14-001115PL Department Of Health, Board Of Medicine vs. Kenneth Rivera-Kolb, M.D. Status: Closed Recommended Order on Friday, December 19, 2014.

Summary: Respondent did not keep proper medical records, committed medical malpractice, and knowingly performed professional responsibilities he was not competent to perform. A fine of $20,000 and suspension of his license for a four-year period is recommended.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 14 - 1115PL

KENNETH RIVERA - KOLB, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On Septemb er 3, September 30, and October 22, 2014, a

hearing was held by video teleconference or webcast at locations

in Lauderdale Lakes, Fort Lauderdale, and Tallahassee, Florida,

before F. Scott Boyd, an Administrative Law Judge assigned by the

Division of Admin istrative Hearings.

APPEARANCES

For Petitioner: Diane K. Kiesling, Esquire

Arielle E. Davis, Esquire

Francis A. Carbone, II, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Christopher O ' Toole, Esquire

O ' Toole Law Firm

1132 Southeast Third Avenue

Fort Lauderdale, Florida 33316

Gary S. Ostrow, Esq uire

Law Office of Gary Ostrow

3000 Northeast 30th Place, Suite 302

Fort Lauderdale, Florida 33306

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent:

(1) failed to keep proper medic al records; (2) committed

medical malpractice; or (3) knowingly performed professional

responsibilities which he knew he was not competent to perform,

as set forth in the Administrative Complaint, and if so, what is

the appropriate sanction.

PRELIMINARY ST ATEMENT

On June 24, 2011, Petitioner , Department of Health

( " Department " or "Petitioner" ) , issued an Administrative

Complaint against Respondent , Kenneth Rivera - Kolb, M.D. ,

( " Dr. Rivera - Kolb " or " Respondent " ). The three counts of the

complaint all related to Dr. Rivera - Kolb ' s provision of medical

care at an office surgery facility to a single patient, J.D., who

subsequently died at a hospital. Dr. Rivera - Kolb disputed

allegations of fact in the complaint and requested a formal

hearing. An unopposed Motio n to Relinquish Jurisdiction was

granted on September 18, 2013. After six months, motions to re -

open the file and to consolidate the pleadings were filed, which

were granted on March 17 and 19, 2014, respectively. The pa rties

submitted a Joint Pre - h earin g Stipulation. The facts stipulated

therein are accepted and are made a part of the F indings of F act

below.

After continuance, the final hearing took place on

September 3, September 30, and October 22, 2014. The Department

offered the testimony of two wi tnesses: Respondent, Dr. Rivera -

Kolb; and Orlando G. Florete, Jr., M.D., who was accepted as an

expert in anesthesiology over objection of Respondent. The

Department also offered twelve exhibits. Exhibits P - 1

through P - 10 were accepted into evidence wit hout objection.

These included the deposition of Roberto Moya, M.D., unavailable

as a live witness, who had provided medical care to P atient J.D.

The deposition of Dr. Carl Noback was admitted over objection as

E xhibit P - 11 for the limited purpose of imp eaching the

credibility of Respondent following his testimony at hearing.

Following agreement by the Department to identify those portions

of the deposition of Dr. Rivera - Kolb on which it intended to

rely, Dr. Rivera - Kolb ' s deposition was accepted as Exhi bit P - 12,

over objection. Respondent offered the testimony of Mr. Xavier

Escobar, formerly a licensed chiropractor, and that of

Dr. Rivera - Kolb on his own behalf. Respondent also offered two

exhibits, R - 1 and R - 2, both depositions of Mr. Kenneth Whalen,

m edical c onsultant.

The parties were instructed to submit proposed recommended

orders within ten days after the t ranscript was posted to the

docket. At hearing, the Department's counsel stated she would be

strongly opposed to any extension of that time, b ecause she was

scheduled to undergo surgery on December 11, 2014.

The three - volume final hearing T ranscript was filed on

November 24, 2014. Petitioner timely filed a P roposed

R ecommended O rder on December 4, 2014. It was considered in

preparation of this Recommended Order. Respondent filed a

P roposed R ecommended O rder on December 9, 2014, five days after

the deadline. On the following day, December 10, 2014,

Respondent filed a Motion for Enlargement of Time to File

Respondent ' s Proposed Recommended Orde r. Respondent ' s m otion for

e nlargement of time was not received prior to the expiration of

the deadline sought to be extended, as required by Florida

Administrative Code Rule 28 - 106.204(4) (2014). Respondent

averred that Respondent ' s counsel ' s mother was seriously injured

and hospitalized and that Respondent ' s counsel suffered a bout of

vertigo. Petitioner ' s Motion to Strike Respondent ' s Proposed

Recommended Order and Petitioner ' s Response to Respondent ' s

Motion for Enlargement of Time to File Respondent ' s Proposed

Recommended Order were considered ; however, no prejudice to

Petitioner was found, and Respondent ' s P roposed R ecommended O rder

was considered.

