10-002263PL Department Of Health, Board Of Podiatric Medicine vs. Kenneth D. Poss, D.P.M. Status: Closed Recommended Order on Monday, May 16, 2011.

Summary: Department failed to prove by clear and convincing evidence that podiatrist violated the standard of care in his treatment of patient and that podiatrist's medical records were not sufficient to justify the course of treatment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

PODIATRIC MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 10 - 2263PL

)

KENNETH D. POSS, D.P.M., )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

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

on June 23, 2010, by video teleconference, with the parties

appearing in Miami, Florida, and in Tallahassee, Florida, before

Patricia M. Hart, a duly - designated Administrative Law Judge of

the Division of Administrative Hearing s, who presided in

Tallahassee, Florida.

APPEARANCES

For Petitioner: Monica Rodriguez, Esquire

Dresnick & Rodriguez, P.A.

One Datran Center, Suite 1800

Coral Gables, Florida 33134

For Respondent: Mary S. Miller, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

STATEMENT OF THE ISSUE

Whether the Respondent committed the violations alleged in

the Administrative Complaint issued February 25, 2010, and, if

so, the penalty that should be imposed.

PRELIMINARY STATEMEN T

In a two - count Administrative Complaint issued February 25,

2010, the Department of Health ( " Department " ) charged Kenneth

D. Poss, D.P.M., in Count One with having violated

section 461.013(1)(s), Florida Statutes (2007 & 2008), 1 by

" failing to practice medicine at a level of care, skill and

treatment which is r ecognized by a reasonably prudent podiatric

physician as being acceptable under simil ar conditions and

circumstances " in his treatment of patient N.G. The Department

specifically charged Dr. Poss with having violated

section 461.013(1)(s)

a. by failing to take routine laboratory

tests to identify an infection; and/or

b. by injecting steroids into a previously

infected area; and/or

c. by failing to take a confirmation x - ray

prior to diagnosis of a bony spur and

recommendation of surgery; and/or

d. by fai ling to properly document routine

diabetic care provided.

The Department charged Dr. Poss in Count Two with having

violated section 461.013(1)(l), by " failing to keep written

medical records justifying the course of treatment of the

patient, including, bu t not limited to patient histories,

examination results, and test results " in his treatment of

patient N.G. The Department specifically charged Dr. Poss with

having violated section 461.013(1)(l)

a. by billing for procedures which were not

justified or do cumented in the medical

records; and/or

b. by failing to provide sufficient

information justifying the level of

visit/treatment provided; and/or

c. by failing to take x - rays or do

laboratory work; and/or

d. by failing to document recommended in[ - ]

home therapy.

Dr. Poss timely requested an administrative hearing, and the

Department transmitted the matter to the Division of

Administrative Hearings for assignment of an administrative law

judge.

The final hearing was held, pursuant to notice, on June 23,

2 010. The Department presented the testimony of patient N.G.

and of Stephen Michael Meritt, D.P.M.; the Department did not

offer any exhibits into evidence. Dr. Poss presented the

testimony of Katherine Michelle Chapiewski and of Thomas

Merrill, D.P.M. R espondent ' s E xhibits 1, 4 through 7, and 9

were offered and received into evidence; Respondent ' s Exhibit 8

was offered into evidence but was rejected ; this exhibit was

proffered by Dr. Poss. The parties offered Joint Exhibits J - 1

and J - 2, which were recei ved into evidence. Finally, official

recognition was taken of the 2007 and 2008 versions of

secti on 461.013(1)(l) and (s) and of Florida Administrative Code

Rules 64B18 - 14.002 and 64B18 - 14.003.

The two - volume transcript of the record was filed with the

Di vision of Administrative Hearings on July 14, 2010, and the

parties timely filed proposed findings of fact and conclusions

of law, which have been considered in the preparation of this

Recommended Order. 2

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

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

following findings of fact are made:

1. The Department is the state agency responsible for the

investigation and prosecution of complaints involving physicians

licen sed to practice podiatric medicine in Florida. See

§ 456 . 073, Fla. Stat. The Board of Podiatry i s an entity

created within the Department and is responsible for regulating

the practice of podiatric medicine in Florida and for imposing

penalties on podiat ric physician s found to ha ve violated the

provisions of s ection 4 61.013( 1), Florida Statutes.

See § § 4 61.004 and 461.013(2) , Fla. Stat.

2. At the times material to this proceeding, Dr. Poss was

a physician licensed to practice podiatric medicine in Flori da,

having been issued license number PO 990.

3. At the time of her first visit to Dr. Poss ' s office on

November 19, 2007, patient N.G. was a 72 - year - old woman with

diabetes, among other ailments, who reported that she healed

well. 3

November 19, 2007, off ice visit

4. Patient N.G. ' s complaint at her first office visit with

Dr. Poss, which took place on November 19, 2007, was a nail

fungus on the first toe of her right foot that was causing the

toe to hurt. Dr. Poss ' s notes reflect that N.G. reported that

she had had the fungus in the first toe of her right foot for

approximately two years. Dr. Poss described the fungus as

severe, noted that it was pulling the nail into the skin causing

an ingrown toenail, and described the area around the toe as

" red, in curvated, sore, painful and tender. " 4 Dr. Poss also

noted that N.G. ' s only foot problem at this office visit was the

ingrown nail and fungus in the nail of the first toe of the

right foot.

5 . Dr. Poss ' s medical records reflect that he cut all of

N.G. ' s n ails and sanded and electronically debrided them. He

noted that he spent part of the 25 - minute office visit going

over the " treatment regimen, " which included " vinegar soaks,

Neosporin ointment, Oxistat cream. " 5

6 . Dr. Poss also noted in the medical reco rd of the

November 19, 2007, office visit that he put N.G. " on the fungus

protocol. " 6 The nail fungus treatment protocol prescribed by

Dr. Poss for N.G. was set out in a written document entitled

" Fungus Nail Care. " Copies of the protocol were maintained in

Dr. Poss ' s office, and it was Dr. Poss ' s normal practice to

explain the protocol and to provide a written copy of the

protocol to all patients that instructed to follow the protocol . 7

7 . The fungus treatment protocol used by Dr. Poss

consisted of wash ing the toenails with Head and Shoulders

Dandruff Shampoo, rinsing them with Listerine Whitening

Mouthwash, drying them, and applying prescription anti - fungal

medication to the affected area. Both the shampoo and the

mouthwash contain ingredients with ant i - fungal properties.

