07-000096PL Department Of Health, Board Of Medicine vs. Jose Suarez-Diaz, M.D. Status: Closed Recommended Order on Thursday, March 13, 2008.

Summary: While the evidence proved that Respondent`s medical records were in violation of Section 458.331(1)(m), Florida Statutes, the evidence failed to prove that Respondent violated the standard of care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-0096PL

) DOH Case No. 2003-28432

JOSE SUAREZ-DIAZ, M.D., )

)

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 January 14, 2008, by

video teleconference between Miami and Tallahassee, Florida.

APPEARANCES

For Petitioner: Irving Levine

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

For Respondent: Sean Ellsworth, Esquire

Ellsworth Law Firm, P.A.

404 Washington Avenue, Suite 750

Miami Beach, Florida 33139

STATEMENT OF THE ISSUES

The issues in this case for determination are whether

Respondent Jose Suarez-Diaz, M.D., violated Section

Amended Administrative Complaint filed by the Department of

Health before the Board of Medicine on November 29, 2006; and,

if so, what disciplinary action should be taken against his

license to practice medicine in the State of Florida.

PRELIMINARY STATEMENT

This case began with the filing by the Department of Health

before the Board of Medicine of an Administrative Complaint, DOH

Case Number 2003-28432, against Respondent Jose Suarez-Diaz,

M.D., an individual licensed to practice medicine in Florida.

On August 28, 2006, Dr. Suarez-Diaz, through counsel, filed a

Petition for Formal Administrative Hearing and Request for

Complete Investigative File and Exhibits and an Election of

Rights form signed by Dr. Suarez-Diaz, disputing the allegations

of fact contained in the Administrative Complaint and requesting

a formal administrative hearing pursuant to Sections

120.569(2)(a) and 120.57(1), Florida Statutes (2006).

On November 29, 2006, the Department of Health filed a two-

count Amended Administrative Complaint against Dr. Suarez-Diaz,

in which it alleged that Dr. Suarez-Diaz had violated Section

458.331(1)(m), Florida Statutes (Count II), and Section

458.331(1)(t), Florida Statutes (Count I).

On January 9, 2007, 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 (2006). The matter was designated

DOAH Case Number 07-0096PL and was assigned to the undersigned.

The final hearing was scheduled to be held in Miami,

Florida, on March 19 and 20, 2007, by Notice of Hearing entered

January 18, 2007. On March 3, 2007, an Amended Notice of

Hearing by Video Teleconference was entered shortening the

hearing to one day, March 19th, and scheduling the hearing to be

conducted by video teleconferencing between Miami and

Tallahassee, Florida.

On March 16, 2007, Petitioner filed a Motion to Relinquish

Jurisdiction, in which it was represented that the parties had

entered into a Settlement Agreement which they planned to submit

to the Board of Medicine for consideration. The same day, an

Order Closing File was issued, canceling the final hearing and

closing the file of the Division of Administrative Hearings with

leave of either party to request that the file be re-opened

should the Board of Medicine not approve the Settlement

Agreement.

On October 3, 2007, Petitioner filed a Motion to Reopen

DOAH Case, Maintain the Original DOAH Case Number and Schedule a

Hearing. Petitioner explained in the Motion that Dr. Suarez-

Diaz had withdrawn his support of the Settlement Agreement at a

June 1, 2007, meeting of the Board of Medicine.

On October 12, 2007, the file of this case was reopened by

the issuance of an Initial Order. By Notice of Hearing by Video

Teleconference issued October 17, 2007, an evidentiary hearing

was scheduled for January 14, 2008, to be conducted by video

teleconferencing between Miami, and Tallahassee, Florida.

On December 28, 2007, the parties filed a Revised Joint

Prehearing Stipulation, in which they identified certain facts

and issues of law they agreed on.

During the final hearing, Petitioner presented the expert

testimony of Joan Christie, M.D., by deposition transcript. The

deposition transcript and the curriculum vitae of Dr. Christie

were marked as Petitioner’s Exhibits 1 and 2, respectively, and

were admitted.

