03-001952PL Department Of Health, Board Of Medicine vs. Thomas Patrick Trevisani, M. D. Status: Closed Recommended Order on Wednesday, December 31, 2003.

Summary: All counts in the Administrative Complaint should be dismissed due to the absence of clear and convincing evidence to prove the alleged violations.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 03 - 1952PL

)

THOMAS P. TREVISANI, M.D., )

)

Respondent. )

)

RECOMMENDE D ORDER

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

on September 17 through 19, 2003, in Ft. Lauderdale, Florida,

before Administrative Law Judge Michael M. Parrish of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

Elmer C. Ignacio, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Kenneth Metzger, Esquire

1435 E. Piedmont Drive, Suite 210

Tallahassee, Flo rida 32312

William P. Dillon, Esquire

Of Counsel to Tilton & Metzger, P.A.

McMorrow & Dillon, P.A.

2590 Golden Parkway, Ste 108

Naples, Florida 34105

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent violated

Section 458.331(1) (m), and/or (1)(t), Florida Statutes

(Supp. 1996), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On or about September 25, 2001, the Department of Health,

(“Department”), filed a two - count Administrative Complaint

against Respondent . Respondent subsequently disputed facts in

the Administrative Complaint and requested a formal hearing.

Then on or about April 28, 2003, the Department filed an Amended

Administrative Complaint. The Amended Administrative Complaint

was substantially th e same charging document as the original

Administrative Complaint and contained the same facts, charges,

and counts. Respondent again disputed facts in the Amended

Administrative Complaint and again requested a formal

administrative hearing. The case was referred to the Division

of Administrative Hearings ("DOAH"), where it was docketed as

DOAH Case No. 03 - 1952PL. 1

On August 12, 2003, Respondent filed a Motion for Summary

Final Judgment, which primarily argued that the Department’s

prosecution of this ca se is barred by the six - year statute of

limitations in Section 456.073(13), Florida Statutes (2003).

Petitioner filed a Response to the Motion for Summary Judgment.

The Motion for Summary Judgment was denied by an Order dated

August 20, 2003.

The final hearing was held as scheduled on September 17

through 19, 2003. At the hearing, the Department presented the

testimony of Tess Jahnke; Marlene Ralston; Investigator Lija

Scherer; Patient F. V.; Nathan Mayl, M.D.; Marguerite Barnett,

M.D.; Charlotte Filip , R.N.; Dr. Timothy Alexander; and

Respondent. The Department's Exhibits 1 - 3, 5, 7 - 12, 14 - 16, and

21 were received into evidence. 2 Respondent testified on his own

behalf and presented the testimony of Dr. Francis Rieger;

Dr. John Tiller; Mr. John Mastrog iovanni; and the deposition

testimony of Joy Mylonakis, C.S.T. Respondent’s Exhibits R - 1

through R - 4 were received into evidence. 3

At the Department's request, official recognition was taken

of the following statutes and rules: Section 455.241, Florida

S tatutes (Supp. 1996), and Florida Administrative Code Rules

59R - 8.001, 59R - 9.003, and 59R - 10.002, (1996). 4

The transcript of the hearing was filed with the Division

on October 20, 2003. The parties were allowed twenty days from

the date of the filing of the transcript to file their proposed

recommended orders ("PROs"). The due date for filing the PROs

was November 10, 2003. Both parties filed timely PROs

containing proposed findings of fact and conclusions of law.

The post - hearing submissions of the parties have been carefully

considered during the preparation of this recommended Order. 5

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing and the parties' stipulations, the following findings of

fact are made:

Findings rega rding the parties

1. The Board of Medicine (Board) is the regulatory board

within the Department of Health that is responsible for the

regulation of the practice of medicine in Florida.

2. Respondent is, and was at all times relevant to this

proceeding, a licensed physician, Board - certified in plastic

surgery. His license number is ME 0030449.

3. At all times relevant to this proceeding, Respondent

practiced at the Florida Center for Cosmetic Surgery (FCCS),

which was an office surgery center in Ft. La uderdale, Florida.

Respondent performed cosmetic surgery at FCCS about two to three

days a week while still maintaining his own office surgery

center in Winter Park, Florida, where Respondent currently

practices. From the beginning of the professional re lationship

between Respondent and FCCS, it was contemplated by all

concerned that the relationship would be a part - time, short - term

relationship; Respondent was merely providing plastic surgery

services and follow - up care on a temporary basis until FCCS

co uld make a more permanent arrangement with a plastic surgeon

who wanted to work full - time for FCCS. Respondent never had any

role in the business practices of FCCS, never had any managerial

role at FCCS, and never had any ownership interest in FCCS. The

agreement between Respondent and the principals at FCCS included

an understanding that all patients who sought services at FCCS

were patients of the clinic; not patients of the individual

surgeon who performed the surgery on a patient. Consistent with

tha t understanding, FCCS also insisted that it was entitled to

custody and control of all of the medical charts, and Respondent

was not allowed to remove any medical charts from the premises

of FCCS. Respondent performed surgery at FCCS for approximately

six weeks.

General findings about the relevant surgical procedures

4. A brow lift is a cosmetic surgery procedure that

involves an incision in the patient’s scalp. The incision goes

quite deeply into the forehead. After the incision, the scalp

is dissected and loosened all the way down to the eyebrows, with

the intent of this procedure being to raise up the eyebrows to

some degree to give a rejuvenated appearance to the forehead.

5. The incision in the scalp bleeds easily. In order to

minimize the scalp b leeding, an electrocautery device is used

for cauterization at the site of the bleeding. An

electrocautery device may either be monopolar or bipolar.

6. A monopolar cauterization device utilizes a “grounding

plate” or a “grounding pad” to ground the elec tric current. The

grounding plate or pad is attached to the patient on a fleshy

part, typically along the side of a patient’s thigh or on a

patient's buttock, away from any bony prominence. "Bovie" is

the trade name of a major brand of monopolar cauteriz ation

devices. The grounding plate or grounding pad for a monopolar

cauterization device is commonly referred to as a "Bovie pad."

In contrast, a bipolar cauterization device does not need and

does not have a grounding pad.

7. Liposuction is a medical p rocedure in which fat is

removed from an area of a patient's body by means of a suction

device. A cannulus, which is a narrow tube with a sharp tip, is

inserted into the desired areas of the body. The cannulus is

connected to a vacuum - like device and onc e the cannulus is

inserted into the operative area, it is manually maneuvered by

the physician to remove the fat within reach of the cannulus

with vacuum suction.