8 . During the November 19, 2007, office visit, Dr. Poss

explained the fungus treatment protocol to N.G. 8 Dr. Poss did

not include a copy of the written protocol in N.G. ' s medical

records, but a copy was always available in Dr. Poss ' s office.

9 . When used, protocols must be identified in medical

records, they must be in writing, and they must be readily

available. If these requirements are met, it is not necessary

to include a copy of the protocol in a patient ' s medical

records.

10 . Dr. Poss identified the fungus protocol in N.G. ' s

medical records, the protocol was in writing, and it was readily

available in Dr. Poss ' s office. It was, therefore, not

necessary for a copy of the protocol to be placed in N.G. ' s

medical records.

Februar y 18, 2008, office visit

11 . Patient N.G. ' s next office visit with Dr. Poss was on

February 18, 2008. Dr. Poss noted in N.G. ' s medical records

that she again presented with severe nail fungus, or

onychomycosis, that caused her nails to push into the ski n and

cause pain, thereby limiting her ambulation. Dr. Poss treated

N.G. by cutting her toenails, sanding them, and electronically

debriding them. He prescribed Oxistat cream, which is an anti -

fungal medication.

August 4, 2008, office visit 9

12 . Accord ing to N.G. ' s medical records, she was seen by

Dr. Poss on August 4, 2008, and presented with a very painful

fourth toe on her right foot. Dr. Poss observed that N.G. ' s

fourth toe was red, hot, sore, painful, inflamed , and tender.

Dr. Poss determined tha t N.G. had a bone spur at the proximal

interphalangeal joint ( " PIPJ " ), on the lateral aspect of the

fourth toe, and he diagnosed N.G. as having severe bursitis.

13 . Bursitis is an inflammation of the bursa surrounding a

joint; a bursa is a soft - tissue env elope that surrounds a joint

to protect it. A diagnosis of bursitis is appropriate when an

area around or near a joint is red, hot, and swollen but without

any ulceration.

14 . Dr. Poss treated N.G. ' s bursitis by administering a

steroid injection between the fourth and fifth toes of N.G. ' s

right foot. Steroid injections are the appropriate treatment

for severe bursitis. Dr. Poss also noted that he debrided the

area and applied an 801 dressing , but he did not include in his

notation the area that was debr ided .

15 . Even though the area between N.G. ' s fourth and fifth

toe on her right foot was red, hot, sore, painful, inflamed, and

tender, Dr. Poss did not note any signs of infection in the area

of the PIPJ of the fourth toe o f N.G. ' s right foot.

16 . Dr. P oss noted that, at N.G. ' s August 4, 2008, office

visit, she had dystrophic nails with subungual debris; she had

an ingrown toenail on the fourth toe of her left foot that was

sore, painful, and tender; and, after she removed the nail

polish from her toenai ls, it became apparent that she had fungus

in all of her nails, which was severe and caused her toenails to

push into the skin and cause pain.

17 . In addition to treating N.G. ' s bursitis on her fourth

toe of her right foot, Dr. Poss treated the ingrown to enail on

her left foot; he cut, sanded and electronically debrided all of

her nails; and he ordered vinegar soaks, Neosporin ointment, and

Oxistat cream.

October 10, 2008, office visit 10

18 . N.G. ' s office visit to Dr. Poss on October 10, 2008,

was an emer gency visit because the fourth toe on her right foot

was infected. In his medical records, Dr. Poss described the

area as red, hot, sore, inflamed, and tender, with an abscess.

19 . Dr. Poss performed an incision and drainage procedure

on the infected are a, and he applied a dry, sterile dressing to

the wound. In an incision and drainage procedure, a scalpel is

used to cut into the skin and any fluid in the infected area is

al lowed to drain out of the wound. Dr. Poss prescribed

500 milligram Cipro tablets , Epsom salt soaks, and Garamycin

cream, which, together with the incision and drainage procedure,

was the appropriate treatment for the infection.

20 . Although he treated the abscess by performing an

" incision and drainage " procedure, there is no mention in the

medical records of N.G. ' s October 10, 2008, office visit that

the abscess contained pu rulence, that is, pus or fluid, in a

sufficient quantity to take a culture of only the purulence from

the infected area. T he standard of care in treating an

infe ction between the toes does not require that a culture be

taken every time an incision and drainage procedure is

performed. Rather, cultures should be taken only when there is

sufficient purulence to ensure an accurate culture.

21 . The area between the f ourth and fifth toes is a common

location of skin breakdown, and this is the most common

interspace in which to find an infection such as N.G. ' s.

Typically, however, there ' s not enough purulence in this area to

justify taking a culture. In addition, t her e is a very thin

layer of fat between the skin and the bones of toes , and many

contaminants are normally present on the skin between the toes.

It is, therefore, possible that a culture taken in an area where

there is not sufficient purulence to ensure tha t only the

infected matter is being cultured would produce incorrect

results.

December 1, 2008, office visit 11

22 . At N.G. ' s December 1, 2008, office visit, Dr. Poss

noted that she presented with " a very painful 4th toe on the

R. foot. The area is red, h ot, sore, inflamed, and tender with

severe bursitis at the PIP joint, lateral aspect. She needs

surgery but she doesn ' t want to do it. " 12 Although " red, hot,

sore, inflamed, and tender " can describe an infected area, when

there is no sign of an ulceration of the skin, such a

description is also consistent with a diagnosis of severe soft -

tissue bursitis. Dr. Poss did not note any sign of an

ulceration or infection of the area between the fourth and fifth

toes of N.G. ' s right foot.

23. Dr. Poss noted in th e medical records of N.G. ' s

December 1, 2008, office visit that she had an ingrown toenail

on the fifth toe of her left foot, which caused her pain and

limited her ambulation. N.G. continued to present with severe

fungal nails, which caused the nails to p ush into the skin and

caused N.G. pain, which also limited her ambulation. Dr. Poss

did not note any sign of infection in the area between the

fourth and fifth toes of N.G. ' s right foot.

24 . Dr. Poss treated N.G. ' s severe bursitis with a steroid

injectio n into the PIPJ of the fourth toe of N.G. ' s right foot.