Dr. Suarez-Diaz testified on his own behalf and offered

four exhibits, identified as Respondent, Dr. Suarez-Diaz’s

Exhibits A, B, C, and D. Those exhibits were admitted.

Pertinent medical records were admitted as Joint Exhibit 1.

The one-volume Transcript of the final hearing was filed on

February 6, 2008. By Notice of Filing Transcript entered

February 6, 2008, the parties were informed that the Transcript

had been filed and that their proposed recommended orders were

to be filed on or by February 15, 2008.

Petitioner’s Proposed Recommended Order and Respondent,

Jose Suarez-Diaz, M.D.’s Proposed Recommended Order were filed

on February 15, 2008. The post-hearing proposals of both

parties have been fully considered in rendering this Recommended

Order.

All references to Florida Statutes in this Recommended

Order are to the 2003 version unless otherwise noted.

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 responsibility for the investigation

and prosecution of complaints involving physicians licensed to

practice medicine in Florida. § 20.43 and Chs. 456 and 458,

Fla. Stat. (Admitted facts).

2. Respondent, Jose Suarez-Diaz, M.D., is, and was at the

times material to this matter, a physician licensed to practice

medicine in Florida, having been issued license number ME 14791.

(Admitted facts).

3. Dr. Suarez-Diaz is board-certified in Anesthesiology.

(Admitted facts).

4. Dr. Suarez-Diaz’s mailing address of record at all

times relevant to this matter is 8340 S.W. 62nd Avenue, Miami,

Florida 33143. (Admitted Facts).

5. The Department conceded that Dr. Suarez-Diaz has not

previously been the subject of a license disciplinary

proceeding.

B. Patient J.C .

6. On October 28, 2003, J.C. was admitted to Mercy

Hospital in Miami, Florida, with a diagnosis of possible

appendicitis.

7. J.C., a 49-year-old male, had a history of heart

attack, which occurred in 1998, five years prior to his

admission; pneumonia which occurred two months prior to his

admission; and chronic obstructive pulmonary disease.

8. After admission, J.C. underwent a chest x-ray, which

showed moderate cardiomegaly, and an EKG, which showed left

ventricular hypertrophy.

9. J.C. was scheduled for an immediate laparoscopic

appendectomy, with Dr. Suarez-Diaz in charge of anesthesiology.

10. Prior to surgery Dr. Suarez-Diaz completed a pre-

anesthesia evaluation, documenting J.C.’s history of a 1998

heart attack, pneumonia two months prior to admission, and

chronic obstructive pulmonary disease. He did not, however,

document the results of the chest x-ray.

11. At approximately 2330 hours (11:30 p.m.), Dr. Suarez-

Diaz began anesthesia. J.C. was, from the start of surgery,

connected to the following monitors: pulse oximoetry (which

measured the level of oxygen in J.C.’s blood); electrocardiogram

(which measures heart activity); and NCO2 monitor (which

measured the level of CO2 in J.C.’s blood); and a blood pressure

monitor (hereinafter these monitors are collectively referred to

as the “Monitors”). Dr. Suarez-Diaz documented the connection

of all of the Monitors, except the NCO2 monitor, in J.C.’s

medical records.

12. The Monitors, consistent with insurance requirements,

remained connected to J.C. throughout the surgery, and, based

upon Dr. Suarez-Diaz’s uncontroverted and convincing testimony,

were monitored throughout J.C.’s surgery.

13. Surgery commenced at approximately 2345 hours (11:45

p.m.).

14. Almost immediately after anesthesia was first

administered, J.C. experienced bronchospasm (the constriction of

his airway). In response, Dr. Suarez-Diaz appropriately

increased the volume of gas into J.C.’s lungs.

15. In addition to constriction of J.C.’s airways, the few

oxygen level recordings made by Dr. Suarez-Diaz indicate that

J.C.’s blood oxygen levels were below normal, especially

considering the amount of oxygen J.C. was being provided.

