05-002648PL Department Of Health, Board Of Medicine vs. James P. Weiner, M.D. Status: Closed Recommended Order on Friday, March 31, 2006.

Summary: Respondent ordered a procedure for a patient, but the surgical center scheduled a different procedure to which the patient consented. Respondent started to perform the procedure scheduled by the center, but saw it was not the originally ordered procedure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2648PL

)

JAMES P. WEINER, M.D., )

)

Respondent. )

)

RECOMMENDED O RDER

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

on January 11, 2006, via video teleconference with sites in Fort

Myers and Tallahassee, Florida, before Susan B. Harrell, a

designated Administrative Law Judge of the Division of

Administrativ e Hearings.

APPEARANCES

For Petitioner: Lynne A. Quimby - Pennock, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: S ean M. Ellsworth, Esquire

Ellsworth Law Firm, P.A.

404 Washington Avenue, Suite 750

Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

Whether Respondent violated Subsection 456.072(1)(a a),

Florida Statutes (2003), 1 and, if so, what discipline should be

imposed.

PRELIMINARY STATEMENT

On April 26, 2005, Petitioner, Department of Health, Board

of Medicine (Department), filed an Administrative Complaint

against Respondent, James P. Weiner, M.D. (Dr. Weiner), alleging

that he violated Subsection 456.072(1)(aa), Florida Statutes.

Dr. Weiner requested an administrative hearing, and the case was

forwarded to the Division of Administrative Hearings on July 26,

2005, for assignment to an administ rative law judge.

On September 6, 2005, Dr. Weiner filed Dr. Weiner ' s Motion

for Brief Continuance, which was granted by order dated

September 8, 2005. On October 13, 2005, Dr. Weiner filed

Dr. Weiner ' s Motion for Continuance, which was granted by order

d ated October 14, 2005. The final hearing date was rescheduled

for January 11, 2006.

Prior to the final hearing, the parties submitted a Joint

Pre - Hearing Stipulation, which contained facts to which the

parties agreed. Those facts which are contained in Section E of

the Joint Pre - hearing Stipulation are incorporated into this

Recommended Order to the extent relevant.

At the final hearing, the Department called S.M. and

Dr. Weiner as its witnesses. Petitioner ' s Exhibits 1 through 5

were admitted in evide nce. Dr. Weiner testified on his own

behalf and called Dagmar Walker, R.N. , as his witness.

Dr. Weiner did not offer any exhibits into evidence.

The Transcript was filed on January 30, 2006. The parties

filed their Proposed Recommended Orders on Febru ary 9, 2006.

The parties ' Proposed Recommended Orders have been considered in

rendering this Recommended Order.

FINDINGS OF FACT

1. The Department is the state agency charged with the

regulation of medicine pursuant to Chapters 20, 456, and 458,

Florida Statutes.

2. Dr. Weiner, is and was at all times material to this

proceeding, a licensed physician in the State of Florida, having

been issued license number ME76902. He has been practicing

medicine for 23 years and has not previously been the subject o f

a disciplinary proceeding. Dr. Weiner is b oard - certified in

anesthesiology .

3 . S.M. has been a patient of Dr. Weiner since 1999.

S.M. sought treatment from Dr. Weiner for his lower back pain

that he suffered as a result of a golf cart injury. Over th e

course of his care under Dr. Weiner up until the date of the

incident, S.M. received numerous treatments for his back pain,

including radiofrequency ablation and epidural steroids.

4 . Radiofrequency ablation uses a specific frequency of

radio waves to help put specific pain nerves that go to the

joints of the spine to sleep for a period of time. In this

procedure a steroid is deposited inside the epidural space

outside the spine. The procedure can help to treat back pain as

well as pain extend ing down the legs of the patient.

5 . On January 29, 2005, S.M. presented to Dr. Weiner with

complaints of lower back pain. After examining S.M., Dr. Weiner

recommended that S.M. undergo a radiofrequency ablation

procedure.

