13-004280PL Department Of Health, Board Of Medicine vs. Peter Choy, M.D. Status: Closed Recommended Order on Tuesday, April 15, 2014.

Summary: Respondent altered a patient's medical records to bolster his legal position when threatened with a lawsuit, a fact which he concealed from Petitioner, giving rise to the inference that he committed malpractice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

Case No. 13 - 4280PL

vs.

PETER V. CHOY, M.D.,

Respondent.

/

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing on January 14 and 15, 2014, in

Miami, Florida.

APPEARANCES

For Petitioner: Daniel Hernandez , Esquire

R. Shaffer Claridge , Esquire

Christopher Hudtwalcker, Esquire

Dep artment of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Amy W. Schrader , Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11 189

Tallahassee , Florida 3 2302 - 3189

Jay A. Ziskind, Esquire

Jay A. Ziskind, P.A.

3471 Main Highway, No. 517

Miami, Florida 31333

STATEMENT OF THE ISSUES

The issues in this case are whether Respondent: ( 1) made

deceptive, untrue, or fraudule nt representations in or related

to the practice of medicine; ( 2) failed to keep appropriate

medical records with respect to Patient T.G. ; ( 3) fell below the

minimum acceptable standard of care in his treatment of T . G . ;

( 4) misrepresented or concealed a ma terial fact duri ng the

course of the disciplinary process ; and /or (5) improperly

interfered with Petitioner's investigation. If so, it will be

necessary to determine whether Petitioner should impose

discipline on Respondent's medical license within th e ap plicable

penalty guidelines, or take some other action.

PRELIMINARY STATEMENT

On October 31, 2013 , Petitioner Department of Health (the

"Department") issued a five - count Second Ame nded Administrative

Complaint against Respondent Peter V. Choy, M.D. ("Dr. Choy").

The Department alleged that Dr. Choy had committed medical

malpractice in connection with his treatment of T.G., a patient

who died in 2010 from complications arising from pancreatic

cancer; that he had secretly altered T.G.'s medical records in

a n effort to fabricate evidence that would bolster his defense

against the malpractice charge; that he had failed to maintain

medical records justifying the course of T.G. 's treatment ; and

that he had interfered with the Department's investigation by

concea ling or misrepresenting material facts . Dr. Choy denied

the charges and timely requested a formal hearing. On

November 1 , 201 3 , the Department referred the matter to the

Division of Administrative Hearings, where an Administrative Law

Judge was assigned to preside in the matter.

The final hearing took place on January 14 and 15, 2014 .

Both parties were represented by counsel. The Department ' s

witnesses were: Robert Scott Radin, a Department investigator;

Dr. Choy ' s office manager , Cristina Garcia; Pat ient T . G .' s

daughter and son; and Dr. Choy. The Department also presented

expert testimony in the form of Dr. Francisco Calimano's

deposition . Dr. Choy testified on his own behalf and called

Cristina Garcia as his only other witness . In addition,

Dr. C hoy presented Dr. Luis Caceres 's deposition testimony.

Jo int Exhibits 1 (with the exception of Bates numbers 789 -

882) through 15, 18 , and 19 were admitted into evidence, as were

Respondent ' s Exhibits 1 through 5 and 7. The record was held

open for receip t of telephone records, which had been subpoenaed

from XO Communications Services, LLC, evidencing calls to and

from Dr. Choy ' s office between June 18 and June 23, 2008.

The three - volume final hearing t ranscript was filed on

February 3, 2014. Respondent filed the t elephone r ecords on

March 7, 2014, and on March 11 the parties filed a Jo int P ost -

h earing Stipulation as to the ir contents. An unopposed motion

requesting that the deadline for filing proposed recommended

orders be extended to March 24, 2014, was granted. Both parties

timely filed proposed recommended orders, which have been

considered.

Unless otherwise indicated, a citation to the Florida

Statutes or Florida Administrative Code refer s to the version in

effect at the time of the event or cond uct whose occurrence

triggered the statute or rule's operation.

FINDINGS OF FACT

1. At all times relevant to this case, Dr. Choy was

licensed to practice medicine in the state of Florida, having

been issued license number ME 74815.

2. The Department has regulatory jurisdiction over

l icensed physicians such as Dr. Choy. In particular, the

Department is authorized to file and prosecute an administrative

complaint against a physician, as it has done in this instance,

when a panel of the Board of Medicine h as found that probable

cause exists to suspect that the physician has committed a

disciplinable offense.

