06-004906PL Department Of Health, Board Of Medicine vs. Charles Finn, M.D. Status: Closed Recommended Order on Thursday, September 27, 2007.

Summary: Respondent failed to record the findings of a medical examination and failed to accurately record the patient`s history.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 06 - 4906PL

)

CHARLES FINN, M.D. , )

)

Respondent . )

)

RECOMMENDED ORDE R

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

on June 25, 2007, in St. Petersburg, Florida, before Susan B.

Harrell, a designated Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Irving Levine , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Paula Rousselle, Esquire

Sieva, Rousselle & Stine , P.A.

601 West Swann Avenue, Suite B

Tampa, Florida 33606 - 2722

STATEMENT OF THE ISSUES

Whether Respondent violated Subsections 458.331(1)(m) and

458.331(1)(t), Florida Statutes (2002), 1 and, if so, what

disci pline should be imposed.

PRELIMINARY STATEMENT

On June 13, 2006, Petitioner, the Department of Health

(Department), filed with the Board of Medicine a two - count

Administrative Complaint against Respondent, Charles Finn, M.D.,

alleging that Dr. Finn violate d Subsections 458.331(1)(m) and

458.331(1)(t), Florida Statutes. Dr. Finn requested an

administrative hearing, and the case was forwarded to the

Division of Administrative Hearings on December 5, 2006, for

assignment to an Administrative Law Judge to cond uct the final

hearing.

The final hearing was scheduled for February 13 and 14,

2007. Respondent requested a continuance two times, and each

request was granted.

On June 7, 2007, Petitioner filed Petitioner’s Motion for

Official Recognition, which was gran ted. Official recognition

was taken of Subsections 458.331(1)(m) and 458.331(1)(t),

Florida Statutes.

The parties submitted a Joint Pre - hearing Stipulation and

agreed to certain facts contained in Section E of the Joint Pre -

hearing Stipulation. To the extent relevant, those stipulated

facts have been incorporated in this Recommended Order.

At the final hearing, the parties submitted Joint

Exhibit 1, which was admitted in evidence. Petitioner presented

no live testimony at the final hearing, but submit ted the

deposition of Martin Hale, M.D., which was admitted as

Petitioner’s Exhibit 1. Additionally, Petitioner’s Exhibit 2

was admitted in evidence.

At the final hearing, Respondent testified in his own

behalf and presented the testimony of Harold B. Ree der, M.D.

Respondent’s Exhibits 1, 2, and 4 were admitted in evidence.

Respondent’s Exhibit 3 was not admitted in evidence.

The one - volume Transcript was filed on August 14, 2007. On

August 27, 2007, an order was entered ruling on the objections

made du ring the deposition of Dr. Hale. The parties were given

until September 7, 2007, to file their proposed recommended

orders. The parties timely filed their P roposed R ecommended

O rders , which have been considered in rendering this Recommended

Order.

FINDIN GS OF FACT

1. The Department is charged with the regulation of the

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

Florida Statutes.

2. At all times material to this proceeding, Dr. Finn was

a licensed physician within the State of Florida, h aving been

issued license number 60278. Dr. Finn is board - certified by the

Am erican Orthopedic Association.

3. On March 14, 2003, R.B., a 65 - year - old male, was riding

his motorcycle when he lost control and jammed his right leg

into the ground. The foll owing day, R.B. went to the MacDill

Air Force Base emergency room, where the medical records

indicated joint effusion/swelling, limited range of motion, and

pain in all ligament stresses in the knee. X - rays showed no

acute, but some degenerative changes i n the calcification of

cartilage. The recorded impression was right knee sprain.

4. On March 19, 2003, R.B. went to the Advance Orthopedic

Associates and was seen by Dr. Finn, who performed a physical

examination on R.B. and evaluated X - rays of R.B. Dr. Finn

ordered an MRI scan to assess, among other things, internal

derangement that may have been caused by the accident.

5. R.B. returned to see Dr. Finn on April 16, 2003, and

reported that the MRI had been performed, but he did not have

the report or fi lms for review. R.B. was rescheduled to see

Dr. Finn on April 18, 2003.

6. The MRI report and films are part of R.B. ’s patient

chart. The MRI report prepared by the radiologist states the

following , under the portion of the report titled “Impression.”

1. Acute complex fracture of the proximal

tibia as described in detail above.

2. There is an associated knee

effusion/hemarthrosis.

3. Tear of the posterior horn of the medial

meniscus.

4. Mild bone edema within the lateral

femoral condyle consistent w ith a bone

bruise.

5. Possible partial tear of the anterior

cruciate ligament.

The MRI report further states that the findings of the MRI are

consistent with " an acute or recent c omplex tibial plateau

fracture."

7. Dr. Finn saw R.B. on April 18, 2003, and prepared the

following letter to MacDill 6 Medical Group. This letter is the

written record of R.B. ’s office visit on April 18, 2003.

The patient comes in today. He has had his

MRI scan and the report, which I have

reviewed. There is a degenerative chondral

calcinosis and degenerative meniscal tear

and also question of a tibial plateau

fracture.

He has had no recent trauma whatsoever and

he has no clinical symptoms of a fracture.

There are arthritic changes and the chondral

calcinosis.

I am recom mending a Cortisone shot. We will

do this when this can be authorized and set

up.

