06-002094PL Department Of Health, Board Of Medicine vs. Arnaldo Carmouze, P.A. Status: Closed Recommended Order on Wednesday, December 13, 2006.

Summary: Respondent failed to include his mane and title (physician`s assistant) and his supervising physician`s name and title in the medical records. He also practiced without direct or indirect supervision.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2094 PL

)

ARNALDO CARMOUZE, P.A ., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

before Larry J. Sartin, an Administrative Law Judge of the

Division of Administrative Hearings, on October 4, 2006, in

Miami, Florida, and on October 11, 2006, by video teleconference

between Laude rdale Lakes and Tallahassee, Florida.

APPEARANCES

For Petitioner: Irving Levine

Matthew Casey

Assistant s General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Julie Gallagher , Esquire

Greenberg Taurig, P.A.

101 East College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE S

The issue in this case is whether Respondent, Arnaldo

Carmouze, P.A., committed violations of Chapter 458, Florida

Statutes (2001) , alleged in an Administrative Complaint filed

with Petitioner on February 25, 2004, in DOH Case Number 2002 -

16502, as amended; and, if so, what disciplinary action should

be taken against his license to practice as a physician

assistant in Florida.

PRELIMINARY STATEMENT

On or about February 25, 200 4 , an Administrative Complaint

was filed with Petitioner Department of Health against

Respondent Arnaldo Carmouze, P.A. , an individual licensed to

practice as a physician assistant in Florida, in which it i s

alleged that Mr. Carmouze committed violations of S ubs ection s

458.331(1) (m), (t) , (v), and (nn) , Florida Statutes (200 1 ) (All

references to Florida Statu t es and the Florida Administrative

Code are to the 2001 versions, unless otherwise indicated).

Respond ent , through a Notice of Appearance and Election of

Rights filed on his behalf by counsel, disputed the allegations

of fact contained in the Admini strative Complaint, expressed

interest in attempting to resolve the dispute, and, upon failure

of those effor ts, a formal administrative hearing.

On June 15 , 200 6 , the matter was filed with the Division of

Administrative Hearings with a request that an administrative

law judge be assigned to conduct proceedings pursuant to Section

120.57(1), Florida Statutes (200 6 ). The matter was designated

DOAH Case Num ber 06 - 2094 PL and was assigned to Administrative

Law Judge Charles C. Adams. The case was subsequently

transferred to the undersigned .

The final hearing was scheduled to be held on October 4 and

5 , 2006 , by Noti ce of Hearing entered July 5 , 2006 .

On September 21, 2006, a Joint Pre - Hearing Stipulation was

filed by the parties containing certain stipulated facts. Those

facts have been included in this Recommended Order.

On September 25, 2006, Petitioner's Motion t o Amend the

Administrative Complaint was filed. Petitioner sought to amend

the Administrative Complaint by substituting the initials of

patient "G.S." contained in the Administrative Complaint with

"G.C." in the Amended Administrative Complaint. Petition er also

requested that paragraph 95 be amended by substituting "Rule

64B8 - 30.012, F.A.C." for "Rule 64B8 - 30.009, F.A.C.", and "Rule

64B8 - 12(2)(a)2, F.A.C." for "Rule 64B8 - 30.009(2)(a)2, F.A.C.."

The Motion to Amend was considered during a motion hearing

c onducted by telephone on October 3, 2006, was granted , and was

memorialized at the commencement of the final hearing on

October 4 , 2006 .

Petitioner's Motion for Official Recognition and

Respondent's Motion for Official Recognition were also

considered duri ng the October 3, 2006, telephone motion hearing.

Both were granted during the telephone motion hearing and

subsequently memorialized at the commencement of the final

hearing.

Petitioner's Motion to Impose Sanctions, to which a

response had been filed by Respondent, was also considered

during the telephone motion hearing. Petitioner sought in its

Motion to prohibit Respondent from testifying in this matter and

to exclude the opinion testimony of any expert witnesses offered

by Respondent based upon statem ents, documents, facts, or other

evi dence obtained from Mr. Carmouze. The question of whether

Mr. Carmouze should be prohibited from testifying was determined

to be moot, based upon rep resentations of counsel for

Mr. Carmouze that he would not testify at the final hearing. As

to the exclusion of expert opinions, a ruling was reserved until

appropriate objections were made during the hearing to specific

testimony .

At the final hearing conducted on October 4 , 2006,

Petitioner offered six E xhibits, which wer e admitted.

Petitioner's E xhibit numbered 1 is a transcript of the

deposition testimony of James L. Cary, P.A. - C, MHA , who is

accepted as an expert witness . Mr. Cary's deposition was taken,

not by Petitioner, but by Respondent. Respondent presented the

testimony of Manuel Fernandez - Gonzalez, M.D. (accepted as an

expert in emergency medicine); and Julio Lora, M.D. (accepted as

an expert in cardiology and internal medicine). Respondent had

admitted three E xhibits.

The final hearing was continued to Octobe r 11, 2006, due to

the unavailability of Respondent's final witness. That witness,

Harry W. Lee, M.D. (accepted as an expert in emergency

medicine) , appeared by video t eleconferencing. Petitioner's

E xhibit number 4 was admitted at this portion of the fin al

hearing.

The t hree - volume Transcript of the final hearing was filed

on October 30 , 2006. By Notice of Filing Transcript entered

October 31 , 2006, the parties were informed that the Transcript

had been filed and that their proposed recommended orders we re

to be filed on or before November 9 , 2006. The date for filing

proposed recommended orders was extended to November 17 , 2006,

at the request of Respondent.

Both parties filed Proposed Recommended O rders on

November 17 , 2006. The proposed orders of bot h parties have

been fully considered in rendering this Recommended Order.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Health (hereinafter

referred to as the "Department"), is the agency of the State of

Florida charged with the respo nsibility for the investigation

and prosecution of complaints involving physicians and

physician ’s assistants licensed to practice medicine in Florida.

§ 20.43 and Chs. 456 and 458, Fla. Stat.

2. Respondent, Arnaldo Carmouze, P.A., is, and was at the

tim es mater ial to this matter, a physician's assistant licensed

to practice in Florida, having been issued license number PA

9100713.

3. Mr. Carmouze's address of record at all times relevant

to this matter is 6545 Southwest 95th Avenue, Miami, Florida

33173 .

