05-004124PL Department Of Health, Board Of Medicine vs. Bill Byrd, M.D. Status: Closed Recommended Order on Friday, June 9, 2006.

Summary: Respondent violated the standard of care for failure to refer patient for further evaluation when warranted by test results. He also failed to keep adequate medical records. Recommend $12,000 fine and two years` probation among the recommended penalties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 05 - 4124PL

)

BILL BYRD, M.D., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal h earing was held in this case

on January 19, 2006, by video teleconference, with the parties

appearing in Orlando, Florida, before Patricia M. Hart, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings, who presided in Tall ahassee, Florida.

APPEARANCES

For Petitioner: Lynne A. Quimby - Pennock, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Responden t: Michael R. D'Lugo, Esquire

Wicker, Smith, O'Hara, McCoy, Graham

& Ford, P.A.

Post Office Bo x 2753

Orlando, Florida 32308 - 27 5 3

STATEMENT OF THE ISSUE

Whether t he Petitioner committed the violations alleged in

the Administrative Complaint dated September 10, 2004, as

amended by Order entered January 11, 2006, and, if so, the

penalty that should be imposed.

PRELIMINARY STATEMENT

In a two - count Administrative Compl aint dated September 10,

2004, the Department of Health ("Department"), Board of Medicine

("Board") , charged Bill Byrd, M.D., with violations of

Section 458.331(1)(m) and (t), Florida Statutes (2000). 1 In

Count I, the Department charged Dr. Byrd with havi ng violated

Section 458.331(1)(t) by failing "to practice medicine with that

level of care, skill and treatment which is recognized by a

reasonably prudent similar physician as being acceptable under

similar conditions and circumstances." The Department a lleged

specifically that Dr. Byrd failed to assess Patient J.S.'s

complaint adequately; failed to diagnose Patient J.S.'s

condition accurately; and failed to refer Patient J.S. to a

surgeon when warranted by clinical evidence. In Count II, the

Department charged Dr. Byrd with having violated

Section 458.331(1)(m), Florida Statutes, by failing to keep

medical records as required by rule. The Department alleged

specifically that Dr. Byrd failed to document Patient J.S.'s

history and "the findings of physica l examination," such that

"the records are insufficient to allow a reviewing clinician to

reconstruct clinical findings, any conversation which may have

been had with the patient, instruction to the patient, or other

information which would make assessment of the patient's

clinical course possible."

Dr. Byrd timely filed a Petition for Formal Hearing, and

the Department forwarded the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge. On January 9, 2006, the Dep artment filed a Motion to

Amend the Administrative Complaint with respect to the factual

allegations in paragraph 5 of the Administrative Complaint. The

motion was granted in an Order entered January 11, 2006.

Pursuant to notice, the final hearing was he ld on January 19,

2006.

The parties filed a Joint Pre - Hearing Statement on

January 10, 2006. At the hearing, Joint Exhibits 1A and B and

2A and B were offered and received into evidence. The

Department presented the testimony of Patient J.S. and of Georg e

Wilson, M.D.; P etitioner's Exhibits 1 through 4 and 7 a and b

were offered and received into evidence. Dr. Byrd testified in

his own behalf and presented the testimony of Finley W. Brown,

M.D., by deposition; Respondent's Exhibits 1 through 3 were

offere d and received into evidence, Respondent's Exhibit 3 being

the deposition transcript and videotape of the deposition of

Dr. Brown. At the request of the Department and without

objection from Dr. Byrd, official recognition was granted to

Section 458.331, F lorida Statutes, and Florida Administrative

Code Rule 64B8 - 8.001.

The one - volume transcript of the proceeding was filed with

the Division of Administrative Hearings on March 29, 2006, and

the parties timely submitted proposed findings of fact and

conclusio ns of law. These submittals have been considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

Parties

1. The Department is the state agency responsible for the

investigation and prosecution of complaints involving physicians

licensed to practice medicine in Florida. See § 455.225, Fla.

Stat. The Board is the entity responsible for regulating the

practice of medicine in Florida and for imposing penalties on

physicians found to have violated the provisions of

Section 458.331(1), Florida Statutes. See § 458.331(2), Fla.

Stat.

2. Dr. Byrd is, and was at the times material to this

proceeding, a physician licensed to practice medicine in

Florida, having been issued license number ME 43323, and he is

Board - certified in Family Practice . At the times material to

this proceeding, Dr. Byrd conducted an office practice and saw

approximat ely 20 patients each day, including those who had an

appointment and those who walked in without an appointment. In

addition to his private practice, Dr. Byrd was, at the times

material to this proceeding, a full - time physician for the

Brevard County Depa rtment of Corrections and was responsible for

providing medical care for all prisoners in that system.

Facts underlying charges in Administrative Complaint

3 . Patient J.S. was a patient of Dr. Byrd's from

approximately 1999 until June 2001. Dr. Byrd tre ated

Patient J.S. during that period primarily for general medical

issues. Patient J.S.'s last visit to Dr. Byrd's office was

June 11, 2001.

4. The office visits material to this proceeding occurred

on December 27, 2000; January 29, 2001; and June 11, 20 01.

