13-000595PL Department Of Health, Board Of Medicine vs. Neelam Taneja Uppal, M.D. Status: Closed Recommended Order on Wednesday, September 17, 2014.

Summary: Petitioner proved by clear & convincing evidence that Respondent violated 458.331(l) (m), (q) & (t). Recommended 6 months suspension, followed by 2 years probation, CME in record keeping & professional responsibility & ethics, $10,000. admin fine & costs.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case Nos. 13 - 0595PL

14 - 0514PL

NEELAM TANEJA UPPAL, M.D., 14 - 0515PL

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in th ese

consolidated case s on July 14 and 15, 2014, in Largo, Florida,

before Lynne A. Quimby - Pennock, a designated Administrative Law

Judge of the Division of Administrative Hear ings (Division).

APPEARANCES

For Petitioner: Andre Christopher Ourso, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahasse e, Florida 32399 - 3265

For Respondent: Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

420 Lincoln Road , Suite 601

Miami Beach, Florida 33139

STATEMENT OF THE ISSUE

Whether Res pondent violated sections 458.331(1)(m), (q), and

(t), Florida Statutes (2007 - 2011), and, if so, what discipline

should be imposed.

PRELIMINARY STATEMENT

Th ese are consolidated case s involving three Department of

Health (DOH or Petitioner) cases: DOH Case No. 2009 - 13497; DOH

Case No. 2011 - 06111 ; and DOH Case No. 2011 - 17799. Each case will

be set forth individually ; however , the cases were consolidated

for the hearing.

DOH Case No. 2009 - 13497 (DOAH Case No. 13 - 0595PL)

On December 17, 2012 , DOH filed a thre e - count Amended

Administrative Complaint (AAC) against Respondent, Neelam Taneja

Uppal, M.D., in DOH Case No. 2009 - 13497, alleging she violated

sections 458.331(1)(m), (q), and (t), Florida Statutes ( 2008) .

Respondent timely filed a Petition for Formal Adm inistrative

Hearing and Response to Administrative Complaint. On

February 18, 2013, DOH referred the case to the Division for

assignment to an Administrative Law Judge (ALJ). This case was

originally scheduled to be heard on April 23, 2013. However,

af ter a lengthy abeyance and multiple continuances, the case was

re - scheduled to June 2, 2014.

On January 30, 2014, DOH filed a Motion for Leave to File

Second Amended Administrative Complaint (Motion to Amend ).

Thereafter , on February 3, DOH filed a Motion to Consolidate

(Consolidation Motion) this case with two other cases that had

recently been filed. Respondent filed an o bjection to the

c onsolidation motion. A telephonic motion hearing was held on

February 12, 2014. Immediately prior to the telephonic hearing,

a Notice of Appearance was entered by an attorney, 1/ and a Motion

to Continue Telephone Conference was filed. 2/ The Motion to

Continue the Telephone Conference was denied. RespondentÓs

counsel voiced no objection to the Motion to Amend , which w as

granted. The Consolidation Motion was granted only to the extent

that the three cases were consolidated for discovery purposes. 3/

On February 12, DOH filed the Second Amended Administrative

Complaint (2AAC). The 2AAC alleged the same violations of

se ctions 458.331(1)(m), (q), and (t), Florida Statutes (2008),

but provided different factual allegations.

On February 25, RespondentÓs Notice to Produce for Trial was

filed and the undersigned issued a Notice of Ex - parte

Communication. On March 3, Responde ntÓs then - counsel filed a

Notice of Withdrawal citing irreconcilable differences, including

RespondentÓs continual filing of additional pleadings without his

knowledge. An Order granting the withdrawal was issued on

March 4. Respondent, in her pro se ca pacity, continued to file

additional pleadings until her current counsel filed his Notice

of Appearance on May 29, 2014.

DOH Case No. 2011 - 06111 (DOAH Case No. 14 - 0514PL)

On April 23, 2013, DOH filed an Administrative Complaint

against Respondent in DOH C ase No. 2011 - 06111. On July 16, 2013,

Respondent filed a Petition for Formal Administrative Hearing and

Response to Administrative Complaint. 4/ On January 31, 2014, DOH

referred the matter to the Division for the assignment of an ALJ.

On February 3, 2 014, DOH filed a Motion to Consolidate

(Consolidation Motion) this case with two other cases. On

February 4, Respondent filed a Motion to Strike and Dismiss. On

February 5, DOH filed a Unilateral Response to the Initial Order

averring that Respondent had not provided Ðany available dates

and other relevant information regarding the final hearing.Ñ

On February 7, a Notice of Telephonic Motion Hearing was

issued for a February 12 hearing. Immediately prior to the

telephonic hearing, a Notice of Appearance was entered by an

attorney, 5/ and a Motion to Continue Telephone Conference was

filed. 6/ The Motion to Continue the Telephone Conference was

denied. The Consolidation Motion was granted only to the extent

that the three cases were consolidated for discov ery purposes. 7/

On February 25, Respondent filed an Objection to PlaintiffÓs

Notice to Produce as Untimely and the undersigned issued a Notice

of Ex - parte Communication. On March 3, RespondentÓs then - counsel

filed a Notice of Withdrawal citing irreconcil able differences,

including RespondentÓs continual filing of additional pleadings

without his knowledge. An Order granting the withdrawal was

issued on March 4. After multiple continuances, the case was re -

scheduled to be heard on June 3. Respondent, in her pro se

capacity, continued to file additional pleadings until her

current counsel filed his Notice of Appearance on May 29.

DOH Case No. 2011 - 17799 (DOAH Case No. 14 - 0515PL)

On April 22, 2013, DOH filed an Administrative Complaint

against Respondent i n DOH Case No. 2011 - 17799. On July 16, 2013,

Respondent filed a Petition for Formal Administrative Hearing and

Response to Administrative Complaint. On January 31, 2014, DOH

referred the matter to the Division for the assignment of an ALJ.

On February 3, 2014, DOH filed a Motion to Consolidate this

case with two other cases. On February 4, Respondent filed a

Motion to Strike and Dismiss.

On February 5, DOH filed a Unilateral Response to the

Initial Order averring that Respondent had not provided Ðany

a vailable dates and other relevant information regarding the

final hearing.Ñ On February 7, a Notice of Telephonic Motion

Hearing was issued for a February 12 hearing. Immediately prior

to the telephonic hearing, a Notice of Appearance was entered by

an a ttorney, 8/ and a Motion to Continue Telephone Conference was

filed. 9/ The Motion to Continue the Telephone Conference was

denied. The Motion to Consolidate was granted only to the extent

that the three cases were consolidated for discovery purposes. 10/

On February 25, Respondent filed an Objection to PlaintiffÓs

Notice to Produce as Untimely and the undersigned issued a Notice

of Ex - parte Communication. On March 3, RespondentÓs then - counsel

filed a Notice of Withdrawal, citing irreconcilable differences,

including RespondentÓs continual filing of additional pleadings

without his knowledge. An Order granting the withdrawal was

issued on March 4. Respondent, in her pro se capacity, continued

to file additional pleadings until her current counsel filed his

Notice of Appearance on May 29.