4 . No evidence that Mr. Carmouze has previously been the

subject of a license disciplinary proceeding was offered.

B. Mr. Carmouze's Supervising Physician .

5. At the times relevant Mr. Carmouze worked under the

supervision of Dr. Manuel Fernandez - Gonz alez , a physician

licensed to practice medicine in Florida.

6. Dr. Fernandez - Gonzalez , who has practiced emergency

medicine , holds Florida medical license number ME 17907.

7. Dr. Fernandez - Gonzalez currently practices family

medicine at 9600 Southwest 8t h Street, Miami, Florida.

8 . Prior to April 2002, Dr. Fernandez - Gonzalez a nd

Mr. Carmouze worked together in Miami, providing emergency room

care and seeing patients at a nursing home. The emergency room

services were provided pursuant to employment cont ract s that

both had entered into with a company providing emergency room

services at the hospital in south Florida where Dr. Fernandez -

Gonzalez and Mr. Carmouze provided services.

C. Mr. Carmouze's Assignment to Weems Memorial Hospital .

9 . The company fo r which Mr. Carmouze was employed also

provided emergency room services for Weems Memorial Hospital

(hereinafter referred to as "Weems").

10 . Weems is located in Apalachicola, Florida, located in

the Florida Panhandle, approximately 520 miles from Miami.

11 . Weems is a rural hospital, licensed under Chapter 395,

Florida Statutes. It does not have 24 - hour , on - site ancillary

services such as X - ray, laboratory, and respiratory therapy.

These services are available to the emergency room on an on - call

basis after business hours.

1 2 . At the times relevant, Malvinder Ajit, M.D., a Florida

licensed physician, was the Director of the Emergency Department

at Weems. Dr. Ajit has not provided any documentation to the

Department indicating that he has ever acted as supervising

physician of record for Mr. Carmouze.

1 3 . Mr. Carmouze was assigned by the company by which he

was employed to work in the emergency room at Weems in April

2002 and again in June 2002 . He worked in the emergency room at

Weems as a physician' s assistant for part of April 2002 , and

part of June 2002. While at Weems, Mr. Carmouze provided

emergency room medical services to more than 100 patients.

14. While working at Weems, Dr. Fernandez - Gonzalez , who

remained in Miami, con tinued to act as Mr. Carmouze's

supervising physician.

1 5 . Mr. Carmouze did not notify the Department that he was

practicing as a physician's assistant at Weems in April or June

2002. The evidence, however, failed to prove that Mr. Carmouze

was working for, and thus "employ ed," by anyone different from

the employer that he worked for in Miami. The only evidence on

this issue proved that Mr. Carmouze continued throughout the

relevant period to work for Dr. Fernandez - Gonzalez and the

company that provided emergency room servi ces at Weems.

D. Dr. Carmouze's Treatment of Patient A.M.

16 . On June 7, 2002, Patient A.M., an 84 - year - old female,

was brought to the emergency room (hereinafter referred to as

the "ER"), at Weems by ambulance. She arrived at approximately

23:24 hours (11:24 p.m.).

17 . A.M. 's medical history included congestive heart

failure, coronary artery disease, and atrial fibrillation. She

presented to Mr. Carmouze in apparent respiratory distress

(respiratory rate of 36 to 40) , had no measurable blood

pressure, and a pulse rate of 100 to 108.

18 . While being transported to the ER from her home, A.M.

was given oxygen by rebreather mask. During her transport, her

oxygen saturation level improved from 68% to 91%.

19 . Mr. Carmouze assessed A.M.'s condition, obtai ned her

medical history, ordered lab work and other tests, and ordered

and initiated nebulizer treatments for her. She was alert,

oriented and had a Glasgow score of 15/15, indicating she was

responding to verbal and pain stimuli.

20 . Mr. Carmouze ordere d nebulizer treatments with

albuterol and atrovent to assist her breathing. Additionally,

A.M. received 100% oxygen through a nonrebreather mask.

21 . Mr. Carmouze also determined that A.M. was "dry,"

meaning that her fluid volume was depleted and, theref ore, she

was dehydrated. As a result, her blood pressure was low. In an

effort to treat this condition, Mr. Carmouze ordered an I.V.

with 0.9 normal saline. He also ordered a Dopamine drip to

increase A.M.'s heart rate in an effort to increase her blood

pressure.

22 . Mr. Carmouze appropriately denied a request from a

nurse to administer Lasix to A.M., because A.M. was "dry."

Lasix is a diuretic used to dec r ease fluid volume. It opens the

arteries and reduces fluids, thereby lowering blood pressure.

L asix was contraindicated for A.M. and contrary to the

appropriate efforts initiated by Mr. Carmouze to treat A.M.'s

low blood pressure.

23 . Despite Mr. Carmouze's treatment of A.M., her

condition continued to deteriorate.

24 . At or near 23:50 hours (11:5 0 p.m.), approximately

25 minutes after A.M. had arrived at the ER, an ER nurse

contacted A.M.'s primary physician by telephone and obtained an

order to administer Lasix to A.M. The Lasix was administered

immediately. A.M.'s oxygen saturation level was 8 1%, down 10

points since her arrival, when the Lasix was administered.

Within half an hour, at 0:18 hours (18 minutes after midnight)

on June 8, 2002, A.M.'s oxygen saturation level had dropped

another 10 points, to 71%. A.M. then "crashed and coded."

25 . Mr. Carmouze initiated appropriate emergency measures

when A.M. coded, including initiating Cardio Pulmonary

Recitation and endotracheal intubation . A.M. was given

epinephrine, atropine, and a CVP line was placed. These actions

by Mr. Carmouze were ap propriate.

26 . Mr. Carmouze did not attempt or order that A.M. be

intubated prior to 0:18 hours when she coded.

27 . A.M.'s primary physician , Dr. Sanaullah, arrived at

the ER . Shortly after she coded, Dr. Sanaullah continued the

same efforts initiated b y Mr. Carmouze. A.M ., however, did not

recover, expiring at 01:00.