Steroids are never injected into an area of active infection

because steroids inhibit the migration of white blood cells and,

thereby, inhibit the body ' s ability to fight the infection. A

steroid in jected into an active infection in the foot of a

diabetic such as N.G. would present a special danger because a

diabetic ' s ability to heal is compromised by the disease.

Dr. Poss did not note any active infection or ulceration in the

medical records of N. G. ' s December 1, 2008, office visit, and it

was not a breach of the standard of care for Dr. Poss to inject

steroids into the site.

December 29, 2008, office visit

25 . According to Dr. Poss ' s medical records, N.G.

presented at his office on December 29, 2008, with paronychia of

the first toe of her right foot, which was causing her a lot of

discomfort. Dr. Poss described the area around the margin of

the toe nail as " red, hot, sore, inflamed, and tender, with

exudate present. " 13 ( " Exudate " is drainage f rom infected

tissue.) Dr. Poss cut back the nail, performed an incision and

drainage, debrided the area, and applied a dry, sterile

dressing. He prescribed vinegar soaks and Polysporin ointment.

Dr. Poss did not note any sign of infection or ulceration

between the between the fourth and fifth toes of N.G. ' s right

foot on December 29, 2008.

January 19, 2009, office visit

26 . At her January 19, 2009, office visit with Dr. Poss,

N.G. presented with infected eczematous skin on her left foot ,

which Dr. Poss described as " inflamed, tender, and sore with

ulcerated fissured tissue. " 14 Eczematous skin is dry, flaky skin

that resembles eczema; the skin can tear and peel and become

cracked. Dr. Poss treated the infected eczematous skin on

N.G. ' s left foot by debr iding the area. He prescribed Kenalog

with Loprox 50/50, which N.G. was to apply to the affected area

twice a day. Dr. Poss also prescribed vinegar soaks for the

left foot twice a day for 30 minutes each day.

27 . At the January 19, 2009, office visit, N .G. also

complained of pain in the fourth toe on her right foot, and

Dr. Poss described the fourth toe as " red, hot, sore, inflamed,

and tender, with bursitis at the PIPJ of the 4th toe R. " 15

Dr. Poss treated the bursitis by administering a steroid

injecti on, debriding the area, and applying a dressing.

Dr. Poss ' s notes reflect that he again advised N.G. to have

surgery and that she again refused.

28 . It was appropriate for Dr. Poss to administer a

steroid injection in the area between the fourth and fift h toes

of N.G. ' s right foot to treat her severe bursitis . Dr. Poss

examined the area between the fourth and fifth toes of N.G. ' s

right foot and did not note any sign of infection or ulceration

in the area on January 19, 2009 .

29 . Indeed, Dr. Poss last no ted an infection between the

fourth and fifth toes of N.G. ' s right foot in the medical

records of her October 10, 2008, office visit, over three months

prior to the January 19, 2009, steroid injection . N.G. had

three office visits with Dr. Poss between th e October 10, 2008,

and January 19, 2009, office visits, and he did not note any

signs of infection between the fourth and fifth toes of N.G. ' s

right foot in the medical records he maintained for these three

office visits . Dr. Poss did report a small ulce ration between

the fourth and fifth toes of N.G. ' s right foot at her

October 22, 2008, office visit, which he treated, but he did not

note any signs of infection in that area .

February 19, 2009, office visit

30 . Dr. Poss identified several problems with N.G. ' s feet

during her February 19, 2009, office visit. He first noted in

the medical records that N.G. had an infected fourth toe on her

right foot, which Dr. Poss described as an " abscessed spur on

the 4th toe R. foot on the lateral aspect " that was " in fected,

inflamed, tender, and sore. " 16 He attributed the abscess to

N.G. ' s wearing tight shoes and to her refusal to have surgery on

the spur on the bone of the toe. Dr. Poss noted that the pain

was so severe that it affected N.G. ' s ability to walk.

31 . Dr. Poss performed an incision and drainage procedure

on the lateral aspect of the fourth to e of N.G. ' s right foot, at

the PIPJ, and applied a dry, sterile dressing to the area. He

prescribed 500 milligrams of Levaquin that N.G. was to take once

a day, so dium chloride soaks, and Silvadene cream, which is an

antibiotic cream. Although Dr. Poss noted that he drained and

dressed the wound, he does not record in his medical records any

sign of purulence, or pus, associated with the infection, and he

did not t ake a culture when he treated the abscess.

32 . N.G. also presented on February 19, 2009 , with an

ingrown toe nail on the second toe of her right foot, and

Dr. Poss noted that the area was " red, hot, sore, painful,

tender, and incurvated. " 17 Dr. Poss treat ed the ingrown toe nail

with a partial avulsion.

33 . In addition, on February 19, 2009, N.G. presented , as

she had a number of times in the past, with " dystrophic nails

with subungual debris. Onychauxis, onycholysis present with

nail hypertrophy and dyst opia with discoloration " and with

severely fungal toe nails. 18 Dr. Poss cut N.G. ' s nails and

sanded and electronically debrided them, and he prescribed

vinegar soaks, Polysporin ointment, and Oxistat cream, in

addition to the treatment he prescribed for th e abscess on the

fourth toe of her right foot.

March 12, 2009, office visit 19

34 . At N.G. ' s March 12, 2009, office visit with Dr. Poss,

she complained of a very painful fourth toe on her right foot .

Dr. Poss described the are a as inflamed, tender, and so re, and

he noted that N.G. had a .25 centimeter by .25 centimeter

ulceration between her fourth and fifth toes, which he indicated

was caused by the fifth toe rubbing against the fourth toe. 20 He

described the ulceration as having " necrotic tissue on the

i nside and hyperkeratotic tissue on the outside. " 21 Necrotic

tissue is dead or flaky tissue which is debrided, or scraped off

with a blade, so it doesn ' t produce more pressure in the

affected area. The ulceration described by Dr. Poss was

essentially a sup erficial broken blister.

35 . Dr. Poss note d in the medical records of N.G. ' s

March 12, 2009, office visit that he again advised her to have

surgery to alleviate the chronic problems caused by the bone

spur on the lateral aspect of the fourth toe of her ri ght foot;

Dr. Poss described her refusal to have surgery as " emphatic. " 22

Dr. Poss also noted that he advised N.G. that, if she did not

have surgery, the skin between the fourth and fifth toes of her

right foot would continue to break down. Dr. Poss consi dered

the problem with the fourth toe of N.G. ' s right foot to be a

chronic problem that would not be resolved without surgery.