5. Beginning when she was approximately 20 - to - 21 years of

age, Patient J.S. routinely performed breast self - examinations

once or twice a month. She performed a self - examination a few

days before Christmas 2000, while she was visiting in New

Jersey, a nd believed she felt a lump in her right breast. She

drove home the day after Christmas and telephoned Dr. Byrd's

office. She told the person she spoke with that she had found a

lump in her breast.

6. The record of Patient J.S.'s December 27, 2000, cont act

with Dr. Byrd's office was inserted into a form that had been

completed for an office visit on November 15, 2000. The date

"12.27.00" appears approximately mid - way down the page, with a

diagonal line drawn underneath. Below the diagonal line was

writ ten "Mammo & ultrasound script given[.] Pt feels she may

have a lump in Breast." What appear to be the initials "DS" are

included beneath the notation, and the handwriting in this

notation is that of Dr. Byrd's medical assistant.

7. Dr. Byrd did not exa mine or speak to Patient J.S. on

December 27, 2000, and he relied on the information conveyed to

him by his medical assistant in making the decision to write a

prescription for Patient J.S. to obtain an ultrasound and a

mammogram. 2

8. Dr. Byrd's staff sch eduled an appointment with Boston

Diagnostic Imaging for Patient J.S., and she had a bilateral

film mammogram and an ultrasound of her right breast done on

January 3, 2001. 3

9. In the report of the January 3, 2001, bilateral

mammography examination, which was dictated January 3, 2001, the

radiologist stated:

CLINICAL INDICATIONS: Diagnostic

mammography. The patient reports a palpable

abnormality within the upper outer quadrant

of the right breast. This site was marked

with triangular marker.

FINDINGS: There is a 2 cm asymmetric area

of parenchymal density within the upper

outer quadrant of the right breast at the

approximately 12 o'clock position. This

appears fairly distant from the palpable

marker. I would recommend additional cone

compression view s of the right breast at

this time. Some small subcentimeter nodular

parenchymal densities are scattered through

both breasts. No discreet [sic] mass is

noted underlying the region of palpable area

of clinical concern. Any clinically

suspicious palpable abnormality should be

aspirated and biopsied. Some benign

microcalcifications are noted bilaterally.

* * *

IMPRESSION:

1. NUMEROUS SUBCENTIMETER NODULAR DENSITIES

SCATTERED THROUGHOUT BOTH BREASTS. GIVEN

THE MULTIPLICITY OF FINDINGS THESE ARE

LIKELY BENIGN. I WOULD RECOMMEND COMPARISON

WITH PRIOR MAMMOGRAPHIC STUDY TO DETERMINE

STABILITY.

2. ASYMMETRIC 2 CM NODULAR DENSITY LOCATED

IN THE 12 O'CLOCK POSITION OF THE RIGHT

BREAST POSTERIORLY. I WOULD RECOMMEND

CORRELATION WITH PRIOR STUDY OR ADDITIO NAL

CONE COMPRESSION VIEWS OF THE RIGHT BREAST

AT THIS TIME. [ 4 ]

10. Dr. Byrd received a copy of this report from Boston

Diagnostic Imaging, signed it, and made a notation on the report

to "give ptn copy." He assumes that his staff followed his

instructi ons and gave Patient J.S. a copy of the report, but

Dr. Byrd does not recall discussing this report with

Patient J.S.

11. The report of the January 3, 2001, bilateral

mammography examination showed an abnormality in Patient J.S.'s

right breast. Dr. Byrd did not, however, order a cone

compression view of the right breast or any other diagnostic

test as a result of the report. Rather, Dr. Byrd waited for the

Boston Diagnostic Imaging radiologist to do a comparison study

of the January 3, 2001, mammography results and the results of

any prior mammographic study that the radiologist might locate.

12. A second report of the results of the January 3, 2001,

examinations was issued by Boston Diagnostic Imaging, the

substance of which is a more comprehensive repo rt of the results

of the ultrasound examination of Patient J.S.'s right breast. 5

In this second report, which was captioned "Bilateral Film

Mammography" and dictated on or about January 5, 2001, the

radiologist stated:

CLINICAL INDICATIONS: Diagnostic br east

ultrasound. Palpable lesion in the upper

outer quadrant of right breast.

FINDINGS: Sonographic evaluation of the

9 - 12 o'clock position of the right breast

was performed at the site of the patient's

reported palpable abnormality. At the

10 - 11 o'clock position in the right breast

at the patient's site of reported

abnormality, no discrete solid or cystic

nodules are noted by ultrasound. There are

two small hypoechoic solid nodules noted at

the 12 o'clock position of the right breast

measuring 8 x 6 mm. in aggregate size. This

is nonspecific and may represent small

fibroid adenomas. No dominant solid or

cystic nodules are noted by ultrasound in

the 12 o'clock position of the right breast

to correspond to 2 cm. asymmetric parenchyma

density noted on the mammography. Recommend

additional cone compression views of the

right breast at this time. [ 6 ] No simple cyst

is noted within the upper outer quadrant.