On March 13, DOH filed a Motion for Leave to File Amended

Administrative Complaint. 11/ An Order was issued allowing DOH to

file the AAC. After multiple continuances, the case was re -

scheduled to be heard on June 4, 2014.

May 29, 2014 to July 15, 2014

On May 29, 2014, Sean Ellsworth, Esquire, entered an

appearance on behalf of Respondent, two business days prior to

the scheduled start of the hearings. Also , on May 29, the

parties filed a Joint Motion for Continuance (Joint Continuance)

of all three cases. A telephonic motion hearing was held on

May 30, and the continuance was granted. The cases were

rescheduled to be heard on three consecutive days beginning on

July 14, 2014. Additionally, the parties agreed and were

di rected to complete any additional discovery within 20 days of

service in order to accommodate the hearing dates.

At various times throughout the administrative proceedings,

both Petitioner and Respondent (when represented by counsel and

in her pro se capac ity) filed various motions and notices, which

were dealt with in a timely manner. 12/

On July 3, 2014, the parties filed a Joint Motion to

Consolidate ( Second Consolidation Motion) the three pending cases

into one. The Second Consolidation Motion was gran ted on July 7.

On July 3, DOH filed a Notice of Dismissal of Count One of the

Amended Administrative Complaint in DOH Case 2011 - 17799, removing

section 458.331(1)(t) as an allegation.

On July 8, 2014, DOH filed a Motion for Leave to File

Amended Administr ative Complaint in DOH Case No. 2011 - 06111, and

a Motion for Leave to File Second Amended Administrative

Complaint (AAC2) in DOH Case No. 2011 - 17799. In both instances

DOH set forth the reasoning and changes that would be made.

Additionally, DOH filed a Request for Official Recognition or

Judicial Notice to be taken of the various statutes and rules

alleged in the various administrative complaints.

On July 9, DOH filed a Motion to Sever and Relinquish

Jurisdiction (Sever Motion) in DOH Case No. 2011 - 06111 , averring

that following the deposition of Respondent and RespondentÓs

expert, DOH became aware of additional allegations that

necessitated that case to be reconsidered by the Board of

MedicineÓs Probabl e Cause Panel. All the outstanding Motions

were not iced for hearing on Monday, July 14. Following argument

by counsel, DOH was granted permission to file the AAC in 2011 -

06111 and AAC 2 in 2011 - 17799; the Sever Motion was denied.

The parties Ó Joint Pre - hearing Stipulation was filed on

July 11, 2014. 13/ T o the extent relevant, th e stipulated facts

have been incorporated in this Recommended Order.

At hearing, the parties offered Joint Exhibits 1, 2 and 3

which were received into evidence. DOH presented the testimony

of two former DOH Investigators: Kathy Liles (DOH Case Nos. 2009 -

13497 and 2011 - 17799) and Mitch Turner (DOH Case No. 2011 - 06111);

C.B., a patient of Respondent; and Jamie Carrizosa, M.D., DOHÓs

e xpert. PetitionerÓs Exhibits 2 through 7 and 9 through 12 were

admitted over objection. 14/ Respon dent was not present, but

testified via her deposition which was entered into evidence

without objection (PetitionerÓs Exhibit 2). RespondentÓs

Exhibits 1 and 2 were admitted into evidence without objection.

Official recognition was taken of the followin g Florida Statutes:

458.331(1)(t), Fla Stat. (2008, 2010); 456.50, Fla. Stat. (2008,

2010); 766.102, Fla. Stat. (2008 - 2010); 458.331(1)(m), Fla. Stat.

(2007 - 2011); 458.331(1)(q), Fla. Stat. (2008); and Florida

Administrative Code Rule 64B8 - 9.003 (2006 - 2011 ). 15/

At the conclusion of the hearing, DOH requested an expanded

page limitation for its proposed recommended order (PRO) and an

additional 10 days from when the transcript was filed in which to

file its PRO. RespondentÓs counsel did not object to either

request, and each was granted. The parties were allowed 60 pages

for their PRO s , and were granted 20 days after the filing of the

transcript to file their PRO s .

The two - volume Transcript was filed on July 29, 2014. Both

parties timely filed their PROs, and each has been duly

considered in the preparation of this Recommended Order.

FINDING S OF FACT

The Parties

1. DOH is the state agency charged with regulating the

practice of licensed physicians pursuant to section 20.43 and

chapters 456 and 458, Florid a Statutes. DOH is pursuing

sanctions against Respondent based on her provision of medical

care to patients A.M., C.B. , and P.A.

2. At all times relevant to this case, Respondent was

licensed as a medical doctor within the State of Florida, having

been i ssued license number ME 59800.

3. Respondent is board certified by the American Board of

Internal M edicine with a specialty in Infectious Disease.

Respondent received her medical degree from Christian Medical

College in India in 1984. Her medical career , according to her

curriculum vitae, includes the following places of employment:

1996 Bay Area Primary Care

1997 American Family and Geriatrics

1998 Faculty appointment at University of

South Florida Î voluntary

2/99 - 11/99 VeteranÓs Administration ( Medical

Officer on Duty)

1993 - present Private Practice

4. RespondentÓs June 30, 2014, deposition testimony was

that she is currently working as a medical provider at Fort Tryon

Rehab and Nursing Home in New York, and prior to that she was

working at a walk - in clinic in Queens, New York. Respondent

testified that she currently resides in Pinellas Park, Florida.

5. In 2008, RespondentÓs Florida practice, Bay Area

Infectious Disease (BAID), was located at 5840 Park Boulevard,

Pinellas Park, Florida, and most recently at 1527 South Missouri

Avenue, Clearwater, Florida. Each practice location is now

closed. Respondent later testified that she had a practice

located at 6251 Park Boulevard, Pinellas Park, Florida, which is

also closed.

6. Jamie Carr izosa, M.D. (Dr. Carrizosa) is a board -

certified internal medicine and infectious disease physician who

testified as an expert for DOH. Prior to his retirement in

July 2011, Dr. Carrizosa had an active medical practice including

hospital privileges. He is currently an Associate Professor of

Medicine at the University of Central Florida, teaching first and

second year students in the areas of microbiology and immunology.

While in private practice , he treated patients with suspected

skin infections, MRSA skin infections, candidiasis and other

types of skin diseases.

