09-005267PL Department Of Health, Board Of Medicine vs. Leonard Abraham Rubinstein, M.D. Status: Closed Recommended Order on Tuesday, February 1, 2011.

Summary: Doctor's surgery hours were excessive for cosmetic procedures; doctor recommended and scheduled unnecessary surgery; and doctor used undue influence to get patient to undergo unneccessary allergy testing.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner , )

)

vs. ) Case Nos. 09 - 5267PL

) 09 - 5269PL

LEONARD ABRAHAM RUBINSTEIN, ) 09 - 5270PL

M.D. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in th e s e case s

on August 24 through 26, 2010, in Sarasota, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Sharmin R. Hibbert, Esquire

Diane Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Ariel Sofro, Esquire

Steven Lubell, Esquire

Lubell & Rosen, LLC

Museum Plaza, Suite 602

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issues in th e s e case s are whether Respondent violated

sections 458 .331(1)(t), 458.331(1)(m), and 458.331(1)(n),

Florida Statutes (2004), and section 4 58.331(1)(t), Florida

Statutes (2006), and, if so, what discipline should be imposed.

PRELIMINARY STATEMENT

On February 11, 2008, Petitioner, Department of Health

(Departme nt) , filed a three - count Administrative Complaint

before the Board of Medicine (Board), alleging that Respondent,

Leonard A. Rubinstein, M.D. (Dr. Rubinstein), violated

sections 458.331(1)(t), 458.331(1)(m), and 458.331(1)(n),

Florida Statutes (2004). The case was forwarded to DOAH on

September 25, 2009. The case was assigned DOAH Case No. 09 -

5267PL.

On August 20, 2007, the Department filed a three - count

Administrative Complaint before the Board, alleging that

D r. Rubinstein violated sections 458.331(1)(n ), 458.331(1)(t),

and 458.331(1)(m), Florida Statutes (2004). The case was

forwarded to DOAH on September 25, 2009. The case was assigned

DOAH Case No. 09 - 5269PL.

On April 17, 2007, the Department filed an Administrative

Complaint before the Board, alleging that Dr. Rubinstein

violated section 458.331(1)(t), Florida Statutes (2006). The

case was forwarded to DOAH on September 25, 200 9 . The case was

assigned DOAH Case No. 09 - 5270PL.

The cases were consolidated by Order dated October 6, 2009.

The f inal hearing was scheduled to commence on December 8, 2009.

The final hearing was continued three times.

The parties filed a Joint Pre - hearing Stipulation on

August 16, 2010, in which they stipulated to certain facts

contained in Section E of the Joint Pr e - hearing Stipulation. To

the extent relevant, those stipulated facts have been

incorporated in this Recommended Order.

At the final hearing, the Department called the following

witnesses: J.D.; R.A.; B.L.; C.L.; Frank Steig , M.D.; and

Michael Pacin, M.D . Petitioner's Exhibits 1 through 26 were

admitted in evidence. The depositions of the following

witnesses were admitted as part of Petitioner's exhibits:

M r. J.D.; Frank Steig , M.D.; Douglas Dedo, M.D.; Howard Fuchs,

M.D.; Jack Wazen, M.D.; Amy Budoff , M.D.; Hugh Windom, M.D.; and

Michael Pacin, M.D. At the final hearing, Respondent testified

in his own behalf and called Amy Budoff, M.D., and Douglas Dedo,

M.D., as witnesses. Respondent's Exhibits 1 through 11 were

admitted in evidence.

As of Septemb er 23, 2010, the six - volume Transcript was

filed. The parties agreed to file their proposed recommended

orders within ten days of the filing of the Transcript. On

September 27, 2010, Dr. Rubinstein filed a Motion for Extension

of Time, requesting that th e time for filing proposed

recommended orders be extended. The time for filing proposed

recommended orders was extended to October 24, 2010. On

September 28, 2010, Petitioner filed a Motion to Extend the Page

Limit for Proposed Recommended Order. The mo tion was granted by

Order dated September 28, 2010, extending the page limit to 100

pages. The parties timely filed their Proposed Recommended

Orders, which have been considered in the preparat ion of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state department charged with

regulating the practice of medicine in Florida pursuant to

section 20.43, Florida Statutes (2010) , and chapters 456

and 458, Florida Statutes (2010) .

2. At all material times to the Administrative Complaints,

Dr. Rubi nstein was licensed as a medical doctor within the S tate

of Florida, having been issued license number ME37720. He is an

otorhinolaryngologist, meaning he is a specialist in ears, nose

and throat , and facial plastic and reconstructive surgery. He

also tr eats allergies.

3. On November 7, 2003, Dr. Rubinstein and the Department

entered into a Consent Agreement, related to the following

Administrative Complaints filed against Dr. Rubinstein: Case

No. 2001 - 07091, Case No. 1999 - 5773, and Case No. 2000 - 02195.

Based on the Consent Agreement, a Final Order, DOH - 04 - 0020 - S - MQ,

was filed by the Board on January 7, 2004, imposing a fine of

$25,000; imposing 60 hours of community service; requiring

Dr. Rubinstein to submit to a two - day evaluation at the

Institute fo r Physician Education (IPE); requiring Dr.

Rubinstein to comply with the recommendations resulting from the

evaluation at IPE; and placing Dr. Rubinstein on probation for

five years.

4. On August 6, 1993, the Department of Business and

Professional Regula tion (DPR) and Dr. Rubinstein entered into a

Consent Agreement to resolve DPR Case Nos. 90 - 06221, 91 - 06043,

91 - 08800, 91 - 12051, 92 - 00308, 92 - 11650, 92 - 11763. The Consent

Agreement provided a stipulated disposition of a $10,000 fine

and probation for five years. The Consent Agreement was adopted

by a Final Order of the Board filed August 23, 2009.

5. On May 11, 1993, DPR and Dr. Rubinstein entered into a

Consent Agreement relating to DPR Case No. 92 - 13503. The

Consent Agreement provided a stipulated disp osition of a $5,000

fine, a reprimand, and requirement that Dr. Rubinstein review

s ection 458.331, Florida Statutes, and Florida Administrative

Code Chapter 21M. The Consent Agreement was adopted as a Final

Order by the Board on June 8, 1993.