IMPRESSION:

1. TWO SMALL SUBCENTIMETER HYPOECHOIC

NODULES NOTED AT THE 12 O'CLOCK POSITION I N

THE RIGHT BREAST. THIS IS FAIRLY DISTANT

FROM THE REGION OF THE PATIENT'S PALPABLE

ABNORMALITY. CONSIDER SHORT TERM FOLLOWUP

EXAMINATION. CONSIDER FOLLOWUP RIGHT BREAST

ULTRASOUND EXAMINATION IN 6 MONTHS TO

EVALUATE FOR STABILITY.

2. NO DISCRETE SO LID OR CYSTIC NODULE IS

NOTED IN THE 9 - 11 O'CLOCK [POSITION] IN THE

RIGHT BREAST AT THE SITE OF THE PATIENT'S

REPORTED PALPABLE ABNORMALITY. ANY

CLINICALLY SUSPICIOUS PALPABLE ABNORMALITY

SHOULD BE ASPIRATED BY BIOPSY.

3. NO DOMINANT 2 CM. SOLID OR CYST IC MASS

IS NOTED AT THE 12 O'CLOCK POSITION OF THE

RIGHT BREAST BY ULTRASOUND.

13. A "Corrected Copy" of the second report contained the

following changes: (1) The heading of the corrected report was

changed to "RIGHT BREAST ULTRASOUND" examination; (2 ) the

corrected report stated that the technique involved "[u]sing

hand - held sonographic technique, breast was scanned"; and (3)

the corrected report indicated that the results of the test were

compared with the bilateral mammography of January 3, 2001. I n

all other respects, the "Corrected Copy" of the report was

identical to the second report. 7

14. Dr. Byrd did not receive the Corrected Copy of the

report of the ultrasound examination of the right breast. He

did, however, receive a copy of the second r eport. Dr. Byrd

signed his copy of the second report, and made the following

notation: "Patient aware to follow up in six months with

ultrasound." Dr. Byrd did not recall speaking with Patient J.S.

about the second report, but he assumed from this note that he

did speak with her, probably by telephone.

15. Dr. Byrd did not order a cone compression view of

Patient J.S.'s right breast, nor did he schedule a short - term

follow - up examination.

16. Boston Diagnostic Imaging issued a fourth report,

dictated o n January 16, 2001, which was entitled an "Addendum"

to the report of Patient J.S.'s January 3, 2001, bilateral

mammography examination. 8 In the Addendum, the radiologist

stated:

FINDINGS: Study done here 01/03/01 is

compared with exam of 03/02/95. Mult iple

nodular densities were noted on the previous

study. Now that old films available, three

area[s] of densities, two in left breast and

one in the right breast, are significantly

larger than they were then. Ultrasound is

recommended for further evaluat ion. The

largest of these is on the right [breast] at

12 o'clock and measures 2 cm. Second of

these is in the left breast, slightly

superior and slightly lateral to the nipple

and contains a single calcification. It is

probably 1 cm in maximal diameter and these

two side by side lesions are seen on the

oblique lateral view of left breast superior

aspect. One of these twin densities lies

medial to the nipple and measures

approximately 14 mm while the other of these

twin lesions probably lies slightly lat eral

to the nipple. No skin thickening, nipple

retraction, hypervasculature or

microcalcifications can be seen.

IMPRESSION:

1. BILATERAL BREAST ULTRASOUND IS

RECOMMENDED TO EVALUATE A 2 CM LESION AT

12 0'CLOCK IN RIGHT BREAST AND TO EVALUATE

THREE NODU LAR MASSES IN LEFT BREAST, ALL OF

WHICH ARE SLIGHTLY LARGER IN SIZE THAN THEY

WERE ON THE 03/02/95 STUDY. ULTRASOUND

SHOULD BE DONE AS SOON AS CAN BE SCHEDULED.

17. Dr. Byrd received and reviewed this Addendum report,

circled "BILATERAL BREAST ULTRASOUN D IS RECOMMENDED," signed and

noted "Done" on the first page of the report. Dr. Byrd did not

discuss the results of the Addendum report with Patient J.S.,

did not schedule a follow - up appointment to discuss the report,

and did not give Patient J.S. a copy of this report. Dr. Byrd

felt that it was sufficient that he intended to order an

ultrasound examination of Patient J.S.'s left breast.

18. Patient J.S. called Dr. Byrd's office and scheduled a

follow - up appointment for January 29, 2001. She believed t hat

the lump in her right breast was getting bigger.

19. Dr. Byrd saw Patient J.S. during an office visit on

January 29, 2001, at which time he did a physical examination

and an examination of her breasts. He was unable to find a lump

in her right breast , which caused him to question whether

Patient J.S. did, in fact, feel a lump. He noted that he found

cystic structures in Patient J.S.' left breast.

20. Dr. Byrd also noted in the medical record of the

January 29, 2001, office visit the plan to refer Pa tient J.S.

for another ultrasound. Dr. Byrd did not, however, order a

bilateral breast ultrasound as the radiologist recommended in

the Addendum report; rather, he ordered only an ultrasound

examination of Patient J.S.'s left breast because an ultrasound

examination of the right breast had been done on January 3,

2001, and Dr. Byrd felt that no new information would be

obtained from another ultrasound examination of Patient J.S.'s

right breast. Dr. Byrd was also concerned that Patient J.S.'s

insurance com pany might not pay for another ultrasound

examination of her right breast and that she would have to pay

for the examination.