3. Here, the Department has charged Dr. Choy with medical

malpractice, which is a disciplinable offense pursuant to

section 458.331(1)(t)1, Florida St atutes , both for allegedly

failing to inform his patient, T.G., that a CT scan performed in

June 2008 revealed the presence of a potentially malignant tumor

i n her pancreas, and for failing to refer T.G. to a specialist

for further investigation of this fi nding. The Department

alleges, as well, that, after an attorney representing T.G.'s

family contacted Dr. Choy following T.G.'s death in 2010,

Dr. Choy altered his medical records to make it appear as though

he not only had informed T.G., in and after Jun e 2008 , that she

might have pancreatic cancer, but also had urged her repeatedly

to see a specialist. Based on these allegations, 1 / the

Department has charged Dr. Choy with : one , making deceptive,

untrue, or fraudulent representations in the practice of

medicine, an offe nse under section 458.331(1)(k) ; two , failing

to keep legally sufficient medical records in compliance with

Florida Administrative Code Rule 64B8 - 9.003, an offense under

section 458.331(1)(m) ; and , three , misrepresenting or concea ling

mate rial facts during, and improperly interfering with, a

disciplinary proceeding, which are separate offenses under

sections 458.331(1)(gg) and 458.331(1)(hh) , respectively.

4. The events giving rise to this d i spute began on May 13,

2008, when Dr. Choy's l ongtime patient, T.G., presented with

complaints of left lower quadrant pain and a change in bowel

habits. T.G., who was then 77, had a number of medical

conditions for which she had been seeing Dr. Choy, including

diabetes, hypertension, depression, hear t disease, and

arthritis. Reviewing the results of blood work ordered the

previous month, Dr. Choy diagnosed T.G. with anemia and ordered

another blood test to determine if the condition persisted. In

addition, Dr. Choy ordered a CT scan of T.G.'s abdome n and

pelvis.

5. T.G. went to the lab to have blood drawn on May 13.

The next day, Dr. Choy received the test results, which showed

that T.G. remained anemic. Dr. Choy suspected that T.G. might

have colon cancer. He made a note on the lab report that T .G.

should be prescribed a medication for her anemia and that she

needed to "be referred to a GI specialist for eval[uation]."

Following the customary procedure in Dr. Choy's office, an

employee called T.G. on May 19 to inform her of these

instructions an d wrote "5/19 done" at the top of the lab report.

6. T.G. underwent the CT scan of her abdomen and pelvis on

June 17, 2008. The radiologist's three - page report was faxed to

Dr. Choy on June 19. On the first page of the report, which

discusses the abdomi nal scan, it is stated that "[t]here is a

large lobulated malignant tumor mass in the tail of the

pancreas . . . ." On the next page, the third of four

enumerated impressions based on the abdominal CT scan reads:

"Large malignant tumor mass tail of the pancreas as described."

Also on page 2, following the report of the abdominal procedure,

is the interpretation of the pelvic CT scan, which resulted in a

finding of diverticulosis but was otherwise negative.

7. Dr. Choy reviewed the report and wrote "ok" on page 1,

next to the first impression from the abdominal scan, which was:

"Old healed calcified granulomatous disease right lower lobe."

On page 2, adjacent to the impressions from the pelvic scan,

Dr. Choy wrote the following note: 2 /

8. At some point after Dr. Choy wrote the foregoing note,

the report was scanned into his office's electronic medical

records system. Also, a hard copy of the report of T.G.'s CT

scan was placed in a traditional patient chart, as was done with

all lab report s that Dr. Choy's office received.

9. On June 19, 2008, someone from Dr. Choy's office called

T.G. at 3:34 p.m. and spoke with her (or someone in her home)

for nearly five minutes. Dr. Choy testified that he personally

placed this call, a claim the Dep artment disputes. The identity

of the caller is immaterial, however, because the main purpose

of the call was, most likely, to schedule an appointment for

T.G., so that Dr. Choy could go over the recent blood work and

CT scan with T.G. in person. T.G. wa s not told during this

phone call about the tumor that had been observed in her

pancreas, but she was probably given Dr. Choy's recommendations

for managing diverticulosis, as indicated by a handwritten note

at the top of page 2 of the CT scan report, whic h says, "6/19/08

Done."

10. T.G. returned to Dr. Choy's office on June 30, 2008.

Unfortunately, there is no reliable contemporaneous record of

what Dr. Choy communicated to T.G., if anything, about the

finding of a tumor in her pancreas. Dr. Choy testif ied that he

did not use words such as "cancer" or "mass" in front of T.G.,

both to avoid upsetting her and because he is a "soft person"

who "hate[s] to give people bad news." Dr. Choy thinks that he

might have told T.G. there was a "spot" on her pancreas

(although he is not sure he used that term), and he clearly

recalls having advised T.G. to "see a specialist" because ÏÏ he

recalls telling her ÏÏ although he "didn't know what it was," it

"could be bad."