6. On Augus t 24, 1992, the Board entered a Final Order in

DPR Case Nos. 0081610, 8906844, 8903225, 109405, and 8907280

finding Dr. Rubinstein guilty of violations of s ubs ections

458.331(1)(d), (k), (m), (n), (t), and (x), Florida Statutes;

imposing a $15,000 fine; reprimanding Dr. Rubinstein;

prohibiting Dr. Rubinstein from initiating contact with patients

or their families for the purpose of persuading them to agree to

his treatment recommendations; and placing Dr. Rubins tein on

probation for one year.

7. On June 8, 2005, a Determination and Order was entered

by the State of New York, Department of Health, State Board for

Professional Medical Conduct, BPMC No. 05 - 115, revoking

Dr. Rubinstein's license to practice medicine in New York, based

on the disciplinary acti ons by the Board in the Final Order in

Case DOH - 04 - 0020 - S - MQ.

Facts Relating to DOAH Case No. 09 - 5267PL

8. At all times material to this Administrative Complaint,

Dr. Rubinstein did not hold hospital staff privileges for any

hospital in the Sarasota, Flor ida, area.

9. On January 11, 2005, J.D. presented to Dr. Rubinstein's

office, seeking the following medical procedures: a breast lift

or augmentation; possible liposuction on her hips; and a tummy

tuck. J.D. completed a form during the office visit.

Dr. Rubinstein recommended that J.D. have a breast augmentation;

liposuction of hips, outer and inner thighs, and knees; and an

abdominoplasty (tu mmy tuck).

10. During the January 11, 2005, visit, Dr. Rubinstein

told J.D. that he could help her with the dark circles under her

eyes with some allergy testing. J.D. had not gone to Dr.

Rubinstein for diagnosis, help, or treatment for any other

conditions other than her request for cosmetic surgery.

1 1 . On January 11, 2005, J.D. was provided with a cost

estimate for the surgical procedures of $29,550. These costs

included a tummy tuck at $8,900; liposuction of the abdomen at

$3,800; liposuction of the hips at $2,800; liposuction of the

waist at $2,400; liposuction of the lateral thighs at $3,400;

liposuction of the medial thighs at $1,800; liposuction of the

knees at $800; operating room for $300 per hour for a total of

$2,700; anesthesia at $300 pe r hour for a total of $2,700; and

lab work for $250. The cost estimate did not include the breast

augmentation. The surgical cost estimate stated: "It is

estimated that your operating and recovery time will be

9 hours."

12. J.D. took the cost estimate and discussed them with

her husband, who felt that the costs were too much. J.D. called

Dr. Rubinstein's office and advised that the cost was too high,

and she could not have the surgeries for that price.

13. Dr. Rubinstein revised his surgical cost estimate as

follows: abdominoplasty $8,900; breast augmentation $4,200;

implants $1,400; liposuction of the abdomen $0; liposuction of

the hips $2,800; liposuction of the waist $0; liposuction of the

lateral thighs $3,400; liposuction of the medial thighs $0;

operating room at $300 per hour for a total of $2,700;

anesthesia at $300 per hour for a total of $2,700; and p re - op

lab work $250. There was no mention of liposuction of the knees

in the revised cost estimate. The revised cost estimate stated:

"It is estimated that your operating and recovery time will be

9 hours." The revised cost estimate was signed by J.D. on

January 14, 2005.

14. Both the original and revised cost estimates contained

the following: "The Anesthesia and operating room charges are

based on operating and recovery time. Consequently, if a

surgical procedure turns out to be more or less length y than was

expected, both fees will be correspondi ngly increased or

decreased."

15. J.D. went to Dr. Rubinstein's office on January 14,

2005, for a pre - operative visit. A history was taken, and a

physical examination was done. Frank Steig, M.D. (Dr. Ste ig) ,

who is board certified in otolaryngology , head and neck surgery ,

and plastic and reconstructive surgery, testified as an expert

on behalf of the Department. He was of the opinion that the

history and physical met the basic criteria. His opinion was

based on a review of the medical records.

16. Some of the forms used by Dr. Rubinstein in recording

the information concerning J.D. were forms that are more

suitable for an otolaryngology physician's use. However, no

evidence was presented that the information listed on the forms

did not meet the basic criteria for medical records or that the

use of a certain form fell below the standard of care.

17. Although J.D. was seeing Dr. Rubinstein for cosmetic

surgery, she was asked to fill out a questionna ire concerning

allergies. On or about January 14, 2005, Dr. Rubinstein gave

Patient, J.D., a cost estimate for allergy testing totaling

$3,565.00.

18. On or about January 14, 2005, Dr. Rubinstein directed

J.D. to go to Lab Corp for pre - operative testing , which included

a CBC with Differential/Platelet, Complete Metabolic Panel,

Urinalysis, Prothrombin Time, and Partial Thromboplastin Time.

19. On or about January 19, 2005, J.D. presented to

Dr. Rubinstein for the decided cosmetic procedures. Based on

Dr. Rubinstein's operative report, he performed the following

procedures on J.D. on January 19, 2005: abdominoplasty;

liposuction of lower lateral abdomen, hips, waist, lateral

thighs, medial thighs, and knees; and augmentation of breasts.

20. Based on t he surgical and anesthesia notes, the

anesthesia began at 9:15 a.m. and ended at 11:55 p.m. There was

some difficulty in finding a vein on J.D. that would be suitable

to deliver the anesthesia. Eventually the anesthesia was

administ ered through the jugul ar vein.

21. Surgery was begun at 11:45 a.m. and was completed

at 11:20 p.m. The breast augmentation took three hours

and 35 minutes. The liposuction took one hour and 55 minutes.

The abdominoplasty took six hours and five minutes.

22. At the final he aring, Dr. Rubinstein testified that he

would have predicted that the breast augmentation would have

taken approximately two to two - and - a - half hours. He would have

estimated that the liposuction would have taken one hour

and 55 minutes. He would have est imated that the abdominoplasty

would have taken three to four hours. Given these estimates,

the planned surgery time at a maximum would have be en eight

hours and 25 minutes.

23. Dr. Rubinstein's testimony contradicts his estimate of

the surgical time as reflected on the surgical cost estimates,

which were done prior to the surgery. The first cost estimate

did not include the breast augmentation; therefore, the planned

surgery for liposuction and the abdominoplasty was eight hours

as reflected on the cost estimate. In the revised cost

estimate, he added the breast augmentation, which he estimated

to be between two and two - and - one - half hours. Thus, the planned

time for the three surgical procedures would have been between

ten and ten - and - one - half hours. No explanation was given by

Dr. Rubinstein why there was no adjustment between the planned

time for surgery as reflected in the cost estimates.