Unless otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative C ode refer to the

versions in effect on June 25, 2008, the date that violations

were allegedly committed.

FINDING S OF FACT

1. The Department is the state agency charged with

regulating the practice of medicine pursuant to section 20.43,

chapter 456, and ch apter 458, Florida Statutes (2014).

2. At all times material to the complaint, Dr. Rivera - Kolb

was a licensed medical doctor within the state of Florida, having

been issued license number ME 40201.

Events of June 25, 2008

3. On June 25, 2008, P atient J. D., a 43 - year - old female,

was scheduled for multiple procedures at Florida Atlantic

Orthopedics ( " the facility " ). The procedures included a two -

level discogram by Dr. T homas R odenberg , followed by a two - level

lumbar discectomy by Dr. R oberto M oya , followe d by a bilateral L3

to S1 facet radiofrequency lesioning by Dr. Rodenberg .

4. On June 25, 2008, Dr. Rivera - Kolb was working at the

facility. As he testified, he had been hired to " harvest

information " in personal injury cases such as slip and falls or

au tomobile accidents. He would routinely perform physical

examinations, develop full medical histories, and " proceed to

follow a certain pattern of doing x - rays, doing certain tests at

different agreed times, to comply with regulations imposed on the

PI ind ustry. " Dr. Rivera - Kolb would also render primary health

care and provide patients with anti - inflammatories and muscle

relaxants as necessary.

5. As indicated by a " Pre - Op " form dated June 25, 2008, and

signed with the name " L. Lerfald, R.N. " in the " Sig nature of

Nurse " block, on that morning Nurse Lerfald took various vital

signs of J.D. and recorded them at 10:50 a.m. At that time, J.D.

was given 8 mg of hydromorphone and 20 mg of Valium.

6. Dr. Rodenberg , an anesthesiologist at the facility,

placed a central intravenous line ( " IV " ) in J.D. ' s left jugular.

7. Dr. Rivera - Kolb assumed the responsibility of monitoring

J.D. and preparing an " A nesthesia R ecord " during the two - level

discogram procedure that was to be performed first. J.D. had

been a patien t of Dr. Rivera - Kolb ' s in the weeks before the

procedures, and he was aware that she had accelerated

hypertension (very high blood pressure). Dr. Rivera - Kolb sat at

the head of the operating table, monitored J.D. ' s vital signs,

and filled out the A nesthes ia R ecord, while Dr. Rodenberg

performed the discogram. Dr. Rivera - Kolb then left the operating

room. The second procedure, the two - level lumbar discectomy, was

performed by Dr. Moya , with Dr. Rodenberg as anesthesiologist.

8. Dr. Rivera - Kolb returned t o the operating room after the

discectomy and resumed the responsibility of monitoring J.D. for

the third procedure, the facet radiofrequency lesioning, which

was performed by Dr. Rodenberg .

9. When P atient J.D. was ready to be moved from the

operating ro om to the Post Anesthesia Care Unit ( " PACU " ), she

became unresponsive, with an oxygen saturation of 60 percent and

a heart rate of 30.

10. Dr. Rivera - Kolb was the only physician present with the

operating room staff when these changes occurred. In a writ ten

statement he later submitted to Mr. Robert Yastremzki, medical

investigator at the Department of Health, Dr. Rivera - Kolb wrote:

She was lying prone on the OR table. The

moment she was overturned to a supine

position on the gurney, the oxygen saturatio n

alarm went off. There was an abrupt drop in

blood pressure and pulse. The OR staff and I

made sure all connections were in place.

When it was corroborated that all connections

were intact, I summoned Dr. Rodenberg to the

OR as I reached for ventilatio n mask to

improve oxygen delivery. The symptoms she

displayed were consistent with a vasovagal

syndrome secondary to local anesthetics

injected in the cervical area during the

procedure, which i s not an uncommon

complication.

11. The parties stipulated that Patient J.D. went into full

cardiac arrest , and Dr. Rodenberg was emergently called back to

the operating room.