11. The Department disputes that Dr. Choy said even that

much. In support of its position that Dr. Choy failed to

disclose to T.G. the radiologist's finding of a pancreatic

tumor, the Department focuses on Dr. Choy's electronic medical

records, in which ÏÏ as originally prepared ÏÏ he made no mention of

a pan creatic mass. For example, at the time of T.G.'s June 30,

2008, visit, Dr. Choy wrote that the patient did not have

"[a]bdomenal [sic] pain," and he typed the following notes

regarding his impressions and diagnoses:

ZZ - Dr Peter V Choy; Z - VP EKG; Anemia Ir on

Deficiency Î 2809 repeat Test if no

Improvement we will refer pt to GI

evaluation;Diabetes w/ unspecified

complication - 250.90; Hyperlipidemia - 2724;

Hypertension - 4019; Hypertensive Heart

Disease without HF 402.90; Hypothryoidism -

2449; Declining Function - 7993; Depression -

311; Vertigo - 7804

This record, made at or around the time of the June 30, 2008,

visit, is silent about the potentially malignant tumor that had

recently been seen in T.G.'s pancreas.

12. Dr. Choy testified that his contemporaneous record s

are not silent as to the pancreatic mass because when he saw

T.G. on June 30, 2008, he wrote an additional note on the hard

copy of the CT scan report, creating the following: 3 /

That Dr. Choy inserted the reference to a pancreatic tumor after

June 19, 2 008, is proved by the existence of the digital copy of

the CT scan report ÏÏ converted via scanner from paper to

electronic file that day ÏÏ which does not contain the reference.

Because Dr. Choy did not put a date on the subsequent note,

however, his testimo ny is the only evidence that it was made on

June 30, 2008. The Department contends that Dr. Choy's

testimony in this regard is not credible. The undersigned

agrees with the Department.

13. There are a number of reasons for rejecting Dr. Choy's

testimon y. To begin, Dr. Choy's account requires one to imagine

that, when making his original notes, Dr. Choy jotted down a

treatment plan for diverticulosis while simultaneously failing

to acknowledge the ominous finding of a pancreatic tumor,

despite being awa re of the potentially terminal condition.

Further, Dr. Choy would have the undersigned believe that, just

as he was soft - pedaling the CT scan results in conversation with

T.G., he was writing "malignant tumor" on the report ÏÏ using the

type of words he (cr edibly) denies uttering in T.G.'s presence.

The reference to the pancreatic tumor looks out of place,

moreover, in the section of the report discussing the pelvic

scan, which did not find the mass, atop the previous notes

relating to diverticulosis, which the pelvic scan did reveal.

Finally, there is the undisputed fact, which will be discussed

in depth below, that Dr. Choy altered many other medical records

after questions were raised concerning his treatment of T.G. ÏÏ

and particularly about whether he ha d told her she might have

pancreatic cancer. In sum, the undersigned does not credit the

annotated CT scan report as evidence tending to establish that

Dr. Choy notified T.G. in June 2008 that there was a suspicious

mass in her pancreas.

14. The next tim e T.G. saw Dr. Choy was September 3, 2008.

The entries that he made in the patient's electronic medical

record for this visit were, originally, silent about the

possibility that T.G. might have cancer of the pancreas. He

noted that T.G. was "[d]oing well with no change in clinical

status" although she reported "[a]domenal [sic] [p]ain," which

she had not complained about on June 30, 2008. Dr. Choy

recorded T.G.'s various diagnoses in the electronic patient

chart, making no mention of the pancreatic mass.

15. This pattern was repeated during the several visits

which followed, on January 19, 2009; February 11, 2010; and

March 31, 2010. Dr. Choy's contemporaneous records of these

visits say nothing about T.G.'s pancreatic tumor or his efforts,

if any, to f ollow the condition.

16. When T.G. returned to Dr. C hoy's office on June 24,

2010 , she complained of abdominal pain and abnormal weight loss.

Dr. Choy reviewed T . G . 's blood tests, which indicated that she

was again anemic and might have liver diseas e. Concerned, and

having forgotten the 2008 scan, Dr. Choy ordered additional

blood tests and a CT scan of T.G.'s abdomen and pelvis.

17. After leaving Dr. Choy's office, T.G. went to the lab,

where her blood was collected on June 24. The test results ,

which were reported on June 28, 2010, showed that her platelets

were low, suggesting a blood disorder. For that reason,

Dr. Choy refer r ed T.G. to Dr. Luis Villa, a hematologist and

oncologist whom T. G. had wanted to see.

18. Dr. Villa saw T.G. on July 1, 2010. In a letter to

Dr. Choy that he prepared on the same day, Dr. Villa advised

that T.G. "look[ed] great; certainly, younger than her stated

age." Dr. Villa believed that laboratory data for T.G. were

suggestive of chronic liver disease, and he re commended that

Dr. Choy order additional tests. Dr. Villa informed Dr. Choy

that he had " reassured [T.G.] that there is nothing acute here

that necessitate[s] immediate attention."

19. On July 7, 2010, T.G. returned to Dr. Choy's office

for a follow - up visit. During this visit, Dr. Choy noted

Dr. Villa's recommendation and recorded (for the first time) a

differential diagnosis of "potential malignancy," to be ruled

out. Dr. Choy ordered more tests, including an abdominal CT

scan.