24. On or about January 19, 2005, J.D. was taken to the

recovery room at 11:55 p.m. and released to return hom e at

1:00 a.m. on January 20, 2005. Based on the anesthesiologist's

assessment, J.D. met the discharge criteria of Dr. Rubinstein's

surgical facility, which was accredited as a Level III surgical

facility.

25. J.D.'s husband, Mr. J.D., was called to

Dr. Rubinstein's office to take J.D. home. He testified that

after he arrived at the facility, he was told that there would

be an additional fee of $4,900; however, he stated that the

discharge of J.D. was not conditioned on the payment of the

additional fee. The evidence is conflicting concerning when

Mr. J.D. actually paid the additional $4,900 by credit card.

Mr. J.D. testified that he paid by credit at the time of J.D.'s

discharge on January 20, 2005. The computer credit card

receipt, which was signed b y Mr. J.D. , shows that the payment by

credit card was made at 1:01 p.m. on January 20, 2005. The

evidence shows that the credit card payment was made in the

afternoon of January 20, 2005.

26. Dr. Rubinstein's operative report did not include the

amount o f tissue that was removed during the a b dominoplasty or

the tightening of J.D.'s abdominal wall. Dr. Steig, the

Department's expert, did not testify that the standard of care

required that such information be included in the operative

report. He said that generally such information is included.

Douglas Dedo, M.D. (Dr. Dedo) , expert witness for

Dr. Rubinstein, opined that the standard of care did not require

Dr. Rubinstein to document the amount of tissue removed during

the abdominoplas t y or to document th e tightening of the

abdominal wall. Dr. Dedo's testimony is credited.

27. Dr. Rubinstein belongs to the International Trade

Exchange (ITEX), which is a corporatio n that serves as a network

for businesses to do business with each other using an

alternativ e currency system called trade dollars. In other

words, businesses can barter with one another. Dr. Rubinstein

suggested to J.D. that she might want to become a member of

ITEX , and it could be a way of paying for procedures.

28. J.D. and her husband own a tour guide service. One of

Dr. Rubinstein's employees, Judy Trapani (Msapani) , was

interested in bartering a trip to Italy for procedures performed

by Dr. Rubinstein. Based on the testimony of Mr. J.D., it

appears that conversations concerning bar tering a trip to Italy

for surgical procedures occurred between Msapani and

Mr. J.D. The evidence is not clear and convincing that

Dr. Rubinstein was trying to barter the surgical procedures for

a trip for Msapani.

Facts Relating to DOAH Case No. 09 - 5269PL

29. On March 22, 2005, B.L. first presented to

Dr. Rubinstein, accompanied by her mother, C.L., for complaints

of severe acne. C.L. filled out a general patient questionnaire

and was also asked to fill out a form concerning allergies. It

is no t clear why a form relating to allergies would need to be

completed prior to the initial examination when B.L. was being

seen for severe acne.

30. On the general questionnaire, C.L. indicated that B.L.

had had asthma or other respiratory problems , chronic

bronchitis , and ear infections. The allergy questionnaire was

to determine the cause of the patient's allergy symptoms.

However, B.L. was not seeing Dr. Rubinstein for allergy

symptoms, and C.L., understandably, thought that the allergy

questionnaire re lat ed to past symptoms.

31. On the allergy questionnaire, C.L. indicated that B.L.

had had trouble with her skin; hives; trouble with ears popping

and itching, hearing loss; frequent sore throats with drainage;

itching eyes; thick/colored discharge from h er nose; sniffles,

and sneezing. Other than trouble with her skin, B.L. did not

have any of these symptoms when she presented to Dr. Rubinstein.

On examination, Dr. Rubinstein noted that B.L.'s turbinates were

engorged and pale and that she had hypoplas tic lymphoid tissue.

32. Dr. Rubinstein diagnosed B.L. with cystic acne.

Cystic acne occurs when an obstruction of the hair follicle

inflames the sebaceous gland and the inflammation rises to the

surface. Allergies do not cause cystic acne. However,

Dr . Rubinstein told C.L. and B.L. that food allergies could

affect the inflammatory component of B.L.'s cystic acne.

33. On one of the questionnaires, C.L. had indicated that

B.L. had problems with sugars and carbohydrates. From this

information, Dr. Rubin stein deduced that B.L. must have a

problem with yeast and put her on a yeast - free diet. It is not

understood why B.L. was put on a diet eliminating yeast, since

sugar and carbohydrates also occur in foods other than foods

containing yeast. Dr. Rubinstei n put B.L. on a yeast - free diet

before any testing was done to determine whether she had an

allergy to yeast.

34. Dr. Rubinstein also recommended blue - light therapy for

the inflammation. He recommended allergy testing and the Obagi

Nu - Derm System (Obagi) products. The Obagi program consists of

topical products that are applied to the problem area. A

prescription is required for the Obagi products. He prescribed

an antibiotic, Minocycline . He also prescribed Nystatin for

B.L.

35. During the initial of fice visit on or about March 22,

2005, Dr. Rubinstein administered 1000mg of Erythromycin to B.L.

by mouth prior to performing a deep pore facial cleansing on

her. B.L. was also given a facial mask. B.L. suffered severe

stomach pains and diarrhea from th e Erythromycin. C.L. called

Dr. Rubinstein and told him about the stomach problems, and he

told C.L. that was a normal reaction.

36. On or about March 28, 2005, B.L. and C.L. presented to

Dr. Rubinstein for a follow - up appointment. Dr. Rubinstein

docume nted in the medical records that B.L.'s complexion

appeared improved. He continued B.L. on Nystatin and

M inocycline. Dr. Rubinstein continued to recommend the allergy

tests and the Obagi program. C.L. purchased the Obagi program

products for $1,200.

3 7. B.L. and her mother returned to Dr. Rubinstein's

office on April 4, 2005, for a follow - up visit. Dr. Rubinstein

continued the Minocycline and reviewed the progress in the Obagi

program. C.L. authorized the allergy tests. The charge for the

allergy t ests was $2,821.

38. One of the allergy tests which Dr. Rubinstein had

performed was I g G testing. Such testing is not done by

mainstream allergists, and it is below the standard of care to

use such testing.

39. On the evening of April 11, 2005, B.L. ate a piece of

cake at her grandmother's birthday party. On the morning of

April 12, 2005, B.L. went to school at 7:30 a.m., and, by

8:20 a.m., she was experiencing hives, swollen joints, problems

catching her breath, and problems moving her fingers, bending

her knees, and bending her feet. B.L. ' s joints were visibly

swollen. C.L. took B.L. to see Dr. Rubinstein on April 12,

2005.