36 . Dr. Poss treated the small ulceration between the

fourth and fifth toes of N.G. ' s right foot with surgical

debridement , and he applied a dry, sterile dressing. He told

N.G. to continue with " the soaks and cream, " which referred to

the Silvadene cream and sodium chloride soaks he prescribed on

February 26, 2009, and March 5, 2009, to treat the ulceration. " 23

He also told N.G. t hat she was to wear wide shoes and sandals

that put no pressure on the area.

37 . The March 12, 2009, office visit was the last time

N.G. was seen by Dr. Poss. She cancelled her next appointment

and failed to keep the re - scheduled appointment.

Treatment b y Jay Alter, D.P.M.

38 . On March 20, 2009, eight days after her last visit to

Dr. Poss ' s office and one month after Dr. Poss last treated her

for an infection between the fourth and fifth toes of her right

foot, N.G. was seen by another podiatric physici an , Jay Alter,

D.P.M. The medical records maintained by Dr. Alter reflect that

N.G. complained on March 20, 2009, that the fourth toe on her

right foot was painful when she walked and when she wore closed

footwear.

39 . Dr. Alter ' s examination revealed th at the interspace

of the lateral aspect of the fourth toe, that is, the space

between the fourth and fifth toes, was painful when palpated.

Dr. Alter noted no drainage or cellulitis in the area, but he

did note crusting , that is, scab bing , in the interspa ce between

the fourth and fifth toes; such crusting is the result of the

breakdown of superficial layers of skin.

40 . Dr. Alter diagnosed N.G. at the March 20, 2009, office

visit with " Acut e Painful Digital Bursitis 4th T oe Right Foot. " 24

Dr. Alter treate d the area by applying a protective dressing and

antibiotic ointment, and he directed N.G. to use saline soaks as

needed and to continue to separate toes with an interdigital

pad. Dr. Alter did not note any signs of infection or

ulceration in the medical records of N.G. ' s March 20, 2009,

office visit.

41 . On March 23, 2009, N.G. was again seen by Dr. Alter .

At this office visit, N.G. complain ed of increasing pain in the

interspace between the fourth and fifth toes of her right foot,

1 7

which caused her grea t difficulty in walking. Dr. Alter noted

erythema, or redness of the skin, and a blister between the

fourth and fifth toes of N.G. ' s right foot, with serous drainage

and pain on palpation. Dr. Alter also noted that he did an X -

ray and confirmed that N.G. had a bone spur on the middle

phalanx of the fourth toe of her right foot.

42 . According to Dr. Alter ' s medical records, he took a

sample of the serous drainage from N.G. ' s fourth toe on

March 23, 2009, and sent the culture to the laboratory for an

aerob ic bacterial culture and sensitivity organism test .

Dr. Alter noted that he cleaned the area with sterile saline

solution and applied betadine solution, Bacitracin ointment, and

a dry, sterile dressing. He also noted that he prescribed warm

saline soaks as needed and 500 milligram tablets of Levaquin.

43 . According to Dr. Alter ' s notes, he received the

laboratory results of the culture and sens itivity tests on

March 25, 2009. The results showed that N.G. had a heavy growth

staphylococcus aureus infectio n between the fourth and fifth

toes of her right foot.

44 . Staphylococcus aureus is a very strong, potent

infection that spreads quickly and is resistant to many oral

antibiotics, including the oral antibiotics Ciprofloxacin and

Levofloxacin. When such a n infection is located between the

toes, it can quickly spread to the bone, and a week ' s delay in

beginning treatment could be very serious. The treatment for

staphylococcus aureus infection includes intravenous

antibiotics.

45 . Dr. Alter ' s medical recor ds reflect that he intended

to discuss the laboratory results with N.G. at her office visit

scheduled for March 26, 2009, but N.G. did not keep the

appointment. Dr. Alter ' s note s also reflect that he called N.G.

on March 26, 2009, and that N.G. went to th e emergency room for

care and the pain . She was referred to the Bethesda wound care

center for follow - up.

46 . Dr. Alter ' s notes reflect that N.G. was subsequently

seen by a Dr. Jaffe, who hospitalized her on or about April 2,

2009, and treated the infect ion with, among other things,

intravenous antibiotics. According to N.G. ' s recollection, the

infection resolved in about four - to - six months; the recovery was

very difficult, and it was necessary for her to have several

skin grafts.

Ultimate facts

A. Mal practice

47 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Poss committed malpractice in the practice of podiatric

medicine. The Department presented no evidence to establish

that Dr. Poss committed malpractice by failing to take an X - ray

prior to diagnosing a bone spur and recommending surgery, and it

presented no evidence to establish that Dr. Poss committed

malpractice by failing to document the routine diabetic care he

provided . 25

1. Failure to take culture

48 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Poss committed malpractice because he did not take a

culture of drainage from patient N.G. ' s infecte d toe on

October 10, 2008, and on February 19, 2009, the two times she

presented to Dr. Poss with an infection between the fourth and

fifth toes of her right foot. The Department ' s expert witness

testified that, without exception, a culture must be taken every

time a podiatric physician does an incision and drainage

procedure on a patient with an infection and that Dr. Poss

breached the standard of care when he failed to take a culture

of the drainage from N.G. ' s infected fourth toe of her right

foot. 26 On the other hand, the Department ' s expert witness also

opined that Dr. Poss ' s treatment of N.G. ' s infection on

October 10, 2008, when Dr. Poss did not take a culture, was

appropriate. 27

49 . Dr. Poss ' s expert witness testified that the standard

of care does not require that a culture be taken whenever a

podiatric physician performs an incision and drainage procedure.

Rather, Dr. Poss ' s expert witness testified that the standard of

care does not require a culture when there is not sufficient

drainage from an infected area to ensure that a culture taken in

the area would accurately identify the type of infection.

Dr. Poss did not note in N.G. ' s medical records for the

October 10, 2008, or February 19, 2009, office visits that there

was any serous drainage from the infected area. 28 Upon

consideration of the testimony of the two expert witnesses and

of Dr. Poss ' s medical records, the undersigned is u nable to

find, without hesitation , that Dr. Poss breached the standard of

care by failing to take a culture when N. G. presented on

October 10, 2008, and on February 19, 2009, with infection s

between the fourth and fifth toes of her right foot.