General findings about Patient F. V.

8. This case arises from surgical procedures performed by

Respondent on February 6, 1997, on a patient identified in the

record of this case as Patient F. V.

9. Patient F. V. is a white female, who at the time of the

relevant surgery was 43 years old. Patient F. V. wished to

improve her facial features and w ished to reduce the fat in her

thighs. She went to FCCS to seek cosmetic surgery for those

purposes. Patient F. V. had previously undergone cosmetic

surgery performed by Dr. Myron Persoff, also at FCCS, on

August 23, 1995.

Pre - operative contact between P atient F. V. and FCCS

10. On January 28, 1997, Patient F. V. contacted FCCS

(probably by telephone) and someone at FCSS filled out a

consultation form about that contact. The form listed the

requested procedures of a facelift/browlift and liposuction.

T he form also noted a prior facelift by Dr. Persoff, a plastic

surgeon also with FCCS. Finally, the form indicated a

confirmation note of January 29, 1997, for an appointment date

and time of January 30, 1997, at 3:00 p.m.

11. On January 30, 1997, Patient F. V. went to FCCS for

consultation regarding cosmetic surgery. On that date, Patient

F. V. filled out a “Patient Information” form. The form asked

Patient F. V. basic questions relating to her medical history

and relating to her social history.

12. Pa tient F. V.’s next visit to FCCS was on February 3,

1997. February 3, 1997, was the first and only time that

Respondent met with Patient F. V. prior to the surgery on

February 6, 1997.

13. On February 3, 1997, a presurgical and anesthesia

evaluation for m was completed by Certified Registered Nurse

Anesthetist (CRNA) Charlotte Filip. This form detailed some

history of Patient F. V. and listed the prior surgery to the

breast, face, and eyes. The Patient and Nurse Filip signed the

form.

14. During Patien t F. V.’s February 3, 1997, visit to

FCCS, Respondent conducted an initial physician/patient

consultation. During the course of the consultation on

February 3, 1997, Respondent conducted a thorough pre - operative

consultation with Patient F. V. His activi ties during that

consultation included taking a history and conducting a physical

examination. Respondent discussed with Patient F. V. what she

wished to have done, and he also discussed with her the risks

and benefits of the proposed procedures. During the course of

that consultation Respondent made a plan for the surgical

procedures to address Patient F. V.'s concerns and desires.

Thereafter, Respondent approved Patient F. V. for a brow lift

and thigh liposuction. At the conclusion of the consultation on

February 3, 1997, Respondent dictated a pre - operative report.

The transcription of that dictation is not in F. V.'s medical

chart maintained at FCCS. The fate of that dictated pre -

operative consultation report is presently unknown. 6

15. At the time of the Patient F. V.'s 1997 surgery, it

was the practice of FCCS to prepare, and to maintain in the

patient's medical records, a financial check list. For reasons

not explained in the record in this case, the financial check

list for Patient F. V.'s 1997 surgical procedures is missing

from Patient F. V.'s medical chart at FCCS. At that same time,

it was also the practice at FCCS for the physician to either

provide the patient with pain medications or with a prescription

for pain medications prior to surg ery, and to document such

delivery of medications or prescription for medications in the

patient's medical chart. For reasons not explained in the

record in this case, such documentation is missing from Patient

F. V.'s medical chart at FCCS.

16. At the t ime of Patient F. V.'s 1997 surgery, it was

also the practice at FCCS to provide each patient with a pre -

surgery instruction sheet listing numerous things the patient

should do prior to surgery, as well as things the patient should

not do prior to surgery. It was also the practice of FCCS to

place a copy of the instruction sheet in the patient's medical

chart. For reasons not explained in the record in this case,

the copy of the instruction sheet given to Patient F. V. is

missing from her medical chart at FCCS.

17. At the time of the pre - operative consultation on

February 3, 1997, FCCS was experiencing delays with the

transcription of dictated reports. Such transcriptions often

took as long as one or two weeks. Some of the information

generated at the p re - operative conference needed to be promptly

communicated to the financial staff at FCCS so that the costs of

the procedures to be performed could be determined and so that

arrangements for payment could be made with the patient. In

some manner not prese ntly remembered, Respondent provided the

FCCA financial staff with the information they needed to make

the necessary financial arrangements with Patient F. V. 7

18. Patient F. V.’s medical records at FCCS do not contain

adequate documentation of Respondent ’s pre - operative

consultation on February 3, 1997, with Patient F. V. Further,

Respondent could not produce any adequate documentation of his

February 3, 1997, consultation with Patient F. V.

Day of Patient F. V.’s surgery

19. Respondent performed surg ery on Patient F. V. on

February 6, 1997, which consisted of a brow lift and liposuction

of her thighs.

20. Before Respondent began the surgical procedure, CRNA

Filip (Nurse Filip) conducted her own physical assessment of

Patient F. V. for her purposes as the anesthetist. Nurse Filip

also documented the results from the lab tests. Nurse Filip

documented her results by hand writing notes on the bottom left

portion of the Pre - Operative Checklist.

21. As evidenced by the anesthesia record in Patient

F. V.’ s records, Nurse Filip also performed her duties as the

anesthetist for the surgery and documented her pre - operative

care of Patient F. V. In the anesthesia record, Nurse Filip

documented information including a cursory patient history

(allergies, medicat ion being taken, and blood pressure), date,

type of surgery, and surgeon. Respondent had no part in

documenting any information on the anesthesia records. The

anesthesia records for Patient F. V.'s surgery on February 6,

1997, appear to be complete.

22. The circulator who participates in a surgical

procedure has the recordkeeping responsibility of creating an

operating room record, which should include a detailed

description of the equipment used during the surgical procedure,

as well as an itemization o f all significant events from the

time the patient enters the operating room until the patient

goes to the recovery room. During 1997 it was the practice of

FCCS to keep the circulator's operating room records in the

patient's medical chart. For reasons not explained in the

record in this case, the circulator's operating room record is

missing from Patient F. V.'s medical chart at FCCS.