20. T.G. underwe nt a CT scan on July 15, 2010, her second,

two years after the previous scan had first detected a

pancreatic mass. A report of the results of this CT scan was

delivered to Dr. Choy's office on July 16, 2010. The report

indicated that T . G . had "a large ma ss at the level of the

pancreatic tail."

21. T.G. had an appointment to see Dr. Choy for a follow -

up examination on July 19, 2010. That morning, however, T.G.'s

son, being worried about how weak T.G. suddenly had become, took

her directly to the hospit al, without stopping at Dr. Choy's

office. Dr. Choy signed the order to admit T.G. to Mercy

Hospital, where she was received on July 19 at 1:11 p.m.

carrying a diagnosis of pancreatic cancer with possible

metastasis to the liver. Although Dr. Choy did no t see T.G. in

his office that day, as expected, a record of the upcoming visit

was created in Dr. Choy's electronic medical records system.

Somehow, a record of the canceled visit was thereafter

transmitted to T.G.'s HMO as if Dr. Choy had seen T.G. in hi s

office as scheduled, making it appear that he had performed an

examination which in fact had not occurred.

22. The Department alleges that Dr. Choy submitted a false

insurance claim in connection with the canceled appointment.

This contention is reject ed as unproved. There is no persuasive

evidence that Dr. Choy received any payment for the July 19th

appointment which, as it happened, T.G. could not keep, and more

important, the evidence is insufficient to establish, clearly

and convincingly, that Dr. Choy intended to deceive the HMO.

The simplest and likeliest explanation for the July 19th office -

visit note is that, owing to the unexpected change of plans,

someone got the paperwork confused and made a mistake.

23. The day after she was admitted to Me rcy Hospital, T.G.

underwent a liver biopsy, which revealed a "metastatic tumor of

pancreatic origin."

24. Sometime in July 2010, after the pathology report

confirmed T.G.'s diagnosis, T.G.'s family requested that

Dr. Choy's office provide them with co pies of T.G.'s medical

records. Dr. Choy's staff complied with this request, printing

the electronic medical records on July 27, 2010, and delivering

them to a family member. The set of records provided at this

time went back only as far as January 19, 2 009, and thus omitted

the notes for T.G.'s appointments with Dr. Choy in 2008.

25. On August 8, 2010, T . G . passed away due to liver

disease and acute renal failure.

26. On August 19, 2010, Dr. Choy received a letter from an

attorney representing T.G.' s family, which requested copies of

T.G.'s records. At this point, Dr. Choy feared that T.G.'s

family would bring a medical malpractice lawsuit against him,

and he "panicked" because he had never been sued before and did

not have liability insurance. On reviewing the records,

Dr. Choy concluded that some of the language was "ugly" and

"didn't look right" as written. Wanting to make the records "as

presentable as possible" for the lawyer, Dr. Choy decided to

edit the electronic text. He then proceeded t o delete some

entries and add others without identifying any of the

alterations.

27. As a comparison of the original text to the revised

text clearly reveals, Dr. Choy's self - confessed concern was

obviously owing to the remarkable absence of any notes i n the

medical records pertaining to the possibility that T.G. might

have pancreatic cancer as stated in the radiologist's report

interpreting the June 2008 CT scan. This is apparent from the

fact that, without significant exception, the sole purpose of

th e alterations is plainly to correct that particular, glaring

deficiency. The covertly amended records convey the impression

that Dr. Choy timely informed T.G. of the CT scan results and

repeatedly urged her to see a specialist to investigate the

findings further. Indeed, if one were unaware of the original,

unaltered records, his review of the revised records would

provide little or no cause to criticize Dr. Choy's handling of

T.G.'s case. The inevitable inference is that Dr. Choy knew the

original recor ds would be persuasive, if not conclusive,

evidence of his failure to inform T.G. of her potentially fatal

condition, in violation of the standard of care, so he secretly

(or so he thought) doctored the records to turn them into

evidence that he had satisf ied the standard of care.

28. To see just how incriminating the alterations are, it

is helpful to place the original and revised texts,

respectively, side - by - side, as below. In the following table,

the language printed in boldface identifies deletions from the

original , contemporaneous record and additions to the much - later

revised record (misspellings in original) :

Visit Date Contemporaneous Revised Record

Record

6/30/08 ZZ - Dr Peter V Choy; Z - VP ZZ - Dr Peter V Choy; Z - VP

EKG; Anemia Iron EKG; Anemia Iron Deficiency

Deficiency Î 2809 repeat Î 2809 And abdominal pain

Test if no Im provement we with and abnormal CT scan.