2. Steroid injections

50 . The evidence presented by the Department is not

sufficient to establish with the requisite degree o f certainty

that Dr. Poss committed malpractice when he administered

injections of a steroid to the area between the fourth and fifth

toes of N.G. ' s right foot on December 1, 2008, and January 19,

2009, because N.G. had had an infection in that area on

Oct ober 10, 2008. Both the Department ' s expert witness and

Dr. Poss ' s expert witness agreed that it is a breach of the

standard of care to inject a steroid into an area with an active

infection. Dr. Poss is, however, charged with having

administered a stero id on two occasions into an area that was

previously infected. 29

51 . The persuasiveness of the testimony of the

Department ' s expert witness regarding the allegation that

Dr. Poss breached the standard of care by administering a

steroid injection on two occ asions into an area where Dr. Poss

had diagnosed an infection on October 10, 2008, is significantly

diminished because it is confused and inconsistent. Early in

his testimony, the Department ' s expert witness expressed his

disagreement with Dr. Poss ' s havi ng administered a steroid

injection on December 1, 2008, in the area between the fourth

and fifth toes of N.G. ' s right foot that had been " previously

infected and previously ulcerated. " 30 The Department ' s expert

witness later testified that " you should not inject an area

that ' s been previously infected, previously ulcerated in an at -

risk patient that ' s diabetic. " 31 A complete review of the record

reveals, however, that the majority of the testimony of the

Department ' s expert witness on this point related to a situation

in which a steroid is injected into an area of active

infection . 32

52 . The Department ' s expert witness testified repeatedly

and at length that he assumed that the infection between the

fourth and fifth toes of N.G. ' s right foot diagnosed and t reated

by Dr. Poss on October 10, 2008, never healed but remained

active throughout the time N.G. was treated by Dr. Poss and that

the symptoms of the infection were masked by the steroid

injections. The Department ' s expert witness also testified that

he believed that the staphylococcus aureus infection diagnosed

from the culture taken by Dr . Alter on March 23, 2009 , was the

same infection as that treated by Dr. Poss on October 10, 2008.

It was primarily in the context of his assumption that N.G. had

an o ngoing, active infection between the fourth and fifth toes

of her right foot that the Department ' s expert witness testified

that he would not, and Dr. Poss should not, have administered a

steroid injection into this area. 33

53 . The assumption of the Depart ment ' s expert witness that

the infection diagnosed by Dr. Poss on October 10, 2008, was

active throughout the time N.G. was treated by Dr. Poss is based

on two faulty premises. First, the sole basis on which the

Department ' s expert witness concluded that the infection between

the fourth and fifth toes of N.G. ' s right foot never healed was

the absence of notation s in N.G. ' s medical records that the

infections diagnosed and treated on October 10 , 2008, and on

February 19, 2009 , had healed. I t was not , howev er, necessary

for Dr. Poss to record in the medical records of N.G. ' s office

visits subsequent to October 10, 2008, and February 19, 2009,

the absence of an infection if there w as no sign of infection ;

rather, i t was sufficient for Dr. Poss to describe the condition

of the space between the fourth and fifth toes of N.G. ' s right

foot at each office visit. 34 It is clear from the medical

records that Dr. Poss consistently examined between the fourth

and fifth toes of N.G. ' s right foot , 35 and the absence of a

no tation in N.G. ' s medical records that the infection had healed

is not sufficient to support the assumption of the Department ' s

expert witness that the infection had not healed.

54 . Secondly, the belief of the Department ' s expert

witness that the staphyloc occus aureus infection that was

diagnosed from the culture taken by Dr. Alter on March 23, 2009,

was a " continuation " of the infection diagnosed by Dr. Poss on

October 10, 2008, is, likewise, not supported by the record. 36

As defined by the Department ' s ex pert witness, staphylococcus

aureus is " a very strong, potent infection that spreads quickly,

and it was resistant to a lot of medications that you can

take orally. It requires IV medications for adequate treatment.

. . . So it ' s -- they get infected very rapidly. And a week ' s

time, a week ' s delay in her treatment is bad. " 37 Significantly,

Dr. Alter did not mention any signs of an infection between the

fourth and fifth toes of N.G. ' s right foot when he examined her

on March 20, 2009, and diagnosed severe bursitis. In addition,

Dr. Poss had prescribed the antibiotic Cipro for the infection

he diagnosed on October 10, 2008, and Levaquin for the infection

he diagnosed on February 19, 2009. If the infection s were,

indeed, staphylo coccus aureus , they would ha ve been resistant to

the antibiotics prescribed by Dr. Poss, 38 and it cannot be

reasonably inferred that an essentially untreated, aggressive ,

and rapidly - advancing infection would have been masked by the

steroid injections administered by Dr. Poss on Decem ber 1, 2008,

and January 19, 2009.

Medical records

55 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Poss failed to keep appropriate medical records

justifying the course of treatme nt of N.G. The Department

presented no evidence to establish that Dr. Poss " billed for

procedures which were not justified or documented in the medical

records. " 39 The Department also presented no evidence to

establish that Dr. Poss failed to keep appropr iate medical

records by " failing to take x - rays or do laboratory work. " 40

56 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Poss failed to keep medical records containing

sufficient information to justify the level of treatment he

provided N.G. or the number of visits she made to his office. 41

Dr. Poss ' s medical records were thorough and fully justified the

treatment he provided N.G. The Department ' s expert witness,

when giving his o pinion regarding the sufficiency of Dr. Poss ' s

medical records, stated only that they were " below standard. " 42

The specific deficiencies t he Department ' s expert witness

identified to support the conclus ion that Dr. Poss ' s medical

records were " below standa rd " were (1) until March 12, 2009,

Dr. Poss failed to include in his medical records notations that

he instructed N.G. not to wear tight shoes 43 ; (2) on one

occasion, Dr. Poss noted in N.G. ' s medical records that he did

an avulsion, but he failed to say how he did the avulsion or

whether he used a local anesthetic to do the avulsion 44 ; and (3)

Dr. Poss noted in the medical records for N.G. ' s office visit on

August 4, 2008, that he " debrided the area, " but he failed to

" define what was debrided or to what leve l it was debrided. " 45

Looking at Dr. Poss ' s medical records for N.G. as a whole, the

three omissions identified by the Department ' s expert witness

are not of sufficient significance to constitute a failure to

keep medical records justifying Dr. Poss ' s trea tment of N.G.