23. The progress note for the day of surgery, February 6,

1997, is a de minimus notation that lists little more than th e

type of surgery performed, the surgeon's name, the weight of the

patient, the names of the scrub nurse, the circulating nurse,

and the CRNA, and the total amount of fat removed. This de

minimus progress note is not in Respondent's handwriting. 8

24. In addition to a progress note summarizing the basic

details of a surgical procedure, once the surgery is complete

the surgeon should also prepare a detailed operative report

which describes in detail the manner in which the surgical

procedure was performed, including all significant events that

occurred during the surgery. Such an operative report should

include a description of the type of liposuction and the type of

brow lift performed. Such an operative report should also

detail the manner in which the surgery was performed and should

note any burns, injuries, or other complications arising from

the surgery. A sufficiently detailed operative report is

especially important in the event of post - operative

complications, because details regarding the method s and

techniques employed during the surgery can often facilitate an

understanding of, and facilitate treatment of, any post -

operative complications.

25. There is no clear and convincing evidence as to

whether Respondent did or did not prepare a detailed operative

report of the type described in the immediately preceding

paragraph. What is clear is that such an operative report is

missing from Patient F. V.'s medical chart at FCCS. 9

26. Respondent's recollection of the details of the

subject surgery on F ebruary 6, 1997, is not very good. Although

he seems to have a clear recollection of some details, he does

not appear to recall some other equally important details. He

does, however, remember that after the surgery he wrapped

Patient F. V.'s forehead wi th Ace wrap and placed a strip of

tape along the forehead to immobilize the Ace wrap. He also

applied Ace wrap to the patient's thighs at the conclusion of

the surgery. The Ace wraps on the thighs were also secured with

strips of tape. At the conclusion of the surgical procedures on

February 6, 1997, there were no visible blisters at the

locations where blisters were visible on February 7, 1997.

27. During the surgical procedures performed on

February 6, 1997, on Patient F. V., Respondent did not use a

monopolar catherization device. Therefore, no grounding pads

were used during that surgery.

Findings regarding post - operative care

28. FCCS’s post - operative policy in effect in February of

1997 required the patient to return for post - operative follow up

as follows: one day, one week, two weeks, and one month.

Patient F. V. returned the next day, February 7, 1997, and was

seen by Respondent.

29. On February 7, 1997, the patient’s head dressing was

removed, the bandages on the patient's thighs were remov ed, and

the patient was advised to follow up in 5 days to have sutures

removed. Respondent’s notes for this visit included a notation

that the patient was "doing great," and that the patient should

return for staple removal. Respondent's notes also menti on a

"forehead blister" which is noted to be "clean," and a "tape

blister" on the left thigh. On February 7, 1997, Patient F. V.

had a blister on her left thigh. This thigh blister was located

on the front of the thigh, a few inches above the kneecap. O n

February 7, 1997, the patient also had a smaller blister on her

forehead above her left eye. 10

30. Respondent’s post - operative progress note of the

February 7, 1997, visit does not document a treatment plan for

the injuries on the forehead or the thig h. However, in this

regard it must be noted that there is no evidence that either

blister required treatment on February 7, 1997, or that either

blister appeared to require any future treatment other than

follow - up observation. 11

31. Patient F. V. return ed to FCCS on February 13, 1997,

and was seen again by Respondent. The written progress note for

that day recorded her weight, but no other subjective or

objective complaints were noted. The progress note mentions a

"possible tape blister" on the patient 's upper left thigh. On

this occasion the top of the thigh blister had come off and an

unprotected layer of skin was at that site. The thigh blister

needed treatment to prevent infection. The progress note also

mentions that Bacitracin, an antibiotic, w as applied to the

thigh blister and that the blister site was covered by a 4” x 4”

piece of gauze held in place by a small piece of paper tape.

There are no notes concerning the lesion on the forehead. In

this regard it must again be noted that there is no evidence

that the forehead blister required any treatment at the time of

this visit. 12 Patient F. V. was advised to come back in one week

to have the staples removed.

32. The next entry in the progress notes states that

Patient F. V. returned three da ys later, on February 16, 1997.

Although the matter is not entirely free from doubt, the visit

recorded as having occurred on February 16, 1997, probably

actually took place on February 17 or 18, 1997. 13 The progress

note for that visit first notes that the patient was happy. It

also notes that the stitches and the staples were removed. The

progress note concludes with the following: "Script given for

Silvadene 1% due to burn on leg and forehead." It is not clear

from the progress notes who saw the pa tient at this visit, but

it was probably one of the physicians (other than Respondent)

who worked at FCCS, inasmuch as a prescription was written

during this visit.

33. Both Bacitracin and Silvadene were appropriate

antibiotics for the patient's thigh and forehead lesions.

Silvadene has a more penetrating quality to it and can penetrate

scabs better.

34. On February 24, 1997, Patient F. V. called the FCCS

regarding the lesion on her leg. A dermatologist friend of hers

had advised her to discontinue the Silvadene cream and to

contact her physician about the lesion. Patient F. V. wanted

Respondent to see her. She was advised to come in the next day

to see one of the other physicians employed at FCCS.

35. The next day (February 25) Patient F. V. returned to

FCCS for further follow up treatment. She was seen by

Dr. Alexander, one of several physicians employed by FCCS, who

advised her to leave the lesion dry and see how it heals. The

lesion on the thigh was described as "dry and scabbed." The

patient wa s very unhappy during this visit.

36. On February 26, 1997, Patient F. V. returned to FCCS

and was seen by Respondent. Respondent noted that she was doing

very well “except for left leg burn.” Respondent also noted as

a possible cause of the lesion on t he patient's left leg:

“probable ground plate sensitivity.” There are no subjective

complaints recorded. The record also does not contain any type

of plan concerning the left leg burn. In this regard it should

be noted that on the previous day Dr. Alex ander had advised the

patient to leave the burn dry and see how it heals. In all

probability, during the following 24 - hour period there was no

change to the lesion on Patient F. V.'s thigh that required any

additional treatment plan other than the "wait a nd see" plan

noted by Dr. Alexander the day before.

37. Photographs were taken on the visit of February 26,

1997. There are several post - operative photographs of the left

leg lesion.

38. On March 20, 1997, Patient F. V. returned to FCCS and

was seen by Respondent. Respondent noted that she was doing

better and that her leg lesion was improving. There are no

clearly documented objective or subjective complaints. There is

no plan documented other than return ASAP.

39. Respondent’s medical record of Mar ch 20, 1997, does

not document a plan for the course and scope of treatment for

Patient F. V. Although Respondent documents a concern with the

forehead, he did not document what concerns he had or how he

planned to treat the concerns. 14

40. After the vis it of March 20, 1997, Patient F. V. did

not return to the FCCS for over a year. On June 4, 1998,

Patient F. V. was seen by two physicians at FCCS. Both

physicians examined Patient F. V. and then prepared progress

notes reporting what they had observed an d proposing a plan to

address what they had observed.

