11-000546PL Department Of Health, Board Of Medicine vs. Albert Zamek, M.D. Status: Closed Recommended Order on Thursday, July 28, 2011.

Summary: Clear and convincing evidence that Respondent committed a record-keeping violation and made deceptive or untrue representations in or related to the practice of medicine. Recommend letter of concern, $5,000 fine, and continuing education.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE , )

)

Petitioner, )

)

vs. ) Case No. 11 - 0 546 PL

)

ALBERT ZAMEK, M.D., )

)

Respondent. )

________________________________)

RECOMMENDED ORDER

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

before Edward T. Bauer, an Administrative Law Judge of the

Division of Admini str ative Hearings, on June 8 , 2011 , by video

teleconference a t sites in Tallahassee and Port St. Luci e ,

Florida.

APPEARANCES

For Pet itioner: Shirley L . Bates , Esquire

Sharmin R. Hibbert, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: M ark Bakay, Esquire

2431 Aloma Avenue, Suite 254

Winter Park, Florida 32707

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent committ ed

the allegations contained in the Administrative Complaint , and

if so, the penalty that should be imposed.

PRELIMINARY STATEMENT

On December 27, 2006, Petitioner, Department of Health,

Board of Medicine, filed an Administrative Complaint against

Respondent, Dr. Albert Zamek. Respondent timely requeste d a

formal hearing to contest the allegations, and, on September 5,

2007, the matter was referred to the Division of Administrative

Hearings ("DOAH") and assigned DOAH Case No. 07 - 4014PL.

O n November 7, 2007, the parties filed a Motion to

Relinquish Jurisd iction on the basis that a settlement had been

reached. On the same date, Administrative Law Judge Larry J.

Sartin entered an Order Closing File, with leave to re - open the

case in the event the Board of Medicine declined to approve the

settlement. The Bo ard of Medicine ultimately rejected the

settlement agreement on November 30, 2007.

On October 29, 2010, Petitioner filed a two - count Second

Amended Administrative Complaint against Respondent, which

alleged that he violated section 458.331(1)(k), Florid a

Statutes, and section 458.331(1)(m), Florida Statutes. Pursuant

to a motion filed by Respondent, this matter was re - opened on

February 1, 2011, and assigned DOAH Case No. 11 - 0 546PL.

As noted above, the final hearing in this matter was held

before the u ndersigned on June 8, 2011. During the final

hearing, Petitioner presented the testimony of Dr. David Nehme;

J.D.; and Respondent, Dr. Albert Zamek. Petitioner introduced

three exhibits into evidence, numbered 1 - 3. Respondent

tes tified on his own behalf and requested leave to submit a

late - filed exhibit, which the undersigned granted. On June 9,

2011, Respondent submitted a four - page exhibit that has been

admitted as Respondent's Exhibit 1.

The final hearing Transcript was f iled with DOAH on July 1 ,

2011 . On the same date, both parties filed proposed recommended

orders, which the undersigned has considered in the preparation

of this Recommended Order.

Unless otherwise indicated, all rule and statutory

re ferences are to the versions in effect at t h e time of the

alleged misconduct .

FINDINGS OF FACT

A. The Parties

1 . Respondent, Albert Zamek, M.D. is, and was at all times

material to this matter, a physician licensed to practice

medicine in Florida, having been issued license number ME62525

on or about July 15, 1992.

2. Petitioner Department of Health has regulatory

jurisdiction over licensed physicians such as Dr. Zamek. In

particular, Petitioner is authorized to file and prosecute an

administrative complaint, as it has done in this in stance, when

a panel of the Board of Medicine has found probable cause exists

to suspect that the physician has committed one or more

disciplinable offenses.

B. The Events of February 2005

3. The events giving rise to this dispute began on

Saturda y, February 19, 2005, when J.D. ÏÏ Petitioner's principal

witness in this proceeding ÏÏ received treatment for kidney stones

at an emergency room in Port St. Lucie, Florida. At the

conclusion of her emergency room visit, J.D. was referred to

Drs. John and Dav id Nehme, both of whom specialize in urology,

for a follow - up appointment.

4 . On February 21, 2005, J.D. spoke with a mem ber of Dr.

David Nehme's staff and received an appointment for February 25.

J.D. was further advised during the conversation that Dr. Nehme

practiced from two locations ÏÏ one in Port St. Lucie and the

other in Stuart ÏÏ and that J.D.'s appointment would be at the

Stuart office.