E. T he "Standard of Care" for Treating A.M.

28 . Four expert witnesses testified in this matter,

rendering opinions as to whether Mr. Carmouze's treatment of

A.M. was consistent with " tha t level of care, skill, and

treatment which is recognized by a reasonably prudent similar

[ physician assistant] as being acceptable under similar

conditions and circumstances. . . " (hereinafter referred to as

the " Standard of Care"). The expert witnesses who testified

were Dr. Fernandez - Gonzalez , Dr. Julio Lora, Dr. Harry W. Lee,

and James L. Cary, P.A.

29 . Dr. Fernandez - Gonzale z's testimony as to whether

Mr. Carmouze treated A.M. within the Standard of Care is

rejected for lack of credibility. Dr. Fern andez - Gonzalez's

testimony has been found to lack credibility for the reasons

explained by Petitioner in paragraph 25 of Petitioner's Proposed

Recommended Order. That paragraph , except for the last two

sentences, is hereby adopted. Additionally, Dr. Fern andez -

Gonzalez's testimony is rejected because, in the undersigned's

judgment, he made too much of an effort to give the answers that

he appeared to conclude that Mr. Carmouze wanted him to give.

30 . The testimony of Dr. Lora on the other hand is found

to be credible . Dr. Lora, testifying as an expert in cardiology

and internal medicine, offered convincing explanations as to why

Mr . Carmouze did not violate the Standard of Care in his overall

treatment of A.M. and, in particular, in not attempting to

intu bate A.M. earlier than he did. Dr. Lee's testimony, while

corroborating Dr. Lora's testimony, was cumulative and of little

weight.

31 . A.M. was reported to be awake, alert, and oriented.

She was breathing, albeit with difficulty, on her own.

Therefore, it was appropriate for Mr. Carmouze to attempt the

other measures to assist her breathing he instituted.

32 . Mr. Cary's testimony, while credible, was not

convincing, especially given Dr. Lora's expert opinions.

Mr. Cary's testimony was taken during a d iscovery deposition by

Respondent and, as a result, the benefit of his testimony to

Petitioner's case was limited.

33. The evidence failed to prove that Mr. Carmouze

violated the standard of care :

a. In his treatment of A.M.;

b. B y failing "to contact h is supervising physician, the

ED director, and/or Patient A.M.'s primary physician for

assistance in treating Patient A.M.";

c. By failing "to identify a treatment plan for Patient

A.M."; and

d. By failing "to consult his supervising physician prior

to o rdering Demerol, a controlled substance, for Patients C.M.,

J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W., M.A.C., R.S.,

and K.M. "

F . Mr. Carmouze's Treatment Plan and Medical Records for

Patient A.M.

34 . Mr. Carmouze, as the Department has conceded in

Petitioner's Proposed Recommended Orde r, paragraph 13, p age 20,

did i dentify a treatment plan for Patient A.M.

3 5 . Having found that Mr. Carmouze did not err when he did

not initiate intubation of A.M. earlier than he did, the

evidence failed to prove tha t "he failed to maintain medical

records that justified the course of treatment in that he failed

to record a reason for not intubating sooner in an attempt to

address Patient A.M.'s respiratory distress."

3 6 . There is no indication in Mr. Carmouze's medi cal

records for A.M. that Mr. Carmouze attempte d to contact Dr. Ajit

or Dr. Fernandez - Gonzalez . The medical records do indicate,

however, that A.M.'s primary physician , Dr. Sanaullah, was

"notified and arrived for code." While the evidence did not

prove who notified Dr. Sanaullah, Petitioner failed to prove

that Mr. Carmouze was not responsible for Dr. Sanaullah's

notification.

3 7 . Mr. Carmouze failed to identify himself by name or

professional ti tle in A.M.'s medical records. He also failed to

include Dr. Fernandez - Gonzalez's name and title in A.M.'s

medical records.

3 8 . Mr. Carmouze did not ensure that either the signature

of his supervising physician or Dr. Ajit was included on A.M.'s

medical records .

3 9 . While the quality of Mr. Carmouze's medical records

for A.M. was correctly characterized as "minimally acceptable"

by Mr. Cary, the evidence failed to prove clearly an d

convincingly that those medical records were not adequate. This

finding is based upon the lack of an unequivocal opinion from

Mr. Cary concerning the adeq uacy of the medical records and a

comparison of Mr. Cary's opinions with those of Dr. Lee in

support of Mr. Carmouze's medical records for Patient A.M .

40 . Mr. Cary, on the one hand, made the following negative

comments about Mr. C armouze's medical records for A.M:

a. "[T]he record isn't really clear on what did happen

because he did not write down any times on intervention of what

he did." Petitioner's E xhibit number ed 1, p age 14;

b. "[W]hen you look at this face sheet here you don't get

a picture of what happened and at what time, there's no real

times there, no progression of the treatment." Pe titioner's

Exhibit numbered 1, p age 67.

c. Mr. Cary stated that there was no time noted in Patient

A.M.'s history/physical section, an d that a portion of that

sectio n was illegible. Petitioner's E xhibit number ed 1, p age 21

and 25.

4 1 . On the other hand, Mr. Cary stated that "[the medical

record for A.M.] is minimally acceptable, it just doesn't give a

good clear picture of the sequenc e of events." Petitioner's

E xhibit number ed 1, p age 68. Mr. Cary also stated the following

when asked if he thought Mr. Carmouze maintained medical records

that justified the course of his treatment regarding Patient

A.M.: "There were medical records tha t were there, I think they

could have been more complete and more detailed . . . ." These

statements, taking into account the fact tha t Mr. Cary was able

to read almost all of M r. Carmouze's medical record pertaining

to A.M. on direct examination by couns el for Mr. Carmouze ,

reduce s the effectiveness of his other opinions .

4 2 . Finally, it is noted that all of Mr. Carmouze's

experts, along with Mr. Cary, were ab le to read Mr. Carmouze's

notes, other than a word or two.

G . Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B.,

K.S., C.W., M.A.C., R.S., and K.M.

Patient C.M.

4 3 . On Apr il 23, 2002, Patient C.M., a 20 - year - old male

presented to Mr. Carmouze at Weems' ER. C.M. complained of a

server headache. In pertinent part, Mr. Carmouze ordered 50

milligrams of Demerol and 50 milligrams of Vistaril.

Patient J.S.