41. Respondent discontinued his professional relationship

with FCCS on or about April 1, 1997. Prior to leaving FCCS,

Respondent reviewed all of his charts and had the opportunity to

make sure all the histories and physicals were complete. To the

best of Respondent's recollection, when he left FCCS there were

no charting problems in any of the medical charts of any of the

patients who had been treated by Respondent at FCCS.

42. Patient F. V. returned to FCCS on June 4, 1998, and

was seen by Dr. Alexander. Dr. Alexander was another plastic

surgeon who worked at FCCS. Following his examination of

Patient F. V. on June 4, 1998, Dr. Alexander prepared a progress

report reading as follows: "6/4/98. Dep ressed area above the

left eye on the forehead, dime size. Second degree burn, one -

inch long depigmented burn scar left medial thigh. Also two -

inch wide scar, medial forehead lift scar. Plan, revise all

scars."

43. On June 4, 1998, patient F. V. was se en by another

physician identified in progress notes as "Dr. H." 15 Following

his examination of Patient F. V. on June 4, 1998, the second

physician ("Dr. H") prepared a progress note reading as follows:

Dr. H, 6/4/98 1.7 x .8 centimeter

hypopigmented scar with surrounding

hypopigmentation 2mm. flat non - tender

.8 x .6 centimenter thin skin left upper

forehead appears like lower dermis mobile to

touch but doesn't animate on her own. Can't

really see scar - just notice conture

deformity. Rec - Exc ise leg scar

vertically. ? Alloderm under depressed scar

left forehead. Discuss with patient.

G.L.A.D.

44. Patient F. V. has elected not to have scar revision

surgery.

45. When Respondent discontinued his professional

relationship with FCCS, he left a ll of the medical records

concerning his care and treatment of Patient F. V. in the

possession and custody of FCCS. Respondent did not take any

copies of any medical records concerning Patient F. V. when he

discontinued his relationship with FCCS. It was not until the

latter part of 1999 that Respondent first obtained possession of

a copy of the FCCS medical records concerning Patient F. V. He

obtained those copies by means of a discovery request.

46. As of the time of the final hearing in this case,

se veral documents were missing from the medical records

concerning Patient F. V. maintained by FCCS. The missing

documents included the following: a detailed pre - operative

report; a detailed operative report prepared by Respondent or

prepared by someone ac ting pursuant to Respondent's direction

and control; a financial check list; written documentation of

medications provided to or prescribed for the patient; and a

sheet of pre - surgery instructions regarding what the patient

should and should not do. At se veral times during the period

from 1998 through 2002, the medical records at FCCS concerning

Patient F. V. were searched in an effort to locate a detailed

pre - operative report and/or a detailed operative report. Such

documents could not be found in the FC CS records on those

occasions.

47. Without an operative note (or some other form of

detailed information regarding the manner in which the surgical

procedures at issue were performed) it is virtually impossible

to reach a reliable determination as to what caused the injuries

on the patient's left thigh and forehead. On the basis of the

record in this case, the causes of the forehead and thigh

lesions observed on Patient F. V. on February 7, 1997, are

unknown. Because the causes are unknown, it is also un known

whether such lesions were caused by act or omission by

Respondent. And, because no specific act or omission by

Respondent has been identified as the cause of either lesion, it

is impossible to determine whether any such unidentified act or

omission, if any, might or might not have constituted a

departure from the applicable standards of care.

48. There is no clear and convincing evidence that

Respondent "fail[ed] to properly administer liposuction, causing

full - thickness burns to Patient F. V.'s lef t thigh area."

49. There is no clear and convincing evidence that

Respondent "fail[ed] to properly perform the brow lift, causing

full - thickness burns to Patient F. V.'s forehead."

50. There is no clear and convincing evidence that

Respondent "improperl y plac[ed] or fail[ed] to appropriately

supervise the placement of the grounding pads of the Bovie

unit."

51. There is no clear and convincing evidence that

Respondent did "not adequately maintain[ ] his surgical

equipment relating to liposuction and brow lift procedures."

52. There is no clear and convincing evidence of

Respondent's "failing to properly document Patient F. V.'s

preoperative consultation."

53. There is no clear and convincing evidence of

Respondent's "failing to properly document a post - operative

report of the procedures."

54. There is no clear and convincing evidence of

Respondent's "failing to complete or create an appropriate

operative report for the procedures."

CONCLUSIONS OF LAW

Jurisdiction and burden of proof

55. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

456.073(5), Florida Statutes (2003).

56. Where the revocation or suspension of the physician's

license is sought, proof greater than a mere preponderance of

the evidence must be submitted before the Board of Medicine

(Board) may take punitive action against a licensed physician.

Clear and convincing evidence of the physician's guilt is

required. Section 458. 331(3), Florida Statutes. See also

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932, 935 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292 (Fla.

1987); McKinney v. Castor , 667 S o. 2d 387, 388 (Fla. 1st DCA

1995); Tenbroeck v. Castor , 640 So. 2d 164, 167 (Fla. 1st DCA

1994); Nair v. Department of Business and Professional

Regulation , 654 So. 2d 205, 207 (Fla. 1st DCA 1995); Pic N' Save

v. Department of Business Regulation , 601 So. 2d 245 (Fla. 1st

DCA 1992); Munch v. Department of Professional Regulation , 592

So. 2d 1136 (Fla. 1st DCA 1992); Newberry v. Florida Department

of Law Enforcement , 585 So. 2d 500 (Fla. 3d DCA 1991); Pascale

v. Department of Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988);

Section 458.331(3), Florida Statutes; Section 120.57(1)(h),

Florida Statutes ("Findings of fact shall be based on a

preponderance of the evidence, except in penal or licensure

disciplinary proceedings or except as otherwise provided by

statu te.").

57. "'[C]lear and convincing evidence requires that 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.'" In re Davey , 645

So. 2d 398, 404 (Fla. 1994), quoting, with approval, from

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

58. When the Board seeks to take punitive action against a

physician, such action may be based only upon those offenses

specifically alle ged in the administrative complaint. See

Cottrill v. Department of Insurance , 685 So. 2d 1371, 1372 (Fla.

1st DCA 1996); Chrysler v. Department of Professional

Regulation , 627 So. 2d 31 (Fla. 1st DCA 1993); Klein v.