will refer pt to GI We will refer pt to GI

evaluation;Diabetes w/ evaluation for possible GI

unspecified complication - malignancy of the

250.90; Hyperlipidemia - Pancreas ;Diabetes w/

2724; Hypertension - 4019; unspecified complication -

Hypertensive Heart 250.90; Hyperlipidemia -

Disease without HF 2724; Hypertension - 4019;

402.90; Hypothryoidism - Hypertensive Heart Disease

2449; Declining Function - without HF 402.90;

7993; Depression - 311; Hypothryoidism - 2449;

Vertigo - 7804 Declining Function - 7993;

Depression - 311; Vertigo -

7804

9/03/08 A - Medically Stable; ZZ - - ; Abdominal Pain Unknown

Dr Peter V Choy; Z - VP ET Î 78900; Anemia Î 2859

EKG; Diabetes w/ Pt was advice again to see

unspecified complication - a GI Dr. The possibility of

250.90; Hyperlipidemia - a Ca of th e pancreas was

2724; Hy pertension - 4019; discuss with the pt; ZZ - Dr

Hypertensive Heart Peter V Choy; Z - VP EKG;

Disease without HF Diabetes w/ unspecified

402.90; Hypothryoidism - complication - 250.90;

2449; Declining Function - Hyperlipidemia - 2724;

7993; Depression - 311; Hypertension - 4019;

Vertigo - 7804 Hypertensive Heart Disease

without HF 402.90;

Hypothryoidism - 2449;

Declining Function - 7993;

Depression - 31 1; Vertigo -

7804

1/19/2009 Malaise and Fatigue and Malaise and Fatigue and

Other - 780.79; Declining Other - 780.79; Declining

Function - 7993; Dizziness Function - 7993; Dizziness

and Giddiness - and Giddiness -

780.4;Diabetes mellitus 780.4;Diabetes mellitus

Uncontrolled - 25002; ZZ - m Uncontrolled - 25002; ZZ - m

Resently admitted to BH Resently admitted to BH

with CHF Possible angina with CHF Possible angina

Pectoris before Pectoris before admittion

admittion Dr. Peter V Weight Loss Abnormal -

Ch oy; Z - VP EKG; Diabetes 783.21; Abdominal Pain

w/ unspecified Î 78900 Possible

complication - 250.90; ca of the Pancreas; ZZ - Dr.

Hyperlipidemia - 2724; Peter V Choy; Z - VP EKG;

Hypertension - 4019; Diabetes w/ unspecified

Hypertensive Heart complication - 250.90;

Disease without HF Hyperlipidemia - 2724;

402.90; Hypothryoidism - Hypertension - 4019;

2449; Declining Function - Hypertensive Heart Disease

7993; Depression - 311; without HF 402.90;

Vertigo - 7804; Congestive Hypothryoidism - 2449;

Heart Failure - 428.0 De clining Function - 7993;

asso ciatted with Actos Depression - 311; Vertigo -

7804; Congestive Heart

Failure - 428.0

2/11/10 A - Medically Stable; ZZ - Trigger finger on the right

Dr Peter V Choy; Z - VP great finger.; Contusion

EKG; Trigger finger on Foot - 924.20; Ba ck Pain

the right great finger.; Lower - 7242 and in the

Contusion Foot - 924.20; thoracic area;Diabetes w/

Back Pain Lower - 7242 and unspecified complication -

in the thoracic 250.90; Hyperlipidemia -

area; Diabetes w/ 2724; Hypertension - 4019;;

unspecified complication - Congestive Heart Failure -

250.90; Hyperlipidemia - 428.0; Hypothryoidism - 2449;

2724; Hypertension - 4019;; Back Pain Lower - 7242;

Congestive Heart Failure - Neuropathy Peripheral - 3569

428.0; Hypothryoidism -

2449; Back Pain Lower -

7242; Neuropathy

Peripheral - 3569

3/31/10 A - Medically S table; ZZ - Dr Peter V Choy; Z - V P EKG;

Dr Peter V Choy; Z - VP Weight Loss Abnormal - 783.21

EKG; Diabetes w/ Again case was discuss with

unspecified complication - the Pt and she was advice

250.90; Hyperlipidemia - of the abnormal

2724; Hypertension - 4019;; finding; Diabetes w/

Hypothryoidism - 2449; Back unspecified complication -

Pain Lower - 7242; 250.90; Hyperlipidemia -

Neuropathy Peripheral - 2724; Hypertension - 4019;;

3569; Hypertensive Heart Hypothryoidism - 2449; Back

Disease with HF 402.91 Pain Lower - 7242; Neuropathy

Per ipheral - 3569;

Hypertensive Heart Disease

with HF 402.91

29. The alterations are clear and convincing proof of the

material fact that Dr. Choy did not tell T.G. that the June 19,

2008, CT scan report stated she had a "[l]arge malignant tumor

mass" in her pancreas, for a simple reason: he was unaware that

a tumor mass was described in the report. This latter fact is

evident from Dr. Choy's alarm, in August 2010, about the

deficiencies in the records. Why, only then, did Dr. Choy

realize that the records "didn't look right? " What did Dr. Choy

know, without question, in August 2010, that he might not have

known earlier? The answer, of course, is that in August 2010

Dr. Choy knew that the 2008 CT scan report disclosed the

existence of a large mass in T.G. 's pancreas, a grave finding

that should have been conspicuously noted in T.G.'s medical

records.

