04-002707PL Department Of Health, Board Of Medicine vs. Kurt Steven Dangl, M.D. Status: Closed Recommended Order on Tuesday, August 16, 2005.

Summary: Respondent advertised that he was board-certified by the American Board of Medical Specialties, when he was not; failed to timely provide medical records; and continued to visit the patient in the hospital after she requested that he not do so.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2707PL

)

KURT STEVEN DANGL, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this

case on January 10 and 11, 2005, in Sarasota, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Irv ing Levine, Esquire

Diane K. Keisling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Allen Grossman, Esquire

Gray, Harris & Robinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 458.331(1)( d),

458.331(1)(m), 458.331(1)(t), 458.331(1)(ll), and

458.331(1)(nn), Florida Statutes (2001) , 1 and, if so, what

discipline should be imposed.

PRELIMINARY STATEMENT

On April 29, 2003, Petitioner, the Department of Health,

Board of Medicine (the D epartment), filed a five - count

Administrative Complaint, alleging that Respondent, Kurt Steven

Dangl, M.D. (Dr. Dangl), violated Subsections 458.331(1)(t),

458.331(1)(m), 458.331(1)(nn), 458.331(1)(ll), and

458.331(1)(d), Florida Statutes. Dr. Dangle requ ested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on August 3, 2004, for

assignment of an a dministrative l aw j udge to conduct a final

hearing.

The case was originally scheduled to be held on November 8

a nd 9, 2004, but was continued to January 10 and 11, 2005. At

the final hearing, the Department called the following

witnesses: C.S., Dr. John Robert Leikensohn, Stacy Scott, and

Dr. John J. Obi. Petitioner's Exhibits 1 through 5 were

admitted in evidenc e. At the final hearing, Dr. Dangl called

the following witnesses: Barbie Beaver, Ruth Schneider, Andrea

Gunst, Betsy O'Neil Shecter, and Dr. William Henry Frazier.

Respondent's Exhibits 1 through 9 were admitted in evidence.

The Department was given le ave to file the deposition of

Shirley Galbraith after the final hearing, and Dr. Dangl was

given leave to file the deposition of Babette Smith Agett after

the final hearing. Both depositions were filed on February 22,

2005 , and are admitted in evidence .

The parties filed a Joint Prehearing Stipulation on

December 29, 2004. In section E of the pre - hearing stipulation,

the parties agreed to ten statements of facts. Those facts have

been incorporated in this Recommended Order.

The Transcript was filed on F ebruary 2, 2005.

On February 23, 2005, Dr. Dangl filed Respondent's Motion

to place case in abeyance pending the issuance of a final order

in Department of Health v. Dangl , DOAH Case No. 04 - 2708PL. The

motion was granted. On May 5, 2005, Dr. Dangl filed a Joint

Status Report and Respondent's Motion to Continue to Hold This

Matter in Abeyance. The status report advised that a Final

Order had been entered revoking Dr. Dangl's license and

Dr. Dangl had filed an appeal to the First District Court of

Appeal. An order was entered denying the motion to continue the

abeyance and ordering the parties to file their proposed

recommended orders on or before May 24, 2005. The parties

timely filed their proposed recommended orders, which have been

considered in rende ring this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with

regulating the practice of licensed physicians pursuant to

Section 20.43 and Chapters 456 and 458, Florida Statutes.

2. Dr. Dangl, whose address of re cord is 3900 Clark Road,

Suite E - 1, Sarasota, Florida 34233, was issued Florida license

number ME 71286 to practice medicine in Florida. During all

relevant periods of time, he was not board - certified by the

American Board of Medical Specialties or by any agency

recognized by the Board of Medicine.

3. Dr. Dangl is the holder of a D.M.D. degree from the

Washington University School of Dental Medicine in St. Louis,

Missouri. He is not licensed as a dentist in Florida, but he

has previously held dental li censes in Missouri, Pennsylvania,

and Virginia. He is specialty certified by the American Board

of Oral and Maxillofacial Surgery. This specialty is related to

the practice of dentistry.

4. During all relevant periods of time, Dr. Dangl's office

was ful ly and properly registered as an office surgical

facility.

5. During all relevant periods of time, Dr. Dangl did not

have hospital privileges.