Department of Business and Professional Regulation , 625 So. 2d

1237, 1238 - 39 (Fla. 2d DCA 1993); Arpayoglou v. Department of

Professional Regulation , 603 So. 2d 8 (Fla. 1st DCA 1992);

Willner v. Department of Professional Regulation, Board of

Medicine , 563 So. 2d 805, 806 (Fla. 1st DCA 1992); C elaya v.

Department of Professional Regulation, Board of Medicine , 560

So. 2d 383, 384 (Fla. 3d DCA 1990); Kinney v. Department of

State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987); Sternberg v.

Department of Professional Regulation , 465 So. 2d 1324, 1325

(Fl a. 1st DCA 1985); Hunter v. Department of Professional

Regulation , 458 So. 2d 842, 844 (Fla. 2d DCA 1984).

59. Furthermore, in determining whether Section

458.331(1), Florida Statutes, has been violated in the manner

charged in the administrative complain t, one "must bear in mind

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

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

regarded as included within it that is not reasonably proscribed

by it. Furthermore, if there are any a mbiguities included such

must be construed in favor of the . . . licensee." Lester v.

Department of Professional and Occupational Regulations , 348 So.

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

New legislation

60. By operation of new legislation enacted during the

2003 session of the Florida Legislature, effective September 15,

2003, "[t]he determination of whether or not a licensee has

violated the laws and rules regulating the profession, including

a determination of the reasonable standard of care, is a

conclusi on of law to be determined by the board . . . and is not

a finding of fact to be determined by an administrative law

judge." See Chapter 2003 - 416, Laws of Florida, at Section 20

(amending Section 456.073(5), Florida Statutes (2002)). Because

this proceed ing is one of the very first cases to be tried

following the effective date of the above - quoted amendments,

there does not yet appear to be any decisional guidance from the

Department of Health, from any of the boards, or from any

appellate court, as to wh at extent, if any, the above - quoted

amendment requires any changes in the manner in which hearings

before the Division of Administrative Hearings should be

conducted, or requires any changes in the content of the

recommended orders prepared by the DOAH adm inistrative law

judges. Nor have the parties to this case offered much in the

way of guidance. By their conduct at hearing both parties

seemed to be of the view that the above - quoted statutory

amendments did not change the nature of the evidence to be

of fered in cases of this nature, because both parties requested,

and were granted, the opportunity to offer expert witness

testimony on the subject matter of whether Respondent "has

violated the laws and rules regulating the profession," as well

as on the su bject matter of what constitutes the "reasonable

standard of care."

61. The proposed recommended orders submitted by the

parties do not suggest that the above - quoted statutory language

requires any changes to the type of content that has customarily

been included in recommended orders in cases of this nature.

Respondent's proposed recommended order does not even mention

the statutory amendments. Petitioner's proposed recommended

order offers only the following regarding those amendments:

This Legislative act appears to be a

response to the recent case of Gross v.

Dept. of Health , 819 So. 2d 997, 1003 (Fla.

5th DCA 2002) (" whether a doctor deviated

from the applicable standard of care is an

issue of fact to be determined by the

administrative law judge"). Case law has

dealt with hearing officers (now ALJs) or

agencies erroneously labeling what is

essentially a factual determination a

“conclusion of law.” See , Kinney v. Dept.

of State , 501 So. 2d 129, 132 (Fla. 5th DCA

1987) (" labeling what is essentially a

factual determination a 'conclusion of law,’

whether by the hearing officer or the agency

does not make it so"). Another case has

stated that simply because a conclusion of

law is masked or presented as a finding of

fact by the ALJ does not insulate it fr om

its proper status as a conclusion of law

subject to review by the Board or reviewing

agency. Goss v. District School Board of

St. John’s County , 601 So. 2d 1232 (Fla. 5 th

DCA 1992). There is no case law clarifying

the review power of the courts when t he

Legislature essentially renames a finding of

fact as a conclusion of law. However, since

the Legislature creates the laws and the

courts interpret them, deference must be

given to the plain language of Chapter

2003 - 416, Laws of Florida, at Section 2 0

(amending Section 456.073(5), Florida

Statutes (2002) even though it conflicts

with the prior interpretation of the statute

by one of the District Courts of Appeal.

There is some question on whether this

substantive change is applicable to the case

at b ar and it is found that it is not

applicable.

62. The undersigned is unable to agree that the subject

amendments to Section 456.073(5), Florida Statutes (2002), are

not applicable. Instead, because the amendments appear to

address matters of procedur e rather than matters of substance,

the amendments appear to be applicable to cases pending as of

the effective date of the law that created the amendments. See

Basel v. McFarland & Sons, Inc. , 815 So. 2d 687 (Fla. 5th DCA

2002), in which the court noted at page 692: "In the absence of

clear legislative intent, a law affecting substantive rights is

presumed to apply prospectively only while procedural or

remedial statutes are presumed to operate retrospectively. See

Young v. Altenhaus , 472 So. 2d 1152 (F la. 1985)." See also Life

Care Centers of America, Inc. v. Sawgrass Care Center, Inc. , 683

So. 2d 609 (Fla. 1st DCA 1996).

63. The language of the subject amendments to Section

456.073(5), Florida Statutes (2002), is sufficiently broad for

it to be inte rpreted and applied in more than one way. And some

of the possible interpretations and applications might at some

future date provide a basis for modification of the manner in

which administrative hearings in such cases are conducted. But

such possible i nterpretations and applications are merely

possibilities; they are not certainties. Therefore, unless and

until there is some authoritative interpretation or

implementation of the subject amendments directing otherwise,

the most prudent course appears to be for the DOAH

administrative law judges to continue to receive evidence and to

continue to make "determinations" (by findings of fact or by

conclusions of law) as to what constitutes the "reasonable

standard of care" and as to whether a licensee "has vio lated the

laws and rules regulating the profession;" especially in cases

like this one in which both parties requested such a course of

action by the administrative law judge. 16

The specific statutes and charges

64. At the time of the events that form the basis for the

charges in this case, Sections 458.331(1)(m) and 458.331(1)(t),

Florida Statutes (Supp. 1996), authorized the Board to revoke,

suspend, or otherwise discipline the license of a physician for

the following reasons:

(m) Failing to keep writ ten 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 hospitaliz ations;

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent similar

physician as being acceptable under similar

conditions and circum stances. The board

shall give great weight to the provisions of

s. 766.102 when enforcing this paragraph.

As used in this paragraph, "repeated

malpractice" includes, but is not limited

to, three or more claims for medical

malpractice within the previous 5 - year

period resulting in indemnities being paid

in excess of $10,000 each to the claimant in

a judgment or settlement and which incidents

involved negligent conduct by the physician.