12. Dr. Rodenberg arrived almost immediately.

13. J.D. received cardiopulmonary resuscitation ( " CPR " ),

atropine by IV, and a laryngeal ma sk airway ( " LMA " ). The left

jugular IV appeared to be infiltrated, so Dr. Rodenberg placed a

new external jugular line on the right side. After J.D. ' s vital

signs were stabilized, Dr. Rodenberg replaced the LMA with an

orotracheal tube.

14. J.D. was now breathing spontaneously and saturating in

the high 90 ' s, and Dr. Rodenberg directed that she be moved to

the PACU.

15. Dr. Rivera - Kolb and Nurse Lerfald moved J.D. to the

PACU. Once there, her head was elevated. Shortly thereafter ,

Nurse Lerfald notice d that the left side of J.D. ' s face was

beginning to swell. Dr. Rodenberg was called back again. When

Dr. Rodenberg arrived in the PACU a minute later, J.D. ' s face was

completely swollen. Dr. Rodenberg assumed control of J.D. ' s

care. He concluded that the swelling was angioedema and felt

that anaphylactic shock was imminent. He detected a faint pulse

and directed that the patient be returned to the operating room,

where she was placed on a ventilator. A few moments later, no

pulse was present , and CPR was begun a second time. J.D. was

given epinephrine and atropine, and " 911 " was called. Dr. Moya

was called in to assist.

16. When Dr. Moya arrived, he concluded that the

subcutaneous emphysema was secondary to the IV lines in J.D. ' s

jugulars and that J.D. had bilateral apical pneumothorax. He

immediately placed chest tubes, first into the right side, and

then the left. When the right chest tube was placed in water to

create a negative pressure, clear fluid and gas came out. When

the left chest tube was done, white milky fluid and gas were

discharged. The Boca Fire and Rescue arrived and resuscitation

efforts continued for approximately 25 minutes, after which blood

pressure and heart rate were restored. J.D. was then transported

to Boca Community H ospital.

17. Pharmacy bills reflect that both midazolam (Versed) and

propofol were signed out for use in P atient J.D. 's procedures on

June 25, 2008.

18. Dr. Rivera - Kolb signed the Anesthesia Record for the

discogram procedure. 1/ It indicated that the an esthesia and

surgery started at 11:25 a.m. and ended at 11:55 a.m . Under a

section entitled " Technique, " the form provided check blocks to

choose the anesthesia that was used: " General " ; " Epidural " ;

" Spinal " ; " Axillary Blk " ; or " Other. " The block on the form next

to " Other " was checked, followed by the hand - written notation

" MAC local. " The form reflects oxygen saturation levels of 95

and 96 for two consecutive 15 - minute periods. It records other

readings every five minutes. It indicates systolic bloo d

pressure at levels of 160 and 170 and diastolic blood pressure

ranging from 90 to 110. It records a respiration rate of between

10 and 20 and a heart rate between 80 and 90. It does not

indicate what, if any, drugs were administered during the

procedur e. It does not indicate any temperature readings, breath

sounds, or EKG readings.

19. Dr. Rivera - Kolb signed his name on the Anesthesia

Charge Sheet on the line labeled " Anesthesiologist 1. " 2/ This

sheet indicates that Dr. Rodenberg was the " Surgeon/Ref erring

MD. " It shows Current Procedural Terminology (CPT) codes of

" 66290 x2 , " indicating two " lumbar discograms , " and " 77003 , "

indicating " flouroscopic guided - - spine. " In the row marked " ASA

Physical Modifiers , " the notation " P3 " is circled. The sheet

indicates the procedure was to be conducted with " MAC "

anesthesia. It indicates that the pre - op interview was begun at

11:05 a.m. and ended at 11:12 a.m. , that the surgery started at

11:20 a.m. and ended at 12:00 p.m. , and that anesthesia also

started at 11:20 a.m. and ended at 12:00 p.m.

20. Dr. Rodenberg prepared and signed two different

Anesthesia Record s . Each recorded information for both the

discectomy and facet radiofrequency lesioning procedures, even

though Dr. Rodenberg performed the facet lesi oning procedure

himself and so could not appropriately also have performed the

duties of anesthesiologist for that procedure. 3/ Each of these

forms indicates that the surgeries started at 12:04 p.m. and

ended at 13:14 p.m. , that the patient was in the PAC U at

13:20 p.m., and that anesthesia started at 12:01 p.m. and ended

at 13:24 p.m .