6. On August 17, 2001, C.S., a female who was at that time

63 years old, came to Dr. Dangl's office for a consu ltation

regarding facial rejuvenation and body contouring. Dr. Dangl

saw C.S. and recommended "that she consider cervicofacial

rhytidectomy with full face carbon dioxide laser resurfacing and

autogenous fat transfer to the facial area." He further

determ ined that the "degree of liposity in the abdomen and

flanks is minimal and this can also be treated at the same time

with low - volume tumescent liposuction."

7. Prior to her consultation with Dr. Dangl, C.S. had seen

an advertis e ment for Dr. Dangl in the " Sarasota Herald - Tribune."

The advertisement listed Dr. Dangl as "Kurt Dangl, M.D., FAACS"

and underneath his name appeared the words "Board Certified."

From reading the advertisement, C.S. assumed that Dr. Dangl was

board - certified in cosmetic or plastic surgery.

8 . C.S. returned to Dr. Dangl's office on August 21, 2001,

for preoperative counseling. She signed consent forms for the

procedures to be performed. The consent forms listed potential

risks and complications involved with the procedures.

Com plications included infection, wound breakdown, and skin

necrosis. The consent forms stated that Dr. Dangl did not

guarantee specific results and that wound healing was outside

the control of the patient and Dr. Dangl. On the printed

consent forms the ab breviation "D.M.D." followed Dr. Dangl's

name. No evidence was presented that the consent forms were

being used as advertisements.

9 . C.S.'s medical records in Dr. Dangl's files indicate a

blood sample was taken from C.S. on August 21, 2001, and sent to

AccuLab. An Accu L ab report dated August 22, 2001, indicated

that C.S. had a slightly lowered hemoglobin level of 35.5.

Based on a notation on the report, it appeared that Dr. Dangl

reviewed the report on August 23, 2001. There is a handwritten

note on t he AccuLab report that the hemoglobin count was "ok for

planned procedure." Dr. Dangl did not advise C.S. prior to the

surgical procedures that her hemoglobin count was low.

10 . Dr. Dangl's records indicate that C.S. gave a medical

history prior to the s urgery and that Dr. Dangl performed a

physical examination of C.S. prior to the surgery. C.S. advised

Dr. Dangl that she had had her coccyx removed about six weeks

before her scheduled cosmetic surgery.

1 1 . On August 28, 2001, C.S. returned to Dr. Dangl' s

office to have Dr. Dangl perform a face and neck lift, laser

resurfacing of the face, removing fat from her abdomen and

flanks, and transferring some of the fat from the abdomen and

flanks to specific areas in her face.

1 2 . Betsy Shecter, who is license d as an advance

registered nurse practitioner in Florida, was the nurse

anesthetist for C.S.'s procedures. Ms. Shecter's first contact

with C.S. on August 2 8 , 2001, occurred at 13:05, when she

interviewed C.S. and then escorted C.S. to the operating room.

At 13:15, C.S. was given valium, and an IV infusion of propofol

and S ufenta was placed in C.S.'s arm around 13:20. Propofol is

an anesthetic and S ufenta is a synthetic narcotic. C.S. was

prepped and draped around 13:30, and a local anesthesia was

injec ted at 13:35. Because the local anesthesia required about

20 to 30 minutes to become active, Dr. Dangl did not make the

first incision until 14:05.

1 3 . The liposuction procedure to harvest the fat for a fat

transfer occurred between 14:05 and 15:00. Aft er liposuction, a

local anesthesia was injected in the areas where the face lift

would be performed. At 15:20, a garment was applied to the

areas where fat had been harvested to keep the swelling down.

Sequential leg compressions were put in place to avo id blood

clots. The actual face lift started around 15:30 and ended

around 20:20, when Ms. Shecter put Opticane ointment and corneal

shields in C.S.'s eyes for the laser procedure. The laser

procedure began around 20:25. At around 21:00, Ms. Schecter

tu rned off the propofol drip to which Demerol had been added.

The actual laser surgery stopped at approximately 20:55. The

eye shields were removed at 21:15. The recovery time in the

operating room commenced at 21:00 when the drugs were stopped

and ended around 21:45. The recovery time continued until C.S.

was discharged at 22:30. At the time of her discharge, C.S.'s

vital signs were stable, and she was alert and oriented.

1 4 . C.S. was told prior to the surgery that someone would

have to stay with her overnight after the surgery. C.S. made

arrangements for her daughter and C.S.'s sister to stay

overnight with her. C.S.'s sister had training and experience

as a certified nurse assistant.