5. On the day of her appointment, J.D. mistakenly reported

to Dr. Ne hme's Port St. Lucie office location. At that time,

Dr. Nehme was renting a portion of hi s St. Lucie office to

Dr. Zamek .

6. As J.D. approached the office, she observed a sign

posted on the front door that bore the names of Drs. D avid and

J ohn Nehme. T he sign also read, underneath th e Nehmes' names,

"Executive Health Care, Albert Zamek."

7. At the time of her appointment on February 25, 2005 ,

J.D. had never met Dr. David Nehme, Dr. John Nehme, or

Dr. Zamek.

8. Upon entering the office, J.D. noticed that no

receptionist or other clerical person was present. After J.D.

annou nced her presence, an unknown male wearing casual attire ÏÏ

identified by J.D. during the final hearing in this matter as

Dr. Zamek ÏÏ emerged and apologized for the absence of office

staff.

9. At that p oint, J.D. advised that she was a new patient

and that she had an appointment to see Dr. David Nehme . No

formal introduction was made, and Respondent simply handed J.D.

a set of intake forms and asked her to fill them out.

10. After completing the fo rms, J.D. followed Dr. Zamek

(who was now wearing a lab coat , but with no name embroidered on

it ) to an examination room. Dr. Zamek proceeded to ask J.D.

what had happened, how she was feeling, and i f she was

experiencing any pain. While answering Dr. Za mek's questions,

J.D. mentioned that blood had been visible in her urine during

the emergency room visit and that she "would like it checked."

Dr . Zamek replied that he was unable to do so because of the

absence of support staff that day.

11. As the ex amination progressed, Dr. Zamek took J.D.'s

blood pressure, listened to her breathing, and checked her lower

back for pain. While Dr. Zamek did so, J.D. asked him ÏÏ due to

the lack of an introduction and any form of iden tification on

the lab coat ÏÏ if he wa s a doctor or a physician's assistant.

Dr. Zamek responded that he was a doctor, at which time J.D.

inquired if he was John or David ÏÏ an obvious reference to Drs.

John and David Nehme. At that point, Dr. Zamek (whose first

name is Albert) falsely stated, "John," which then prompted J.D.

to ask if David was his father. Once again, Dr. Zamek falsely

replied, "David is my uncle."

12. After the examination w as complete, J.D. asked if she

could schedule a follow - up appointment so that her urine could

be t ested. Dr. Zamek , who does not specialize in urology, told

J.D. to return on Tuesday, March 1, 2011, but did not provide

her with an appointment card.

13. Upon returning home, J.D. examined her notes and

discovered that she had mistakenly reported to Dr. David Nehme's

office in Port St. Lucie, instead of his office location in

Stuart where her appointment was scheduled. J.D. ultimately

discovered that the February 25, 2005, examination had been

performed by Dr. Zamek.

14. Dr. Zamek did not create any medical records in

connection with his February 25, 2005, examination of J.D.

C. Ultimate Findings of Fact

15 . Petitioner has established by clear and convincing

evidence that during his February 25, 2005, examination of J.D., 1

Dr. Zamek misled J.D. regarding his identity, and therefore made

deceptive and /or untrue representations in or relating to the

practice of medicine, in violation of section 458.331(1)(k).

16 . Petitioner has also established by clear and

convincing evidence that Dr. Zam ek failed to create any medical

records with respect to the February 25, 2005, examination of

J.D., and is therefore in violation of section 458.331(1)(m).

CONCLUSIONS OF LAW

A. Jurisdiction

17 . The Division of Administrative Hearings has

jurisdict ion over the parties and subject matter of this cause,

pursuant to section 120.57(1), Florida Statutes .

B. The Burden and Standard of Proof

18 . This is a disciplinary proceeding in which Petitioner

seeks to suspend Respondent's licen se. Accordingly, P etitioner

must prove the allegations in the Second Amended Administrative

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

Fin., Div. of Secs. & Investor Prot. v. Osborne Sterne, Inc. ,

670 So. 2d 932, 935 (Fla. 1996); Ferris v. Turlington , 5 10 So.

2d 292 , 294 (Fla. 1987); § 458.331(3), Fla. Stat.

19 . Clear and convincing evidence:

[R]e quires that the evidence must be found

to be credible; the facts to which the

witnesses testify must be distinctly

remembered; the testimony must be precis e

and lacking in confusion as to the facts in

issue. The evidence must be of such a

weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

Slom owitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

C. Petitioner's Authority to Impose Discipline;

The Charges Against Respondent

20 . Sectio n 458.331(2), Florida Statutes, authorizes the

Board of Medicine to impose penalties ranging from the issuance

of a letter of concern to revocation of a physician's license to

practice medicine in Florida if a physician commits one or more

acts specified therein.

