and a $1,000 fine. The PRO seeks a $10,000 fine, continuing

education, one - year probation, and a reprimand.

106. The evidence does not support the penalties that

Petitioner proposes in its PRO. Rather, the evidence supports a

finding that n o penalty is reasonable in this case.

107. Rule 64B8 - 8.001(3) authorizes the Board to deviate

from the recommended penalty in Rule 64B8 - 8.001(2)(f) based on

aggravating and mitigating factors. No aggravating factors are

present in this case but all of t he mitigating factors

enumerated in the rule are present.

108. The violation did not expose any patient or member of

the public to physical injury or potential injury, no matter how

slight. Rule 64B8 - 8.001(3)(a). Respondent was not subject to

any lega l constraints at the time of the offense. Rule 64B8 -

8.001(3)(b). Petitioner sought to establish only three of the

four counts in the Administrative Complaint but proved only one.

Rule 64B8 - 8.001(3)(c). Respondent has not previously committed

the same o ffense. Rule 64B8 - 8.001(3)(d). Respondent has no

previous disciplinary history. Rule 64B8 - 8.001(3)(e).

Respondent derived no pecuniary gain as a result of the

statutory violation. Rule 64B8 - 8.001(3)(f). Respondent made a

reasonable, good faith effort to comply with applicable laws and

believed, after the risk manager consulted with representatives

for two different state agencies, that he was in compliance with

Florida law. Rule 64B8 - 8.001(3)(h).

109. The imposition of a penalty in this case d oes not

serve any of the purposes adopted by the Board of Medicine in

Rule 64B8 - 8.001(1). The purposes relevant to this case are

those intended to punish the licensee, deter the licensee from

future violations, and deter other licensees from violations.

Rule 64B8 - 8.001(1). The imposition of a penalty in this case

does not serve any of those purposes.

110. The evidence does not justify punishment of the

licensee. Respondent did not intentionally violate Section

458.331(1)(f), had no anticipatory knowl edge of noncompliance,

and reasonably relied on advice from those qualified by training

and experience in regulatory compliance.

111. The violation is rooted in multiple instances of

confusion and miscommunication. Such a mitigating factor has

been recognized by the Board of Medicine in other cases. Board

of Medicine v. Peter A. Indelicato , DOAH Case Number 92 - 2203

(September 23, 1992), adopted in Final Order (February 17,

1993). The Board is bound by the principle of administrative

stare decisis t o follow its previous decisions involving similar

facts. Gessler v. Department of Business and Professional

Regulation , 627 So. 2d 501, 504 (Fla. 4th DCA 1993).

112. No discipline is needed to deter Respondent from

future violations. Respondent is n ot likely to commit a similar

violation in the future. The violation did not arise from any

deficiency in Respondent's competence or method of practice.

Respondent did not intend to violate the law, and the violation

did not arise from a lack of reasonab le care. Respondent is

aware of the law and attempted to comply with it.

113. A finding of guilt is sufficient to deter other

licensees and unlicensed persons from similar violations. It

resolves any ambiguity in the statutory definition of an

"unlice nsed person" and in the statutory distinctions between a

"consultation" and the "practice of medicine." It provides

guidance to practitioners in their pursuit of the education they

need to improve the quality and scope of medical care they

provide to indi viduals.

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 not guilty of violating Subsection

458.331(1)(m), guilty of violating Subsection 45 8.331(1)(f), and

imposing no penalty.

DONE AND ENTERED this 3rd day of December, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL MANRY

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 (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of December, 2002.

COPIES FURNISHED :

L arry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

John E. Terrel, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

H. Roger Lutz, Esquire

Lutz, Webb & B oBo

One Sarasota Tower

Two North Tamiami Trail, Fifth Floor

Sarasota, Florida 34236

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.