7. Issa Ephtimios, M.D. (Dr. Ephtimios) is a board -

certified physician in internal medicine, infectious diseases and

infection control who testified as an expert for Respondent. He

is an atte nding physician at Sacred Heart Hospital, West Florida

Hospital, Baptist Hospital , and Select Specialty Hospital in

Pensacola , Florida.

DOH Case No. 2009 - 13497 (DOAH Case No. 13 - 0 595 PL )

8. On October 8, 2008, A.M. presented to Respondent with

complaints of fatigue, headaches, and moodiness, according to a

History and Physical Medi - Forms document. A BAID contract for

services and an authorization for BAID to disclose protected

health information (PHI) were executed on October 8. Within the

records there was a diagram that contained pictures of a front

and back body diagram and the handwritten words: Ðfatigue cold

sweats fevers headaches.Ñ Neither A.M.Ós name nor the date

appeared on the diagram, yet Respondent identified the diagram as

belonging to A.M. and showing A.M.Ós small lesions. On

October 9, A.M. executed a Bay Area Infectious Disease and

Infusion, PLC, ÐCONSENT FOR TREATMENTÑ form.

9. RespondentÓs progress notes are generally listed in the

S.O.A.P. format. 16/ The following appeared on one of A.M.Ós

October 9th Progress Note s :

S: Complaint: MRSA, 17/ headecha [sic], she

like [sic] to talk W Dr. Pimple on but [sic]

3 rounds Zyvox, [illegible] c/o lethargic,

gain wt, fatigue, headaches Pale, feets [sic]

not Percocet Î [illegible].Ñ

O: Exam: Ht 5.6Ñ Wt 172 Age 16 M/ F

BMI______ T___ BP 118/64 P 65 R____PO2 99_

Gluc ___

A: General Appearance: WNL /18

HEENT: WNL

Neck: WNL

Chest: WNL

Breast: WNL

Heart: WNL

Lungs: WNL

Abdomen: WNL

Genitalia: WNL

Skin: WNL multiple abcees [sic]

Spine: W NL

Extremities: WNL

[All the ÐWNLÑ were typed capital letters.]

DIAGNOSIS :

Skin Abcess - Buttock, leg

MRSA Î Community Acquired

P: PLAN:

Vancomycin 1 gr daily

[illegible]

10. A second Progress Note for A.M., also dated October 9 ,

contains the sa me information in the ÐSÑ and ÐOÑ portions, but at

the ÐAÑ portion, it has no notations other than the pre - printed

ÐWNLÑ at the ÐSkinÑ section, and it does not contain a

ÐDiagnosis.Ñ Respondent admitted that there were times when she

would Ðcomplete recor ds later on.Ñ

11. RespondentÓs progress notes for A.M. from October 10

through October 16 were in a slightly different SOAP format.

A.M.Ós October 10 Progress Note reflects the following:

S: Complaint: Vanco reaction

O: Examination: BP ____ P ___ _ T____ R____

HT____ WT____ PO2_____Glucose ______

General Appearance ; Awake alert,orientedx3

Head: Normocephalic atraurmatic

EENT: PERLA, EOMI,Sclera - non - icteric,

conjunctiva - pink

Neck: Supple, no JVD. No Lymph nodes

Heart: S1 S2 normal, __murm urs

Lungs: clear

Abdomen: Soft, no masses, no tenderness,

BS, no hepatomegaly, no splenomegaly

Left Lymph - inguinal: WNL

Right Lymph - inguinal: WNL

Extremities: No clubbing, cyanosis, edema

Neurological: Motor - 5/5, sensory - 5/5, Deep

tendon reflexes 2

Cranial nerves Intact

Skin: no ra shes circled Abscess

Muskuloskeletal: WNL

CLINICAL ASSESSMENT:

MRSA, Skin Abcess

CVIO

PLAN:

Zyvox

12. A.M.Ós progress notes between October 11 and 31, 2008 ,

reflect various subjective complaints regarding her skin

conditions. The physical examinations for each day do not

contain consistent information regarding A.M.Ós blood pressure,

her height, weight, respirations, PO2, and glucose. On two days

the ÐskinÑ section reflected Ðno rashes , Ñ yet the clinical

assessmen t reported ÐSkin Abces Î improvelyÑ [sic] or just Ðskin

abcess.Ñ On three progress notes (October 17, 18 and 20, 2008) ,

there is a hand - written notation at the ÐHeartÑ section which

indicates that A.M. might have a heart murmur, yet in the

diagnosis secti on there is no mention of a heart issue or

endocarditis. 19 / All other progress notes regarding the ÐheartÑ

contain the pre - printed ÐWNL.Ñ

13. A.M.Ós IV/IM procedure notes beginning on October 10

and continuing through October 31, each reflect Ðheart mu rmurÑ in

the diagnosis section along with ÐMRSA Skin abcess.Ñ Respondent

testified that she felt justified in using IV Vancomycin because

A.M. was Ðdoing the heart murmur . Ñ H owever, RespondentÓs initial

plan included Vancomycin before any heart murmur wa s detected or

assessed.

14. Vancomycin is a prescription medication used to treat

staphylococcal infections, and is usually utilized for more

serious infections such as endocarditis.

15. Zyvox is a prescription medication that comes in either

an IV or or al form used to treat infections.

16. Respondent claimed that there were missing medical

records for A.M. However, with respect to patient A.M.,

Respondent claimed a progress note (part of the history and

physical exam) from October 8 was the only medica l record that

was missing. Respondent then asserted that A.M. brought in her

primary doctorÓs referral which reflected A.M.Ós treatment,

including the medication prescribed; yet those medical records

are not present. Respondent further testified that she ÐusuallyÑ

puts prior treatment provider records in her patient Ó s file.

17. Respondent maintained that she kept a lot of A.M.Ós

medical records on a computer that was bought in January 2001.

However , that computer crashed in October 2011. A computer c rash

is plausible; however, the DOH subpoena was properly issued and

served on Respondent on January 28, 2010, more than nine months

before the alleged computer crash. Respondent then claimed that

she Ðdid not have access to that computer, which later cra shed,Ñ

followed by her claim that Ðthat practice was closed and when

they came here, we only had the old, whatever, paper records.Ñ

RespondentÓs position on these records was disingenuous at best.

Respondent claimed that A.M. was seen and her medical rec ords

were at a different location (6251 Park B oulevard ) than where the

subpoena was served (5840 Park Boulevard ). 20/ Respondent then

claimed the records that were moved from one facility to another

facility could not be located. Respondent alluded to a p otential

police report regarding an alleged theft of medical records and

other office items; however , nothing substantiated that , and

RespondentÓs testimony about possible criminal activity is not

credible .