21. Dr. Byrd did not include in the medical record of

Patient J.S.'s January 29, 2001, office visit a notation that he

performed an examination of Patient J.S.'s breasts. According

to Dr. Byrd, one can infer that he examined Patient J.S.'s

breasts from the notation on the record that he detected cystic

structures on her left breast and from the fact that

Patient J.S.'s complaint wa s noted on the medical record as pain

in her right breast. The only notation on the medical record

regarding Patient J.S.'s complaint of a lump in her right breast

was "Large mass ?". There is no mention in the medical records

of the January 29, 2001, of fice visit that Dr. Byrd discussed

with Patient J.S. the results of the mammogram, ultrasound of

the right breast, or the addendum to the mammogram.

22. Dr. Byrd did not recall Patient J.S. requesting at the

January 29, 2001, office visit a referral for a biopsy, but he

did recall that Patient J.S. was very anxious about what she

perceived as a lump in her right breast. Even though he could

not palpate a lump in the location indicated by Patient J.S., in

light of the suspicions in the report of the Januar y 3, 2001,

mammogram examination of the right breast and in the addendum to

this report, Dr. Byrd would "probably" have referred her for a

biopsy on January 29, 2001, if she had asked him to do so.

23. In Dr. Byrd's opinion, however, there was no clinical

indication in his physical examination of Patient J.S.'s breasts

on January 29, 2001, or in the reports of the mammography

examination and addendum or in the ultrasound examination of her

right breast to indicate that he should refer Patient J.S. for a

bi opsy of her right breast.

24. The ultrasound examination of Patient J.S.'s left

breast was done by Boston Diagnostic Imaging on March 7, 2001,

and the report was dictated on March 9, 2001. According to the

report, the ultrasound examination of Patient J. S.'s left breast

correlated with the results of the mammography examination and

showed multiple cystic regions in Patient J.S.'s left breast,

ranging in size from 1 mm to 3 mm. in diameter. The radiologist

noted that the cysts were benign. Dr. Byrd recei ved and

initialed the report of the March 7, 2001, ultrasound, but he

did not discuss the results of the ultrasound with Patient J.S.

25. Patient J.S. became concerned because the lump she

felt in her right breast was getting bigger, and she called

Dr. By rd's office and scheduled another office visit for

June 11, 2001. When she called to make the appointment, she

told Dr. Byrd's nurse that the lump was getting bigger.

26. Dr. Byrd did not examine Patient J.S. during the

June 11, 2001, office visit. Rath er, Patient J.S. was seen by

Dr. Byrd's physician's assistant, who noted on the medical

record of the office visit that "Pt wants referral for breast

Bx." Dr. Byrd's physician's assistant did not examine

Patient J.S.'s breasts during the June 11, 2001, of fice visit,

but Dr. Byrd, when he reviewed the physician's assistants notes

of the June 11, 2001, office visit, approved a referral to a

general surgeon for a breast biopsy.

27. Patient J.S. called Dr. Jeffrey Smith on Dr. Byrd's

referral. Dr. Smith advi sed Patient J.S. to get an updated

mammogram and ultrasound examination of her right breast.

Before she obtained these tests, however, Dr. Smith performed a

core needle biopsy of the mass in her right breast that produced

a finding that the mass was benig n.

28. Mammography and ultrasound examinations of

Patient J.S.'s right breast were performed at Boston Diagnostic

Imaging on July 13, 2001, and both the mammogram and ultrasound

indicated a mass in the upper outer quadrant of Patient J.S.'s

right breast, at the 11:00 o'clock position, that was "highly

suggestive of malignancy." The radiologist called his report in

to Dr. Smith and strongly recommended a biopsy.

29. Dr. Smith performed a lumpectomy that produced a

finding that the mass was malignant. Pat ient J.S. had a

mastectomy of her right breast, followed by chemotherapy.

Standard of Care

30. Dr. Byrd was required to practice medicine in his care

of Patient J.S. with "that level of care, skill, and treatment

which is recognized by a reasonably prude nt similar physician as

being acceptable under similar conditions and circumstances."

Based on the credited opinions of George Wilson, M.D.,

Dr. Byrd's treatment and care of Patient J.S., violated the

standard of care for the following reasons.

31. Even though a family practice physician is justified

in relying on the findings, impressions, and recommendations of

a radiologist, the standard of care applicable to family

practice physicians under the circumstances presented in this

case requires the physic ian to assess all of the information

available to him or her and to refer the patient for further

evaluation if medically indicated. Specifically, when a female

patient presents with a complaint that she has felt, or even has

possibly felt, a lump in her breast, the standard of care

requires a family practice physician to rule out a malignancy.