21 . In its Second Amended Administrative Complaint,

Pe titioner alleges that Dr. Zamek has committed two acts

pro scribed by section 458.331(1) . Specifically, in Count I,

Pe titioner alleges that Dr. Zamek violated section

458.331(1 )(k), which prohibits a physician from making

deceptive, untrue, or fraudulent representations in the practice

of medicine. In Count II, Petitioner contends that Dr. Zamek

failed to create medical records in connection with his

examination of J.D., and therefore violated section

458.331(1)(m).

22 . Whether Dr. Zamek violated these statutes is a

question of ulti mate fact to be decided in the context of each

alleged violation. McKinney v. Castor , 667 So. 2d 387, 389

(Fla. 1st DCA 1995).

D. Count I: Section 458.331(1)(k )

23 . As noted above, Petitioner alleges in Count I of the

Second Administrative Complain t that Respondent violated section

458.331(1)(k), which provides:

(1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

(k) Making deceptive, untrue, or fraudulent

representations in or related to the

practice of medicine or employing a trick or

scheme in the practice of medicine.

24 . In turn, "practice of medicine" is defined as "the

diagnosis, treatment, operation, or prescription for any human

disease, pain, injury, deformi ty, or other physical or mental

condition." § 458.305(3), Fla. Stat.

25. Although Dr. Zamek argues that the evidence was

insufficient to demonstrate that he conducted the examination of

J.D. ÏÏ a position the undersigned rejects ÏÏ Dr. Zamek contends in

t he alternative that even i f a false name was given, such an act

was not in or related to the practice of medicine. In support

of this argument, Dr. Zamek cites Elmariah v. Department of

Professional Regulation, Board of Medicine , 574 So. 2d 164 , 165

(Fla. 1st DCA 1990), in which the court held that false

representations made by a physician while applying for staff

privileges at vari ous hospitals did not violate the statutory

prohibition against "making deceptive, untrue, or fraudulent

representations in th e practice of medicine." For two reasons,

however, the undersigned concludes that Elmariah is not

controlling in the instant matter. First, in contrast to

Elmariah , Dr. Zamek's false statements were made during a

physical examination of J.D., during whic h Dr. Zamek took a

patient history, asked diagnostic questions, checked J.D.'s

blood pressure, and physically touched J.D. to determine if she

felt any pain near her kidneys. Second, Dr. Zamek fails to

recognize that Elmariah was applying the 1983 version of section

458.331(1)(k) ÏÏ at that time designated as section 458.331(1)(l) Ï

Ï which was later modified in 1986 to expand the range of

punishable misconduct. In particular, the statute was amended

to add the following language, w hich is underlined for empha sis:

"Making deceptive, untrue, or fraudulent representations in or

related to the practice of medicine or employing a trick or

scheme in the practice of medicine." § 458.331(1)(k), Fla.

Stat. Indeed, the court in Elmariah suggested that that result

coul d have been different had the amended version of the statute

been applicable:

Although we would not presume to interpret a

statute not presently before us, we note

that the added language (emphasized) should

give pause to those who might assume that

actio ns similar to appellant's remain

unpunishable.

Id. at 165, n.1.

26 . Based on the findings of fact c ontained herein,

Petitioner has adduced clear and convincing evidence that Dr.

Zamek is guilty of making deceptive and /or untrue statements in

or relati ng to the practice or medicine. In particular, the

evidence demonstrates that Dr. Zamek, during his February 25,

2005, physical examination of J.D., falsely identified himself

as "John" and further stated, again falsely, that David was "his

uncle." Such statements led J.D. to erroneously believe that

she was being examined by Dr. John Nehme, a physician who

practiced with Dr. David Nehme. As such, Dr. Zamek is guilty of

Count I of the Second Amended Administrative Complaint. 2

E. Count II : Section 458.331(1)(m)

27 . Next, Petitioner alleges that Dr. Zamek failed to

create any medical records in connection with his examination of

J.D., and therefore violated section 458.331(1)(m), which

provides that a physician is subject to discipline for:

Fail ing 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 renderi ng, 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, disp ensed, or administered; and

reports of consultations and

hospitalizations.