1 5 . Prior to the surgery, Dr. Dangl told C.S. that she

would pro bably be ready to go home around four or five o'clock

(16:00 or 17:00). She made arrangements with her daughter to

pick her up around 17:00. When her daughter inquired from

Dr. Dangl's office at 17:00 whether her mother was ready to

leave, she was advise d that surgery had not been completed.

C.S. was not discharged until over five hours after her daughter

first contacted Dr. Dangl's office.

1 6 . C.S.'s daughter became visibly upset when she saw her

mother after the surgery and wanted to have C.S. admitt ed to a

hospital. Because of the daughter's agitation, arrangements

were made for a licensed practical nurse, Ruth Schneider, to

stay overnight with C.S.

1 7 . C.S.'s daughter and sister had some difficulty in

getting C.S. into the car for the trip home be cause of the

sequential leg compressions, which C.S. wore home . Dr. Dangl

and Ms. Shecter put C.S. in the car. At the time that C.S. was

put in the car, C.S. was able to stand on her own and able to

walk with support.

1 8 . When C.S. arrived home, Ms. Sch neider assisted C.S.

into her home. At that time, C.S. was alert and oriented and

could ambulate with assistance. When C.S. got in her home, she

was able to drink and take nourishment. Ms. Schneider helped

C.S. ambulate to the bathroom. C.S. sat in a recliner and slept

some during the night. At the close of Ms. Schneider's eight -

hour shift, she left C.S. in the care of C.S.'s sister.

1 9 . C.S. was scheduled for a follow - up visit with

Dr. Dangl on August 29, 2001, but C.S.'s sister was unable to

arouse C.S. and get C.S. up to go to the doctor's office.

Dr. Dangl's office was advised that C.S. could not come to his

office.

20 . Dr. Dangl came to C.S.'s home around nine or ten

o'clock in the evening of August 29, 2001, for a follow - up

visit. He removed the dressings from her wounds and applied an

antibiotic ointment. Dr. Dangl apparently did not have bandages

with him that he could place on the surface of the wounds

because he asked the sister for sanitary napkins to use as a

dressing. C.S.'s sister re trieved sanitary napkins from the

bathroom, and Dr. Dangl, using scissors from a nearby basket,

cut the napkins up and used them to dress the wounds. He reused

the Ace - type bandages which he had removed and placed them over

the sanitary pads. C.S. was in structed to come to Dr. Dangl's

office on August 31, 2001, for her 72 - hour postoperative

evaluation.

21 . On August 31, 2001, C.S.'s sister took C.S. to

Dr. Dangl's office. C.S.'s sister did not accompany C.S. into

the treatment room. Dr. Dangl removed th e dressings and

inspected the wounds. There was no evidence of hematoma,

seroma , or infection. He noted that there was a "small area of

devascularization immediately anterior to the left tragus on the

left side" and described the areas as "about the size of a

quarter." His notes indicate that the area would be "followed

expectantly and debrided as necessary." He was to follow up

with C.S. in 48 or 72 hours.

22 . When Dr. Dangl came out of the treatment room, he saw

C.S.'s sister and asked her what was wrong with her. She

explained that she was tired from being up all night with C.S.

Dr. Dangl asked the sister why she did not take one of the

sleeping pills that he had prescribed for C.S. The sister

replied, "What? Why would you tell me to do tha t, take someone

else's medicine?" Prior to this conversation, Dr. Dangl had not

examined the sister in any way, gotten her medical history, or

asked her whether she was taking any other medications.

2 3 . Over the next several days, C.S. complained to her

sister that she was burning, hurting all over , and was not able

to sleep or rest. On September 3, 2001, C.S.'s daughter called

Dr. Dangl's office and advised that C.S. had a foul smelling

discharge in front of her left tragus. Dr. Dangl called in a

presc ription for antibiotics for C.S. and told C.S.'s daughter

that he wanted to see C.S. the following day.

2 4 . Dr. Dangl saw C.S. in his office on September 4, 2001.

His examination of C.S. revealed that the size of the

devascularized area in front of her l eft tragus had increased

four times. There was some foul smelling yellow - brown discharge

coming from this area as well as from several areas under the

mandible approximately following the locations of the previously

placed drains. He debrided the devital ized area and irrigated

the discharge areas with an antibiotic solution and hydrogen

peroxide. An intravenous antibiotic was administered, and wound

cultures were obtained from various sites.

2 5 . Dr. Dangl again saw C.S. in his office on the evening

of September 4, 2005. There was a minimal amount of drainage

and no foul smelling odor.