32. In this case, at the time of Patient J.S.'s

January 29, 2001, office visit, Dr. Byrd had available the

information that Patient J.S. believed that she had dete cted a

lump in her right breast and that she was experiencing pain in

her right breast; the report of the January 3, 2001, bilateral

mammography examination, in which the radiologist reported an

abnormality in the form of an " asymmetric 2 cm nodular densit y

located in the 12 o'clock position of the right breast

posteriorly," the general area in which Patient J.S. had

reported feeling a lump; and the Addendum report dictated on or

about January 15, 2001, in which the radiologist reported that a

comparison of the January 3, 2001, mammography examination and a

1995 mammography examination showed that the two - centimeter mass

in Patient J.S.'s right breast, as well as two "densities" in

her left breast, were either "significantly" or "slightly"

larger than they w ere in 1995.

33. Even though it was reasonable for Dr. Byrd to rely on

the recommendations of the radiologist, there were

inconsistencies in the recommendations included in the

"FINDINGS" and "IMPRESSIONS" sections of the reports, though not

in the substa ntive observations, of the radiologist's reports of

the January 3, 2001, ultrasound and mammography examinations, as

well as in the Addendum report. Dr. Byrd did not, however,

contact the radiologist to clarify any of these inconsistencies

when formulatin g his treatment plan for Patient J.S.

34. Nonetheless, the information available to Dr. Byrd in

late January 2001, taken together, was sufficient to warrant the

referral of Patient J.S. for further evaluation of her right

breast, either to a radiologist f or a mammography cone

compression view focusing on the area in which the

two centimeter mass appeared or to a general surgeon for a

biopsy of the two centimeter mass. The evidence presented

clearly and convincingly establishes that Dr. Byrd violated the

s tandard of care applicable to family practice physicians under

similar circumstances as those presented in this case because he

failed to refer Patient J.S. for further evaluation of her right

breast on the basis of her complaint and of the substantive

inf ormation included in the mammography reports.

35. Dr. Byrd's care and treatment of Patient J.S. did meet

the standard of care in the following respects, again based on

the credited testimony of Dr. Wilson: Dr. Byrd's referral of

Patient J.S. to Boston Di agnostic Imaging for bilateral

mammography and an ultrasound examination of the right breast

after her contact with his office on December 27, 2000, was

consistent with the standard of care for family practice

physicians under the circumstances. Likewise, Dr. Byrd did not

deviate from the standard of care by making this referral

without having conducted an examination of Patient J.S. and

prior to referring Patient J.S. to a general surgeon for a

biopsy. Finally, Dr. Byrd's failure to diagnose Patient J.S. as

having a malignant mass in her right breast did not constitute a

deviation from the standard of care applicable to family

practice physicians because, under the applicable standard of

care, a family practice physician is not expected to make such a

dia gnosis.

Medical Records

36. The medical record of Patient J.S.'s contact with

Dr. Byrd's office on December 27, 2001, does not meet Florida's

standards for medical records. The entry for December 27, 2000,

when Patient J.S. contacted Dr. Byrd's office c omplaining that

she felt a lump in her right breast, was included only as a note

inserted in the medical record of an office visit on

November 15, 2000. Although the note indicates that

Patient J.S. was given a prescription for a mammogram and

ultrasound, it cannot be determined from the note whether

Patient J.S. visited Dr. Byrd's office on December 27, 2000; who

she communicated with regarding her complaint; or whether she

was examined or by whom. 9

37. Although Dr. Byrd made a notation on the report of the

January 3, 2001, bilateral mammography examination issued by

Boston Diagnostic Imaging that Patient J.S. should be given a

copy of the report, there is nothing in the medical records

submitted into evidence documenting the actual transmittal of

the rep ort to Patient J.S. Similarly, although Dr. Byrd made a

notation on the second report, which was misidentified as a

report of the bilateral mammography examination, that

Patient J.S. was "aware" that she should follow - up with an

ultrasound examination in six months, there is nothing in the

medical records submitted into evidence documenting how, when,

and by whom Patient J.S. was made "aware" of the need for a

follow - up examination or any instructions that were given to

Patient J.S. for follow - up.

38. The medical record maintained by Dr. Byrd of

Patient J.S.'s office visit on January 29, 2001, does not meet

Florida's standards for medical records: Portions of the

medical record are illegible. There is no clear indication that

Dr. Byrd conducted a breast examination during that office

visit. Rather, Dr. Byrd testified that it must be inferred from

the notations in the medical record that he did an examination

of Patient J.S.'s right and left breasts. There is no

indication in the medical record of the re sults of an

examination of Patient J.S.'s right breast. The marks in the

boxes by which the results of the "Health Examination" are

recorded are sloppy; it is difficult to determine whether

Dr. Byrd examined Patient J.S.'s "chest/lungs" or "heart" or

both and whether the results were normal or abnormal; and

Dr. Byrd admittedly erroneously indicated by a checkmark that he

had examined Patient J.S.'s "genitals and anus" and that the

results were abnormal.