As used in this paragraph, "gross

malpractice" or "the failure to prac tice

medicine with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances," shall not be construed

so as to require more than one instance,

event , or act. Nothing in this paragraph

shall be construed to require that a

physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

65. Count One of the Amended Administrative Complaint

charges Respondent with h aving violated Section 458.331(1)(t),

Florida Statutes (Supp. 1996). In this regard, paragraph 12 of

the Amended Administrative Complaint charges the following:

12. Respondent failed to practice

medicine with that level of care, skill and

treatment whi ch is recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances in the treatment of

Patient F. V., based upon one or more of the

following:

(a) failing to properly administer

liposuction, causin g full - thickness burns to

Patient F. V.'s left thigh area;

(b) failing to properly perform the brow

lift, causing full - thickness burns to

Patient F. V.'s forehead;

(c) improperly placing or failing to

appropriately supervise the placement of the

gr ounding pads of the Bovie Unit or not

adequately maintaining his surgical

equipment relating to liposuction and brow

lift procedures.

66. Directing attention first to the allegations in

subparagraph (a) of paragraph 12, there is no clear and

convincing evidence in the record of this case that Respondent

"fail[ed] to properly administer liposuction, causing full -

thickness burns to Patient F. V.'s left thigh area." Although

the expert witness testimony in this case contains several

different opinions as t o what might have been the cause of the

injury to the patient's left thigh, none of the experts could

identify any specific act, or failure to act, by Respondent

that, in fact, was clearly the cause of the injury. 17

Specifically, there is no clear and con vincing evidence that

during the liposuction procedure on Patient F. V. there was

anything improper about the manner in which Respondent performed

the liposuction procedure. Therefore, so much of Count One as

relies on the allegations in subparagraph (a) of paragraph 12

should be dismissed for lack of sufficient proof.

67. Directing attention next to the allegations in

subparagraph (b) of paragraph 12, there is no clear and

convincing evidence in the record of this case that Respondent

"fail[ed] to proper ly perform the brow lift, causing full -

thickness burns to Patient F. V.'s forehead." Similar to the

circumstances discussed above regarding subparagraph (a), none

of the experts could identify any specific act, or failure to

act, by Respondent that, in fa ct, was clearly the cause of the

injury to the patient's forehead. 18 Specifically, there is no

clear and convincing evidence that during the brow lift

procedure on Patient F. V. there was anything improper about the

manner in which Respondent performed th e brow lift procedure.

Therefore, so much of Count One as relies on the allegations in

subparagraph (b) of paragraph 12 should be dismissed for lack of

sufficient proof.

68. Directing attention now to the last subparagraph of

paragraph 12, subparagraph (c), there is no clear and convincing

evidence in the record of this case that Respondent is guilty of

"improperly placing or failing to appropriately supervise the

placement of the grounding pads of the Bovie Unit or not

adequately maintaining his surgica l equipment relating to

liposuction and brow lift procedures." With regard to the first

half of subparagraph (c), the half regarding the "Bovie Unit,"

it is important to note that a so - called "Bovie Unit" is an

electrocautery device that comes in two basi c models, monopolar

or bipolar. Monopolar devices require, and are equipped with,

grounding pads. Bipolar devices do not need, and do not have,

grounding pads. There is no clear and convincing evidence that

Respondent used a monopolar device during the surgery he

performed on Patient F. V. To the contrary, the greater weight

of the evidence is to the effect that Respondent used a bipolar

electrocautery device, which device did not have a grounding pad

that could be improperly or incorrectly placed. 19 A nd with

regard to the second half of subparagraph (c), there is no

evidence at all regarding the maintenance of Respondent's

surgical equipment; specifically, no evidence that any

maintenance of any such equipment was in any way inadequate.

Therefore, so much of Count One as relies on the allegations in

subparagraph (c) of paragraph 12 should be dismissed for lack of

sufficient proof.

69. Count Two of the Amended Administrative Complaint

charges Respondent with having violated Section 458.331(1)(m),

Flori da Statutes (Supp. 1996). In this regard, paragraph 16 of

the Amended Administrative Complaint charges the following:

16. Respondent failed to keep written

medical records that justify the course of

treatment of Patient F. V. in one or more of

the foll owing ways:

(a) By failing to properly document

Patient F. V.'s pre - operative consultation;

(b) By failing to properly document a

post - operative report of the procedures;

(c) By failing to complete or create an

appropriate operative report for the

procedures.

70. Directing attention first to the allegations in

subparagraph (a) of paragraph 16, there is a certain amount of

ambiguity in the allegations that Respondent failed to keep

written medical records that justify the course of treatment o f

Patient F. V. "[b]y failing to properly document Patient F. V.'s

pre - operative consultation." The failures alleged in paragraph

16 and its subparagraphs could come about in either of two ways:

(1) Petitioner could be alleging that Respondent at one tim e

prepared sufficient medical records during the course of

treating the patient, but later failed to "keep" those records

because he did not "retain" the records and could not produce

them upon request, or (2) Petitioner could be alleging that

Respondent f ailed to ever prepare sufficient medical records

and, therefore, never had any sufficient records to keep.

Following careful consideration of the language of the three

subparagraphs of paragraph 16, it appears that the most logical

interpretation of those subparagraphs is to interpret them as

allegations that Respondent failed to ever prepare sufficient

medical records of the types described in each of the three

subparagraphs of paragraph 16. 20

71. Subparagraph (a) of paragraph 16, alleges that

Responden t failed to properly document Patient F. V.'s pre -

operative consultation. That allegation has not been

established by clear and convincing evidence. To the contrary,

the greater weight of the evidence is to the effect that

promptly following Respondent's pre - operative consultation with

Patient F. V., he dictated an adequate pre - operative

consultation note. That note is presently missing from the

patient's chart, but there is no evidence in the record of this

case upon which to attribute the absence of th e missing document

to any act or omission of Respondent. Therefore, so much of

Count Two as relies on the allegations in subparagraph (a) of

paragraph 16 should be dismissed for lack of sufficient proof.

72. Turning next to the allegations in subparagra ph (b) of

paragraph 16, there is no clear and convincing evidence in the

record of this case that Respondent failed to keep written

medical records that justify the course of treatment of Patient

F. V. "[b]y failing to properly document a post - operative re port

of the procedures." To the contrary, the greater weight of the

evidence is to the effect that shortly after the surgery on

June 6, 1997, Respondent dictated a detailed operative report.