16. Due to the emergency nature of the surgery, surgery

commenced after J.C.’s bronchospasm was controlled.

17. What took place during surgery, from the standpoint of

Dr. Suarez-Diaz’s responsibilities, cannot be determined from

Dr. Suarez-Diaz’s medical record, which is essentially illegible

and grossly incomplete:

a. Systolic and diastolic blood pressure readings should

have been recorded often, but were not. Of the 15 diastolic

readings which should have been recorded, only five readings

were;

b. Vital signs were not recorded until after 0045 hours

(12:25 a.m.);

c. Pulse oximoetry readings ended at 0015 hours

(12:15 a.m.);

d. EKG readings were not recorded after 2400 hours

(midnight); and

e. End-tidal CO2 readings ended at 0015 hours

(12:15 a.m.).

18. Surgery ended on October 29, 2003, at between 0015 and

0030 hours (12:15 and 12:30 a.m.).

19. Due to impacts on J.C.’s diaphragm during the surgery,

ventilation became so difficult that it became necessary for

Dr. Suarez-Diaz to “bag” J.C. in order to maintain better

control over oxygen levels in J.C.’s blood. When a patient is

“bagged” ventilated is provided manually with a gas bag.

Bagging allows a physician to control the rate of ventilation in

a way which a ventilator machine cannot.

20. Because Dr. Suarez-Diaz was engaged in bagging J.C.,

and at the same time closely monitoring J.C.’s oxygen levels,

Dr. Suarez-Diaz was unable to record his observations in J.C.’s

medical records. According to Dr. Suarez-Diaz’s uncontroverted

and persuasive testimony, J.C. was one of the three most

difficult patients he had dealt with in his 50 years of

experience.

21. When surgery ended, J.C. was kept in the operating

room with all monitors connected. Dr. Suarez-Diaz still failed

to record vital signs and oxygen saturation levels.

22. At some time between 0035 and 0045 hours (12:35 to

12:45 a.m.), J.C. was extubated (the removal of tubes used to

breath for the patient) and was breathing on his own. While

Dr. Suarez-Diaz noted in his records that J.C. had been

extubated, he did not record whether the monitors remained

connected between the time he was extubated and then moved to a

stretcher. According to his own uncontroverted testimony, he

did not maintain the monitors when J.C. was transferred to the

stretcher because, in Dr. Suarez-Diaz’s opinion, J.C. was

breathing on his own.

23. Shortly after extubation, J.C. experienced respiratory

difficulty and became dusky and pulseless. At approximately

0045 hours (12:45 a.m.), J.C. was reintubated and a code was

called for cardiac arrest; CPR and defibrillation were

performed. Dr. Suarez-Diaz remained until approximately 0100

hours (1:00 a.m.), when J.C.’s blood pressure was reestablished.

24. Electoencephalograms were performed on J.C. on

October 29 and 31, 2003. Both tests indicated reduced activity

consistent with a lack of oxygen to the brain.

25. On November 10, 2003, J.C. was extubated with “do-not-

resuscitate” orders. J.C. died on November 18, 2003.

E. The Standard of Care .

26. The Department obtained opinions of two expert

witnesses concerning Dr. Suarez-Diaz’s treatment of J.C.:

Joan Christie, M.D., who testified by deposition (Petitioner’s

Exhibit 1); and Les King, M.D., whose opinion letter to the

Department was admitted without objection as Respondent,

Dr. Suarez-Diaz’s Exhibit B. Dr. King’s opinion letter was not

given as much weight as it may have if he had testified, but his

opinions do raise significant questions about Dr. Christie’s

opinions.

27. Both of the Department’s experts relied upon

essentially the same information to formulate their options.