39. Dr. Byrd's assessment of Patient J.S.'s conditio n at

the January 29, 2001, office visit was "mastodynia," or pain in

the breast, which merely confirmed Patient J.S.'s complaint, and

there is no data in the medical record to support the

assessment. There is no indication in the medical record that

Dr. B yrd explored the possible cause of the breast pain by

questioning Patient J.S. or by examination. Finally, there is

no indication in the medical record for the January 29, 2001,

office visit that Dr. Byrd discussed with Patient J.S. the

results of the bil ateral mammography examination, of the

ultrasound examination of her right breast, or of the results of

the comparison of the 1995 and 2001 mammography examination

results.

Prior disciplinary history

40. Two previous disciplinary actions have been filed

against Dr. Byrd. In both cases, the actions were resolved

without resort to an administrative hearing. The first action

arose out of an Administrative Complaint in which Dr. Byrd was

charged with having failed to practice medicine within the

acceptable level of care; with failing to maintain appropriate

medical records; with having inappropriately prescribed

medication to a patient; and with delegating professional

responsibilities to a person not qualified to perform the

duties. A Final Order was enter ed on January 7, 1999, as a

result of a Consent Order in which Dr. Byrd neither admitted nor

denied the facts alleged in the Administrative Complaint. The

Board reduced the fine specified in the Consent Order to

$1,000.00; deleted in toto the suspension s et forth in the

Consent Order; and adopted the requirements in the Consent Order

that Dr. Byrd attend a drug course and a medical records course

and undergo a quality assurance review.

41. The second action arose out of an Administrative

Complaint in whic h Dr. Byrd was charged with having failed to

comply with the 1999 Final Order. A Final Order was entered in

the second action on December 13, 2000, as a result of a Consent

Order in which Dr. Byrd neither admitted nor denied the facts

alleged in the Admin istrative Complaint. The Board adopted the

Consent Order in toto and required Dr. Byrd to appear before the

Board and pay investigative costs in the amount of $415.96.

CONCLUSIONS OF LAW

42 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 1 20.57(1),

Florida Statutes (2005 ).

43 . Section 458.331(1), Florida Statutes, authorizes the

Board to impose penalties ranging from the issuance of a letter

of concern to revocation of a physician's license to practice

medicine in Florida if a physician commits one or more acts

specified in that section.

44 . In its Administrative Complaint , as amended, the

Department alleged that Dr. Byrd viola ted Section 458 .331(1)(m)

and (t), Florida Statutes , and it seeks to impose penalties

against Dr. Byrd that include suspension or revocation of his

license and/or the imposition of an administrative fine.

Therefore, the Department has the burden of proving by clear and

convincing evidence that Dr. Byrd committed the violations

charged in the Administrative Complaint. Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlingto n , 510 So. 2d 292 (Fla. 1987); Pou v. Department of

Insurance and Treasurer , 707 So. 2d 941 (Fla. 3d DCA 1998); and

Section 120.57(1)(j), Florida Statutes (2005)("Findings of fact

shall be based on a preponderance of the evidence, except in

penal or licens ure disciplinary proceedings or except as

otherwise provided by statute.").

45. " C lear and convincing" evidence was de fined by the

court in Evans Packing Co. v. Department of Agriculture and

Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

1989) , as follows:

. . . [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 evidence 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

the firm belief or conviction, without

hesitancy, as to the truth of the

allegations sought to be established.

Slomowitz v. Wal ker , 429 So. 2d 797, 800

(Fla. 4th DCA 1983).

See also In re Graziano , 696 So. 2d 744 (Fla. 1997); In re

Davey , 645 So. 2d 398 (Fla. 1994); and Walker v. Florida

Department of Business and Professional Regulation , 705 So. 2d

652 (Fla. 5th DCA 1998)(Sharp, J., dissenting).

A. Section 458.331(1)(t), Florida Statutes; Standard of Care.

46. In Count I of the Administrative Complaint , the

Department alleged that Dr. Byrd is subject to discipline

because he violated Section 458.331(1)(t), Florida Statutes ,

w hich provides that discipline may be imposed for, among other

things, "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 circumstances. "

47 . The Department alleged in paragraph 21 of the

Administrative Complaint that Dr. Byrd violated the standard of

care "by one or more of the following":

(a) Failing to adequately assess

Patient J.S.'s complaint;

(b) Failing to acc urately diagnose

Patient J.S.'s condition;

(c) Failing to refer Patient J.S. to a

surgeon for treatment when sufficient

clinical evidence warranted it.

48 . The Department has proven by clear and convincing

evidence that Dr. Byrd violated the standard o f care as alleged

paragraph 21(c) of the Administrative Complaint. The Department

has failed, however, to establish that Dr. Byrd violated the

standard of care as alleged in paragraph 21(a) and (b) of the

Administrative Complaint.

B. Section 458.331(1)( m), Florida Statutes; Medical Records

49. In Count II of the Administrative Complaint , the

Department alleged that Dr. Byrd is subject to discipline

because he violated Section 458.331(1)(m ), Florida Statutes ,

which provides that discipline may be impose d for the following

offense:

Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

50. The Department has adopted Florida Administrative Code

Rule 64B8 - 9.003, which defines "Standards for Adequacy of

Medical Records." Rule 64B8 - 9.003 provides in pertinent part:

(1) Medical records are maintained for the

following purposes:

(a) To serve as a basis for planning

patient care and for continuity in the

evaluation of the pa tient's condition and

treatment.