40. Dr. Rubinstein noted in his records on April 12, 2005,

that B.L. had hives, but he did not mention that B.L.'s joints

were swollen. He opined that the hives were caused by eating

cake. B.L. had eaten cake at times before the ingestion of cake

on April 11, 2005, and had not experienced the symptoms that she

had on April 12, 2005. B.L. has eaten cake since the ingestion

of th e cake on April 11, 2005, and has not experienced the

symptoms that she had on April 12, 2005.

41. Dr. Rubinstein had the results of the allergy tests to

foods on April 12, 2005. None of the tests showed that B.L. was

allergic to baker's yeast or gluten . One of the tests showed

that B.L. might be allergic to candida albicans, which is a

yeast that is usually found in babies with thrush and people

whose immunity system is compromised. An allergy to candida

albicans is not the same as an allergy to baker 's yeast.

However, Dr. Rubinstein con tinued the yeast - free diet.

42. During the office visit on April 12, 2005,

Dr. Rubinstein administered a 6mg dose of Decadron to B.L. for

an acute allergic reaction. Decadron is a steroid used to treat

conditions such as arthritis, blood/hormone/immune system

disorders, allergic reactions, certain skin and eye conditions,

breathing problems, certain bowel disorders, and certain

cancers. B.L. had an adverse reaction to the Decadron,

resulting in vomiting, stomach p ains, and diarrhea.

43. Dr. Rubinstein placed B.L. on another round of

Minocycline. He suggested to C.L. that he might want to have

B.L. switch to tetracycline because it may be more effective and

cheaper than the Minocycline. C.L. told Dr. Rubinstein t he

price that she was paying for the Minocycline, and he told C.L.

that if she could get the Minocycline for the price she stated

that B.L. could stay on the Minocycline.

44. During the office visit on April 12, 2005,

Dr. Rubinstein lanced and drained fou r extremely inflamed cysts

located on B.L.'s forehead and cheek.

45. On April 12, 2005, Dr. Rubinstein suggested that B.L.

go on a Rotation Elimination Diet to eliminate positive allergic

foods. B.L. was to continue abstaining from eating yeast. The

co st of the diet was $100.

46. On April 12, 2005, after the office visit with

Dr. Rubinstein, C.L. called Dr. Rubinstein and advised that B.L.

was still not improving. Dr. Rubinstein made a note of C.L.'s

telephone call. He continued to opine that the r ash was caused

by the ingestion of cake. He noted that the allergic reaction

may be caused by the medication, but he still did not

discontinue the medication. Although, Dr. Rubinstein had just

examined B.L. that day, he requested that B.L. be seen again for

re - evaluation.

47. On or about April 14, 2005, C.L. went to see Dr.

Rubinstein without B.L. to obtain the results of B.L.'s allergy

tests. C.L. indicated that B.L.'s hives were worse. Dr.

Rubinstein suggested that B.L. present to him again, after

ha ving seen B.L. two days prior , and that she may need

antihistamines and medrol do se packs. He did not tell C.L. to

discontinue the Minocycline.

48. C.L. no longer trusted Dr. Rubinstein. On April 15,

2005, B.L.'s symptoms had not improved, and C.L. took B.L. to

see B.L.'s pediatrician. The pediatrician referred B.L., to

Hugh H. Windom, M.D. (Dr. Windom) , a board - certified allergist.

49. Dr. Windom saw B.L. on April 15, 2005, for hives,

joint pain, and some swelling of her hands and lower arms. On

exam ination, Dr. Windom found that B.L. had cystic acne, raised

blanching, a red rash on her lower arm, mild nasal mucosal

edema , and swelling in the joints on both hands and that B.L.

was dermatographic. B.L. told Dr. Windom that she had been

prescribed Mino cycline by Dr. Rubinstein and had been taking it

since sometime in March 2005. B.L. advised Dr. Windom that she

did not take the Minocycline on April 14, 2005, and that her

symptoms had improved some. Dr. Windom suspected that the

hives, joint pain, and swelling were allergic reactions to

drugs. He discontinued B.L.'s use of Minocycline and N ystatin.

Within 24 hours after her visit with Dr. Windom, B.L.'s symptoms

were gone. Dr. Windom referred B.L. to a dermatologist for her

acne.

50. Michael Pacin, M.D. (Dr. Pacin) , is a board - certified

allergist and testified as an expert for the Department.

Dr. Pacin was of the opinion that there is no connection between

allergies and acne. Acne is not an allergy symptom. He is also

of the opinion that the prescr iption of a yeast - free diet when

the physician does not know if the patient has an allergy to

yeast is below the standard of care. Dr. Pacin's testimony is

credited.

51. C.L. paid Dr. Rubinstein $100 for the Rotation Diet,

and $2,821 for allergy testing.

Facts Relating to DOAH Case No. 09 - 5270PL

52. On July 17, 2006, R.A. presented to Dr. Rubinstein

with complaints that he had a rash on his face and that it was

itching. R.A. thought that he might have an allergy, which is

why he sought out an allergy s pecialist. R.A. had not gone to

see Dr. Rubinstein for any nasal problems. R.A. felt that , when

he mentioned that he thought he might have allergies, "it just

locked in with [Dr. Rubinstein] that he had nasal problems."

53. R.A. filled out a questionnai re on the first visit

concerning his current problem. He advised Dr. Rubinstein that

he had prostate cancer in 1999 , and his prostate had been

removed. He also stated that he had had nasal problems and had

gone to the Silverstein Institute 1/ in October 2005. In December

2005, he had surgery at the Silverstein Institute. Part of the

surgery had been for the removal of polyps. R.A. had been going

to the Silverstein Institute for follow - up visits and felt that

his nasal and sinus issues were clearing up. Dr. Rubinstein

recommended that R.A. have a CT scan done.

54. Dr. Rubinstein asked R.A. to get his medical records

from the Silverstein Institute. R.A. requested his medical

records, including a CT scan of his sinuses, from the

Silverstein Institute, a nd those records were provided to

Dr. Rubinstein.

55. On July 18, 2006, a CT scan was performed on R.A. The

physician who interpreted the CT scan had the following

impression of the CT scan results:

Surgical alteration includes bilateral

superior and mid dle turbinate removal.

Opacificaton of the anterior ethmoidal air

cells present bilaterally extends into the

frontal sinuses where there is mild

mucoperiosteal thickening. The right

sphenoid sinus is completely opacified.