2 6 . On September 5, 2001, C.S. again presented to

Dr. Dangl's office for postoperative infection evaluation and

treatment. There was a mild purulent discharge in the le ft

anterior neck and at the left post auricular area. Dr. Dangl

debrided the wound area and irrigated the wound area with

sterile saline. C.S.'s pain medication was increased.

2 7 . Dr. Dangl saw C.S. in his office on September 6, 2001,

for further wound treatment. The laboratory results of the

wound cultures indicated a light growth of E. coli. Dr. Dangl

administered an antibiotic intravenously and removed necrotic

tissue.

2 8 . C.S. returned to Dr. Dangl's office on September 7,

2001. Her temperature w as 100.6 degrees Fahrenheit, and she was

complaining of significant discomfort. Dr. Dangl debrided the

wound area. He examined the abdomen and flank incisions and

found no evidence of infection or other signs of untoward wound

healing.

2 9 . C.S.'s daught er accompanied her mother to Dr. Dangl's

office on September 7, 2001, and expressed her concerns about

her mother's condition. The daughter felt that her mother might

benefit from hospitalization. Dr. Dangl referred C.S. to

Dr. Manual Gordillo for evalua tion and determination of the need

for hospitalization. Dr. Gordillo treated infectious diseases.

30 . Dr. Gordillo saw C.S. and advised C.S. and her

daughter that the treatment for the infection could be done in

the hospital or on an outpatient basis, bu t expressed his

opinion that admission to the hospital was borderline. C.S.

opted for hospitalization and was admitted to Doctors Hospital

of Sarasota on September 7, 2001.

3 1 . After C.S. was admitted to the hospital , additional

cultures were taken of the wound sites as well as the sites in

the abdomen where fat had been harvested. Based on the

laboratory results, C.S. had a scant growth of E. coli from her

face wound culture and a moderate growth of staphylococcus

aureus from abdominal wound culture. C.S. was placed in

isolation because of the staph infection.

3 2 . C.S. was experiencing a great deal of pain from her

wounds while she was in the hospital. Because of her difficulty

with pain management, she was put on a PCP pump to help control

the pain .

3 3 . While she was in the hospital, Dr. Dangl visited her

several times to observe. He did not perform any treatment on

C.S. while she was hospitalized. C.S. told Dr. Dangl that she

wished that he would not visit her while she was in the

hospital, but he continued to come. The evidence is not clear

and convincing that C.S. conveyed to Dr. Dangl that she did not

want his services any longer, particularly in light of C.S.'s

paying office visits to Dr. Dangl for treatment after she was

discharged from the hospital. However, the evidence is clear

and convincing that C.S. did not want Dr. Dangl to visit her in

the hospital and that she told him so. Dr. Dangl's medical

records do not establish a medical basis for continuing to see

C.S. in the hospital after she asked him not to do so.

3 4 . C.S. was discharged from the hospital on September 13,

2001. At that time, she was feeling much better, her wounds

were stable, and her wounds were not clinically overtly

infected. She was directed to follow up with Dr. Dangl as soon

as the following day and to follow up with Dr. Gordillo within a

week.

3 5 . After her discharge from the hospital, C.S. continued

to see Dr. Dangl on September 15, 17, 19, and 21, 2001.

Dr. Dangl changed the dressings and, on two of the visi ts, did

some minimal debrid e ment. C.S. discontinued seeing Dr. Dangl

after her office visit on September 21, 2001.

3 6 . On September 24, 2001, C.S. began seeing Dr. John

Leikensohn, a plastic and reconstructive surgeon, for wound

treatment. He diagnosed C.S. as having massive skin necrosis.

3 7 . When C.S. began seeing Dr. Leikensohn, she was asked

to sign a medical release for her medical records from

Dr. Dangl, and she did so. Dr. Leikensohn 's staff contacted

Dr. Dangl's office by telephone to get C. S.'s records. The

medical release was sent by facsimile transmission to

Dr. Dangl's office with a request for C.S.'s records. By

October 2, 2001, Dr. Leikensohn had not received the records

from Dr. Dangl. Dr. Leikensohn asked C.S. and C.S.'s daughter

t o stop by Dr. Dangl's office and get a copy of the records.

3 8 . C.S. went to Dr. Dangl's office and personally asked

his staff for her records, but was not given the records. She

also submitted a written request for her records , but did not

receive them pursuant to the written request.