28 . In his Proposed Recommended Order, Dr. Zamek argues

that because Petitioner has alleged in the Second Amended

Administrative Complaint that he is merely guilty of failing to

create records ÏÏ as opposed to failing to retain possession of

records ÏÏ he cannot be found in violation of section

458.331(1)(m).

29 . In support of this argument, Dr. Zamek cites Trevisani

v. Department of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005),

wh ich involved a situation in which a physician was charged with

a violation of section 458.331(1)(m) on the basis that he failed

to create certain medical records. Although the Department of

Health argued that the administrative complaint could also be

rea d to encompass an alternative theory that the physician

failed to retain possession of the documents , the A LJ rejected

that interpretation and confi ned the Department to the argument

that the physician had failed to create certain records. Id. at

1108. D uring the final hearing, the ALJ accepted the

physician's testimony that he created the records ,

notwithstanding the fact that the records could not be located.

Based upon that finding, the ALJ dismissed the count charging

the physician with violating sec tion 458.331(1)(m). Id. T he

Board of Medicine subsequently rejected the ALJ's finding in

that regard and concluded that the physician was charged not

only with the failure to create certain medical records, but

also with failure to retain possession of t hose documents. Id.

at 1108 - 09. As such, the Board found the physician guilty of

violating 458.331(1)(m) and imposed discipline. On appeal,

however, the First District reversed, holding:

A physician may not be disciplined for an

offense not charged in t he complaint. In

this case, the complaint charged Appellant

with failing to properly document certain

records and failing to create or complete

certain documents. The complaint did make

reference to section 458.331(1)(m), Florida

Statutes, but it did not contain any

specific factual allegations that Appellant

failed to retain possession of the medical

records. The single reference to the

statute without supporting factual

allegations was not sufficient to place

Appellant on notice of the charges against

him . . . . Accordingly, we reverse the

final order with directions to dismiss the

complaint against Appellant.

Id. at 1109.

30 . Contrary to Dr. Zamek's suggestion, Trevisani does not

stand for the proposition that a violation of section

458.331(1)(m) is limited to situations where a physician fails

to retain possession of records that were previously created.

Instead, Trevisani simply holds that if the Department of Health

confines itself to a theory of failure to create records (based

upon the manner in which the administrative complaint is

drafted), a physician cannot be found guilty of violating

section 458.331(1)(m) where the ALJ finds, based upon competent

evidence, that the physician in fact created th e records .

31 . Unlike Trevisani , Petitioner in the instant matter is

not attempting to advance an alternative theory not alleged in

the Second Amended Administrative Complaint. On the contrary,

Petitioner has plainly alleged in the charging document ÏÏ and

argues in its Proposed Recommended Order ÏÏ t hat Dr. Zamek

violated section 458.331(1)(m) based upon a failure to create

recor ds. Further, in contrast to Trevisani , this is not a

situation where the undersigned has made a finding that the

records were created. Indeed, Dr. Zamek admitted during his

direct examination by counsel for Petitioner ÏÏ testimony that the

undersigned has accepted ÏÏ that no records were created.

32 . Based upon the findings of fact herein, Petitioner has

demonstrated by clear and convincing evidence that Dr. Zamek

failed to create any medical records in connection with the

February 25, 2005, examination of J.D. Accordingly, Dr. Zamek

is guilty of violating section 458.331(1)(m). See Dep't of

Health, Bd. of Med. v. Dozier , Case No. 07 - 1962PL, 2007 Fla.

Div. Adm. Hear. LEXIS 519, * 27 (Fla. DOAH Sept. 20, 2007)

(finding violation of section 458.331(1)(m) where physician

"fail[ed] to d ocument an adequate history"); Dep't of Health,

Bd. of Med. v. Waters , Case No. 04 - 0400PL, 2005 Fla. Div. Adm.

Hear. LEXIS 1257, *68 - 70 (Fla. DOAH Aug. 30, 2005)(concluding

that physician violated 458.331(1)(m) by failing to create

records that appropriately documented physical exams, patient

history, and treatment plans).

F. Penalty

33 . In determining the appropriate punitive action to

recomm end in this case, it is necessary to consult the Board of

Medicine's disciplinary guidelines, which impose restrictions

and limitations on the exercise of the Board's disciplinary

authority under section 458.331. See Parrot Heads, Inc. v.

Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231 , 1233 - 34 (Fla. 5th

DCA 1999).