Both reached contrary opinions concerning whether Dr. Suarez-

Diaz failed to practice medicine in accordance with the level of

care, skill, and treatment recognized in general law related to

health care licensure in violation of Section 458.331(1)(t),

Florida Statutes (hereinafter referred to as the "Standard of

Care"), in his treatment of J.C.

28. Dr. King offered the following general, summary

opinion:

This patient had coronary artery disease of

advanced stages HTW and COPD. This is not

always information available prior to

emergent surgery. Management of the

anesthetic, ACLS and post code care are

seemingly appropriate for the events. The

subject met the standard of care.

29. Dr. Christie, on the other hand, testified generally

that Dr. Suarez-Diaz violated the Standard of Care by failing to

adequately monitor J.C. “prior to” extubation. The difficulty

with Dr. Christie’s testimony in this regard is that she relied

completely on the medical records for J.C., without any

consideration of Dr. Suarez-Diaz’s uncontroverted and convincing

testimony that he indeed did monitor J.C. prior to extubation.

30. Dr. Christie’s testimony does not, therefore, support

a finding or conclusion that Dr. Suarez-Diaz violated the

Standard of Care “[b]y failing to maintain adequate monitoring .

. . after extubation despite intra-operative indications of

oxygenation difficulty . . . .”

31. Dr. Christie also offered the following opinion, which

apparently was intended to apply to the question of whether

Dr. Suarez-Diaz violated the Standard of Care “after”

extubation:

I think that the lack of monitoring,

particularly in the last – lack of

monitoring of end-tidal CO2 and oxygenation

in the last half an hour and at the time of

extubation are not the standard of care. .

. .

Petitioner’s Exhibit 1, Page 33, Lines 21 through 25.

32. There are several problems with Dr. Christie’s

opinion. First, she again relied completely on the medical

records, without any consideration of Dr. Suarez-Diaz’s

uncontroverted and convincing testimony as to why he did

disconnected the monitors prior to placing J.C. on the

stretcher. Secondly, Dr. Christie’s opinion is not very precise

as to what period of time she is talking about. She clearly

rendered her opinion as to the care provided at the time of

extubation, but the Amended Administrative Complaint charges a

lack of monitoring “after extubation.” Thirdly, Dr. King

reached contrary conclusions on this matter.

33. Dr. King precisely addressed the question of whether

J.C. should have been monitored upon transport to the stretcher:

3. It is difficult to determine exactly

what transpired at the end of anesthesia

and in the moving to the stretcher piror

to transport to Recovery. Charting is

exceptionally incomplete. As far as

meeting the standard of care, it seems

to have been appropriate patient

management. Standard of care de facto

is for patients to be transported from

the operating room to recovery without

monitoring. Appropriate care seems to

have been rendered.

. . . .

13. For stable patients following surgery

and anesthetics, general transport to

recovery is un-monitored other than

direct observation. Generally, if the

patient is stable, there is not an issue

in moving the patient to the stretcher

unmonitored.

Respondent, Dr. Suarez-Diaz’s Exhibit B.

34. While Dr. King’s opinions may not be adequate, given

the manner in which they were entered into evidence, to find

that Dr. Suarez-Diaz “met the Standard of Care,” his statements,

coupled with the lack of precision in Dr. Christie’s opinion and

Dr. Suarez-Diaz’s testimony, are adequate to find that

Dr. Christie’s opinion does not support a finding or conclusion

that Dr. Suarez-Diaz violated the Standard of Care “[b]y failing

to maintain adequate monitoring prior to . . . extubation

despite intra-operative indications of oxygenation

difficulty . . . .”

35. Finally, Dr. Christie opined, in relevant part, as

follows concerning the issue of whether Dr. Suarez-Diaz violated

the Standard of Care by simply “failing to maintain adequate

medical records”:

In my view the practitioner did not meet

the standards with respect to documentation

and – in the medical records. . . .

Petitioner’s Exhibit 1, Page 10, Lines 7 through 9.

Dr. Christie goes on to describe in some detail the significant

shortcomings in Dr. Suarez-Diaz’s medical records for J.C.