3 9 . Barbie Beaver, Dr. Dangl's office coordinator, does

not recall when or from whom she actually received a request for

C.S.'s records, but she does remember sending C.S.'s medical

records to Barbara Dame, Dr. Dangl's ris k manager, for her

review on September 27, 2001. When Dr. Dangl's office received

a request for a patient's records, she would advise Dr. Dangl

and he would decide what to do. She gave a request for C.S.'s

medical records to Dr. Dangl , and he instructed her to send them

to Ms. Dame for review prior to releasing the records.

Ms. Beaver does not recall when she actually sent C.S.'s records

to the person who requested them.

40 . During his treatment of C.S., Dr. Dangl wrote several

prescription s for C.S. The prescription scripts contained the

abbreviation "D.M.D." after his name. No evidence was presented

that the prescription s were intended to be used for advertising

purposes.

41 . Dr. John J. Obi, a board - certified plastic surgeon,

testified as the Dep artment's expert witness. It is Dr. Obi's

opinion that it would have been good medical practice to have

advised C.S. of her low hemoglobin prior to surgery , but that

because the blood level was not dangerously low, he could not

"say that's a complete devi ation from the standard of care."

4 2 . Dr. Obi further opined that Dr. Dangl exceeded the

eight - hour limitation on elective cosmetic surgery in a

physician's office when he performed the procedures on C.S. on

August 28, 2001. Dr. Obi's opinion is based on his incorrect

understanding that the anesthesia was stopped at 22:00. Thus,

even if the time for calculating surgical procedures ran from

the time the anesthesia was first administered at 13:15 until it

was stopped at 21:00, the length of time for the su rgical

procedures was seven hours and forty - five minutes.

4 3 . Dr. Obi opined that the recovery time for C.S. was

insufficient. Again he based his opinion in part on his

incorrect assumption that the anesthesia was discontinued at

22:00.

4 4 . Dr. Obi c reditably testified that Dr. Dangl's

continuing to see C.S. in the hospital after she told him that

she did not want him to visit fell below the prevailing standard

of care. Dr. William Frazier, the expert who testified on

behalf of Dr. Dangl, gave no opi nion on whether Dr. Dangl's

continued hospital visits after being told not to visit by C.S.

violated the standard of care.

4 5 . Dr. Obi opined that it was a violation of the standard

of care for Dr. Dangl to tell C.S.'s sister to take some of

C.S.'s prescr iption sleeping pills without examining or taking a

medical history of the sister. Dr. Frazier was of the opinion

that the conversation between Dr. Dangl and C.S.'s sister did

not fall below the standard of care. Dr. Frazier's opinion was

based on his mi sunderstanding that C.S.'s sister had asked

Dr. Dangl if it was appropriate for her to take a sleeping

medication that she already had.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject mat ter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2004).

47. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996). In Slomowitz

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

developed a working definition of "clear and convincing

evidence," which has been adopted by the Florida Supreme Court

in In re Davey , 645 So. 2d 398 (Fla. 1994). The court in

Slomowitz stated:

[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 witn esses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz , 429 at 800.

48. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(t), Florida Statutes, which provides that

the following acts constitutes grounds for disciplinary action:

Gross or repeated malpractice or the failure

to pra ctice 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. The board

shall give great weight to the provisions of

s. 766.102 w hen 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 $25,000 each t o 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 practice

medicine with that level of care, skill, and

treatment which is recogniz ed 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

phy sician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

49. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(t), Florida Statutes, by "exceed[ing] the

eight (8) hour limit on office surgery by performing non -

emergent cosmetic surgery on Patient C.S. for eight (8) hours

and forty - five (45) minutes." Florida Administrative Code

Rule 64B8 - 9.009(2)(f) provides: "For elective cosmetic and

plastic surgery procedures performed in a physician's offic e,

the maximum planned duration of all surgical procedures combined

must not exceed 8 hours."

50. The Department has failed to establish that Dr. Dangl

exceeded the eight - hour limit on office surgery. Florida

Administrative Code Rule 64B8 - 9.009(2) does not establish how

the time for performing surgery is calculated. There was some

testimony the time should be calculated from the time the

surgeon makes the first incision to the time the surgeon

concludes surgery. Other testimony indicated the time shou ld be

calculated from the first administration of anesthesia until the

anesthesia is turned off. If the hours are calculated either

way, Dr. Dangl did not exceed the eight - hour limit.