57 . The evidence presented by the Department is not

sufficient to establish with the requisite degree of certainty

that Dr. Poss ' s failure to include in N.G. ' s medical records a

copy of the fungus protocol used in his office constituted a

fa ilure to keep medical records justifying the course of

treatment Dr. Poss provided to N.G. It was Dr. Poss ' s practice

to keep written copies of the fungus protocol readily available

in his office ; to provide a copy of the protocol to a patient

that was pu t on it ; and to go over the written protocol with the

patient. Dr. Poss did not include a copy of his fungus protocol

in N.G. ' s medical records because a written copy of the protocol

was always available in his office.

58 . Although the Department ' s exper t witness identified

Dr. Poss ' s failure to include a copy of the fungus protocol in

N.G. ' s medical records as a violation of the requirement that a

podiatric physician keep medical records justifying the

treatment provided a patient, t he testimony of the D epartment ' s

expert witness is not clear on this point . T he Department ' s

expert witness testified that " [p]rotocols have to be ident ified

and have to be in writing " and that " [t]here must be something

that you can give to a patient that the patient underst ands, and

they must be in the record so that everyone knows what protocol

you ' re using. It ' s okay to have a protocol, but the protocol

must be identified. It must be readily available. " 46

59 . N.G. testified that Dr. Poss explained the fungus

protocol to her, but she could not recall receiving a copy of

the protocol. I t is likely , however, that he did give N.G. a

copy of the protocol; her memory of the events that took place

in 200 7 was not precise, and it was Dr. Poss ' s routine business

practice to provi de his patients a copy of the protocol they ha d

been told to follow . Nonetheless, N.G. understood the protocol

even if she were not provided a copy; the protocol was

identified in the medical records of N.G. ' s November 19, 2007,

office visit; and a writte n copy of the protocol was readily

available in Dr. Poss ' s office . Dr. Poss ' s failure to include a

copy of the protocol in the medical records does not constitute

a failure to keep medical records justifying the course of

treatment of N.G.

CONCLUSIONS OF LAW

60 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes (20 10 ).

61 . Section 461.013(1), Florida Statutes , by refe rence to

section 456.072(2), Florida Statutes, authorizes the Board to

impose penalties ranging from the issuance of a letter of

concern to revocation of a podiatric physician' s license to

practice podiatric medicine in Florida if a podiatric physician

com mits one or more acts specified therein. In its

Administrative Complaint, the Department has alleged that

Dr. Poss violated s ection 461.013(1)(l) and (s) which provides

that the following acts constitute grounds for disciplinary

action by the Board:

(l) Failing to keep written medical records

justifying the course of treatment of the

patient, including, but not limited to,

patient histories, examination results, and

test results.

* * *

(s) Gross or repeated malpractice or the

failure to practice podiatr ic medicine at a

level of care, skill, and treatment which is

recognized by a reasonably prudent podiatric

physician as being acceptable under similar

conditions and circumstances. The board

shall give great weight to the standards for

malpractice in s. 7 66.102 in interpreting

this section. . . . As used in this

paragraph, " gross malpractice " or " the

failure to practice podiatric medicine with

the level of care, skill, and treatment

which is recognized by a reasonably prudent

similar podiatric physician as being

acceptable under similar conditions and

circumstances " shall not be construed so as

to require more than one instance, event, or

act. A recommended order by an

administrative law judge or a final order of

the board finding a violation under this

pa ragraph shall specify whether the licensee

was found to have committed " gross

malpractice, " " repeated malpractice, " or

" failure to practice podiatric medicine with

that level of care, skill, and treatment

which is recognized as being acceptable

under simil ar conditions and circumstances, "

or any combination thereof, and any

publication by the board must so specify.

62 . Section 766.102(1), Florida Statutes, provides in

pertinent part: " The prevailing professional standard of care

for a given health care p rovider shall be that level of care,

skill, and treatment which, in light of all relevant surrounding

circumstances, is recognized as acceptable and appropriate by

reasonably prudent similar health care providers. "

63 . Because the Department seeks in its Administrative

Complaint to impose penalties including revocation or suspension

of Dr. Poss ' s license to practice podiatric medicine and/or the

imposition of an administrative fine, the Department has the

burden of proving the violations alleged in the Adm inistrative

Complaint by clear and convincing evidence. Dep ' t of Banking &

Fin . , Div. of Sec. & Investor Prot . v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996); Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987); Pou v. Dep ' t of Ins . & Treasurer , 707 So. 2d 941

(Fla. 3d DCA 1998) ; and § 120.57(1)(j), Fla. Stat.

(2010)( " Findings 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. " ).

64 . " Clear and convi ncing " evidence was described by the

court in Evans Packing Co. v. Dep ' t of Agric . & Consumer Serv. ,

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; t he 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 t he 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 Dep ' t

of Bus. & Prof ' l Regulation , 705 So. 2d 652 (Fla. 5th DCA

1998)(Sharp, J., dissenting).

65 . In Count One of the Administrative Complaint, the

Department charged Dr. Poss with having failed to pract ice

podiatric medicine " at that level of care, skill and treatment

which is recognized by a reasonably prudent podiatric physician

as being acceptable under similar circumstances. " The

Department specifically charged that Dr. Poss failed to order

routine laboratory tests to ascertain the identity of the

infection between the fourth and fifth toes of N.G. ' s right

foot; injected steroids into a previously infected area; failed

to take an X - ray to confirm his diagnosis of a bone spur between

the fourth and fi fth toes of N.G. ' s right foot; and failed to

document the diabetic care he provided to N.G.

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

failed to prove by clear and convincing evidence that Dr. Poss

breached the prevailing standard of care fo r the practice of

podiatric medicine in his treatment of N.G. as alleged in Count

One of the Administrative Complaint. The Department, therefore,

failed to prove that Dr. Poss violated section 461.013(1)(s) by

not practicing " podiatric medicine with that level of care,

skill, and treatment which is recognized as being acceptable

under similar conditions and circumstances. "

67 . In Count Two of the Administrative Complaint, the

Department charged Dr. Poss with having failed to keep written

medical records j ustifying the course of treatment for N.G. The

Department specifically charged that Dr. Poss billed for

procedures which were not justified or documented; failed to

provide sufficient information in his medical records to justify

the level of treatment of N.G. or the number of office visits by

N.G.; failed to take X - rays or do laboratory work; and failed to

document the fungus protocol in - home therapy. Based on the

findings of fact herein, the Department failed to prove by clear

and convincing evidence th at Dr. Poss did not keep medical

records justifying his treatment of N.G. as alleged in Count Two

of the Administrative Complaint. The Department, therefore,

failed to prove that Dr. Poss violated section 461.013(1)(l).