18. Respondent admitted that some of A.M.Ós medi cal

records, specifically progress notes, were pre - printed, and that

she wrote on some of the progress notes. In the progress notes

dated October 10, 11, 13 through 18, 20 through 25, and 27

through 30, the handwriting appears to be the same, except for

t he change in each date. Further, Respondent confirmed A.M.Ós 18

pages of progress notes of Vancomycin administration, yet

distanced herself from them by saying Ðsometimes the charts were

completed later on, so itÓs possibility that it -- that it -- you

kn ow, itÓs progress notes for the IV administration, but Î um

. . . the dates are written by nurses, so I donÓt -- I donÓt

know.Ñ RespondentÓs inability or unwillingness to identify who

may have written on A.M.Ós progress notes and her avoidance in

answeri ng direct questions or claiming she did not recall the

patient (and then discussing the patient) greatly diminished her

credibility.

19. Respondent claimed that there were Ðsome verbal changesÑ

she gave that were in a Ðset of nursing records , Ñ which were not

present. Any ÐchangesÑ or directions given by Respondent should

have been contained within her medical records for the care of

A.M.

20. Respondent maintained that her diagnosis of A.M. was

based on RespondentÓs total clinical picture of A.M., includi ng

A.M.Ós Ðsymptoms, her presentation, her lesions, her course --

sheÓd had repeated courses of oral antibiotics, and was getting

recurrence.Ñ Yet, Respondent also claimed A.M. Ðcame in with

these culture results from the primary, and thatÓs how the staff

. . . it states MRSA, because it was already documented MRSA.Ñ

Standard of Care

21. Respondent was required to practice medicine in her

care of A.M. with Ðthat level of care, skill, and treatment which

is recognized in general law related to health care licensure.Ñ

Based on the credited opinions of Dr. Carrizosa, RespondentÓs

treatment and care of A.M. violated the standard o f care for the

following reasons.

22. A reasonably prudent health care provider suspecting a

patient has MRSA would observe the ab rasion(s), culture the

abrasion (MRSA), send the culture out for laboratory

confirmation, prescribe oral antibiotics, and if the MRSA does

not respond to the oral antibiotics, prescribe and administer IV

antibiotics. Dr. Carrizosa noted that Respondent di d not provide

a description of A.M. Ó s abscesses, did not indicate that A.M.Ós

abscesses were drained, incised, cleaned or bandaged, or that

Respondent provided any patient education to A.M. Although labs

were ordered, there was no request for a bacterial culture or for

an antimicrobial susceptibility test to be completed.

Dr. Carrizosa expressed concern that young people can eliminate

antibiotics within six to eight hours and there is a need for

monitoring their medications to ensure they maintain a

ther apeutic level.

23. Dr. Carrizosa opined that Respondent did not meet the

standard of care in her treatment of A.M. The evidence clearly

and convincingly establishes that Respondent violated the

standard of care applicable to an infectious disease

practit ioner.

24. Respondent presented the deposition testimony of

Dr. Ephtimios. Dr. Ephtimios reviewed the same records as

Dr. Carrizosa. Dr. Ephtimios admitted he had several lengthy

conversations with Respondent during which time she provided

additional information to Dr. Ephtimios that was not in A.M.Ós

written records regarding Ðthe rationale for using the

Vancomycin.Ñ Respondent share d additional information with

Dr. Ephtimios yet fail ed to recall or remember the patient during

her own deposition te stimony . Dr. EphtimiosÓ opinion is not

credible. RespondentÓs deposition behavior less e ns her

credibility .

Medical Records

25. Medical records are maintained for a number of reasons.

Primarily, medical records are necessary for the planning of

patient care ; for continuity of treatment ; and to document the

course of the patientÓs medical evaluation , treatment, and

progression through treatment. Further, medical records should

document any communications between health care providers, and

they serve as a basis for health care providers to be paid by

either the patient or another party. See , rule 64B8 - 9.003.

26. The medical records of A.M.Ós contact with RespondentÓs

office between October 8, 2008 , and October 31, 2008, do not meet

FloridaÓs standards fo r medical records. A.M.Ós records do not

describe the abscesses, do not indicate if any of the abscesses

were drained, incised, or cultured. Respondent failed to provide

any assessment of a staph infection or provide any laboratory

support for the use of the medication administered. Respondent

did not document A.M.Ós possible heart murmur, and failed to

provide a diagnostic basis for endocarditis. Further portions of

the medical record are illegible. There is no clear indication

that Respondent provide d A.M. with any education on her

condition.

Inappropriate Drug Therapy

27. Respondent authorized the administration of Vancomycin

and / or Zyvox to a 16 - year - old female without adequately

monitoring A.M.Ós condition, or documenting the need for such

use. RespondentÓs failure to document the need for Vancomycin

through appropriate or adequate testing was not in the best

interest of A.M.

DOH Case No. 2011 - 0 6111 (DOAH Case No. 14 - 0 514 PL )

28. On February 28, 2011, patient C.B. , a 42 - year - old

female , present ed to Respondent with complaints of food allergy

issues, and gastrointestinal problems, gas, bloating, and other

stomach issues. 21/ When she presented to Respondent in February

2011, C.B. did not have any concerns about candida or thrush. 22/

Respondent prescribed a Medrol Pak (a steroid) and directed C.B.

to have lab tests for the candida antibody and an immune system

panel.

29. One week later, C.B. again presented to Respondent.

C.B. did not have any of the symptoms for a chronic yeast

infection such as vaginal itching or thrush. Respondent advised

C.B. that she had a chronic yeast infection and her immune system

required treatment. However, Respondent did not prescribe any

medication to C.B. at that time.

30. On March 14, 2011, C.B. returned to Res pondentÓs office

and received Immunoglobulin 23/ via an intravenous (IV) line. On

March 22, 24 and 25, 2011, C.B. received IV Ambisome. 24/

Thereafter , C.B. developed a rash on her arm where the IV had

been placed and a papule on her stomach. C.B. decline d further

IV treatments because she did not think the medication was

working. On March 29, Respondent prescribed VFEND 25/ to C.B.

31. On March 30 and 31 and April 1, 2011, C.B . was a Ðno

showÑ at RespondentÓs office. Yet each of C.B.Ós progress notes

co ntained information regarding C.B.Ós general appearance.

Respondent testified that those progress notes are preprinted

forms and would be adjusted upon a patientÓs examination.

32. On April 4, 2011, RespondentÓs progress note for C.B.

reflects ÐDiscuss w ith patient in detail, patient complains of

one papule, advised patient about candidiasis, GI tract not

responding to azoles. Complains of diarrhea, abdominal symptoms,

wants IV meds.Ñ C.B.Ós progress note dated April 5, 2011,

reflects under the ÐS: COMPL AINT: No show - Refused to get PICC

line out. Patient walked out yesterday. Patient was told to

wait for dressing change. Patient states to receptionist she

will come today.Ñ Respondent elected to document on April 5,

something that happened on April 4 , despite the fact that the

progress note for April 4 reflected a discussion with C.B.