8. According to Dr. Finn, he did perform a physical

examination of R.B. during the April 18, 2003, visit and

concluded that there were no clinical signs of a fracture. He

indicated at the final hearing that what he meant when he wrote

that R.B. “had no recent trauma whatsoever” was that R.B. had

not had any trauma since the time of R.B.' s office visit on

March 19, 2003. Based on the testimony of Dr. Finn, it is

concluded that Dr. Finn was aware that R.B. did have a tibial

plateau fracture, but that the fracture was healing and the pain

that R.B. was experiencing resulted from other problems.

However, a common sense reading of his office note would not

lead one to believe that R.B. had a tibial plateau fracture as a

result of his motorcycle accident.

CONCLUSIONS OF LAW

9. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat . (2006).

10. The Department has the burden to establish the

allegations in the Administrative Complaint by clear and

convincing evidence. Department of Banking and Finance v.

Osborne Stern and Company , 670 So. 2d 932 (Fla. 1996). The

Department has all eged that Dr. Finn violated Subsections

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

provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(m) Failin g 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, dispen sed, or administered; and

reports of consultations and

hospitalizations.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a reasonably prudent simila r

physician as being acceptable under similar

conditions and circumstances. . . . As used

in this paragraph, . . . " the failure to

practice medicine with that level of care,

skill, and treatment which is recognized by

a reasonably prudent similar physicia n as

being acceptable under similar conditions

and circumstances, " shall not be construed

so as to require more than one instance,

event, or act. Nothing in this paragraph

shall be construed to require that a

physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph.

11. The Department alleged that Dr. Finn failed to

practice medicine with that level of care, skill, and treatment

which is recognized by a reasonably prudent similar physician as

being acceptable un der similar conditions and circumstances by

the following:

a. by failing on April 18, 2003, to perform

an adequate physical examination on Patient

R.B.;

b. by failing to adequately record a

physical exam at the April 18 th visit other

than noting that Pat ient R.B. had no

clinical symptoms of a fracture;

c. by noting that there was a question of

tibial plateau fracture which was

inconsistent with the MRI report of an acute

complex fracture of the proximal tibia.

12. The Department failed to establish by clear and

convincing evidence that Dr. Finn failed to perform an adequate

physical examination on R.B. on April 18, 2003. Dr. Finn

testified credibly that he did perform a physical examination.

The Department did establish that Dr. Finn failed to adequat ely

record his physical examination of R.B. on April 18, 2003. The

notes do not indicate that Dr. Finn did a visual inspection,

that he palpated the knee to determine if there was tenderness

or that he checked R.B. ’s range of motion.

13. The Department a lleged that Dr. Finn failed to keep

legible medical records that justified his course of treatment

of R.B. in the following ways:

a. by failing to adequately record a

physical exam at the April 18 th visit other

than noting that Patient R.B. had no

clini cal symptoms of a fracture;

b. by noting that there was a question of a

tibial plateau fracture which was

inconsistent with the MRI report of an acute

complex fracture of the proximal tibia.

14. The Department has established by clear and convincing

ev idence that Dr. Finn violated Subsection 458.331(1)(m),

Florida Statutes. Dr. Finn’s office notes stated that there was

a question of a tibial plateau fracture and that R.B. had

sustained no recent trauma whatsoever. His note is contrary to

R.B. ’s histor y that R.B. had sustained a motorcycle accident

about month earlier. Dr. Finn testified that he had recalled

that R.B. had been in a motorcycle accident and that the note

meant that there had been no further trauma. However, a

physician reading the note would be led to believe that R.B. had

not sustained any trauma, including any trauma resulting from

the motorcycle accident. The MRI report clearly showed a tibial

plateau fracture; thus, the comment that there was a question of

a tibial plateau fracture is inconsistent with the MRI report.

From reading the office note, it is not clear whether Dr. Finn

disagreed with the MRI report or was of the opinion that there

was a tibial plateau fracture. The Department has established

by clear and convincing evide nce that Dr. Finn violated

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

medical records that justified his course of treatment for R.B.

15. The Department has alleged that Dr. Finn fell below

the standard of care in his treatment of R.B . by failing to

adequately record his examination on April 18, 2003, and by

noting that there was a question of a tibial plateau fracture.

Those allegations are the same that were alleged for a violation

of Subsection 458.331(1)(m), Florida Statutes, and do no rise to

the level of a violation of Subsection 458.331(1)(t), Florida

Statutes. See Barr v. Department of Health , 954 So. 2d 668

(Fla. 1 st DCA 2007).

16. Florida Administrative Code Rule 64B8 - 8.001 contains

the disciplinary guidelines for the Board of Medicine. The

penalty for a first time violation of Subsection 458.331(1)(m),

Florida Statutes, ranges from a reprimand to two years

suspension followed by probation, and an administrative fine of

$1,000 to $10,000.

RECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that Dr. Finn did not violate Subsection 458.331(1)(t), Florida

Statutes; finding that Dr. Finn did violate Subsection

458.331(1)(m), Florida Statutes; issu ing a reprimand; imposing

an administrative fine of $2,500; and requiring Dr. Finn to take

continuing medical education classes to be specified by the

Board of Medicine.

DONE AND ENTERED this 27 th day of September , 2007 , in

Tallahassee, Leon County, Flori da.

S

SUSAN B. HARRELL

Administrative Law Judge

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

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of September , 2007 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2002 version.

COPIES FURNISHED :

Irving Levi ne, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Paula Rousselle, Esquire

Saieva, Rousselle & Stine, P.A.

601 West Swann Avenue, Suite B

Tampa, Florida 33606 - 2722

Larry McPherson, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Josefina M. Tamayo, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.