That note is presently missing from the patient's chart, but

th ere is no evidence in the record of this case upon which to

attribute the absence of the missing document to any act or

omission of Respondent. Therefore, so much of Count Two as

relies upon the allegations in subparagraph (b) of paragraph 16

should be di smissed for lack of sufficient proof.

73. And, finally, attention is directed to the allegations

in subparagraph (c) of paragraph 16, which allege that

Respondent failed to keep written medical records that justify

the course of treatment of Patient F. V . "[b]y failing to

complete or create an appropriate operative report for the

procedures." The allegations in subparagraph (c) of paragraph

16 appear to use different words to allege what appears to be

the same violation that is alleged in subparagraph (b ) of

paragraph 16. Inasmuch as the violation alleged in subparagraph

(c) appears to be indistinguishable from the violation alleged

in subparagraph (b), the two alleged violations should be

disposed of in the same manner for the same reasons. Therefore,

so much of Count Two as relies upon the allegations in

subparagraph (c) of paragraph 16 should be dismissed for lack of

sufficient proof. 21

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Board of Medicine issue a

final order in this case dismissing all parts of both counts of

the Amended Administrative Complaint because none of the

violations alleged in the Amended Administrative Complaint have

been proved by clear and convincing evidence.

DONE AND ENTERED this 31st day of December, 2003, in

Tallahassee, Leon County, Florida.

S

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 31st day of December, 2003.

ENDNOTES

1/ At the beginning of the final hearing the Peti tioner moved,

without objection, to further amend the Amended Administrative

Complaint. The effect of the amendment allowed at the final

hearing is to add the following words at the end of the fourth

page of the Amended Administrative Complaint: "probati on and/or

any relief that the Board deems appropriate."

2/ The following is a more detailed description of the exhibits

offered by Petitioner that were received in evidence: Exhibit 1,

Respondent’s Answers to Admissions and Petitioner’s Request for

Admis sions; Exhibit 2, Respondent’s Licensure Certification;

Exhibit 3, Patient F. V.’s medical records from Florida Center

for Cosmetic Surgery, Inc. (FCCS), including pictures; Exhibit

3a, Patient F. .’s medical records from FCCS, including pictures

from the records’ custodian; Exhibit 5, Dr. Mayl’s Curriculum

Vitae; Exhibit 7, Dr. Barnett’s Curriculum Vitae; Exhibit 8,

Respondent’s letter dated 3/4/1999 to Investigator; Exhibit 9,

Investigative Report dated 8/16/1999 and 4/8/1999; Exhibit 10,

Supplemental Inv estigative Report dated 2/7/2001; Exhibit 11,

Letter dated 2/2/2001 from Steven Miller, Plaintiff’s attorney,

to the Agency for Health Care Administration (AHCA); Exhibit 12,

Letter from Sherman Clay, President at FCCS, to Ms. Scherer,

AHCA; Exhibit 14, FC CS’s Department of State Annual Reports

dated 4/22/1996 and 1/28/1997; Exhibit 15, Articles of

Incorporation of FCCS; Exhibit 16, Articles of Incorporation of

Thomas Pevisani, M.D., P.A.; and Exhibit 21, Rebuttal

exhibit – pictures of Patient F. V. obt ained from Respondent in

his office during his deposition.

3/ The following is a more detailed description of the exhibits

offered by Respondent that were received in evidence: Exhibit 1,

CV of Drevisani; Exhibit 2, Transcript of deposition of Joy

My lonakis; Exhibit 3, CV of Dr. Tiller; and Exhibit 4, CV of

Dr. Rieger.

4/ In addition to the 1996 statutory and rule provisions of

which official recognition was specifically requested and

granted, there are several other statutory provisions that have

a bearing on the disposition of the issues in this case. In

disposing of the issues in this case, the administrative law

judge has applied the statutory provisions in effect at the time

of the events that form the basis for this case, except to the

extent to which such reliance may be precluded by recent

legislative enactments.

5/ Neither of the PROs contains more than cursory mention of

the amendments to Section 456.073(5) and to Section

458.331(1)(t), Florida Statutes, wrought by Sections 20 and 25

of C hapter 2003 - 416, Laws of Florida.

6/ There are numerous possible explanations for the absence of

the preoperative note dictated by Drevisani on February 3,

1997. The possibilities include: the dictation was lost or

misplaced and was never transcrib ed; the dictation was

transcribed, but the transcript was misfiled; the transcript was

properly filed, but later removed from the chart by persons

unknown for reasons unknown. There is nothing in the evidence

in this case that clearly and convincingly est ablishes which of

these possibilities is what really happened.

7/ At the final hearing (which was some six years after the

events at issue), no one seemed to recall how the information

needed by the financial staff was communicated to the financial

staff . Perhaps the information on the Pre - Operative Check List

sufficiently addressed the information needs of the financial

staff. Respondent speculated as to a couple of other ways in

which information might have been communicated to the financial

staff, bu t Respondent did not appear to have any specific

recollection of how the information relating to Patient F. V.

was furnished to the financial staff in February of 1997.

8/ The evidence in this case does not identify the author of

the February 6, 1997, pr ogress note. The evidence in this case

does not indicate whether Respondent had any role in preparing

that de minimus progress note.

9/ Although the matter is not entirely free from doubt, there

is evidence in the record to the effect that it is more li kely

than not that Respondent did prepare an adequate operative

report, but that the report, for reasons unknown, either was

never placed in the correct chart or was removed from the chart

by an unknown person for an unknown reason.

10/ The patient's pos t - operative recovery from the two surgical

procedures was uneventful with the exception of the two blisters

first noted on February 7, 1997.

11/ On February 7, 1997, Patient F. V. was advised to return

for a follow - up visit in five days. The patient ret urned on

February 13, 1997.

12/ The forehead lesion was a de minimus lesion, even in the

opinion of the patient. After describing the lesion on her

thigh, Patient F. V. went on to explain as follows: "There was

a little one on my forehead, too, but tha t was so small it

didn't bother me." Transcript, page 85. See also the notes

prepared by "Dr. H" when he examined Patient F. V. in July of

1998. In view of the de minimus nature of the forehead lesion,

it is most unlikely that it ever needed any treatme nt or

attention other than observation when the patient was being seen

about other matters.