4 4 . On Apr il 24, 2002, Patient J.S., a 37 - year - old female

presented to Mr. Carmouze at Weems' ER. J.S. complained of a

burn. In pertinent part, Mr. Carmouze ordered 50 milligrams of

Demerol and 50 milligrams of Vistaril.

Patient B.M.

4 5 . On Apr il 24, 2002, Patient B.M., a 46 - year - old female,

presented to Mr. Carmouze at Weems ' ER. B.M. complained of a

headache of two - days' duration. In pertinent part, Mr. Carmouze

ordered 25 milligrams of Demerol administered to B.M. at the ER.

4 6 . Mr. Carmouze noted in the medical record for B.M. a

diagnosis of sc abies/headache cluster, severe. This is the only

diagnosis made at Weems' ER for B.M.

Patient R.M.

4 7 . On Apr il 24, 2002, Patient R.M., a 73 - year - old male,

presented to Mr. Carmouze at Weems ' ER. R.M. complained of

abdominal pain and constipation of several days ’ duration. In

patient part, Mr. Carmouze ordered 50 milligrams of Demerol and

50 milligrams of Vistaril administered to R.M. at the ER.

4 8 . Mr. Carmouze noted in the medical record for R.M. a

diagnosis of abdominal pain, impaction. This is the only

diagnosis made at Weems' ER for R.M.

Patient M.F.

4 9 . On Apr il 25, 2002, Patient M.F., a 34 - year - old female,

presented to Mr. Carmouze at Weems ' ER. M.F. complained of

left - flank pain. In relevant part, Mr. Carmouze ordered 50

milligrams of Demerol and 50 milligrams of Vistaril administered

to M.F. at the ER.

50 . Mr. Carmouze noted in the medical record for M.F. a

diagnosis of left - flank pain, left nephrolithiasis.

Patient G.C.

5 1 . On J une 7, 2002, Patient G.C., a 20 - year - old male,

presented to Mr. Carmouze at Weems' ER. G.C. complained of

right - flank pain. In relevant part, Mr. Carmouze ordered two

separate doses of Demerol, 50 milligrams e ach, and Vistaril ,

50 milligrams each .

Patient G.B.

5 2 . On Ju ne 7, 2002, Patient G.B., an 83 - year - old female,

presented to Mr. Carmouze at Weems' ER. G.B. complained of

wrist, knee, and leg pain, secondary to a fall. In relevant

part, Mr. Carmouze order ed tw o separate doses of Demerol,

50 milligrams each, and Vistaril, 50 milligrams each.

5 3 . Mr. Carmouze noted in the medical record for G.B. a

diagnosis of chest contusion, leg edema, and right Colles'

fracture. This is the only diagnosis made at Weems' ER for G.B.

Patient K.S.

5 4 . On Ju ne 8, 2002, Patient K.S., an 18 - year - old female,

presented to Mr. Carmouze at Weems' ER. K.S. complained of

lower back pain secondary to a fall. In relevant part,

Mr. Carmouze ordered Demerol, 50 milligrams, and Vista ril,

50 milligrams.

5 5 . Mr. Carmouze noted in the medical record for K.S. a

diagnosis of intractable back pain, trauma to spine. This is

the only diagnosis made at Weems' ER for K.S.

Patient C.W.

5 6 . On June 8, 2002, Patient C.W., a 46 - year - old female,

presented to Mr. Carmouze at Weems' ER. C.W. complained of

headache and dizziness. In relevant part, Mr. Carmouze ordered

Demerol, 50 milligrams, and Vistaril, 50 milligrams.

5 7 . Mr. Carmouze noted in the medical record for C.W. a

diagnosis of headache and anemia. This is the only diagnosis

made at Weems' ER for C.W.

Patient M.A.C.

5 8 . On Jun e 9, 2002, Patient M.A.C., a 49 - year - old female,

presented to Mr. Carmouze at Weems' ER. M.A.C. complained of

pain in the lower right abdomen and back. In releva nt p art,

Mr. Carmouze ordered Demerol, 50 milligrams, and Vistaril,

50 milligrams.

5 9 . Mr. Carmouze noted in the medical record for M.A.C. a

diagnosis of diabetes mellitus and abdominal pain. This is the

only diagnosis made at Weems' ER for M.A.C.

Patien t R.S.

60 . On June 9, 20 02, Patient R.S., a 34 - year - old male,

presented to Mr. Carmouze at Weems' ER. R.S. complained of

shoulder pain. In relevant part, Mr. Carmouze ordered Demerol,

50 milligrams, and Vistaril, 50 milligrams.

6 1 . Mr. Carmouze noted i n the medical record for R.S. a

diagnosis of right shoulder tendon tear. This is the only

diagnosis made at Weems' ER for R.S.

Patient K.M.

6 2 . On Ju ne 11, 2002, Patient K.M., a 52 - year - old male,

presented to Mr. Carmouze at Weems' ER. R.S. complained o f

wrist pain secondary to a fall. In relevant part, Mr. Carmouze

ordered Demerol, 50 milligrams, and Vistaril, 50 milligrams.

6 3 . Mr. Carmouze noted in the medical record for K.M. a

diagnosis of a Colles' fracture. This is the only diagnosis

made at Wee ms' ER for K.S.

Facts Common to Patients C.M., J.S., B.M., R.M., M.F.,

G.C., G.B., K.S., C.W., M.A.C., R.S., and K.M.

6 4 . Mr. Carmouze did not note in his medical records for

Patients C.M., J.S., B.M., R.M., M.F., G.C., G.B., K.S., C.W.,

M.A.C., R.S., and K.M. (hereinafter referred to jointly as the

" Pain Patients "), that he had consulted with Dr. Fernandez -

Gonzalez or Dr. Ajit prior to order ing Demerol for the Pain

Patients. Demerol is a controlled substance.

6 5 . Dr. Fernandez - Gonzalez ' testimony regar ding alleged

consultations he had with Mr. Carmouze concerning the Pain

Patients and other patients seen by Mr. Carmouze while at Weems

is re jected as lacking credibility for the reasons explained,

supra .

6 6 . Mr. Carmouze also failed to note in the medica l

records for the Pain Patients his name and professional title.

His name was stamped on the Emergency Room Record he completed

for Patients M.A.C., G.M., and R.S. His name was also written

into the space under "Time/Initials" on the Emergency Room

Recor d for Patients M.A.C., C.W., R.M., and J.S. None of these

records, however, included his title of "physician assistant."