51. The Department alleged that Dr. Dangl violated

Subsection 458.331( 1)(t), Florida Statutes, by "discharg[ing]

Patient C.S. home thirty (30) minutes after she had undergone

eight (8) hours and forty - five (45) minutes of cosmetic surgery

under intravenous surgery." The Department has failed to

establish this allegation. C .S.'s recovery time began at 21:00

and ended at 22:30 when she was discharged. C.S. was stable,

alert, and oriented when she was discharged.

52. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(t), Florida Statutes, by "perform[ing]

c osmetic surgery on Patient C.S. without informing her that she

had a low blood count, which indicated anemia." The Department

has failed to establish by clear and convincing evidence that

Dr. Dangl's failure to advise C.S. of her hemoglobin count was a

vi olation of Subsection 458.331(1)(t), Florida Statutes. The

Department's own expert opined that because the blood level was

not dangerously low, it was not a complete deviation from the

standard of care to not inform C.S.

53. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(t), Florida Statutes, by "perform[ing]

debridement of Patient C.S.'s wounds while she was hospitalized

at Doctor's Hospital, although [Dr. Dangl] had no hospital

privileges." The Department failed to present any ev idence that

established this allegation.

54. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(t), Florida Statutes, by "continu[ing] to

visit and treat Patient C.S. during her hospitalization at

Doctors Hospital even after Patient C.S. asked [Dr. Dangl] to

stop seeing her." The Department has established this

allegation by clear and convincing evidence.

55. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(t), Florida Statutes, by "advising S.G.,

Patient C.S.'s sist er, who was not his patient, to take sleeping

pills that he prescribed for Patient C.S. [and] . . . not

examin[ing] [or] review[ing] her physical and medical history

prior to advising her to take medication that was prescribed for

someone else." The Depar tment has established this allegation

by clear and convincing evidence. Dr. Dangl, in a medical

office setting, asked C.S.'s sister what was wrong with her and

then told her to take one of C.S.'s sleeping pills. This was

not a ca su al cocktail party conve rsation, and it was initiated

by Dr. Dangl and not by C.S.'s sister.

56. The Department has established by clear and convincing

evidence that Dr. Dangl failed to practice medicine with that

level of care, skill, and treatment which is recognized as being

acceptable under similar conditions and circumstances by

continuing to see C.S. in the hospital after she asked him not

to visit and by telling C.S.'s sister to take a sleeping pill

prescribed for C.S. with out examining or taking a medical

history from C.S .'s sister.

57. Subsection 458.331(1)(m), Florida Statutes, provides

that disciplinary action may be taken for the following acts:

Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

lic ensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatmen t of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

58. The Department alleged that Dr. Dangl v iolated

Subsection 458.331(1)(m), Florida Statutes, by failing to note

"a medical basis justifying the appropriateness of eight (8)

hours and forty - five (45) minutes of non - emergent cosmetics

surgery" and "justifying the discharge of Patient C.S. home,

thi rty minutes (30) minutes after she had undergone eight (8)

hours and forty - five (45) minutes of intravenous sedation

procedures." The Department failed to establish that the

surgical time was longer than eight hours and that the recovery

time was 30 minut es; thus, the Department has failed to

establish that Dr. Dangl violated Subsection 458.331(1)(m),

Florida Statutes, as it relates to the medical basis for the

surgical and recovery times.

59. The Department alleged that Dr. Dangl violated

Subsection 458. 331(1)(m), Florida Statutes, by failing to note

"inconsistencies in Patient C.S. medical records with the care

witnessed by her caregiver, S.G." The Department has failed to

establish this allegation by clear and convincing evidence.

60. The Department a lleged that Dr. Dangl violated

Subsection 458.331(1)(m), Florida Statutes, by failing to note a

medical basis justifying treating C.S. while she was

hospitalized and Dr. Dangl did not have hospital privileges.

The Department failed to establish this alleg ation by clear and

convincing evidence.

61. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(m), Florida Statutes, by failing to note

"a medical basis justifying the appropriateness of continuing to

visit Patient C.S. in the hospital a fter Patient C.S. asked

Respondent not to visit." The Department has established this

allegation by clear and convincing evidence.

62. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(m), Florida Statutes, by failing to note

"the bas is for not providing the Patient C.S.'s medical records

pursuant to properly executed and authorized requests from

Patient C.S., her subsequent treating physician and her

attorney." The Department has failed to establish that such

information is required to be kept in his medical records, and,

thus, has failed to establish that such conduct constitutes a

violation of Subsection 458.331(1)(m), Florida Statutes.

63. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(ll), Florida Statutes, which provides that

disciplinary action may be taken for the following act:

"[a]dvertising or holding oneself out as a board - certified

specialist, if not qualified under s. 458.3312, in violation of

this chapter." Section 458.3312, Florida Statutes, prov ides:

A physician licensed under this chapter may

not hold himself or herself out as a board -

certified specialist unless the physician

has received formal recognition as a

specialist from a specialty board of the

American Board of Medical Specialties or

ot her recognizing agency approved by the

board. However, a physician may indicate

the services offered and may state his or

her practice is limited or one or more types

of services when this accurately reflects

the scope of the practice of the physician.

6 4. The Department has established by clear and convincing

evidence that Dr. Dangl violated Subsection 458.331(1)(ll),

Florida Statutes. Advertis e ments for Dr. Dangl which appeared

in a local newspaper, indicated that he was "Board Certified."

However, D r. Dangl did not have board certification from the

American Board of Medical Specialties or other recognizing

agency approved by the Board of Medicine.

65. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(nn), Florida Statutes, whic h provides that

"[v]iolating any provision of this chapter or chapter 456, or

any rules adopted pursuant thereto" is a ground for disciplinary

action. The Department alleged that Dr. Dangl violated

S ubs ection 456.057(4), Florida Statutes, which provides:

Any health care practitioner licensed by the

department or a board within the department

who makes a physical or mental examination

of, or administers treatment or dispenses

legend drugs to any person shall, upon

request of such person or the person's lega l

representative, furnish, in a timely manner,

without delays for legal review, copies of

all reports and records, relating to such

examination or treatment, including x - rays

and insurance information. . . . The

furnishing of such report or copies shall

no t be conditioned upon payment of a fee for

services rendered.

66. The Department established by clear and convincing

evidence that Dr. Dangl violated Subsection 458.331(1)(nn),

Florida Statutes, by violating Subsection 456.057(4), Florida

Statutes. Dr. Dangl failed to timely provide the records to

Dr. Leikensohn , C.S.'s subsequent treating physician, after

Dr. Dangl received a written authorization from C.S. The

evidence established that instead of providing the records when

requested that Dr. Dangl ins tructed his staff to send the

records to his risk manager for review.

67. The Department alleged that Dr. Dangl violated

Subsection 458.331(1)(d), Florida Statutes, which provides that

false, deceptive, or misleading advertising constitutes grounds

for disciplinary action. The allegation is based on the

inclusion of "D.M.D." following his name on his Informed Consent

Form for authorization to perform surgery on C.S. and on his

prescription scripts to C.S. Webster's II New Riverside

University Dictionar y , (1984), defines "advertising" as [t]he

act of calling public attention to a product or business." The

Department did not establish that the purpose of the Informed

Consent Form and the prescription scripts was to call public

attention to his medical pr actice. The Department has failed to

establish that Dr. Dangl violated Subsection 458.331(1)(d),

Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a f inal o rder be entered finding that

Dr. Dangl violated Subsections 458.331(1)(m), 458.331(1)(t),

458.331(1)(ll), and 458.331(1)(nn), Florida Statutes; finding

that Dr. Dangl did not violate Subsection 458.331(1)(d), Florida

Statutes; imposing an administrative fine of $2,000 for the

violati on of Subsection 45 8 . 331 ( 1 ) (nn) , Florida Statutes;

imposing an administrative fine of $3,500 for violations of

Subsection 458.331(1)(t), Florida Statutes; imposing an

administrative fine of $1,000 for the violation of Subsection

458.331(1)(ll), Florida Sta tutes; imposing an administrative

fine of $1,000 for the violation of Subsection 458.331(1)(m),

Florida Statutes; suspending his license for two years; and

requiring Dr. Dangl to attend continuing medical education

classes to be specified by the Board of M edicine.

DONE AND ENTER ED this 1 6 th day of August, 2005 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Ta llahassee, 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 1 6 th day of August , 2005 .

ENDNOTE

1/ All references are to the 2001 ver sion of the Florida

Statutes, unless otherwise indicated.

COPIES FURNISHED :

Irving Levine, Esquire

Diane K. Keisling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Allen Grossman, Esquire

Gray, Harris & R obinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any excep tions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.