36. Dr. Christie’s opinion as to whether inadequate

medical records along constitutes a violation of the Standard of

Care, again, is contrary to Dr. King’s opinion, and, more

importantly, the definition of the Standard of Care. Clearly,

Dr. Suarez-Diaz kept medical records which were inadequate as to

whether he monitored J.C. The evidence, however, proved that,

despite the inadequate records, he did monitor J.C. and provided

the care he was required to provide. The Standard of Care

requires a physician to use adequate “care, skill, and

treatment” of in the physician’s care of a patient. As poor as

Dr. Suarez-Diaz’s records for J.C. were, the mere inadequate

records do not support a finding that he did not provide

adequate “care, skill, and treatment” to J.C.

37. The evidence failed to prove that Dr. Suarez-Diaz

violated the Standard of Care as alleged in the Amended

Administrative Complaint in his care of J.C.

CONCLUSIONS OF LAW

A. Jurisdiction .

38. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

456.073(5), Florida Statutes (2007).

B. The Burden and Standard of Proof .

39. The Department seeks to impose penalties against

Dr. Suarez-Diaz’s license 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 allegations of

fact that support its charge that Dr. Suarez-Diaz violated

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

convincing evidence. Department of Banking and Finance,

Division of Securities and Investor Protection v. Osborne Stern

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); Nair v. Department

of Business and Professional Regulation , 654 So. 2d 205 (Fla.

of fact shall be based on a preponderance of the evidence,

except in penal or licensure disciplinary proceedings or except

as otherwise provided by statute.").

40. 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

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. 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. The Charges of the Administrative Complaint .

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

Board of Medicine (hereinafter referred to as 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 therein.

42. The Amended Administrative Complaint alleges in

Count I that Dr. Suarez-Diaz violated Section 458.331(1)(t),

Florida Statutes, in his treatment of J.C. In Count II it is

alleged that Dr. Suarez-Diaz violated Section 458.331(1)(m),

Florida Statutes, in his treatment of J.C.

D. Counts I: Violation of Section 458.331(1)(t), Florida

Statutes; The Standard of Care .

43. Section 458.331(1)(t), Florida Statutes, defines the

following disciplinable offense:

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 similar

physician as being acceptable under similar

conditions and circumstances. The board

shall give great weight to the provisions of

s. 766.102 when enforcing this paragraph.

As used in this paragraph, "repeated

malpractice" includes, but is not limited

to, three or more claims for medical

malpractice within the previous 5-year

period resulting in indemnities being paid

in excess of $50,000 each to the claimant in

a judgment or settlement and which incidents

involved negligent conduct by the physician.

As used in this paragraph, "gross

malpractice" or "the failure to practice

medicine with that level of care, skill, and

treatment which is recognized by a

reasonably prudent similar physician as

being acceptable under similar conditions

and circumstances," shall not be construed

so as to require more than one instance,

event, or act. Nothing in this paragraph

shall be construed to require that a

physician be incompetent to practice

medicine in order to be disciplined pursuant

to this paragraph. A recommended order by

an administrative law judge or a final order

of the board finding a violation under this

paragraph shall specify whether the licensee

was found to have committed "gross

malpractice," "repeated malpractice," or

"failure to practice medicine with that

level of care, skill, and treatment which is

recognized as being acceptable under similar

conditions and circumstances," or any

combination thereof, and any publication by

the board must so specify.

44. In paragraph 20 of the Amended Administrative

Complaint, it is alleged that Dr. Suarez-Diaz violated the

Standard of Care in his treatment of J.C. in one or more of the

following ways:

(a) By failing to maintain adequate

monitoring prior to and immediately after

extubation despite intraoperative

indications of oxygen difficulty; (b) By

failing to maintain adequate medical records

in that much of his records for Patient J.C.

are illegible, dosages of paralytic and

reversal medication are not appropriately

recorded, and oxygen saturations and vital

signs are not recorded frequently enough.