RECOMMENDATION

Based on the foreg oing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Podiatric Medicine

enter a final order dismissing the Administrative Complaint

filed against Kenneth D. Poss, D.P.M.

DONE AND ENTERED this 1 6 th day of May, 2011, in

Tallahas see, Leon County, Florida.

S

___________________________________

Patricia M. Hart

Administrative Law Judge

Division of Admini strative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of May, 2011.

ENDNOTES

1 / All references herein to the Florida Statutes are to the 2007

and 2008 editions unless otherwise specified. The pert inent

language in the 2007 and 2008 editions of the Florida Statutes

is identical.

2 It is noted that, at the time this case went to final hearing,

there was pending in the First District Court of Appeal a

Petition for Review of Non - Final Agency Action d irected to a

discovery order entered by the undersigned on June 9, 2010. The

court issued its opinion on September 23, 2010, and its mandate

on October 12, 2010. Subsequent to the court ruling, the record

in this case was closed.

3 / Dr. Poss observed i n his notes for the November 19, 2007,

office visit that N.G. denied she was diabetic but that she was

taking medication for diabetes. Joint Exhibit 1 at page 5.

4 / Id.

5 / Id.

6 / Id.

7 / In her testimony, N.G. stated that she did not recall

receivin g a copy of the Fungus Nail Care protocol. She did,

however, recall with specificity the treatment set out in the

protocol.

8 / Transcript, volume 1 at page 40.

9 / Patient N.G. ' s medical records reflect that she saw Dr. Poss

on March 31, 2008, when he treated her for paronychia, an

infection on the edge of the nail margin and in the soft tissue

adjacent to the nail, on her the first toe nail of her right

foot; on May 12, 2008, when he again treated N.G. for severe

fungal nails and noted that the " fungus is coming out " ; Joint

Exhibit 1 at page 9; and on June 23, 2008, when Dr. Poss treated

N.G. for infected eczematous skin on both feet . These office

visits were not included in the allegations in the

Administrative Complaint , and the details of these offi ce visits

are, therefore, not included in the findings of fact.

10 / Patient N.G. was also seen by Dr. Poss on September 15,

2008, when she presented with paronychia on the first toes of

her right and left feet, which Dr. Poss treated. Dr. Poss noted

that N.G. ' s fourth toe on her right foot was a "little sore."

In addition, the medical records reflect that Dr. Poss advised

N.G. to have surgery on the bone spur but that N.G. declined.

This office visit was not included in the allegations in the

Administra tive Complaint, and the details are, therefore, not

included in the findings of fact. It is significant, however,

that Dr. Poss addressed in his notes the slight soreness of

N.G. ' s fourth toe on her right foot.

11 / Patient N.G. also visited Dr. Poss on O ctober 22, 2008, when

she presented with a small ulceration on the lateral aspect of

the fourth toe of her right foot. The ulceration was .25

centimeters by .25 centimeters, about the size of a BB, with

" necrotic tissue on the inside and hyperkeratotic ti ssue on the

outside. " Joint Exhibit 1 at page 14. The area was sore,

inflamed, and tender, but Dr. Poss did not note any infection in

the area. According to Dr. Poss ' s notes, N.G. again refused to

consider surgery on the bone spur between the fourth and fifth

toes of her right foot.

Dr. Poss treated the ulceration by performing a surgical

excisional debridement, down to the subcutaneous tissues, which

is the appropriate treatment for an ulceration. Because N.G.

continued to have severe fungus in h er toenails, Dr. Poss also

debrided the nails, cut, and sanded them, and he told her to

continue the antifungal treatment. This office visit was not

included in the allegations in the Administrative Complaint, and

the details are, therefore, not included in the findings of

fact. It is, however, significant to note that Dr. Poss

examined the area between the fourth and fifth toes of N.G. ' s

right foot and did not note an infection in that area in the

medical records of N.G. ' s October 22, 2008, office visit.

12 / Joint Exhibit 1 at page 15.

13 / Id. at page 16.

14 / Id. at page 17.

15 / Id.

16 / Id. at page 18.

17 / Id.

18 / Id.

19 / Patient N.G. also visited Dr. Poss on F ebruary 26, 2009, and

on March 5 , 2009. In the medical records of the February 26,

2009 , office visit, Dr. Poss noted that N.G. had an ulceration

on the lateral aspect of the fourth toe of her right foot, at

the PIPJ. The ulcer ation was .25 centimeters by

.25 centimeters, the same size as the ulcer ation recorded by

Dr. Poss in the medical r ecords of N.G. ' s October 22, 2008,

office visit. Dr. Poss described the area as sore, inflamed,

and tender, and he noted that he again recommended that N.G.

have surgery on the bone spur on the fourth toe of her right

foot but that N.G. refused surgery. The medical records reflect

that Dr. Poss debrided the ulceration with surgical excisional

debridement, down to the subcutaneous tissues, and applied

Silvercel cream and a dry, sterile dressing to the area. He

prescribed Silvercel cream and sodium chlorin e soaks, which he

directed N.G. to begin after three days. Dr. Poss noted that

N.G. had finished the antibiotic he had prescribed at the

February 19, 2009, visit.

N.G. visited Dr. Poss on March 5, 2009, and he recorded in

the medical record of that office visit that N.G. had an

ulceration on the outside, or lateral aspect, of the fourth toe

of her right foot, at the PIPJ. The size of the ulcer ation

noted by Dr. Poss at this office visit was the same as that

recorded at the February 26, 2009, office visit. Dr. Poss again

debrided the ulceration with surgical debridement and applied a

dry, sterile dressing. Dr. Poss directed N.G. to continue the

soaks and cream prescribed at the February 26, 2009, office

visit.

These office visits were not incl uded in the allegations in

the Administrative Complaint, and the details are, therefore,

not included in the findings of fact. It is, however,

significant to note that Dr. Poss did not note an y infection

between the fourth and fifth toes of N.G. ' s right f oot at either

of these office visits.