6 7 . Mr. Carmouze f a iled to identify Dr. Fernandez - Gonzalez

or Dr. Ajit by name and professional title in the medical

records of the P ain Patients.

6 8 . Mr. Carmouze failed to ensure that the signature of

Dr. Fernandez - Gonzalez or Dr. Ajit was included in the medical

records of the Pain Patients.

H. The Other "106 Patients" .

6 9 . While at Weems ER, Mr. Carmouze provided medical

services , in addition to A.M. and Pain Patien t s, to 106 other

patients at issue in this case (hereinafter referred to as the

"106 Patients"). Petitioner's E xhibit numbered 4 is a composite

exhibit of medical records for the 106 Patients. There are

approximately two patients for whom more than one medical record

has been included in Petitioner's E xhibit numbered 4. The

foregoing findings relate to the 108 medical records for the 106

Patients.

70 . Mr. Carmouze failed to note in most of the medical

records for the 106 Patients his name and professional title.

Of the approximately 108 records, Mr. Carmouze's name does not

appear in any fashion on 48 of them. The rest either include

his name (but not title) either stamped on the record or written

into the box title d "Time/Initials." On two of the medical

records both Mr. Ca r mouze's name and "P.A." have been written

into the box titled "Time/Initials."

7 1 . Mr. Carmouze failed to identify Dr. Fernandez - Gonzalez

or Dr. Ajit by name and professional title in the medic al

records of the 106 Patients.

7 2 . Mr. Carmouze did not ensure that either the signature

of his supervising physician or Dr. Ajit was included on the

medical records of the 106 Patients.

CONCLUSIONS OF LAW

A. Jurisdiction .

7 3 . The Division of Administ rative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569, 120.57(1), and

45 6.073(5), Florida Statutes (2006 ).

B . The Burden and Standard of Proof .

7 4 . The Department seeks to impo se penalties against

Mr. Carmouze through the Amended Administrative Complaint that

include suspension or revocation of his license and/or the

imposition of an administrative fine. Therefore, the Department

has the burden of proving the specific allegatio ns of fact that

support its charge that Mr. Carmouze violated S ubs ections

458.331(1) (m), (t) , (v), and (nn) , Florida Statutes, by clear and

convincing evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne St ern

and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v. Turlington , 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 o n a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute.").

7 5 . What constitutes "clear and convincing" evidence was

described 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

remembe red; 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. Walker , 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).

C. General Authority to Discipline Mr. Carmouze .

7 6 . Section 458.347(7)(g), Florida Statutes, provides the

following:

(g) The Board of Medicine may impos e any

of the penalties authorized under ss.

456.072 and 458.331(2) upon a physician

assistant if the physician assistant or the

supervising physician has been found guilty

of or is being investigated for any act that

constitutes a violation of this chapter or

chapter 456 .

7 7 . The Board of Medicine (hereinafter referred to as the

"Board") has alleged that Mr. Carmouze violated the provisions

of S ubs ection s 458.331(1)(m), (t), (v), and (nn), Florida

Statutes.

D . Count One: S ubs ection 458.331(1)(m), Flori da Statutes ;

Medical Records .

7 8 . In Count One of the Amended Administrative Complaint

it is alleged that Mr. Carmouze violated S ubs ection

458.331(1)(m), Florida Statutes, which defines the following

disciplinable offense:

(m) 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, supervi sing, 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 administere d; and

reports of consultations and

hospitalizations.

7 9 . In the Amended Administrative Complaint, it has been

alleged that Mr. Carmouze's medical records were inadequate in

one or more of the following ways :

a. He "failed to maintain legible medical

re cords in that Respondent's written medical

records for Patient A.M. are disorganized

and illegible. "

b. He "failed to maintain medical records that

justify the course of treatment of Patient

A.M. in that Respondent failed to identify a

treatment plan fo r Patient A.M. "

c. He "failed to identify himself by name

and/or professional title in the records of

any of the one hundred six (106) patients

treated at Weems ED during the period from

about April 2002 through June 2002, and

patients A.M., C.M., J.S., B.M., R.M., M.F.,

G.C., G.B., K.S., M.A.C., R.S., C.W., and

K.M. "

d. He "failed to identify his supervising

physician by name and professional title in

the records of any of the one hundred six

(106) patients treated at Weems ED during

the period from about April 2002 through

June 2002, and patients A.M., C.M., J.S.,

B.M., R.M., M.F., G.C., G.B., K.S., M.A.C.,

R.S., C.W., and K.M. "

80 . The evidence failed to prove clearly and convincingly

that Mr. Carmouze's medical records for A.M. were inadequate.

The evidence also failed to prove clearly and convincingly, and

the Department has conceded as much in Petitioner's Proposed

Recommended Order, that Mr. Carmouze violated S ubs ection

458.331(1)(m), Florida Statutes, by failing to include a course

of treatme nt for A.M .

8 1 . The evidence did prove, however, clearly and

convincingly that Mr. Carmouze failed to include both his name

and title in the medical records for A.M. and the Pain Patients.

The evidence also proved cl early and convincingly that

Mr. Carmou ze failed to identify any supervising physician by

name or title in the medical records of A.M., the Pain Patients,

and the 106 Patients.

8 2 . While there was testimony that it is "not customary"

to include a physician assistant's name and title or the n ame

and title of the supervising physician in hospital medical

records, S ubs ection 458.331(1)(m), Florida Statutes,

unequivocally requires that the inclusion of this information.

8 3 . The failure of Mr. Carmouze to include his name and

title in the medical records for A.M. and the Pain Patients, and

to include the name and title of his supervising physician in

the medical records for A.M., the Pain Patients, and the

106 Patients constituted a violation of S ubs ection

458.331(1)(m), Florida Statutes.

E . Cou nt Two: S ubs ection 458.331(1)(t), Florida Statutes;

The Standard of Care .

8 4 . In Count Two of the Amended Administrative Complaint

it is alleged that Mr. Carmouze violated the Standard of Care,

as defined in S ubs ection 458. 331(1)(t), Florida Statutes :

(t) . . . [T]he 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. . . .