The Department has essentially alleged that Dr. Suarez-Diaz

violated the Standard of Care for three reasons:

a. The failure to monitor J.C. prior to extubation;

b. The failure to monitor J.C. after extubation; and

c. The failure to keep adequate medical records.

The evidence failed to prove any of these charges.

45. When the expert opinion of Dr. Christie is weighed

against the totality of the evidence in this case, including the

uncontroverted and persuasive testimony of Dr. Suarez-Diaz and

the opinion of Dr. King, it cannot be said that the Department

proved clearly and convincingly that Dr. Suarez-Diaz violated

the Standard of Care as alleged in the Amended Administrative

Complaint.

46. As to whether Dr. Suarez-Diaz violated the Standard of

Care simply because of his failure to keep adequate medical

records, this allegation is inadequate as a matter of law to

support a Standard of Care violation. See Barr v. Department of

Health, Board of Dentistry , 954 So. 2d 668 (Fla. 1st DCA 2007).

In Barr the Dr. Barr, a dentist, was charged with failing to

meet the standard of care for dentists for his actual treatment

of a patient and by failing to maintain adequate records

associated with the treatment. An Administrative Law Judge

found that Dr. Barr had met or exceeded the standard as to his

actual treatment, but, that his medical records were so

inadequate, that his medical records were below the standard of

care. The Board of Dentistry issued a final order accepting the

Administrative Law Judge’s findings.

47. In reversing the Board of Dentistry, the court, while

recognizing that the Board of Dentistry’s interpretation of a

statute it was charged with administering was entitled to great

weight, went on to reach the following conclusion about the

Board of Dentistry’s interpretation of its standard of care

statute:

The Board argues that particularly egregious

recordkeeping violations could rise to the

level of a “standard of care” violation.

Because this interpretation renders

subsection (m) [the equivalent of Section

458.331(m)] useless, it is clearly

erroneous. We believe there is a

significant difference between improperly

diagnosing a patient, which constitutes a

subsection (x) violation [the equivalent of

Section 458.331(t)], and properly diagnosing

a patient, yet failing to properly document

the actions taken on the patient’s chart,

which constitutes a subsection (m)

violation. . . .

Barr at 669.

48. The rationale of the Barr decision applies equally to

this case, to the extent that the Department has alleged that

Dr. Suarez-Diaz violated the Standard of Care based solely on

his inadequate record keeping. Neither the law, nor the facts,

support this allegation.

49. The Department has failed to clearly and convincingly

proved that Dr. Suarez-Diaz violated the Standard of Care as

alleged in Count I of the Amended Administrative Complaint.

E. Count II; Violation of Section 458.331(1)(m), Florida

Statutes; Medical Records .

50. Section 458.331(1)(m), Florida Statutes, defines the

following disciplinable 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.

51. Florida Administrative Code Rule 64B8-9.003(2)

describes the type of medical records a physician must maintain

in order to avoid discipline under Section 458.331(1)(m),

Florida Statutes:

. . . .

(2) A licensed physician shall maintain

patient medical records in English, in a

legible manner and with sufficient detail to

clearly demonstrate why the course of

treatment was undertaken.

(3) The medical record shall contain

sufficient information to identify the

patient, support the diagnosis, justify 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

hospitalizations; 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.

(4) All entries made into the medical

records shall be accurately dated and timed.

Late entries are permitted, but must be

clearly and accurately noted as last entries

and dated and timed accurately when they are

entered into the record. However, office

records do not need to be timed, just dated.

. . . .

52. In paragraph 24, of the Amended Administrative

Complaint, it is alleged that Dr. Suarez-Diaz failed to keep

legible medical records justifying his course of treatment of

J.C. in one or more of the following ways:

(a) by preparing illegible records; (b) by

failing to adequately document the dosages

of medications prescribed to Patient J.C.,

including neuromuscular reversal agents; (c)

by not recording the oxygen saturations,

neuromuscular monitoring, and vital signs

frequently enough.