33. On April 11, 2011, C.B. presented a request for her

medical records to RespondentÓs staff. C.B. received copies of

her medical records and provided them to DOH.

34 . Respondent testified as to C.B.Ós 2011 presentation and

RespondentÓs course of treatment, including what medications were

prescribed. Respondent confirmed that an undated ÐHistory and

PhysicalÑ (H&P) for C.B. was C.B.Ós Ðinitial history and

physicalÑ c reated from a template. This H&P purports to reflect

that C.B. was Ðdischarged [from RespondentÓs practice] for

misbehavior . . . was in jail. . . [and] begging [for Respondent]

to help her.Ñ This H&P also contained RespondentÓs physical

examination of C .B., which w as recorded on a ÐProgress NoteÑ of

the same date. Differences in the two records of the same date

exist.

35. C.B. testified that she has never been in jail and that

she had not been discharged from RespondentÓs practice. C.B. is

found to be a credible witness. RespondentÓs testimony is not

credible.

36. Respondent averred that she discussed C.B.Ós vaginal

itching with C.B. during the March 7, 2011 , office visit, yet

Respondent did not prescribe any medications for C.B. C.B.Ós

first IV imm unoglobulin was administered on March 14, a week

later.

37. Respondent claims she discussed her care and treatment

with C.B. on Wednesday, March 23, 2011. C.B. did not see

Respondent on March 23, as C.B. went to RespondentÓs office

located on Park Boulev ard in Pinellas Park and that location was

closed. C.B. found out that Respondent was working at an address

in Clearwater. C.B. did not have adequate time to get to that

Clearwater location before it closed for the day . T hus , C.B.

missed the appointment on that day. C.B.Ós candid and succinct

testimony is credible.

38. Respondent testfied that certain medical records for

C.B. were missing:

anything that was documented electronic or

anything -- any reports or any old records,

old reports, it doesnÓt c ontain anything .

And she came in for the treatment of a

disease thatÓs been existing since 2006, so

a lot of workup thatÓs done in the prior

years for -- which is the relevant basis of

the treatment at this point is not there.

39. Respondent was not clea r which medical records were

missing. C.B. had not been a patient of Respondent for

approximately two years. RespondentÓs reliance or purported

reliance on C.B.Ós Ðold records, old reportsÑ without adequate

confirmation of C.B.Ós current health issues vi a appropriate

work - ups, laboratory studies and tests falls below the reasonably

prudent similar health care provider standard.

Standard of Care

40. Respondent was required to meet the same standard of

care as outlined in paragraph 25 above. Dr. Carrizosa Ós

testimony was clear, concise, and credible. He did not appear to

have any prejudice against Respondent as a person, but was

concerned about how she was practicing medicine. Based on the

credited opinions of Dr. Carrizosa , RespondentÓs treatment and

car e of C.B. violated the standard of care for the following

reasons.

41. Respondent failed to practice in such a manner as to

determine within a reasonable degree of medical certainty that

C.B. had systemic candida as was diagnosed by Respondent.

Further , the laboratory results were not positive for an

antimicrobial sensitivity culture taken from C.B. Additionally,

C.B.Ós complete blood count (CBC) and the differential count,

which included neutrophils and lymphocytes , were normal. The

administration of A mbisome, the most expensive of all the drugs

available, was not warranted as C.B. did not have systemic

candidiasis. Further, the immunoglobulin treatment was

inappropriate as there was no evidence that C.B. had an immune

dysfunction.

Medical Records

42. Dr. Ephtimios also provided an opinion on behalf of

Respondent . Dr. Ephtimios had a discussion with Respondent

regarding the care and treatment provided to C.B. outside the

medical records provided. Dr. Ephtimios admitted that he does

not use a Medrol P ak in his practice ; he does not feel

comfortable practicing i mmunology (and would have referred C.B.

out to an i mmunologist . ) Dr. Ephtimios would not have ordered

the laboratory tests that Respondent ordered ; his understanding

of what c andidiasis means ma y differ from Respondent Ós , and he

speculated on what he thought Respondent ÐmeantÑ in several

instances. Dr. Ephtimios provided a somewhat exhaustive approach

to the various forms of c andidiasis ; however, he qualified each

approach . E ach physician pract ices medicine using their own

skill set and different methods of providing clinical assessments

and treatment . However, Dr. Ephtimios provided various

qualifiers to his opinion which rendered it less credible.

4 3 . The basis for creating, maintaining and retaining

medical records is expressed in paragraph 25 above.

4 4 . The medical record of C.B.Ós contact with RespondentÓs

office during this time does not meet FloridaÓs standards for

medical records. C.B.Ós records do not reflect an appropriate

evaluatio n, as they fail to analyze C.B.Ós main complaints, they

fail to analyze the previous evaluations of C . B . , and her

physical exams were incomplete.

DOH Case No. 2011 - 17799 (DOAH Case No. 14 - 0 515 PL )

45. According to Respondent, p atient P.A., a 38 - year - old

fe male , was Ðan ongoing patient [of hers] for over ten years.Ñ

Respondent saw P.A. between February 2008 and December 2011.

Respondent provided medical records to DOH regarding P.A.

However, Respondent admitted she did not provide all P.A.Ós

medical recor ds because Ða lot of records were missing,Ñ and

Respondent knew Ðat one point when they were very old records in

the 6251 office some of them were also shredded.Ñ Respondent

further claimed in response to additional questioning about her

shredding stateme nt ,

[B]ecause the statute says, you know, after

three years, so IÓm not sure if the --

because I know some of the records were

shredded by one of the secretaries.

* * *

The one [statute] which says once a practice

is closed retain records for three years.

46. Respondent identified one of P.A.Ós progress notes

(dated January 26, 2011 ) as Ðour procedure note,Ñ but when asked

ÐWhat was going on here according to these notes,Ñ Respondent

answered: ÐItÓs hard to say. ItÓs not my handwriting.Ñ

Respond ent could read the handwriting, but had Ðno clueÑ who

wrote the progress note. Further, Respondent was unable to state

if P.A. was administered either the g entam i cin 40 milligrams or

the c lindamycin 600 milligrams as listed on the progress note.

Medical R ecords

47. The basis for creating, maintaining and retaining

medical records is expressed in paragraph 25 above.

48. In this instance, the testimony of Respondent clearly

and convincingly proves Respondent violated section 458.331(1)(m)

and rule 64B8 - 9.0 03.