There is mention in the history of a

possible nasal bone fracture however,

fractures are not identified.

56. The CT Scan did not show a deviated septum to the

extent that surgery would be needed. The physician who prepared

the report on the CT stated: "Nasal septum is not significan tly

deviated." The medical records from the Silverstein Institute

showed that in 2005 that R.A.'s septum was intact in midline.

57. The CT scan report stated: "Mucoperiosteal thickening

exists in the left maxillary sinus in a relatively mild fashion

wit h probable polyp formation of the anterior ethmoidal air

cells." The CT scan did not conclusively state that polyps were

present.

58. Dr. Steig, the Department's expert, reviewed the CT

scan image and opined that the CT scan did not show nasal

polyps , bu t instead showed polypoid changes which may or may not

have been associated with the presence of polyps. Polypoid

changes can be caused by mucosal irritation or suctioning. The

polypoid changes in the CT scan were on the mucosa on the

lateral wall. Dr. Steig's testimony is credited.

59. On or about July 19, 2006, Dr. Rubinstein called R.A.

to discuss the CT scan results and told R.A. that the CT scan

results were abnormal. Dr. Rubinstein diagnosed R.A. with

chronic allergic rhinitis, chronic sinusitis, nasal septal

deviation with moderate obstruction, recurrence of nasal polyps,

loud snoring , and dry mouth secondary to mouth breathing.

Dr. Rubinstein felt the redness on R.A.'s face was a form of

rosacea. Dr. Rubinstein's treatment plan consisted of rev iewing

the CT results, providing R.A. with supplements, in vitro

allergy testing, and providing allergy medication if needed.

60. On July 24, 2006, R.A. underwent in vitro allergy

testing, using IgE blood testing for inhalants and IgG blood

testing for fo od.

61. On or about July 27, 2006, R.A. presented to

Dr. Rubinstein for a follow - up appointment , complaining of a

number of symptoms bothering him since his previous appointment

the week before. R.A. complained of symptoms on his skin, a

stuffy nose, so re throat, body ache, and watery eyes.

62. On July 27, 2006, Dr. Rubinstein performed an

endoscopy on R.A. Dr. Rubinstein told R.A. that the polyps that

had been removed at the Silverstein Institute had grown back.

He further told R.A. that his septum was crooked and that the

physician at the Silverstein Institute had not done a good job

and needed to be reported.

63. Dr. Rubinstein advised R.A. of the results of the

allergy testing. The allergy test, which Dr. Rubinstein

requested for food allergies , showed that R.A. was allergic to

all foods tested except for sunflower seeds. The food allergies

were tested by Commonwealth Medical Labs in Warrenton, Virginia.

The test used was called an IgG test. The laboratory report

stated: "This test i s For Inv estigational Use Only. Its

performance characteristics have not been cleared or approved by

the U.S. Food and Drug Administration."

64. Dr. Rubinstein told R.A. that the allergies could be

treated with homeopathic vitamins, supplements, acupuncture, and

a Rotation Elimination Diet.

65. Dr. Rubinstein sold R.A. a lot of homeopathic vitamins

and supplements from Dr. Rubinstein's office. Dr. Rubinstein

also recommended that R.A. get some treatments from an

acupuncturist, who worked out of Dr. Rubinstein's office on a

case - by - case basis. Some of the treatments included injection

of some homeopathic medications. The acupuncturist was suppo sed

to help with the rash on R.A.'s face and the allergies.

66. On July 27, 2006, Dr. Rubinstein ordered a sleep apnea

test for R.A. The method of testing was a home test, which R.A.

rented from Dr. Rubinstein. R.A. often woke during the night to

urinat e since he had his prostate removed. The results of the

test showed that R.A. had significant snoring and mild

obstructive sleep apnea. Dr. Rubinstein told R.A. that he

suffered from sleep apnea that was very serious and that R.A.

had almost died three t o four times during the test.

Dr. Rubinstein told R.A. that he needed surgery immediately to

treat the sleep apnea.

67. The sleep apnea test did not show severe sleep a p nea.

The sleep could and should have been treated using positive

pressure ventilation via a mask. Dr. Rubinstein's testimony

that he suggested the use of a mask and R.A. rejected the idea

is not credited. It is clear from R.A.'s testimony that he was

led to believe by Dr. Rubinstein that his sleep apnea was life -

threatening an d that he needed immediate surgery.

68. On or about July 29, 2006, R.A. returned to

Dr. Rubinstein's office. Dr. Rubinstein discussed the Rotation

Elimination Diet with R.A.

69. On or about August 1, 2006, R.A. presented to

Dr. Rubinstein for a follow - up appointment with complaints of a

stuffy nose and dry mouth. Dr. Rubinstein noted that a culture

from R.A. was positive for staph aureus and prescribed the

antibiotics, Septra and Gentamicin nasal spray.

70. On or about August 4, 2006, R.A. presented t o

Dr. Rubinstein with complaints of inability to breathe through

his nose at night. Dr. Rubinstein reviewed the progress of the

Rotation Elimination Diet with R.A.

71. On August 8, 2006, R.A. presented to Dr. Rubinstein

complaining of bilateral congestio n. Dr. Rubinstein prescribed

Allegra - D, an antihistamine decongestant, and Nasonex, a

cortical steroid. Dr. Rubinstein presented R.A. with a surgical

plan that included: endoscopic sphenoidoscopy and debridement;

septoplasty; radiofrequency inferior tur binates; radiofrequency

soft palate; radiofrequency base of tongue ; and bilateral

intranasal endoscopic ethmoidectomy revision. Dr. Steig, the

Department's expert, is of the opinion that the recommended

surgeries were unnecessary and that Dr. Rubinstein s hould have

tried medical treatment before resorting to surgery.

Dr. Steig's opinion is credited.

72. On or about August 11, 2006, R.A. presented to

Dr. Rubinstein for a pre - operative appointment to take a history

and physical examination. Dr. Rubinstein discussed EKG results

with R.A., stating that the results were borderline and that

Dr. Rubinstein would ask another physician to review the

results.

73. On August 14, 2006, R.A. called Dr. Rubinstein's

office and left a message that he was cancelling the surgery.

R.A. went to see Howard B. Fuchs, M.D. (Dr. Fuchs) , on

August 14, 2006, to get a second opinion. Dr. Fuchs is board -

certified in pediatrics and allergies.