(b) To furnish documentar y evidence of the

course of the patient's medical evaluation,

treatment, and change in condition.

(c) To document communication between the

practitioner responsible for the patient and

any other health care professional who

contributes to the patient's c are.

(d) To assist in protecting the legal

interest of the patient, the hospital, and

the practitioner responsible for the

patient.

(2) A licensed physician shall maintain

patient medical records in English, in a

legible manner and with sufficient deta il to

clearly demonstrate why the course of

treatment was undertaken or why an

apparently indicated course of treatment was

not undertaken.

(3) The medical record shall contain

sufficient information to identify the

patient, support the diagnosis, justif y the

treatment and document the course and

results of treatment accurately, by

including, at a minimum, patient histories;

examination results; test results; records

of drugs prescribed, dispensed, or

administered; reports of consultations and

hospitaliza tions; and copies of records or

reports or other documentation obtained from

other health care practitioners at the

request of the physician and relied upon by

the physician in determining the appropriate

treatment of the patient.

51. The Department alle ged in paragraph 25 of the

Administrative Complaint that Dr. Byrd

failed to keep written medical records

justifying the course of treatment of

Patient J.S. in that Respondent failed to

clearly document either historical

information or the findings of physi cal

examination. Even though Respondent kept

records of Patient J.S.'s office visits, the

records are insufficient to allow a

reviewing clinician to reconstruct clinical

findings, any conversations which may have

been had with the patient, instruction to

the patient, or other information which

would make assessment of the patient's

clinical course possible.

52. Based on the findings of fact herein, the Department

has proven by clear and convincing evidence that Dr. Byrd failed

to keep adequate medical re cords in violation of Section

458.331(1)(m), Florida Statutes.

C. Penalty

53 . In determining the appropriate penalty to recommend to

the Board in this case, it is necessary to consult the Bo ard's

disciplinary guidelines, which impose restrictions and

li mitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

54 . The Board's guidelines are set forth in Florida

Administrative Code Rule 64B8 - 8.001, which provides in pertinent

part:

(1) Purpose. Pursuant to Section 456.079,

F.S., the Board provides within this rule

disciplinary guidelines which shall be

imposed upon applicants or licensees whom it

regulates under Chapter 458, F.S. The

purpose of this rule is to notify applicants

and licensees of the ranges of penalties

which will routinely be imposed unless the

Board finds it necessary to deviate from the

guidelines for the stated reasons given

within this rule. The ranges of penalties

provided below are based upon a single count

violation of each provision listed; multiple

counts of the violated provisions or a

combination of the violations may result in

a higher penalty than that for a single,

isolated violation. Each range includes the

lowest and highest penalty and all penalties

falling between. The purposes of the

imposition of discipline are to punish the

applicants or licensees for violations and

to deter them from future violations; to

offer opportunities for rehabilitation, when

appropriate; and to deter other applicants

or licensees from violations.

(2) Violations and Range of Penalties. In

imposing discipline upon applicants and

licensees, in proceedings pursuant to

Section 120.57( 1) and 120.57(2), F.S., the

Board shall act in accordance with the

following disciplinary guidelines and shall

impose a penalty within the range

corresponding to the violations set forth

below. The verbal identification of

offenses are descriptive only; t he full

language of each statutory provision cited

must be consulted in order to determine the

conduct included.

55 . Florida Administrative Code Rule 64B8 - 8.001(2), goes

on to provide, in pertinent part, the following penalty

guidelines for the violation s proved in this case:

a. For a violation of Section 458.331(1)(m), Florida

Statutes, a range of relevant penalties from a reprimand to two

years’ suspension followed by probation, and an administrative

fine from $1,000.00 to $10,000.00; and

b. For a vio lation of Section 458.331(1)(t), Florida

Statutes, a range of relevant penalties from two years’

probation to revocation, and an administrative fine from

$1,000.00 to $10,000.00.

56 . Florida Administrative Code Rule 64B8 - 8.001(3)

provides that, in applyin g the penalty guidelines, the following

aggravating and mitigating circumstances are to be taken into

account:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(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 appli cant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

* * *

(h) Any other relevant mitigating

factors.

57 . In its Proposed Recommended Order, the Department has

suggested that the Board issue a reprimand; impose a $20,000.00

fine; suspend Dr. Byrd's license to practice medicine for one

year followed by probation for two years; and require 250 hours

of community servic e within three years of entry of the Final

Order.

58 . Having carefully considered the facts of this matter

in light of the provisions of Florida Administrative Code Rule

64B8 - 8.001 and the penalties requested by the Department , it is

recommended that the Board issue a reprimand to Dr. Byrd; impose

a fine of $ 1 2,000.00, $10,000.00 for the violation of

Section 458.331(1)(t), Florida Statutes, and $2,000.00 for the

violation of Section 458.331(1)(m), Florida Statutes; place

Dr. Byrd on probation for a period of two years under such terms

and conditions as the Board shall deem appropriate; and require

Dr. Byrd to complete a medical records course approved by the

Board. The violations proven do not support suspension of

Dr. Byrd's license; the Department has no t explained why

Dr. Byrd should be required to perform 250 hours of community

service, and the facts do not support such discipline.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medici ne enter a final

order finding the Bill Byrd, M.D., is guilty of having violated

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

1. Issuing a reprimand to Dr. Byrd;

2. Imposing an administrative fine in the amount of

$12,000.00;

3. Placing Dr. Byrd on probation for a period of two years

under such terms and conditions as the Board shall deem

appropriate; and

4. Requiring Dr. Byrd to complete a medical records course

approved by the Board.