8 5 . In particular, it is alleg ed in the Amended

Administrative Complaint that Mr. Carmouze v iolated the Standard

of Care in one or more of the following ways:

a. Mr. Carmouze "did not attempt endotracheal

intubation or any other measures to treat

Patient A.M.'s respiratory failure. "

b. Mr. Carmouze "failed to contact his

supervising physician, the ED director,

and/or Patient A.M.'s primary physician for

assistance in treating Patient A.M. "

c. Mr. Carmouze "failed to identify a treatment

plan for Patient A.M. "

d. Mr. Carmouze " failed to consult his

supervising physician prior to ordering

Demerol, a controlled substance, for

Patients C.M., J.S., B.M., R.M., M.F., G.C.,

G.B., K.S., C.W., M.A.C., R.S., and K.M.

8 6 . The evidence failed to prove that Mr. Carmouze

violated the Stan dard of Care in any way alleged in the

Administrative Complaint. The evidence concerning his treatment

of A.M. proved that his failure to attempt intubation of A.M.

earlier the n he did was within the Standard of Care.

8 7 . The evidence also failed to prov e that Mr. Carmouze

failed to identify a treatment plan for A.M. in violation of the

Standard of Care.

8 8 . As to the other allegations of the Amended

Administrative Complaint relating to Count Two, while some of

those factual allegations included in the c ount were proved,

there was no clear and convincing proof that any violation of

the Standard of Care was committed by Mr. Carmouze . In

particular, the evidence did not clearly and convincingly prove

that Mr. Carmouze violated the Standard of Care when he failed

to contact Dr. Fernandez - Gonzalez or Dr. Ajit concerning his

treatment of any patient.

8 9 . The evidence failed to prove clearly and convincingly

that Mr. Carmouze violated S ubs ection 458.331(1)(t), Florida

Statutes.

F . Count Three: S ubs ection 458 .331(1)(v), Florida

Statutes ; Scope of Practice .

90 . In Count Three of the Amended Administrative Complaint

it is alleged that Mr. Carmouze violated S ubs ection

458.331(1)(v), Florida Statutes, which defines the following

disciplinable offense:

(v) Prac ticing or offering to practice

beyond the scope permitted by law or

accepting and performing professional

responsibilities which the licensee knows or

has reason to know that he or she is not

competent to perform. The board may

establish by rule standards of practice and

standards of care for particular practice

settings, including, but not limited to,

education and training, equipment and

supplies, medications including anesthetics,

assistance of and delegation to other

personnel, transfer agreements,

ste rilization, records, performance of

complex or multiple procedures, informed

consent, and policy and procedure manuals .

9 1 . In particular, it is alleged in the Amended

Administrative Complaint that Mr. Carmouze v iolated the

S ubs ection 458.331(1)(v), Flor ida Statutes, by "practicing

beyond the scope permitted by law" in one or more of the

following ways:

a. No t being " adequately supervised

by his supervising physician."

b. Failing " to consult his supervising

physician prior to ordering controlled

substa nces , for Patients C.M., J.S., B.M.,

R.M., M.F., G.C., G.B., K.S., C.W., M.A.C.,

R.S., and K.M."

c. By noting a " final diagnosis in the records

of Patients R.M., B.M., G.B., K.S., C.W.,

M.A.C., M.F., R.S., and K.M. "

9 2 . Florida Administrative Code Rule 64B8 - 30.012

establishes the scope of tasks which can be delegated to a

physician's assistant:

(1) A supervising physician shall

delegate only tasks and procedures to the

physician assistant which are within the

supervising physician’s scope of practice .

The physician assistant may work in any

setting that is within the scope of practice

of the supervising physician’s practice.

The supervising physician's scope of

practice shall be defined for the purpose of

this section as "those tasks and procedures

which the supervising physician is qualified

by training or experience to perform ."

(2) The decision to permit the physician

assistant to perform a task or procedure

under direct or indirect supervision is made

by the supervising physician based on

rea sonable medical judgment regarding the

probability of morbidity and mortality to

the patient. Furthermore, the supervising

physician must be certain that the physician

assistant is knowledgeable and skilled in

performing the tasks and procedures

assigned . [Emphasis added].

(a) The following duties are not

permitted to be delegated at all, except

where expressly authorized by statute:

1. Prescribing, dispensing, or

compounding medicinal drugs.

2. Final Diagnosis.

(b) The following duties are not

permitted to be performed under indirect

supervision:

1. Routine insertion of chest tubes and

removal of pacer wires or left atrial

monitoring lines.

2. Performance of cardiac stress testing.

3. Routine insertion of central venous

catheters.

4. Injection of intrathecal medication

without prior approval of the supervising

physician.

5. Interpretation of laboratory tests, X -

ray studies and EKG’s without the

supervising physician interpretation and

final review.

6. Administration of gen eral, spinal, and

epidural anesthetics; this may be performed

under direct supervision only by physician

assistants who graduated from Board - approved

programs for the education of anesthesiology

assistants .

(3) All tasks and procedures performed by

the physician assistant must be documented

in the appropriate medical record. The

supervising physician must review, sign and

date all the physician assistant record

within seven (7) days.

(4) In a medical emergency the physician

assistant will act in ac cordance with his or

her training and knowledge to maintain life

support until a licensed physician assumes

responsibility for the patient.

93 . Florida Administra tive Code Rule 64B8 - 30.001(4),

defines "direct supervision" as "the physical presence of the

supervising physician on the premises so that the supervising

physician is immediately available to the physician assistant

when needed." Obviously, there was no "direct supervision" of

Mr. Carmouze during the relevant times.

9 4 . Florida Administrative Code Rule 64B8 - 30.001(5),

defines "indirect supervision," as "the easy availability of the

supervising physician to the physician assistant , which includes

the ability to communicate by telecommunications. The

supervising physician must be within reasona ble physical

proximity."

9 5 . Dr. Fernandez - Gonzalez was 52 0 miles from Weems on the

days that Mr. Carmouze provided medical services to patients

during April and Jun e 2002. Mr. Carmouze , therefore, did not ,

as required by Florida Administrative Code Rule 64B8 - 30.012,

perform services under "direct" or "indirect" supervision when

he treated Patient A.M., the Pain Patients or any of the 106

P atients.