6 . Dr. Weiner ordered the radi ofrequency ablation

procedure and instructed his office to coordinate with the

Center for Digestive Health and Pain Management (Center), to

have the procedure scheduled. The Center , which is a separate

facility from Dr. Weiner's office, scheduled S.M. ' s t reatment

for February 19, 2004 . The Center scheduled S.M . for a

Fluoroscopic Epidural Steroid Injection, RACZ Technique , caudal

approach, rather than the radiofrequency ablation procedure.

7. A Fluoroscopic Epidural Ster oi d Injection, RACZ

Technique, cau dal approach , involves placing a needle down near

the tailbone. A catheter is inserted through the needle into

the space around the spine. A steroid medication is injected

through the catheter. The purpose of the procedure is to

decrease irritation and inflammation of the nerves as well as

the discs. S.M. could have derived some benefit from the

Fluoroscopic Epidural Ster oi d Injection, RACZ Technique, caudal

approach.

8. Patient charts at the Center are separate from the

patient charts at Dr. Weiner's office. The Center's charts are

made up by the Center staff and consist of forms for the

specific procedure, a template of the procedure for the specific

procedure, the nursing notes, billing sheets, and other

administrative paperwork. When the Center er roneously scheduled

S.M. for a Fluoroscopic Epidural Ster oi d Injection, RACZ

Technique, caudal approach, the Center prepared paperwork

necessary for the provision of that technique, including consent

forms.

9 . On February 19, 2004, S.M. went to the Center with the

belief that he was going to receive the radiofrequency ablation

procedure. During this visit, S.M. was in a lot of pain and was

eager to receive treatment for his back.

10 . Upon arrival to the Center, S.M. signed a consent form

that referenced a Fluoroscopic Epidural Steroid Injection, RACZ

Technique , caudal approach procedure. The nurse then confirmed

with S.M., the technician, and Dr. Weiner that S.M. understood

this procedure. Dr. Weiner also explained the Fluoroscopic

Epidural Steroid Inj ection, R ACZ Technique, caudal approach , to

S.M before administering the treatment and also told S.M. that

this was the first time he had undergone this procedure while

under Dr. Weiner's care .

1 1 . Subsequent to signing the consent form, S.M. got

undresse d and was hooked up to an IV. He was then moved to

another bed , and Dr. Weiner started to perform the Fluoroscopic

Epidural Steroid Injection, R ACZ Techn ique, caudal approach , on

S.M. Dr. Weiner administered a local anesthe sia and began to

insert the tip of a needle into S.M. ' s back.

1 2 . After partially inserting the needle in S.M. ' s back,

Dr. Weiner stopped the procedure and reviewed S.M. ' s chart. He

requested that S.M.'s chart that was in Dr. Weiner's office be

brought to the Center. The chart reve aled that the Fluoroscopic

Epidural Steroid Injection, R ACZ Technique, caudal approach , was

not the procedure that was originally ordered at S.M. ' s

appointment on January 29, 2004.

1 3 . Once he realized the discrepancy, Dr. Weiner

apologized to S.M. and ex plained that he began to do the wrong

procedure. S.M. was then taken to the recovery room , and

Dr. Weiner ordered the radiofrequency ablation procedure for a

later date.

1 4 . S.M. did not receive the complete Fluoroscopic

Epidural Steroid Injection, R ACZ Technique, caudal approach ,

procedure on February 19, 2005.

1 5 . In or about March 2004, S.M. returned to the Center

and had the radiofrequency ablation procedure completed.

CONCLUSIONS OF LAW

1 6 . The Division of Administrative Hearings has

jurisdictio n over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat. (2005).