DONE AND ENTERED this 9 th day of June, 2006 , in

Tallahassee, Leon County, Florida.

S

___________________________________

PATRICIA M. HART

Administrative Law Judge

Divisio n of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9 th day of June , 200 6 .

ENDNOTES

1 / All references to Florida Statutes herein are to the 2000

edition unless otherwise indicated.

2 / There is a direct conflict between the testimony of

Patient J.S. an d of Dr. Byrd regarding the matter of the events

of December 27, 2000. Patient J.S. testified that she had an

appointment for an office visit, that she was seen by Dr. Byrd

on that date, that she told Dr. Byrd she felt a lump in her

right breast, that she requested a biopsy, that Dr. Byrd did not

perform an examination of her breasts, and that Dr. Byrd did not

respond to her request for a biopsy but, rather, recommended a

mammogram and ultrasound. Dr. Byrd testified that he did not

see Patient J.S. in his office on December 27, 2000, or have a

conversation with her because, if he had, he would have followed

his normal practice and filled out a separate "encounter form"

documenting the conversation or visit. Having considered all of

the testimony of Patien t J.S. and of Dr. Byrd and the

documentary evidence submitted, it is concluded that Dr. Byrd's

testimony is more persuasive on this point than that of

Patient J.S.

3 / A mammogram is essentially an X - ray of the breast tissue; an

ultrasound uses sound wave s to detect differentials in tissue

density, that is, to differentiate liquid - filled areas such as

cysts from normal breast tissue.

4 / See Joint Exhibit 2a at pages 98 - 99; Joint Exhibit 1a at

pages 35 and 36. Although the ultrasound portion of t h is repo rt

was mistakenly included, s ee infra endnote s 5 and 7, this report

was apparently the complete report of the January 3, 2001,

bilateral mammography examination.

5 / See Joint Exhibit 2a at page 96 for page 1 of the second

report and Joint Exhibit 1a at p age 34 for page 2 of the second

report.

6 / A cone compression view is a type of mammogram in which a

particular area of the breast is magnified and is the focus of

the study.

7 / See Joint Exhibit 1a at page 31 for page 1 of the corrected

copy of the se cond report and Joint Exhibit 1a at page 34 for

page 2 of the corrected copy of the second report. It is noted

that the undersigned determined that page 34 of Joint Exhibit 1a

reflects the radiologist's impressions of the ultrasound

examination of Patient J.S.'s right breast done on January 3,

2001. Dr. Wilson, the Department's expert witness, testified

that page 32 of Joint Exhibit 1a was the second page of the

corrected copy of the second report, but this page is actually

the second page of a fourth rep ort, the Addendum to the

bilateral mammography report. See Joint Exhibit 1b at pages

243 - 44. Page 34 of Joint Exhibit 1a, the second page of the

second report, includes impressions that appear to relate to the

ultrasound examination of Patient J.S.'s rig ht breast, and

Dr. Wilson testified that the corrected copy of the second

report was identical to the second report except for the

heading, technique, and comparison sections. If page 32 of

Joint Exhibit 1a were the second page of the corrected copy of

th e second report, the report would not contain the impressions

of the radiologist and would, therefore, be incomplete.

8 / See Joint Exhibit 1b at pages 243 - 44.

9 / The lack of documentation of Patient J.S.'s December 27,

2000, office visit resulted in to tally inconsistent

recollections of Patient J.S.'s contact with Dr. Byrd's office.

Patient J.S. testified that she had an appointment with

Dr. Byrd; was seen by Dr. Byrd, who did not examine her right

breast; and requested that Dr. Byrd refer her for a bi opsy but

received no response. Dr. Byrd, on the other hand, testified

that Patient J.S. never asked him for a biopsy because he would

have immediately referred her to a general surgeon had she asked

and that he did not see or communicate with Patient J.S. on

December 27, 2000, because, if he had, he would have completed a

new "office encounter" record rather than just writing a

prescription for a mammogram and an ultrasound. Although the

undersigned ultimately found Dr. Byrd's testimony more credible

on t hese points than that of Patient J.S., any confusion would

have been eliminated on these crucial points by an accurate and

complete medical record documenting the contact.

COPIES FURNISHED :

Lynne A. Quimby - Pennock, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Michael R. D’Lugo, Esquire

Wicker, Smith, O’Hara, McCoy,

Graham & Ford, P.A.

Post Office Box 2753

Orlando, Florida 32802 - 2753

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

Ta llahassee, Florida 32399 - 1701

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C03

Tallahassee, Florida 32399 - 1701

Dr. M. Rony Francois, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

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 agen cy that

will issue the final order in this case .