9 6 . Because Mr. Carmouze practiced without the supervision

contemplated and required by Florida Administrat iv e Code Rule

64B8 - 3 0.012, Mr. Carmouze practiced or offer ed to practice

beyond the scope permitted by law in violation of S ubs ection

458.331(1)(v), Florida Statutes.

9 7 . Mr. Carmouze argued in Respondent's Proposed

Recommended Order that he did not pract ice beyond the scope

permitted by law because his treatment was in an "emergency

setting. " Although not cited, Mr. Carmouze is apparently

relying upon Florida Administrative Code Rule 64B8 - 012(4), which

allows a physician's assistant to provide services e ven though

he or she is not being directly or indirectly supervised if

there is a " medical emergency ." That provision, however, does

no t apply to the type of "emergency setting" Mr. Carmouze was

in. That exception is clearly intended to govern the action s of

a physician's assistant who unexpected ly finds himself or

herself in a situation where a person is in need of immediate

attention. Under those circumstances, t he physician 's assistant

is allowed to " act in accordance with his or her training and

know ledge . . . ." Even then the services which the physician's

assistant may render are limited to act " to maintain life

support until a licensed physician assumes responsibility for

the patient ." The "exception" of Florida Administrative Code

Rule 64B8 - 012 (4) does not apply to this case.

9 8 . As to the second factual basis for the allegation that

Mr. Carmouze violated S ubs ection 458.331(1)(v), Florida

Statutes, ( that he failed to consult with Dr. Fernandez - Gonzalez

prior to ordering Demerol for the Pain Pat ients ) , Petitioner has

not explained how this violation is different from the more

general violation described in Finding of Fact 90.a. Petitioner

has not cited, nor has the undersigned found, any prov ision

governing the practice a physician ’s assistant t hat prohibits

ordering, as opposed to "dispensing" a controlled substance to a

patient independent of the issue of whether the physician's

assistant is properly supervised. It is , therefore, concluded

that Mr. Carmouze's failure to consult with Dr. Fernan dez -

Gonzalez prior to ordering Demerol for the Pain Patients was not

a separate violation.

9 9 . Finally, the evidence proved clearly and convincingly

that Mr. Carmouze included a "diagnosis" for Patients R.M.,

B.M., G.B., K.S., C.W., M.A.C., R.S., and K.M. The evidence

also proved that the diagnosis included in their medical records

was the only diagnosis made for these patients. It is,

therefore, concluded that Mr. Carmouze's diagnosis for these

patien ts was a "final diagnosis" that Florida Administrativ e

Code Rule 64B8 - 012(2)(b) prohibited him from making.

100 . Based upon the foregoing, it is concluded that the

Department proved clearly and convincingly that Mr. Carmouze

violated S ubs ection 458.331(1)(v), Florida Statutes, by

performing medical duties w hen he was not adequately supervised

by Dr. Fernandez - Gonzalez and by noting a final diagnosis in the

medical records for Patients R.M., B.M., G.B., K.S., C.W.,

M.A.C., R.S., and K.M.

10 1 . The Department failed to prove clearly and

convincingly that Mr. C armouze committed a violation of

S ubs ection 458.331(1)(v), Florida Statutes, by not obtaining

prior approval from Dr. Fernandez - Gonzalez for ordering Demerol

for the Pain Patients. This violation is subsumed in the

violation as a result of inadequate supe rvision.

G . Count Four: S ubs ection 458.331(1)(nn), Florida

Statutes ; Other Violations .

10 2 . In Count Four of the Amended Administrative Complaint

it is alleged that Mr. Carmouze violated S ubs ection

458.331(1)(nn), Florida Statutes, which defines the fol lowing

disciplinable offense: "Violating any provision of this chapter

or chapter 456, or any rules adopted pursuant thereto."

10 3 . In particular, it is alleged in the Amended

Administrative Complaint that Mr. Carmouze v iolated the

S ubs ection 458.331(1) ( nn), Florida Statutes, by violating one or

more of the following rules:

a. Florida Administrative Code Rule

64B8 - 30.001(5), by failing to practice

within a reasonable physical proximity of

his supervising physician;

b. Florida Administrative Code Rule

6 4B8 - 30.004(2), by failing to submit any

notification of changes in his employment

status; and

c. Florida Administrative Code Rule

64B8 - 30.012(3), by failing to obtain the

signature of Dr. Fernandez - Gonzalez on the

records of any of the 106 patients treat ed

at Weems ER during the period from about

April 2002 through June 2002, and Patient

A.M. and the Pain Patients.

10 4 . It has already been concluded that Mr. Carmouze

violated S ubs ection 458.331(1)(v), Florida Statutes, because of

his violation of the ru les governing proper supervision of

physician's assistants. He should not, therefore, be

disciplined again under S ubs ection 458.331(1)(nn), Florida

Statutes, by way of violating Florida Administrative Code Rule

64B8 - 30.001(5).

10 5 . Florida Administrativ e Code Rule 64B8 - 30.004(2)

provides the following:

( 2) Each physician assistant shall submit

changes to the Department on the form

approved by the Council and Boards, and

provided by the Department within 30 days of

any change in employment status.

10 6 . No definition of "employment status" is included in

the Board's rules. The term "employment," when given its

commonly understand meaning, however, contemplates a change, no t

just of the location where a person provides services, but a

change in the per son's "employer." Given this commonly

understood definition to the term "employment status," the

evidence failed to prove cl early and convincingly that

Mr. Carmouze underwent any "change in employment status" during

the relevant times.

10 7 . Finally, Flor ida Administrative Code Rule 64B8 -

30.012(3) requires that a physician ’s assistant's " supervising

physician must review, sign and date all the physician assistant

record within seven (7) days. " The rule, while requiring

supervising physician review, does n ot specifically place the

responsibility for that review on the physician ’s assistant. It

is concluded that the resp onsibility was more that of

Dr. Fernandez - Gonzalez that it was Mr. Carmouze's.

10 8 . Based upon the foregoing, it is concluded that the

Dep artment failed to prove cl early and convincingly that

Mr. Carmouze violated S ubs ection 458.331(1)(nn), Florida

Statutes.

H . The Appropriate Penalty .