1 7 . The Department has the burden to establish by clear

and convincing evidence the allegations in the Administrative

Complaint. Department of Ban king and Finance v. Osborne Stern

and Co. , 670 So. 2d 932 (Fla. 1996). The Department has alleged

that Dr. Weiner violated Subsection 456.072(1)(aa), Florida

Statutes, which provides that the following acts constitute

grounds for disciplinary action:

Perf orming or attempting to perform health

care services on the wrong patient, a wrong -

site procedure, a wrong procedure, or an

unauthorized procedure or a procedure that

is medically unnecessary or otherwise

unrelated to the patient ' s diagnosis or

medical con dition. For the purposes of this

paragraph, performing or attempting to

perform health care services includes

preparation of the patient.

18 . The Department alleged that Dr. Weiner violated

Subsection 456.072(1)(aa), Florida Statutes, by " performing the

wrong surgical procedure on Patient S.M. " The Department has

established this allegation by clear and convincing evidence.

Dr. Weiner ordered that S.M. undergo radiofrequency ablation

during a regular office visit. When S.M. went to the Center for

this procedure at a later date, Dr. Weiner received consent and

started to perform the Fluoroscopic Epidural Steroid Injection,

R ACZ Technique, caudal approach, but then halted the process.

Dr. Weiner testified that the patient was originally scheduled

for th e radiofrequency ablation and that the wrong procedure was

attempted on S.M. at the Center. Nonetheless, Dr. Weiner argues

that he was authorized to perform the treatment because the

patient signed a consent form and verbalized an understanding of

the pro cedure. However, the Department is only alleging that

Dr. Weiner performed the " wrong procedure, " rather than focusing

on whether valid consent was obtained. Therefore, it is

irrelevant that S.M. consented to the treatment before the

procedure was initia ted; the wrong procedure was attempted on

S.M. regardless.

19. The disciplinary guidelines of the Board of Medicine

found at Florida Administrative Code Rule 64B8 - 8.001 provide a

range of penalties for a violation of Section 456.072 , Florida

Statutes.

20. The penalty for a violation of Subsection

456.072(1)(aa), Florida Statutes, ranges from a $10,000 fine,

a letter of concern, a minimum of five hours of risk management

education, a minimum of 50 hours of community service, and one -

hour lecture on wrong - site surgery in the State of Florida to

revocation for a first - time offense.

21. Florida Administrative Code Rule 64B8 - 8.001 provides

that the Board of Medicine may deviate from the penalty

guidelines based on the following aggravating or mitiga ting

factors:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) The pe cuniary benefit or self - gain

inuring to the applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate fr om the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331(1)(t), F.S., but the

licensee, who is also the records owner

pursu ant to Section 456.057(1), F.S., fails

to keep or produce the records.

(i) Any other relevant mitigating factors .

22. There are mitigating circumstances which would allow

for deviation from the penalty guidelines . There has been no

other disciplinary ac tion taken against Dr. Weiner during his

entire healthcare career ; Dr. Weiner stopped the procedure once

he realized it was the wrong treatment; Dr. Weiner ordered the

correct procedure, and the Center scheduled the wrong procedure;

S.M. signed a consent f orm after the procedure was thoroughly

explained to him; S.M. had undergone other steroid treatment

before this incident; and the treatment may have provided some

temporary relief to S.M. ' s pain.

RECOMMENDATION

Based on the foregoing Findings of Fact and C onclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

James P. Weiner , M.D., violated Subsection 45 6.072(1)(aa),

Florida Statutes ; issuing a reprimand ; imposing a $1,000 fine ;

requiring 25 hours of community service ; and requirin g five

hours of risk management education .

DONE AND ENTER ED this 3 1st day of March , 2006 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3 1st day of March , 2006 .

ENDNOTE

1/ Un less otherwise indicated, all references to the Florida

Statutes are to the 200 3 version.

COPIES FURNISHED :

Sean M. Ellsworth, Esquire

Ellsworth Law Firm, P.A.

404 Washington Avenue, Suite 750

Miami Beach, Florida 33139

Lynne A. Quimby - Pennock, Esquir e

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Timothy M. Cerio, General Counsel

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 exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.