30. Dr. Choy's admission that the records looked "ugly" to

him in August 2010 is revealing because, in fact, the records

look bad only in the light of the 2 008 CT scan results; but for

that report, they would appear to be at least adequate,

notwithstanding a few typographical errors. The bottom line is

that if the CT scan report had contained no references to a

pancreatic mass, then T.G.'s original medical r ecords would have

looked alright.

31. The undersigned readily infers, therefore, without

hesitation, that T.G.'s medical records looked fine to Dr. Choy

when he originally wrote them because, when he originally wrote

them, he was unaware that the 2008 C T scan report described a

tumor mass in T.G.'s pancreas. Only later, after learning the

full contents of the 2008 CT scan report, did the incriminating

nature of the contemporaneous medical records become clear to

Dr. Choy, who then, in his panic, made th e costly mistake of

tampering with the evidence.

32. Dr. Choy's failure to read the 2008 CT scan report

closely enough to take notice of its critical finding regarding

T.G.'s pancreas, whatever the cause of that failure was, is

sufficient to explain his failure to tell T.G. that she might

have pancreatic cancer. Simply put, Dr. Choy did not tell T.G.

about the pancreatic mass because he did not know of its

existence.

33. The parties stipulated that the minimum standard of

care required that, within a reasonable time after June 19,

2008, Dr. Choy both: (1) notify T.G. that the results of the

June 2008 CT scan suggested she had a mass in her pancreas; and

(2) refer T . G . to an appropriate specialist for further

evaluation and treatment of the pancreatic mass. Being unaware

of the finding regarding a pancreatic mass, Dr. Choy did

neither. Thus, his treatment of T.G. fell below the standard of

care.

34. T.G.'s family ultimately elected not to sue Dr. Choy,

but in July 2011, T.G.'s son filed a complaint w ith the

Department alleging that Dr. Choy had provided T.G. with

substandard care. This consumer complaint set in motion the

investigation which led to the instant proceeding.

35. In connection with its investigation, the Department

requested a copy of a ll T.G.'s electronic medical records from

Dr. Choy going back to T.G.'s first visit in 1999. These

medical records were printed from Dr. Choy's office computer

system on July 27, 2011, and delivered to the Department in

August 2011.

36. On August 23, 201 1, a Department investigator

interviewed Dr. Choy regarding his care of T.G. The

investigator ÏÏ who was in possession not only of the recently

produced records, but also copies of the records Dr. Choy's

office had provided to T.G.'s family back in July 201 0, before

Dr. Choy had tampered with the electronic documents ÏÏ asked

Dr. Choy to explain why there were two different versions of the

office notes for T.G.'s January 19, 2009, visit. After some

initial hesitation, Dr. Choy admitted that he had altered th e

records to reinforce his case after learning he might be sued

for malpractice.

37. During the course of discovery in this proceeding, the

Department asked Dr. Choy whether he had made any other changes

to T.G.'s records besides the ones previously ident ified.

Dr. Choy compared the printouts of T.G.'s untampered - with

records given to the family in July 2010, which covered office

visits from January 19, 2009, forward, to the fabricated

versions provided to the Department in August 2011, and was

unable to identify any additional changes.

38. Neither the Department nor Dr. Choy was able to

retrieve copies of T.G.'s original electronic records for the

office visits prior to January 19, 2009, because Dr. Choy had

overwritten the computer files when he alter ed the documents in

August 2010. Consequently, the Department retained a forensic

computer expert, who managed to recover the authentic records

from a backup. Armed at last with a full set of T.G.'s medical

records as they had looked on the dates Dr. Cho y saw T.G., the

parties were finally able to identify the changes Dr. Choy

subsequently made to the office notes for the visits of June 30

and September 3, 2008.

Ultimate Factual Determinations

39. The Department has established by clear and convincing

evidence that Dr. Choy made deceptive, untrue, or fraudulent

representations in the practice of medicine. He did so by

deliberately altering T.G.'s medical records with the intention

of fabricating evidence to support his claim that he had timely

informed T.G. about the mass in her pancreas, when in fact the

authentic, contemporaneous records make no mention of the

pancreatic mass. Dr. Choy is therefore guilty of the offense

defined in section 458.331(1)(k), Florida Statutes .