34 . The Board's guidelines for a violation of section

458.331 are enumerated in Florida Administrative Code Rule 64B8 -

8.001. As it relates to Dr. Zamek's violation of section

458.331(1)(k), ru le 64B8 - 8.001(2)(k) provides for a penalty

range of probation to revocation and a fine of $1,000 to

$10,000. With respect to Dr. Zamek's violation of section

458.331(1)(m), rule 64B8 - 8.001(2)(m) calls for penalty ranging

from a reprimand up to a two - year suspension followed by

probation, as well as a fine of $1,000 to $10,000.

35 . Rule 64B8 - 8.001(3) provides that, in applying the

penalty guidelines, the following aggravating and mitigation

circumstances may be taken into account:

(a) Exposure of patie nt or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the

offense: no restraints, or legal

constraints;

(c) The number of counts or separate

offenses established;

(d) The numbe r of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction

and the length of practice;

(f) Pecuniary benefit or self - gain inuring

to t he applicant or licensee;

(g) The involvement in any violation of

Section 458.331, F.S., of the provision of

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and imp ose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care pursuant to

Section 458.331(1)(t), F.S., but the

licensee, who is also the records owner

pursuant to Section 456.057(1), F.S., fails

to ke ep and/or produce the medical records.

(i) Any other relevant mitigating factors.

36 . In its Proposed Recommended Order, Petitioner suggests

that the appropriat e penalty is the issuance of a L e tter of

C oncern, a fine of $5,000, and a suspension of Resp ondent's

license " until he has been evaluated by PRN and comes before the

board with a recommendation from PRN that he is safe to

practice." In addition, Petitioner requests that Respondent be

required to attend six hours of continuing medical education i n

ethics, a recordkeeping course, and pay the costs of

prosecution.

37 . With two exceptions, the undersigned is in agreement

with Petitioner' s recommendation s . First, the undersigned is

unable to reconcile P etitioner's assertion ÏÏ that Dr. Zamek is

pre sently unfit to practice medicine in the absence of a PRN

evaluation ÏÏ with its decision to wait over three years to refer

the matter back to DOAH after the Board of Medici ne rejected a

settlement agreement between the parties . As such, the

undersigned is not inclined to recommend that Dr. Zamek's

license be suspended pending a PRN evaluation.

38 . Second, with respect to Petitioner's request for the

costs of prosecution, even if Petitioner had presented any

evidence as to the amount (which it did not), it appears that

the issue of costs must be handled by the Board of Medicine.

See § 456.072(4), Fla. Stat. ("In addition to any other

discipline imposed through final order . . . the board, or the

department when there is no board, shall assess costs relat ed to

. . . prosecution of the case . . . . The board , or the

department when there is no board, shall determine the amount of

costs to be assessed after its consideration of an affidavit of

itemized costs and any written objections theret o") (emphasis

adde d).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered by th e

Board of Medicine :

1. Finding that Respondent violated s ection 458.331(1)(k) ,

Florida Statutes, as charged in C ount I of the Second Amended

Administrative Complaint;

2. Findin g that Respondent violated section 458.331(1)(m),

Florida Statutes, as charged in Count II;

3. Issuing a Letter of Concern;

4. Imposing a fine of $5,000;

5. Requiring Respondent to a ttend six hours of continuing

medical education in ethics; and

6. Requiring Respondent to attend the course "Quality

Medical Record Keeping for Health Care Professionals."

DONE AND ENTERED this 28 th day of July , 2011 , in

Tallahassee, Leon County, Flo rida.

S

___________________________________

EDWARD T. BAUER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28 th day of July , 2011 .

ENDNOTES

1 The finding that Dr. Zamek e xamined J.D. on February 25, 2005 ,

is based solely on the testimony of J.D, which the undersigned

credits over that of Dr. Zamek's.

2 In Department of Health, Board of Medicine v. Cohen , DOAH Case

No. 10 - 3101, 2010 Fla. Div. Adm. Hear. LEXIS 105 (Fla. DOAH

Sept. 14, 2010), it was determined that the physician's mere act

of checking a person's blood pressure (at the conclusion of

which the physician committed a sexual assault upon the patient)

constituted the pra ctice of medicine, thereby authorizing the

imposition of discipline for the physician's misconduct.

COPIES FURNISHED :

Mark Bakay, Esquire

2431 Aloma Avenue, Suite 254

Winter Park, Florida 32707

Shirley R. Bates, Esquire

Sharmin R. Hibbert, Esqui re

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Joy Tootle , Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Nicholas W. Ro manello, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

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 O rder. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.