49. No evidence was presented that Respondent has been

previously disciplined.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57.

51. The Department is the state agency charged with

regulating the practice of medicine. § 20.43 and c hapters 456

and 458, Fla. Stat.

52. Section 458.331(1) authorizes the Board of Medicine to

impose penalties ranging from the issuance of a letter of concern

to revocation of a physicianÓs license to practice medicine in

Florida , if a physician commits one or more acts specified in

that section.

53. The Department has the burden to establish the

allegations contained in the charging documents by clear and

convincing evidence. DepÓt of Banking & Fin. v. Osborne Stern

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

510 So. 2d 292, 294 (Fla. 1987).

54. In Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th

DCA 1983), the Court d eveloped a Ðworkable definition of clear

and convincing evidenceÑ and found that of necessity such a

definition would need to contain Ðboth qualitative and

quantitative standards.Ñ The Court held that:

[C]lear and convincing evidence requires that

the evi dence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking confusion as to the facts in

issue. The evidence must be of such weigh t

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.

Id. The Florida Supreme Court later adopted the Slomowitz

courtÓs description of clear and con vincing evidence. See In re

Davey , 645 So. 2d 398, 404 (Fla. 1994). The First District Court

of Appeal has added the interpretive comment that Ð[a]lthough

this standard of proof may be met where the evidence is in

conflict . . . it seems to preclude evid ence that is ambiguous.Ñ

Westinghouse Elec. Corp. v. Shuler Bros., Inc. , 590 So. 2d 986,

988 (Fla. 1st DCA 1991); rev. denied , 599 So. 2d 1279 (Fla. 1992)

(citations omitted).

55. Section 458.331(1) provides in relevant part as

follows:

(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 physi cian or the physician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the pa tient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

h ospitalizations.

* * *

(q) Prescribing, dispensing, administering,

mixing, or otherwise preparing a legend drug,

including any controlled substance, other

than in the course of the physician's

professional practice. For the purposes of

this paragraph, it shall be legally presumed

that prescribing, dispensing, administer ing,

mixing, or otherwise preparing legend drugs,

including all controlled substances,

inappropriately or in excessive or

inappropriate quantities is not in the best

interest of the patient and is not in the

course of the physician's professional

practice, without regard to his or her

intent.

* * *

(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

enfo rcing this paragraph. Medical

malpractice shall not be construed to require

more than 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 boar d 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 th at a physician be incompetent to

practice medicine in order to be disciplined

pursuant to this paragraph. A recommended

order by an administrative law judge or a

final order of the board finding a violation

under this paragraph shall specify whether

the l icensee was found to have committed

"gross medical malpractice," "repeated

medical malpractice," or "medical

malpractice," or any combination thereof, and

any publication by the board must so specify.

56. Subsection 456.50(1)(g) defines medical malpracti ce as

follows:

"Medical 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 malpr actice

pursuant to this section, 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 m edical

malpractice if the standard of care and

burden of proof applied in the other state

or country equaled or exceeded that used in

this state.

57. Rule 64B8 - 9.003 provides in pertinent part the

parameters of adequate medical records as follows:

(2 ) A licensed physician shall maintain

patient medical records in English, in a

legible manner and with sufficient detail to

clearly demonstrate why the course of

treatment was undertaken.

(3) The medical record shall contain

sufficient information to id entify the

patient, support the diagnosis, justify the

treatment and document the course and results

of treatment accurately, by including, at a

minimum, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or admin istered;

reports of consultations and

hospitalizations; and copies of records or

reports or other documentation obtained from

other health care practitioners at the

request of the physician and relied upon by

the physician in determining the appropriate

tr eatment of the patient.

(4) All entries made into the medical

records shall be accurately dated and timed.

Late entries are permitted, but must be

clearly and accurately noted as late entries

and dated and timed accurately when they are

entered into the record. However, office

records do not need to be timed, just dated.

(5) In situations involving medical

examinations, tests, procedures, or

treatments requested by an employer, an

insurance company, or another third party,

appropriate medical records s hall be

maintained by the physician and shall be

subject to Section 456.061, F.S. However,

when such examinations, tests, procedures, or

treatments are pursuant to a court order or

rule or are conducted as part of an

independent medical examination pursua nt to

Section 440.13 or 627.736(7), F.S., the

record maintenance requirements of Section

456.061, F.S., and this rule do not apply.

Nothing herein shall be interpreted to permit

the destruction of medical records that have

been made pursuant to any examina tion, test,

procedure, or treatment except as permitted

by law or rule.

58. In DOAH Case No. 13 - 0 595 PL , the Department alleged

Respondent violated sections 458.331(1)(t). Specifically, the

Department alleged in paragraph 34 of the 2AAC that :

Respondent failed to meet the prevailing

professional standard of care regarding the

treatment of patient A.M. in one or more of

the following ways :

a. By failing to determine and verify

whether the patient had a non - resistant

staphylococcal infection or a MRSA inf ection;

b. By failing to incise, drain and culture

A.M.Ós lesions;

c. By failing to initiate treatment with

antimicrobial soap and instruct the patient

to use antimicrobial soup;

d. By failing to treat A.M. with an oral

antibiotic before initiating in travenous

infusion treatment;

e. By inappropriately treating A.M. with IV

Vancomycin ;

f. By treating A.M. with both oral and IV

Zyvox without medical justification;

g. By failing to order appropriate tests to

confirm that A.M. had a heart valve

infec tion; or

h. By failing to appropriately monitor

A.M.Ós pharmacology when A.M. went through

infusion.

59. The Department has proven by clear and convincing

evidence that Respondent violated the standard of care as alleged

in paragraph 34 of the 2AAC.

6 0. In DOAH Case No. 14 - 0 514 PL , the Department has alleged

Respondent violated section 458.331(1)(t). Specifically, the

Department alleged in paragraph 39 of the AAC that :

Respondent fell below the acceptable standard

of care in one or more of the followi ng ways :

a. The RespondentÓs examination and

evaluation of Patient C.B. was inadequate and

inappropriate in that the examination did not

support a diagnosis of one of the following

conditions: systemic Candida infection,

hyperimmune dysfunction, immunod eficiency or

decreased immune response;

b. The RespondentÓs [sic] inappropriately

treated the patient with one or more of the

following drugs; AmBisome, immunoglobulin,

Vfend or Diflucan although the patient did

not have any conditions which would indicat e

their use.

c. The Respondent failed to discontinue

treatment with AmBisome or immunoglobulin

despite the patient having signs of negative

side effects.

61. The Department has proven by clear and convincing

evidence that Respondent violated the standa rd of care as

alleged in paragraph 39 (a) and (b). The Department failed to

establish that Respondent violated the standard of care as

alleged in paragraph 39 (c).