74. On August 14, 2006, R.A. presented to Dr. Fuchs with

chronic rhinitis, which is a chr onic inflammation of the nasal

tissues. He wanted to find out whether he had allergies. R.A.

told Dr. Fuchs that he had been tested for allergies when he was

Dr. Rubinstein's patient. R.A. did not bring any of the allergy

test results with him to the of fice visit. Dr. Fuchs told R.A.

to stop taking antihistamines and scheduled R.A. for skin

testing ten days later.

75. On August 24, 2006, Dr. Fuchs performed allergy skin

tests, and the results were negative. R.A. did not have any

allergies. Dr. Fuchs changed the Allegra - D to doses twice a day

and continued R.A. on Nasonex. The Allegra - D was for congestion

and to shrink the tissues in R.A.'s nose. Dr. Fuchs diagnosed

R.A. with vasomotor rhinitis, which is non - allergic. Vasomotor

rhinitis is triggered by things like smoke and chemical fumes.

76. Dr. Fuchs saw R.A. again on September 14, 2006. R.A.

said that he was better , but the medication made him jittery.

Dr. Fuchs changed the medication. The last time that Dr. Fuchs

saw R.A. was on October 13, 2006, and R.A. said that he was

doing well.

77. On August 16, 2006, Jack J. Wazen, M.D. (Dr. Wazen) ,

who is board certified in otolaryngology, head and neck surgery,

saw R.A. for the first time. Dr. Wazen is employed at the

Silverstein Institute, but had not treated R.A. when R.A. had

been a patient at Silverstein Institute before August 16, 2006.

R.A. was seeking a second opinion concerning Dr. Rubinstein's

plan for nasal surgery.

78. Dr. Wazen did a physical examination of R.A.,

including an endoscopi c nasal examination, which revealed the

septum to be in the midline with no obstructive deviation.

There were no polyps, and the sites on which R.A. had had

surgery looked well - healed. Dr. Wazen also reviewed a CT scan,

which R.A. had provided. Based on his examination and

evaluation, Dr. Wazen told R.A. that he did not have polyps and

that there was no clinical benefit to be derived from surgery.

79. R.A. presented with complaints of nasal congestion,

stuffy nose, and hives. Dr. Wazen diagnosed R.A. with allergic

rhinitis.

80. Dr. Steig was of the opinion that surgery should not

have been recommended for the sleep apnea or the chronic

allergic rhinitis or chronic sinusitis without first trying

other medical treatments such as a mask for the sleep apn ea. He

opined that the rhinitis and sinusitis could have been treated

by the avoidance of a known cause of the rhinitis or sinusitis

and continuation of nasal steroids and antihistamines.

Dr. Steig's testimony is credited.

81. Dr. Steig was of the opinion that the recommended

surgery was not justified by the medical records. There were no

polyps present and the septum was not deviated to the extent

that surgery was necessary. The sleep apnea was moderate and

did not warrant su rgical intervention. Dr. Steig's testimony is

credited.

CONCLUSIONS OF LAW

82. 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. (2010).

83. The De partment has the burden to establish the

allegations in the Administrative Complaint s by clear and

convincing evidence. Dep ' t of Banking & Fin . v. Osborne Stern &

Co . , 670 So. 2d 932 (Fla. 1996).

84. The Department has alleged that Dr. Rubinstein

violate d s ections 458.331(1)(m), 458.331(1)(n), and

458.331(1)(t), Florida Statutes (2004), in DOAH Case Nos. 09 -

5267Pl and 09 - 5269PL. Those statutes provide:

(1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(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 ren dering, 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 cons ultations and

hospitalizations.

(n) Exercising influence on the patient or

client in such a manner as to exploit the

patient or client for financial gain of the

licensee or of a third party, which shall

incl ude, but not be limited to, the

promoting or selling of services, goods,

appliances, or drugs.

* * *

(t) Gross or repeated malpractice or the

failure to practice medicine with that level

of care, skill, and treatment which is

recognized by a rea sonably 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 par agraph. 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 pr actice 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.

85. In DOAH Case No. 09 - 5270P L , the Department alleges

that Dr. Rubinstein violated section 438.331(1)(t), Florida

Statutes (2006), which provides:

( 1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(t) Notwithstanding s. 456.072(2) but as

specified in s. 456.50 (2):

1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great weight to the provisions of s. 766.102

when enforcing this paragraph. Medical

malpractice shall not be construed to

require more th an one instance, event, or

act.

2. Committing gross medical malpractice.

3. Committing repeated medical malpractice

as defined in s. 456.50. A person found by

the board to have committed repeated medical

malpractice based on s. 456.50 may not be

licensed or continue to be licensed by this

state to provide health care services as a

medical doctor in this state.

Nothing in this paragraph shall be construed

to require that a physician be incompetent

to practice medicin e 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 medica l malpractice,"

"repeated medical malpractice," or "medical

malpractice," or any combination thereof,

and any publicatio n by the board must so

specify.

86. Section 456.50(1)(g), Florida Statutes (2006), defines

"medical malpractice" as follows:

(g) "Med ical malpractice" means the failure

to practice medicine in accordance with the

level of care, skill, and treatment

recognized in general law related to health

care licensure. Only for the purpose of

finding repeated medical malpractice

pursuant to this s ection, any similar

wrongful act, neglect, or default committed

in another state or country which, if

committed in this state, would have been

considered medical malpractice as defined in

this paragraph, shall be considered medical

malpractice if the stand ard of care and

burden of proof applied in the other state

or country equaled or ex ceeded that used in

this state.

Case No. 09 - 5267PL

87. The Department alleged in the Administrative Complaint

that Dr. Rubinstein violated section 458.331(1)(t), Florida

S tatutes (2004), in the following ways:

a. Respondent spent an excessive amount of

time in the operating room (eleven hours and

thirty five minutes operating on Patient

J.D.) performing multiple procedures in an

office setting; and/or

b. Respondent faile d to observe Patient

J.D. for a sufficient amount of time after

such a long period of sedation and

operation. Respondent should have observed

Patient J.D. for a prolonged period of time

to assure complete recovery and restitution

of fluid balance.

88. T he Department has established by clear and convincing

evidence that Dr. Rubinstein violated section 458.331(1)(t) by

performing multiple surgeries in an office setting for 11 hours

and 35 minutes. Thus, the Department has established that Dr.

Rubinstein f ailed to practice medicine with that level of care,

skill, and treatment which is recognized as being acceptable

under simila r conditions and circumstances.

89. Florida Administrative Code Rule 64B8 - 9.1009(2)(f)

provides that: " [f]or elective cosmetic an d plastic surgery

procedures performed in a physicianÓs office, the maximum

planned duration of all surgical procedures combined must not

exceed 8 hours." By his own testimony at final hearing, Dr.