10 9 . In determining the appropriate punitive action to

recommend to the Board in this case, it is necessa ry to consult

the Board's "disciplinary guidelines," which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority under Section 458.331, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professiona l

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

1 10 . The Board's guidelines are set out in Florida

Administrative Code Rule 64B8 - 8.001, which provides the

following "purpose" and instruction on the application of the

penalty ranges provided in the Rul e:

(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 applican ts 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 co unt 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 pen alties 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 applica nts or licensees from

violations.

(2) Violations and Range of Penalties.

In imposing discipline upon applicants and

licensees, in proceedings pursuant to

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

Board shall act in accordance with the

following disc iplinary guidelines and shall

impose a penalty within the range

corresponding to the violations set forth

below. The verbal identification of

offenses are descriptive only; the full

language of each statutory provision cited

must be consulted in order t o determine the

conduct included.

11 1 . Florida Adminis trative Code Rule 64B8 - 8.001 provide s ,

in pertinent part, the following penalty guidelines f or the

violation s alleged in the Amended Administrative Complaint:

a. S ubs ection 458.331(1)(m), Florida Sta tutes: from a

reprimand to two years' suspension followed by probation, and an

administrative fine of from $1,000.00 to $10,000.00;

b. S ubs ection 458.331(1)(t), Florida Statutes: from two

years’ probation to revocation, and an administrative fi ne from

$ 1,000.00 to $10,000.00;

c. S ubs ection 458.331(1)(v), Florida Statutes: from two

years' suspension to revocation, and an administrative fine of

from $1,000. 00 to $10,000.00; and

d. S ubs ection 458.331(1)(nn), Florida Statutes: for any

offense not specifi cally listed, based on the severity of the

offense and the potential patient harm, from a reprimand to

revocation and an administrative fine of from $1,000.00 to

$10,000.00.

11 2 . Florida Administrative Code Rule 64B8 - 8.001(3)

provides that, in applying th e 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 B oard 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 app licant;

(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;

(g) The involvement in any violation of

Section 458.331, Flo rida Statutes, of the

provision of controlled substances for

trade, barter or sale, by a licensee. In

such cases, the Board will deviate from the

penalties recommended above and impose

suspension or revocation of licensure;

(h) Any other relevant mitig ating

factors.

11 3 . In Petitioner's Proposed Recommended Order, the

Department has requested that it be recommended that

Mr. Carmouze be subjected the following discipline:

a. A reprimand;

b. A fine of $10,000;

c. Five hours of continuing medical educ ation (hereinafter

referred to as "CME") in emergency medicine and five hours of

CME in medical risk management;

d. Fifty hours of community service;

e. An affidavit from Re spondent certifying he has read

Chapters 456 and 458, Florida Statutes, and Flori da

Administrative Code Rule 64B8 - 30.

f. Completion of a competency evaluation by a Board

approved evaluator;

g. Probation with direct supervision for one year; and

h. A suspension of his license for one year (with six

months stayed , provided he complies with probation).

11 4 . The Department's suggested penalties are based upon

the assumption that most of the allegations of the Amended

Administrative Complaint had been proved . That is not, however,

the case. What has been proved are the following violat ions:

a. A violation of S ubs ection 458.331(1)(m), Florida

Statutes, due to the failure of Mr. Carmouze to include his name

and title in the medical records for A.M. and the Pain Patients,

and to include the name and title of his supervising physician

in t he medical records for A.M., the Pain Patients, and the 106

Patients; and

b. A violation of S ubs ection 458.331(1)(v), Florida

Statutes, due to the fact that Mr. Carmouze performed medical

duties when he was not adequately supervised by Dr. Fernandez -

Gon zalez and by noting a final diagnosis in the medical records

for Patients R.M., B.M., G.B., K.S., C.W., M.A.C., R.S., and

K.M.

11 5 . Having carefully considered the facts of this matter

in light of the provisions of Florida Administrative Code Rule

64B8 - 8. 001, it is concluded that the Board should issue a

reprimand, place Mr. Carmouze's license on probation for one

year, require that he pay an administrative fine of $5,000.00,

require that he perform five hours of CME in a subject(s)

determined appropriate by the Board, and suspend his license for

six months (with the suspension stayed provided he complies with

probation).

11 6 . It is not recommended that Mr. Carmouze be required

to perform community services because the Board's rules do not

authorize such a penalty.

117 . It is also not recommended that Mr. Carmouze be

required to complete a competency evaluation by a Board approved

evaluator or be required to undergo direct supervision for one

year because the evidence in thi s case failed to prove that

Mr. Carmouze's treatment of patients while at Weems fell short

of what was required of him in terms of the substantive service

he provided . Mr. Carmouze, who has not been disciplined by the

Board prior to this matter, fell short, not in his care, but in

his f ailure to follow procedures clearly established to regulate

his authority to provide medical services; he pract iced without

the required supervision and without adequately recording

information concerning his position in medical records. What

Mr. Carmouze needs is to be instructed on proper supervision and

to have someone who will ensure that he is received the

supervision required, either direct or indirect. This need

should be met through the terms of his probation as established

by the Board.

118. Fin ally, it is not recommended that Mr. Carmouze be

required to read the statutes or rules which govern his license.

The value of su ch an exercise seems doubtful. Simply requiring

him to read the law will not ensure that he fully understands

what is require d of him as a physician ’s assistant. Again, what

he needs is instruction on what constitutes adequate

supervision.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Bo ard

of Medicine finding that, Arnaldo Carmouze, P.A., has violated

S ubs ection s 458.331(1)( m ) and ( v) , Florida Statutes, as

described in this Recommended Order; i ssuing a reprimand;

placing Mr. Carmouze's license on probation for one year;

requiring that he pay an a dministrative fine of $5,000.00;

requiring that he perform five hours of CME in a subject(s)

dete rmined appropriate by the Board; and suspend ing his license

for six months (with the suspension stayed provided he complies

with probation) .

DONE AND ENTERED this 13th day of Dec ember , 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

LARRY J. SARTIN

Administrative Law Judg e

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

t his 13th day of Dec ember , 2006.

COPIES FURNISHED:

Irving Levine

Matthew Casey

Assistant s General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Julie Gallagher , Esquire

Greenberg Taur ig, P.A.

101 East College Avenue

Tallahassee, Florida 32301

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypr ess 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

Dr. M. Rony François, Secretary

Department of Health

4052 Bald Cypress Way, Bin A00

T allahassee, 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 agenc y that

will issue the final order in these cases.