40. The Department has est ablished by clear and convincing

evidence that Dr. Choy failed to identify, as such, any of the

material, after - the - fact revisions he made to T.G.'s medical

records, so that the office notes appeared to be contemporaneous

accounts of the patient's course o f treatment, when in fact they

were not, in violation of Florida Administrative Code Rule 64B8 -

9.003(4). Dr. Choy is therefore guilty of the offense defined

in section 458.331(1)(m) .

41. The Department has established by clear and convincing

evidence th at Dr. Choy committed medical malpractice in his

treatment of T.G., by failing to timely inform her of the

pancreatic mass seen in the CT scan in June 2008, and by failing

to timely refer T.G. to a specialist for further investigation

of the mass. Dr. Cho y is guilty of the offense defined in

section 458.331(1)(t)1 .

42. The Department has established by clear and convincing

evidence that Dr. Choy concealed the material fact that he had

altered the original, contemporaneous records of T.G.'s care and

treatm ent when he knowingly produced T.G.'s revised medical

records to the Department in August 2011 without disclosing that

the records were not what they purported to be. Dr. Choy is

guilty of the offense defined in section 458.331(1)(gg) .

43. The Department failed to prove that Dr. Choy

interfered with its investigation. Dr. Choy was reasonably

cooperative throughout the investigation, during the course of

which, however, he committed the additional offense of

concealing a material fact from the Department, for which he

will be disciplined. Dr. Choy is therefore not guilty of the

offense defined in section 458.331(1)(hh) .

CONCLUSIONS OF LAW

44 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

sections 120.569 a nd 120.57(1), Florida Statutes .

45 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vini ng v. Fl a . Real Estate Comm'n , 281 So. 2d 487,

491 (Fla. 1973) . Accordingly, to impose discipline, the

Department must prove the charges against Dr. Choy by clear and

convincing evidence. Dep't of Banking & Fin., Div. of Sec. &

Investor Prot. v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987)) ; Nair v. Dep't of Bus. & Prof'l Reg . , Bd. of Med . ,

654 So. 2d 205, 207 (Fla. 1st DCA 1995) .

46 . Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983) , the court

dev eloped a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear and convincing evidence requires that

the evidenc e 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 in confusion as to

the facts in issue. The evidence must be of

such weight that it produces in the mind of

the trier of fact 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

court's description of clear and con vincing evidence. See In re

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

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in confl ict, . . . it seems to

preclude evidence that is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev. denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted) .

47 . The Department charged Dr. Choy under s ection 458.331,

Florida Statutes , which provides in pertinent part as follows:

(1) The following acts shall constitute

grounds for . . . disciplinary action[:]

* * *

(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.

* * *

(m) Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the phy sician extender

and supervising physician by name and

professional title who is or are responsible

for rendering, ordering, supervising, or

billing for each diagnostic or treatment

procedure and that justify the course of

treatment of the patient, includin g, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

* * *

(t)1. Committing medical malpractice[,

which is] defin ed in s. 456.50 [to mean]

"the failure to practice medicine in

accordance with the level of care, skill,

and treatment recognized in general law

related to health care licensure."

* * *

(gg) Misrepresenting or concealing a

material fact at any time during any phase

of a licensing or disciplinary process or

procedure.

* * *

(hh) Improperly interfering with an

investigation or with any disciplinary

proceeding.

48 . Florida Administrative Code Rule 64B8 - 9.003 provides

in relevant part as follows:

(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. Howe ver, office

records do not need to be timed, just dated.

49 . Disciplinary statutes and rules "must be construed

strictly, in favor of the one against whom the penalty would be

imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate ,

592 So. 2d 1136 , 1143 (Fla. 1st DCA 1992) ; see Camejo v. Dep't of

Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA 2002) ;

McClung v. Crim. Just. Stds. & Training Comm'n , 458 So. 2d 887,

888 (Fla. 5th DCA 1984)("[W]here a statute provides for

revocation of a licens e the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favo r of the licensee.") ; see

also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d

929 , 931 (Fla. 1st DCA 2011)(statues imposing a penalty must

never be extended by construction) .

50. The undersigned has determined, as a matter of

ultimate fact, that the Department established Dr. Choy's guilt

by clear and convincing evidence as to all of the charges except

the allegation that he interfered with an investigation or

disciplinary proceeding. The undersigned further concludes that

the plain languag e of the particular statutory and rule

provisions under which Dr. Choy was charged can be applied to

the historical events at hand without a simultaneous examination

of extrinsic evidence or resort to principles of interpretation.

It is therefore unnecess ary to make additional legal conclusions

with regard to these charges.