Rubinstein stated that the maximum time planned for the b reast

augmentation was two and one - half hours; the maximum planned

time for the liposuction was one hour and 55 minutes; and that

the maximum time planned for the abdominoplasty was four hours.

Thus, his own testimony showed that the maximum planned surge ry

time exceeded eight hours.

90. The only pre - surgical estimate of the time for the

procedures is contained in the surgical cost estimates presented

to J.D. The first cost estimate did not include the breast

augmentation and stated that the estimated ti me for surgery was

nine hours, which was eight hours for surgery and one hour for

recovery. The revised cost estimate included an additional

procedure, which Dr. Rubinstein now estimates would take between

two and two - and - one - half hours. Therefore, the p lanned time for

the three procedures would have been between ten and ten - and -

one - half hours, which is about one hour less than the actual

procedures took. Although the revised cost estimate stated that

the planned time for the surgery was eight hours, no explanation

was given for how an additional procedure could be done without

increasing the time for surgery. Based on Dr. Rubinstein's pre -

operative cost estimates, the maximum time planned for the three

procedures would have exceeded the eight hours.

91. Rule 64B8 - 9.1009(2)(f) provides the benchmark for a

reasonable amount of time for surgery to be performed in an

office setting based on the maximum planned amount of time

planned by the physician. If a physician has planned a maximum

amount of eight hours or less , and the surgery may go beyond

that time, it is not considered per se excessive. Because

Dr. Rubinstein's maximum planned time for the procedures

exceeded this benchmark, the planned time was excessive ;

therefore, it can only be concluded th at the amount of time that

the procedures took to be performed was excessive.

92. The Department failed to establish that Dr. Rubinstein

failed to observe J.D. for a sufficient time after the surgery.

J.D. met the surgical facility's criteria for discharge, and,

therefore, Dr. Rubinstein met the standard of care for observing

a patient after surgery.

93. The Department alleged in the Administrative Complaint

that Dr. Rubinstein violated section 458.33 1(1)(m) in the

following ways:

a. Respondent maintained incomplete medical

records for Patient J.D. by not having a

dictation of Patient J.D.'s pre - operative

visit on or about January 14, 2005;

b. Respondent used medical record forms

that would be used by an otolaryngology

(ear, nose, and throat) physician; and/or

c. Respondent's surgical notes neither

specified the amount of tissue removed

during the abdominoplasty nor the tightening

of Patient J.D.'s abdominal wall.

94. The Department failed to est ablish that Dr. Rubinstein

maintained incomplete medical records regarding the pre -

operative visit of January 14, 2005. The Department's own

expert opined that , based on the medical records of

Dr. Rubinstein , the history taken and the physical examination

given on that date meet the basic criteria for a preoperative

history and examination.

95. The Department failed to establish that using a form

used by otolaryngology physicians fell below the standard of

care. The forms used by Dr. Rubinstein contained adequate

information concerning J.D.'s pre - operative visit.

96. The Department failed to establish that the standard

of care required Dr. Rubinstein to include the amount of tissue

removed during the abdominoplasty and to document the tightening

of the a bdominal wall.

97. The Department failed to establish by clear

and convincing evidence that Dr. Rubinstein violated

section 458.331(1)(m).

98. The Department alleged in the Administrative Complaint

that Dr. Rubinstein violated section 458.331(1)(n) in the

following ways:

a. Respondent required J.D. to pay an

additional four thousand nine hundred

dollars ($4,900.00) prior to releasing her

from the office after the surgical

procedure; and/or

b. Respondent suggested that Patient J.D.

barter a vacation t rip for Respondent's

employee, in exchange for additional

surgical procedures.

99. The Department has failed to establish by clear and

convincing evidence that Dr. Rubinstein violated section

458.331(1)(n). The Department has failed to establish that

Dr . Rubinstein or his staff required J.D. or J.D.'s husband to

pay an additional $4,900 before Dr. Rubinstein would release

J.D. from his office on January 20, 2005. J.D.'s husband

testified that the release of J.D. from the facility at

1:00 a.m. on January 20, 2005, was not conditioned on the

payment of the additional $4,900. The evidence further shows

that the credit card payment was made on the afternoon of

January 20, 2005, after J.D. had been discharged.

100. Dr. Rubinstein did suggest that J.D. might want to

become a member of ITEX and that bartering could be a way to pay

for surgical procedures. However, there is no evidence that

Dr. Rubinstein used undue influence to exploit J.D. for his own

financial gain or the that of a third party.

Case No. 0 9 - 5269PL

101. In the Administrative Complaint, the Department

alleged that Dr. Rubinstein violated section 458.331(1)(n) in

the following ways:

a. By using his position as Patient B.L.'s

treating physician to promote and sell

Patient B.L. the Obagi Nu - De rm System;

b. By ordering, and getting paid, without

medical justification for allergy testing of

Patient B.L.; and/or

c. By ordering and getting paid, without

medical justification for a Rotation

Elimination Diet.

102. The Department has established by clear and

convincing evidence that Dr. Rubinstein used his position as a

physician in order to convince C.L. that allergy tests were

needed, when the tests were not needed. B.L. was being seen for

cystic acne not for an allergy. At the initial visit,

Dr. Rubinstein wanted B.L. to fill out a questionnaire that was

geared for allergies not for acne. B.L. did not present at the

initial visit with the symptoms indicated on the questionnaire,

and those symptoms were not documented in Dr. Rubinstein's

init ial examination of B.L. It is clear that Dr. Rubinstein

used the allergy side of his practice as a means of increasing

the cash flow for his practice, particularly when the patient

was not presenting for allergies and was not presenting with

allergy sympt oms. The rotation diet is another example of using

his position to increase his cash flow when there was no medical

justification for the diet. The Department has established by

clear and convincing evidence that Dr. Rubinstein violated

section 458.331(1 )(n).

103. The Department did not establish that Dr. Rubinstein

used his position to promote the purchase of the Obagi Nu - Derm

System products.

104. In the Administrative Compliant, the Department

alleged that Dr. Rubinstein violated section 458.331(1)(t ) in

the following ways:

a. By improperly diagnosing Patient B.L.'s

acne as an allergy;

b. By holding himself out as an allergist

and not practicing at the level of skill,

care, and treatment recognized by a

reasonably prudent allergist;

c. By failing to properly assess and/or

diagnose the cause of B.L.'s swelling, joint

pain, and itching; and/or

d. By failing to recognize the symptoms of

Patient B.L.'s allergic reaction to

Minocycline and Nystatin.