20 / As noted in endnote 18, above, the ulceration had been

present on both February 26, 2009, and March 5, 2009, but it had

not increased in size between the February 26, 2009, and

March 12, 2009, office visits.

21 / Joint Exhibit 1 at page 21.

22 / Id. at page 21.

23 / See endnote 1 9 , above.

24 / Joint exhibit 2; notes from March 20, 2009, office visit to

Dr. Alter.

25 / It is noted that the failure to document treatment is not

properly categorized as medical malpract ice. See Barr v.

Department of Health, Board of Dentistry , 954 So. 2d 668 (Fla.

1st DCA 2007)( " We believe there is a significant difference

between improperly diagnosing a patient . . . and properly

diagnosing a patient, yet failing to properly document t he

actions taken on the patient ' s chart, which constitutes a

subsection (m) [medical records] violation. " ).

26 / See Transcript, volume 2 at pages 148 - 49.

27 / The Department ' s expert witness testified: " [H]e treated

[the infection] appropriately with inc ision and drainage. He

placed the patient on antibiotics, which is correct. He picked

a broad - spectrum antibiotic, which is fine, sends the patient

home with dressings. Everything is as it should be for that

initial incision and drainage. " Transcript, volume 2 at

page 158.

28 / It is also noteworthy that Dr. Poss included in the medical

records of N.G. ' s office visits on March 31, 2008, and

September 15, 2008, which were not mentioned in the

Administrative Complaint, and on December 29, 2008, that there

was " exudate " present in the areas in which N.G. had paronychia.

It may, therefore, be reasonably inferred that Dr. Poss would

have noted any significant drainage or purulence in the infected

area between the fourth and fifth toes of N.G. ' s right foot.

29 / Administrative Complaint at paragraph 32b.

30 / The Department ' s expert witness actually testified as

follows: " I have great issues with the second cortisone

injection [December 1, 2008] in an area that has been previously

infected and previously ulce rated. " Transcript, volume 1 at

page 105. Shortly after making this statement, the Department ' s

expert witness testified that " I do not and no one should be

injecting ulcerative and infected areas with cortisone. "

Transcript, volume 1 at page 105.

31 / Transcript, volume 2 at page 168.

32 / Although this was not the allegation in the Administrative

Complaint, it bears addressing because it composed a great deal

of the testimony of the Department's expert witness, which

resulted in a great deal of confusi on regarding whether the

Department's expert witness was testifying about the standard of

care related to an active infection and or to an infection that

was previously active.

33 / The Department ' s expert witness summarized his position as

follows:

What I can only tell you is she had an

infection [October 10, 2008], was treated

with an antibiotic and probably got better.

It wasn ' t addressed. She then got another

infection [February 19, 2009], was treated

with a similar antibiotic. Again, the issue

is n ot addressed as to what type of

infection we ' re dealing with.

She gets a third infection with

Dr. Alter, which I think is a continuation

of the whole line. The difference is

Dr. Alter took a culture, and that ' s when we

found out that the medications that she ' d

had all before were resistant to the

infection that she had. That infection

could have been harbored there all along,

masked by the cortisone injections.

Id. at pages 191 - 92.

34 / The testimony of Dr. Poss ' s expert witness is accepted as

more persuasive on this point than the testimony of the

Department ' s expert witness.

35 / It is also noteworthy that the only time Dr. Poss did not

address the condition of the space between the fourth and fifth

toes of N.G. ' s right foot was at the office visi t on

December 29, 2008, when N.G. presented with only paronychia of

the first toe on her right foot.

36 / It is also noted that the Department ' s expert witness is

qualified by his education and experience as an expert in

podiatric medicine. Although he ha s treated patients with

infected toes and feet, nothing in the record establishes that

he is qualified to give an opinion regarding the nature and

duration of the infection between the fourth and fifth toes of

N.G. ' s right foot or whether the steroid injec tions in fact

masked the symptoms of an infection between the fourth and fifth

toes of N.G. ' s right foot.

37 / Transcript, volume 2 at pages 189 - 90.

38 / Joint Exhibit 2 .

39 / It is questionable, in any event, that this allegation is

properly categorized as a violation of the requirement to keep

medical records because it does not relate to the treatment

Dr. Poss provided N.G. See § 461.013(1)(l).

40 / Administrative Complaint at paragraph 36c. In addition,

this allegation presents a situation similar to that in Barr , in

which the court distinguished between diagnosing a patient and

documenting the treatment provided. See endnote 25, above. In

this allegation, the Department has reversed the situation

presented in Barr by alleging that the failure to or der

diagnostic tests constitutes the failure of Dr. Poss ' s medical

records to justify the course of treatment he provided N.G.

Such an allegation is not properly categorized as a medical

records violation.

41 / Although the Department ' s expert witness tes tified repeatedly

that Dr. Poss failed to note in N.G. ' s medical records that the

infection between the fourth and fifth toes of her right foot

that Dr. Poss diagnosed on October 10, 2008, had healed, these

comments were made in the context of his testimon y dealing with

the allegation that Dr. Poss breached the standard of care by

administering a steroid injection into an area that was

previously infected . The comments were not related to the

allegation that Dr. Poss failed to maintain medical records

just ifying the course of treatment of N.G.

42 / Transcript, volume 1 at page 106. The Department ' s expert

witness also testified that " [l]ooking at the totality of

Dr. Poss ' s medical records, I feel that they are below the

standard and do not adequately refle ct what he did for the

patient. " Id. at page 142.

43 / Id. at page 127.

44 / Id .

45 / Transcript, volume 1 at page 118, 162. It is noted that the

Department ' s expert witness was describing his own practice

regarding the information he includes in medical records rather

than setting forth a standard of care. Id. at page 162.

46 / Transcript, volume 1 at page 113.

COPIES FURNISHED:

Monica Rodriguez, Esquire

Dresnick, Rodriguez, and Perry P.A.

One Datran Center, Suite 1610

9100 South Dadeland Boulevard

Miami, Florida 33156

Mary S. Miller, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Bruce Deterding, Executive Director

Board of Podiatric Medicine

Department of Health

4052 Bald Cypress Way, Bin C07

Tallahassee, Florida 32399 - 3265

E. Renee Alsobrook, Acting General Counsel

Depart ment of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 3265

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 r ecommended order should be filed with the agency that

will issue the final order in this case.