13/ February 16, 1997, was a Sunday. Although there is no

evidence in the record as to the days of the week on which the

FCCS clinic was open for business, it is unlikely that FCCS was

seeing patients on a Sunday and also unlikely that FCCS had a

physician at the clinic on Sunday to write a prescription.

14/ It is also unclear whether the "forehead" concerns relate

to the small forehead blister over the left eye , or whether they

relate to another medial forehead lesion or scar which is

mentioned in some later progress notes by other physicians. And

it is further unclear whether the "forehead" concerns noted in

the March 20, 1997, progress note are concerns by th e Respondent

or are concerns expressed by the patient.

15/ The physician described in the progress notes as "Dr. H"

was not clearly identified at the final hearing. One witness

(Dr. Alexander) identified "Dr. H' as "Dr. Heisinger." In

Petitioner's PRO "Dr. H" is referred to as "Dr. Hunsacker." The

matter is not further clarified in the record of this case.

16/ Some of my "determinations" as to whether Respondent "has

violated the laws and rules regulating the profession" are

located in the Findings o f Fact portion of this Recommended

Order, and other such "determinations" are located in the

Conclusions of Law. The ALJ has tried to place such

determinations where he believes they belong, taking into

consideration both a long history of appellate court guidance on

such matters and the new legislative pronouncement which does

not appear to have yet been the subject of board, department, or

judicial interpretation. In any event, the placement of such

determinations in one part of the Recommended Order or the other

does not appear to be of any great moment, because it is

reasonable to expect that the appellate courts will continue to

be of the view, regardless of where placed and regardless of how

characterized, a fact will continue be a fact and a conclus ion

of law will continue to be a conclusion of law.

17/ Both of the expert witnesses who testified on behalf of

Petitioner candidly admitted that they did not really know what

had happened to cause the two lesions. Dr. Barnett thought the

thigh lesion w as "most likely" caused by rough handling of the

liposuction instruments, but conceded there were other possible

causes, some of which might not be a deviation from the

applicable standard of care. Dr. Mayl candidly stated that he

did not have sufficient information upon which to form an

opinion as to what caused the subject lesions. He also stated

he did not have enough information to state whether Respondent

deviated from the standard of care in any of the ways alleged in

the Amended Administrative Comp laint. Dr. Mayl also opined that

even if Dr. Barnett's causation theory were to be correct,

Respondent's handling of the liposuction instruments still might

not be a departure from applicable standards of care. In

Dr. Mayl's words, such complications are not "entirely

preventable." And towards the end of his testimony, Dr. Mayl

agrees that ". . . there's an enormous amount of possibilities

of what may have caused this injury, some [of] which are not a

breach of the standard of care." And it should also be noted

that, while it is clear that Patient F. V. had a lesion on her

left thigh the day after her surgery, there is no clear and

convincing evidence that such lesion was a "full - thickness

burn." And as a final note on this issue, Petitioner concedes

in its proposed recommended order that there is no clear and

convincing evidence that the lesion on the patient's left thigh

resulted from any departure by Respondent from the applicable

standard of care.

18/ Dr. Barnett hardly mentions the lesion on th e patient's

forehead and certainly gives no clear and convincing opinion as

to what caused that lesion. Similarly, Dr. Barnett does not

offer any clear and convincing opinion as to whether whatever

caused the forehead lesion was or was not a departure fro m the

applicable standard of care. Dr. Mayl simply does not have

enough information about how the brow lift surgery was done to

form an opinion as to whether Respondent's performance of that

surgery was or was not a departure from applicable standards of

care. And it should also be noted that, while it is clear that

Patient F. V. had a lesion on her forehead over her left eye the

day after her surgery, there is no clear and convincing evidence

that such lesion was a "full - thickness burn." Quite to the

co ntrary, the evidence in the record is to the effect that the

lesion over the patient's left eye was a small blister involving

only the top layer of skin, a minor injury that, at most, needed

only de minimus attention (primarily periodic observation) and

th at was not expected to, and, in fact did not, result in any

significant consequences. See notes by "Dr. H," who noted

following an examination of Patient F. V.'s forehead a year

after the surgery, "[F]lat non - tender .8 x .6 centimeter thin

skin left upper forehead appears like lower dermis mobile to

touch but doesn't animate on her own. Can't really see scar -

just notice conture deformity." (Emphasis added.)

19/ There is no clear and convincing evidence that any of the

operating rooms at FCCS were eq uipped with monopolar

electrocautery devices. And even if such monopolar devices were

available, Respondent's clear and uncontradicted testimony was

that he always used bipolar devices when performing surgical

procedures of the type he performed on Patien t F. V.

20/ In this regard it is also important to remember that in

penal proceedings any ambiguities must be construed in favor of

the licensee. See Lester v. Department of Professional and

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

21/ In reaching the determinations that the evidence is

insufficient to establish the record - keeping violations alleged

in Count Two, the ALJ has not overlooked the testimony of

Dr. Barnett and Dr. Mayl on that subject. Dr. Barnett and

Dr. Maly both expr essed criticism of several aspects of

Respondent's medical records regarding Patient F. V., but much

of that criticism related matters that were not charged as

violations in the Amended Administrative Complaint. Further,

much of what Dr. Barnett and Dr. M ayl identified as deficiencies

in Respondent's record preparation was based on factual

assumptions different from what is reflected in the evidence in

this case. Specifically, both Dr. Barnett and Dr. Mayl opined

that Respondent's medical records were def icient because they

did not contain an adequate pre - operative consultation report or

an adequate operative report, and they appear to have assumed

for purposes of formulating their opinions that such documents

were never prepared. Yet the greater weight o f the evidence is

to the effect that Respondent did prepare an adequate pre -

operative consultation report and did prepare an adequate

operative report, both of which are missing from the FCSS

medical chart that was never in the custody or control of

Respon dent. The foregoing comments regarding the testimony of

Dr. Barnett and Dr. Mayl apply equally to the testimony of

Dr. Tiller and Dr. Rieger, to the extent the latter two

expressed any criticism of Respondent's medical records

concerning Patient F. V.

CO PIES FURNISHED :

John E. Terrel, Esquire

Elmer C. Ignacio, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Kenneth Metzger, Esquire

1435 E. Piedmont Drive, Suite 210

Tallahassee, Florida 32312

William P. Dillo n, Esquire

Of Counsel to Tilton & Metzger, P.A.

McMorrow & Dillon, P.A.

2590 Golden Parkway, Ste 108

Naples, Florida 34105

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R . S. Power, Agency Clerk

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

NOTICE OF RIGHT TO SUBMI T 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.