53. Based upon Dr. Christie’s testimony, a review of

pertinent parts of Joint Exhibit 1, and Dr. Suarez-Diaz’s

admission at the final hearing, Dr. Suarez-Diaz’s medical

records are largely illegible.

54. The same evidence proved that Dr. Suarez-Diaz failed

to adequately document dosages of medications he prescribed for

J.C., including neuromuscular reversal agents, which were

identified on page 231 of Joint Exhibit 1, in his surgery

records.

55. Finally, the evidence proved clearly and convincingly,

and Dr. Suarez-Diaz admitted at hearing, that he failed to

record oxygen saturations, neuromuscular monitoring results, and

J.C.’s vital signs frequently enough.

56. The evidence proved clearly and convincingly that

Dr. Suarez-Diaz failed to keep legible medical records

justifying his course of treatment of J.C. by preparing

illegible records; (b) by failing to adequately document the

dosages of medications prescribed to Patient J.C., including

neuromuscular reversal agents; and (c) by not recording the

oxygen saturations, neuromuscular monitoring, and vital signs

frequently enough in violation of Section 458.331(1)(m), Florida

Statutes.

F. The Appropriate Penalty .

57. In determining the appropriate punitive action to

recommend to the Board in this case, it is necessary 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 Professional

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

58. 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 Rule:

(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; the full

language of each statutory provision cited

must be consulted in order to determine the

conduct included.

59. Florida Administrative Code Rule 64B8-8.001(2)(m)

provides, in pertinent part, for a penalty for a violation of

Section 458.331(1)(m), Florida Statutes, of a reprimand to

denial of licensure or two years' suspension, followed by

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

$10,000.00.

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

provides, in pertinent part, for a penalty for a violation of

Section 458.331(1)(t), Florida Statutes, of from two years’

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

to $10,000.00.

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

provides that, in applying 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 applicant;

(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, Florida 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 mitigating

factors.

62. In Petitioner's Proposed Recommended Order, the

Department has suggested that the following are mitigating and

aggravating circumstances in this case: “Respondent is under no

legal constraints; the patient died; this is a two count

complaint; Respondent had not previously been disciplined; there

are no other incidents.” The Department has requested that it

be recommended that Dr. Suarez-Diaz receive a reprimand; be

required to pay an administrative fine of $10,000.00; attend no

less than ten hours of continuing medical education to be

specified by the Board; and perform 100 hours of community

service. These suggested penalties are excessive in that the

Department failed to prove the allegations of Count I of the

Amended Administrative Complaint and because the Board’s

statutory authority and adopted rules do not provide for

community service.

63. In Respondent, Jose Suarez-Diaz, M.D.’s Proposed

Recommended Order, Dr. Suarez-Diaz has suggested that the Board

issue a Letter of Guidance and require that he pay an

administrative fine of $1,000.00. The Letter of Guidance is

less than the guideline of the Board’s rules of a reprimand to

denial of licensure or two years' suspension, followed by

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

$10,000.00.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the a final order be entered by the Board

of Medicine dismissing Count I of the Amended Administrative

Complaint; finding that Jose Suarez-Diaz, M.D., has violated

Section 458.331(1)(m), Florida Statutes, as alleged in Count II

of the Amended Administrative Complaint; issuing a reprimand;

requiring that he pay an administrative fine of $2,500; and

requiring that he attend ten hours of continuing medical

education related to appropriate record keeping.

DONE AND ENTERED this 13th day of March, 2008, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of March, 2008.

COPIES FURNISHED:

Irving Levine

Assistant General Counsel

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-65

Tallahassee, Florida 32399-3265

Sean Ellsworth, Esquire

Ellsworth Law Firm, P.A.

404 Washington Avenue, Suite 750

Miami Beach, Florida 33139

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 A02

Tallahassee, Florida 32399-1701

Dr. Ana M. Viamonte Ros, 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 agency that

will issue the final order in these cases.