105. The Department has established that Dr. Rubi nstein

held himself out as an allergist and that he did not practice at

the level of skill, care, and treatment recognized by a

reasonably prudent allergist under similar circumstances and

conditions in that he failed to diagnose the allergic reaction

to M inocycline and Nystatin and to treat the reactions b y

discontinuing the medications. He put B.L. on a yeast - free diet

when there was no justification for the diet and continued the

diet after tests revealed that B.L. did not have an allergy to

baker's yea st. The Department has established by cl ear and

convincing evidence that Dr. Rubinstein violated section

458.331(1)(t).

106. In the Administrative Complaint, the Department

alleged that Dr. Rubinstein violated section 458.331(1)(m) by

not justifying the 91 RAST tests for Patient B.L. in the medical

records and by using medical forms that had no place to record

medical h istory or physical examination.

107. The Department did establish by clear and convincing

evidence that Dr. Rubinstein failed to justify in his medical

records the need for ordering the allergy tests. B.L. was not

presenting for the treatment of an allergy and did not have

symptoms of an allergy other than her turbinates were engorged

and pale and she had hypoplastic lymphoid tissue. The

Department has established by clear and convincing evidence that

Dr. Rubinstein violated section 458.331(1)(m). The Department

did not establish that the use of the medical forms that

Dr. Rubinstein used were inappropriate. The information on the

forms s howed that a history was taken and that a physi cal

examination was performed.

Case No. 09 - 5270PL

108. In the Administrative Complaint, the Department

alleged that Dr. Rubinstein violated section 458.331(1)(t),

Florida Statutes (2006), in the following way s:

a. By basing his conclusion that Patient

R.A. suffered from multiple food allergies

on a test that was "for investigational use

only. Its performance characteristics have

not been cleared or approved by the U.S.

Food and Drug Administration";

b. By interpreting the CT scan and sleep

apnea study in a manner which directly lead

to surgery, when other types of

interventions might be needed; and/or

c. By planning to perform unnecessary and

inappropriate surgical procedures on Patient

R.A. without docum entation to support such a

decision.

109. The Department has established by clear and

convincing evidence that Dr. Rubinstein violated section

4 5 8.331(1)(t) and committed medical malpractice by recommending

surgery based on the CT scan and the sleep apnea study without

proceeding first with other types of treatment , such as positive

pressure ventilation for the sleep apnea and continuing with

other medical treatment fo r the nose and sinus problems.

110. The Department has established by clear and

convincing evidence that Dr. Rubinstein violated section

458.331(1)(t) and committed medical malpractice by planning to

perform inappropriate and unnecess ary surgery. There were no

polyps present. The sleep apnea was moderate and did not

require surgical intervention. R.A.'s septum was not

significantly deviated so as to require surgery.

111. The Department failed to establish that

Dr. Rubinstein violat ed section 458.331(1)(t) by using an

I g G test to base his conclusions that R.A. had food allergies.

Dr. Steig, who was the expert retained by the Department to

testify in DOAH Case No. 09 - 5270PL , did not have the expertise

to opine on the efficacy or reli ability of the I g G test.

Penalties

112. Florida Administrative Code Rule 64B8 - 8.001, in

effect at the time of the events in DOAH Case Nos. 09 - 5267PL and

09 - 5269PL, provide s that the disciplinary guidelines for a

violation of section 458.331(1)(m), Florida Statutes (2004),

range from a reprimand to two years' suspension followed by

probation and an administrative fine from $1,000 to $10,000 for

a first offense to probation to suspension followed by probation

and an administrative fine from $5,000 to $10,000 for a second

offense.

113. Florida Administrative Code Rule 64B8 - 8.001, in

effect at the time of the events in DOAH Case No. 09 - 5267PL and

09 - 5269PL , provides that the disciplinary guidelines for a

violation of section 458.331(1)(n) range from payment of fees

paid by or on behalf of the patient and from probation to two

years' suspension and an administrative fine from $5,000 to

$10,000 for a first offense to payment of fees by or on behalf

of the patient and from suspension to revocation and an

administr ative fine of $10,000 for a second offense.

114. Florida Administrative Code Rule 64B8 - 8.001, in

effect at the time of the events in DOAH Case Nos. 09 - 5267P L ,

09 - 5269PL, and 09 - 5270PL , provides that the disciplinary

guidelines for a violation of section 4 58.331(1)(t), Florida

Statutes (2004 and 2006 ), range from two years' probation to

revocation and an administrative fine from $1,000 to $10,000 for

a first offense to a reprimand and probation to revocation and

an administrative fine of $5,000 to $10,000 f or second offense.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered as follows:

DOAH Case No. 09 - 5267PL

a. Finding that Dr. Rubinstein violated section

458.331(1)(t), Florida Statutes (2004);

b. Finding that Dr. Rubinstein did not violate sections

458.331(1)(m) and 458.331(1)(n);

c. Revoking Dr. Rubinstein's license; and

d. Imposing a $10,000 administrative fine;

DOAH Case No. 09 - 5269PL

a. Finding that Dr. Rubinstein violat ed sections

458.331(1)(m), 458.331(1)(n), and 458.331(1)( t );

b. Requiring Dr. Rubinstein to pay C.L. $2,921 for the

allergy testing and the Rotation Diet;

c. Revoking Dr. Rubinstein's license; and

e. Imposing an administrative fine of $10,000.

DOAH Case No. 09 - 5270PL

a. Finding that Dr. Rubinstein violated section

458.331(1)(t), Florida Statutes (2006);

b. Revoking Dr. Rubinstein's license; and

c. Imposing a $10,000 administrative fine.

DONE AND ENTERED this 1st day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

ww w.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of February , 2011 .

ENDNOTE

1/ There were references in the testimony to the Silverstein

Institute, which apparently is the same as the Florida Ear &

Sinus C enter. For the purposes of this Recommended Order, the

facility will be referred to as the Silverstein Institute.

COPIES FURNISHED :

Sharmin R . Hibbert, Esquire

Diane Kiesling, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Ariel Sofro, Esquire

Steven Lubell, Esquire

Lubell & Rosen , LLC

Museum Plaza, Suite 602

200 South Andrews Avenue

Fort Lauderdale, Florida 33301

E. Renee Alsobrook , Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bi n A - 02

Tallahassee, Florida 32399 - 1701

Larry McPherson, Jr., JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.