51. In determining the weight to be given to the

undisputed fact that Dr. Choy deliberately altered T.G.'s

medical records in his ill - advised attempt to manufacture

exculpatory eviden ce when faced with the threat of a malpractice

lawsuit, and that he knowingly furnished these false records to

the Department without disclosing that he had tampered with them

so as to take advantage of the contemporaneous character which

gives such docume nts evidentiary value, the undersigned took

account of the rule that when a party is found to have knowingly

altered or fabricated documents to create a false basis for his

legal position, the inevitable conclusion is that he has

something to hide and is c onscious of guilt. Tramel v. Bass ,

672 So. 2d 78, 8 5 n.7 (Fla. 1st DCA 1996) , rev. denied , 680 So.

2d 426 (Fla. 1996) (citing Warner Barnes & Co. v. Kokosai Kisen

Kabushiki Kaisha , 102 F.2d 450, 453 (2d Cir.), modified , 103

F.2d 430 (2d Cir. 1939)) ; see al so Knight Ridder v. Dade

Aviation Consultants , 808 So. 2d 1268, 1270 (Fla. 3d DCA

2002)(attempts to create false basis for legal position provide

affirmative evidence of actual criminal responsibility) ; Walker

v. State , 495 So. 2d 1240, 1241 (Fla. 5th DCA 1986)(false

exculpatory statements are admissible as substantive evidence

tending to affirmatively show consciousness of guilt) .

52. The Board of Medicine imposes penalties upon licensees

in accordance with the disciplinary guidelines prescribed in

Flor ida Administrative Code Rule 64B8 - 8.001. For a first - time

offender found guilty of the offense defined in section

458.331(1)(k) , the prescribed penalty range is "[f] rom

probation, and 50 to 100 hours of community service; to

revocation or denial, and an a dministrative fine from $1,000.00

to $10,000.00. " Fla. Admin. Code R. 64B8 - 8.001(2)( k ).

53. For a first - time offender found guilty of the offense

defined in section 458.331(1)(m) , the prescribed penalty range

is "[f] rom a reprimand to denial or two (2) y ears suspension

followed by probation, 50 to 100 hours of community service, and

an administrative fine from $1,000.00 to $10,000.00." Fla.

Admin. Code R. 64B8 - 8.001(2)( m ).

54. For a first - time offender found guilty of the offense

defined in section 458. 331(1)(t)1 , the prescribed penalty range

is "[f] rom one (1) year probation to revocation or denial and an

administrative fine from $1,000.00 to $10,000.00 ." Fla. Admin.

Code R. 64B8 - 8.001(2)( t ).

55. For a first - time offender found guilty of the offense

d efined in section 458.331(1)(gg) , the prescribed penalty range

is "[f] rom suspension, to be followed by a period of probation,

50 to 100 hours of community service, to denial or revocation of

license and an administrative fine from $1,000.00 to $5,000.00. "

Fla. Admin. Code R. 64B8 - 8.001(2)( gg ).

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

penalty guidelines, the following aggravating and mitigating

circumstances are to be taken into account:

(3) Aggravating and Mitigating

Circumstances. Based u pon consideration of

aggravating and mitigating factors present

in an individual case, the Board may deviate

from the penalties recommended above. The

Board shall consider as aggravating or

mitigating factors the following:

(a) Exposure of patient or pub lic 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 time s 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 applic ant 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 impose susp ension 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 keep and/o r produce the medical records.

(i) Any other relevant mitigating factors.

57 . The undersigned does not find cause to deviate from the

guidelines and therefore recommends that the Board of Medicine

impose a penalty that falls within the recommended range s.

58 . The Department proposes that Dr. Choy's license be

revoked and that he be required to pay an administrative fine of

$40,000 . The undersigned agrees that revocation is appropriate

under the facts and circumstances of this case, but recommends

that the fine not exceed $4,000 .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

order finding Dr. Choy guilty of the offenses described in

sections 458.331(1)(k), 458. 331(1)(m) , 458.331(1)(t)1,

and 458.331(1)(gg) , Florida Statutes . It is further RECOMMENDED

that the Board of Medicine revoke Dr. Choy's medical license and

impose an administrative fine of $4,000.

DONE AND ENTERED this 15th day of April , 201 4 , in

Tallaha ssee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of April , 201 4 .

ENDNOTES

1 / The Department also accused Dr. Choy of having submitted a

false claim to Medicar e for services he did not actually

provide.

2 / The note says:

Diverticulosis

- High fiber diet

- No seeds in food

- Metamucil may help

3 / As augmented, the note says:

- Possible malignant [tumor] tail of [pancreas]

- Diverticulosis

- High fiber die t

- No seeds in food

- Metamucil may help

COPIES FURNISHED :

Daniel Hernandez, Esquire

R. Shaffer Claridge, Esquire

Christopher Hudtwalcker, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Amy W. Schrader , Esquire

GrayRobinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 11189

Tallahassee, Florida 32302 - 3189

Jay A. Ziskind, Esquire

Jay A. Ziskind, P.A.

3471 Main Highway, No. 517

Miami, Florida 31333

Allison M. Dudley, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

Jennifer A. Tschetter, 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 Order. Any exceptions

to this Recommende d Order should be filed with the agency that

will issue the Final Order in this case.