62. In DOAH Case No. 13 - 0 595 PL , Count Two of the 2AAC, the

Department alleged that Respond ent violated section

458.331(1)(m). Specifically, the Department alleged in paragraph

38 of the 2AAC that :

Respondent failed to keep legible medical

records for A.M. in one or more of the

following ways :

a. by failing to document a complete and

appropri ate history and physical examination;

b. by failing to adequately document the

condition of A.M.Ós abscesses;

c. by failing to adequately document the

doses of Vancomycin, and Zyvox ordered for the

patient;

d. by failing to document the justification

of the course of treatment provided;

e. by failing to keep A.M.Ós complete medical

records.

63. The Department has adopted rule 64B8 - 9.003, which

defines ÐStandards for Adequacy of Medical RecordsÑ as set forth

above. Based on the findings of fact her ein, the Department has

proven by clear and convincing evidence that Respondent failed to

keep adequate medical records in violation of section

458.331(1)(m).

64. In DOAH Case No. 14 - 0 514 PL , the Department has alleged

Respondent violated section 458.331(1 )(m). Specifically, the

Department alleged in paragraph 43 of the AAC that :

Respondent failed to keep appropriate medical

records in one or more of the following ways:

a. The medical records did not justify one

or more of the following diagnoses:

syste mic Candida infection, hyper immune

dysfunction, combined immunodeficiency or

decreased immune response.

b. The medical records did not justify the

RespondentÓs treat ment of the patient.

c. The medical records had conflicting

accounts of the patientÓs treatment.

d. By failing to keep and/or maintain

C.B.Ós complete medical records.

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

has proven by clear and convincing evidence that Respondent

failed to keep adequate medical records, as alleged i n paragraph

43, in violation of section 458.331(1)(m).

66. In DOAH Case No. 14 - 0 515 PL , the Department has alleged

Respondent violated section 458.331(1)(m). Specifically, the

Department alleged in paragraph 27 of the AAC 2 that :

Respondent failed to keep medical records in

one or more of the following ways:

a. The medical records did not contain

adequate documentation of physical

examinations.

b. The medical record did not contain

sufficient documentation of the course and

results of treatment accurate ly.

c. The medical records do not contain

documentation of consultations and follow -

ups.

d. The Respondent failed to keep and

maintain the complete medical records for

patient P.A.

67. Based on the findings of fact, the Department has

proven by clea r and convincing evidence that Respondent failed to

keep adequate medical records, as alleged in paragraph 27, in

violation of section 458.331(1)(m).

68. In DOAH Case No. 13 - 0 595 PL , Count Three of the 2AAC,

the Department alleged that Respondent violated section

458.331(1)(q). Specifically, the Department alleged in paragraph

42 of the 2AAC that :

Respondent prescribed, administered, or

prepared legend drugs inappropriately to

patient A.M. in one or more of the following

ways :

a. by prescribing IV Vancom ycin without

sufficient medical justification;

b. by prescribing doses of Vancomycin only

once a day; or

c. by prescribing both oral and IV Zyvox.

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

proved by clear and convincing evidence that R espondent violated

section 458.331(1)(q).

Penalty

70. Section 458.331(1) provides for the disciplin e of

health care professionals who violate their respective practice

act s . According to section 456.072(2), Florida Statutes:

When the board . . . finds a ny person guilty

of . . . any grounds set forth in the

applicable practice act, including conduct

constituting a substantial violation of

subsection (1) . . . it may enter an order

imposing one or more of the following

penalties:

(a) Refusal to certify, or to certify with

restrictions, an application for a license.

(b) Suspension or permanent revocation of a

license.

(c) Restriction of practice or license,

including, but not limited to, restricting

the licensee from practicing in certain

settings, res tricting the licensee to work

only under designated conditions or in

certain settings, restricting the licensee

from performing or providing designated

clinical and administrative services,

restricting the licensee from practicing more

than a designated nu mber of hours, or any

other restriction found to be necessary for

the protection of the public health, safety,

and welfare.

(d) Imposition of an administrative fine not

to exceed $10,000 for each count or separate

offense. If the violation is for fraud or

making a false or fraudulent representation,

the board, or the department if there is no

board, must impose a fine of $10,000 per

count or offense.

(e) Issuance of a reprimand or letter of

concern.

(f) Placement of the licensee on probation

for a pe riod of time and subject to such

conditions as the board, or the department

when there is no board, may specify. Those

conditions may include, but are not limited

to, requiring the licensee to undergo

treatment, attend continuing education

courses, submit to be reexamined, work under

the supervision of another licensee, or

satisfy any terms which are reasonably

tailored to the violations found.

(g) Corrective action.

(h) Imposition of an administrative fine in

accordance with s. 381.0261 for violations

regarding patient rights.

(i) Refund of fees billed and collected from

the patient or a third party on behalf of the

patient.

(j) Requirement that the practitioner

undergo remedial education.

In determining what action is appropriate,

the board, . . . must first consider what

sanctions are necessary to protect the public

or to compensate the patient. Only after

those sanctions have been imposed may the

disciplining authority consider and include

in the order requirements designed to

rehabilitate the practitioner. All costs

associated with compliance with orders issued

under this subsection are the obligation of

the practitioner.

71. The Board of Medicine imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

F lorida Administrative Code Rule 64B8 - 8.001. Rule 64B8 - 8.001

provides in pertinent part:

(1) Purpose. Pursuant to Section 456.079,

F.S., the Board provides within this rule

disciplinary guidelines which shall be imposed

upon applicants or licensees whom it regulates

under Chapter 458, F.S. The purpose of this

rule is to notify applicants and licensees of

the ranges of penalties which will routinely

be imposed unless the Board finds it necessary

to deviate from the guidelines for the stated

reasons given within this rule. The ranges of

penalties provided below are based upon a

single count violation of each provision

listed; multiple counts of the violated

provisions or a combination of the violations

may result in a higher penalty than that for a

single, isolated violation. Each range

includes the lowest and highest penalty and

all penalties falling between, including

appropriate continuing medical education

(CME). The purposes of the imposition of

discipline are to punish the applicants or

licensees fo r violations and to deter them

from future violations; to offer opportunities

for rehabilitation, when appropriate; and to

deter other applicants or licensees from

violations.

(2) Violations and Range of Penalties. In

imposing discipline upon applicants and

licensees, in proceedings pursuant to

Sections 120.57(1) and (2), F.S., the Board

shall act in accordance with the following

disciplinary guidelines and shall impose a

penalty within the range corresponding to the

violations set forth below. The verba l

identification of offenses are descriptive

only; the full language of each statutory

provision cited must be consulted in order to

determine the conduct included.

VIOLATION

* * *

(m) Failure to keep appropriate written

medical records. (Section 4 58.331 (1)(m),

F.S.)

(FIRST OFFENSE)

( m) From a reprimand to denial or two (2)

years suspension followed by probation, and

an administrative fine from $1,000.00 to

$10,000.00.

(SECOND OFFENSE)

(m) From probation to suspension followed by

probation or d enial, and an administrative

fine from $5,000.00 to $10,000.00.

* * *

(q) Inappropriate or excessive prescribing.

(Section 458.331(1)(q), F.S.)

(FIRST OFFENSE)

(q) From one (1) year probation to

revocation or denial and an administrative

fine from $1,000.00 to 10,000.00.

(SECOND OFFENSE)

(q) From suspension, to be followed by a

period of probation, to revocation or denial

and an administrative fine from $5,000.00 to

$10,000.00.

* * *

(t) Failure to practice medicine in

accordance with app ropriate level of care,

skill and treatment recognized in general law

related to the practice of medicine.

(Section 456.50(1)(g), F.S.)

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

(FIRST OFFENSE)

( t) From one (1) year probation to

revocation or denial and an administ rative

fine from $1,000.00 to $10,000.00.

(SECOND OFFENSE)

( t) From two (2) years probation to

revocation or denial and an administrative

fine from $5,000.00 to $10,000.00.

* * *

(3) Aggravating and Mitigating

Circumstances. Based upon considerat ion of

aggravating and mitigating factors present in

an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or public to injury

or potential injury, physical or otherwise:

none, slight, severe, or death;

(b) Legal status at the time of the offense:

no restraints, or legal constraints;

(c) The number of counts or separate

offenses established;

(d) The number of times the same offense or

offenses have previously been committed by

the licensee or applicant;

(e) The disciplinary history of the

applicant or licensee in any jurisdiction and

the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or l icensee;

(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 impose suspension o r

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 keep and/or produ ce the medical records.

(i) Any other relevant mitigating factors.

72. Some of the factors listed above have no application to

this case. For example, Respondent was under no legal

constraints at the time of these incidents (subsection (3)(b)),

no dis ciplinary history of the licensee was presented (subsection

(3)(e)), or no pecuniary benefit or self - gain inuring to the

licensee was presented subsection (3)(f)).

73. The Department asserts that the appropriate penalty in

these combined cases consist of revocation and an administrative

fine of $30,000.00.

74. Having considered that the findings of fact with

respect to the violation of section 458.331(1)(q) are in large

part duplicative of the violation of section 458.331(1)(t), a

penalty within the guide lines , but at the lower end , is

appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Medicine enter a F inal

O rder f inding that Respondent, Neelam Uppal , M.D., violated

section 458. 331(1)( m ) , (q) and ( t ) , Florida Statutes ; suspend ing

her license for six months followed by two years probation with

terms and conditions to be set by the Board of Medicine ; imposing

an administrative fine of $ 10,000 .00; requiring the successful

completion of a course or courses to make, keep and maintain

medical records ; requiring a course in professional

responsibility and ethics , and such other educational courses as

the Board of Medicine may require ; and assessing costs as

provided by law .

DONE AND ENTE RED this 17th day of September , 2014 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of September , 2014 .

ENDNOTE S

1/ On February 7, the Notice for Telephonic Motion Hearing was

iss ued setting February 12, at 2:15 p.m. for the hearing; the

attorneyÓs notice was filed at 2:14 p.m.

2/ This motion was filed at 2:16 p.m.

3/ The parties were advised they could file another request to

consolidate for hearing purposes.

4/ This Petitio n reflects a different DOH C ase N umber on page 2,

line 2; however, the PetitionÓs content addresses C.B., the

patient in DOH Case N umber 2011 - 06111. Further, the Petition

provides answers to an ÐAmended Administrative Complaint . Ñ DOH

did not object.

5/ See 1 above.

6/ See 2 above.

7/ See 3 above.

8/ See 1 above.

9/ See 2 above.

10/ See 3 above.

11/ Respondent filed an objection to DOHÓs M otion for L eave to

A mend on March 12, 2014.

12/ On May 23, 2014, Respondent, in her pro se capacity, fi led a

(proposed) ÐOrder to Show Cause for Objection to Subpoena and

PetitionerÓs ContemptÑ and a (proposed) ÐOrder to Show Cause for

Objection to Co - CounselÑ in each of the three cases. At hearing ,

RespondentÓs Counsel withdrew these pleadings.

13/ The Order of Pre - hearing Instructions directed the parties to

file the Pre - hearing Stipulation no later ten days before the

hearing in DOAH C ase No. 13 - 0 595 PL or six days before the hearing

in 14 - 0 514 PL or 14 - 0 515 PL .

14/ Respondent did not object to Exhibits 2, 6, or pages 1

through 3 and 163 of Exhibit 9.

15/ A review of each statutory section and rule reflects no

significant changes for the years listed.

16/ This is the common method taught to health care professionals

to create medical records: Subject ive, Objective, Assessment, and

Plan.

17/ MRSA (Methicillin - resistant Staphylococcus aureus) is a

bacteria that is resistant to many antibiotics, including

penicillin or beta - lactams group.

18/ WNL means Ðwithin normal limits.Ñ

19/ Endocarditis is a specific infection of the heart valves or

inner lining of the heart, caused by infections passing through

the blood stream. In order to diagnosis endocarditis, the

detection of an infection in the bloodstream is necessary, and

the patient may have other indications such as a fever, malaise,

or other infections.

20/ A.M.Ós records reflect she was seen at the 5840 Park

B oulevard location between October 8 and 16, 2008, while the

other records fail to reflect the location of the practice where

she was trea ted.

21/ It was noted that in 2009 and earlier, C.B. had previously

been a patient of Respondent.

22/ Thrush is a yeast infection that causes white patches in the

mouth and on the tongue. You can get thrush when a yeast called

c andida grows out of con trol.

23/ Immunoglobulin is a prescription medication used to treat

immunodeficiencies that are related to the bodyÓs inability to

produce antibodies for fighting infections.

24/ Ambisome is a prescription medication used to treat serious

fungal infect ions, such as systemic yeast infections.

25/ VFEND, a/k/a Voriconazole, is a broad spectrum antifungal

prescription medication that can be administered either orally or

via an IV.

COPIES FURNISHED:

Sean Michael Ellsworth, Esquire

Ellsworth Law Firm , P.A.

420 Lincoln Road , Suite 601

Miami Beach, Florida 33139

(eServed)

Andre Christopher Ourso, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Jennifer A. Tschetter, Ge neral Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Allison M. Dudley, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C 0 3

Tallahassee, Florida 32399 - 3253

(eSer ved)

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.