21. There are differences in the two forms, however. In

the section entitled " Technique, " the first form has " MAC "

written in next to the " Other " block, while the second f orm has

" MAC local " written in this space. 4/ In addition to the drugs

shown as administered on the first form, the second form also

shows the administration of what appears to read " Depo Medrol "

and " epinephrine. " Neither form documents the administratio n of

either midazolam or propofol. Neither form records any patient

temperature readings or breath sounds. While the first form

records the last reading of blood pressure and heart rate at

13:15 p.m. , the second form shows additional readings taken at

13 :20 p.m. , which reflect a considerable drop in heart rate

to 40, a drop in systolic blood pressure to 75, and a drop in

diastolic blood pressure to 20. The second form also contains

hand - written notations in the " Remarks " area of the form which

appear to read " postop instability, " " See Nursing Notes, " " See

separate dictation(s), " " 1324, " and " intubated to PACU SR - >sat

96%. " In the " Post Op Visit " area of the second form a box

marked " Complications " is also checked.

22. A hand - written note in J.D. ' s file reads as follows:

Dr [.] Noback

Escobar wanted me to leave this for you. The

record was corrected after the fact due to

disconnected IV so there might be two

slightly different versions.

You may call if this is confusing in any way

Dr. Rodenberg

Assumin g that this note was made with respect to the two

different A nesthesia R ecords, it does not provide an adequate

explanation of all of the differences in the forms. Most

significantly, the second form includes notations at 13:20 p.m.

reflecting significant changes in J.D. ' s blood pressure and heart

rate, and reference to her post - operative instability and

complications. These differences would not be explained by a

disconnected IV, and the note does not otherwise explain them.

23. There is, however, only one Anesthesia Record prepared

and signed by Dr. Rivera - Kolb in J.D. ' s medical records.

Dr. Rivera - Kolb testified repeatedly at hearing that this form

pertained to the third procedure, that is, the facet

radiofrequency lesioning. 5/ Dr. Rivera - Kolb ' s testi mony on this

point is rejected as not credible. The times indicated on the

Anesthesia Record he signed are those of the first procedure, the

two - level discogram, and are consistent with the time of the pre -

operation procedures as documented on the form si gned by Nurse

Lerfald, with the Anesthesia Charge Sheet also signed by

Dr. Rivera - Kolb, and with the times indicated on the Anesthesia

Record s prepared by Dr. Rodenberg for the second and third

procedures.

24. While Dr. Rivera - Kolb insisted that he prepa red and

kept an Anesthesia Record for the facet radiofrequency lesioning,

he offered differing accounts with respect to that form.

Dr. Rivera - Kolb ' s written statement to the medical investigator

notes that J.D. was finally stabilized and sent to the hospit al,

and then continues:

In the aftermath of the above described

events, I returned to the OR and noticed the

anesthesia sheet that I had used to tabulate

the vital signs for Dr. Rodenberg was left

on the anesthesiologist ' s table. I retrieved

the data and went to the administrative

office to hand him the document.

Dr. Rodenberg was in the administrator ' s

office with Dr. M oya and Dr. Escobar so I

waited outside until their conference was

over. As I handed the document to the

records keeper Johan Castenada, Dr. Rodenberg

exited the office. When I told him that I

was placing the document on the operative

record, he instructed me to destroy the

record. He stated that it was unnecessary

for me to get involved in this case since he

had been monitoring the patie nt from his

position in the OR and he did not need my

tabulations. I was hesitant to destroy the

records and asked Dr. Escobar for advice in

the matter. Dr. Escobar insisted that I

place the recorded data in the operative

records where it stands now. He also advised

me to file an incident report which I did.

25. Yet in his deposition, Dr. Rivera - Kolb testified that

he did not initially record the numbers on the A nesthesia Record ,

but instead entered them on a Progress Note form:

I asked him first, wher e ' s the anesthesia

sheet? He responded, you know, I don ' t want

you writing in my official documents. And

then I was concerned that this could have

been a Monitored Anesthesia Care case, I was

going to ask him what - Î i f there had been any

changes but he sa id to me, this is still no

anesthesia, local only case, like I told you

before.

* * *

I looked for an anesthesia sheet. They told

me they ' re supposed to be there. I opened a

few drawers. I found a progress note and I

wrote it on a progress note paper and later

transferred it to this page [referencing the

Anesthesia Record for the earlier discogram

procedure].

* * *

I had finished all the numbers in the

monitors, yes. I had finished them all but I

had to go to another room to transfer i t to

an anesthesia sheet that I found, you know,

when I asked one of the circulating nurses.

26. If the A nesthesia Record for the facet radiofrequency

lesioning was not created in the operating room , but was created

later in another room from notes made on a Progress Note sheet,

the A nesthesia Record could not have been left on the

anesthesiologist ' s table in the operating room following the

third procedure.

27. It is undisputed that Dr. Rivera - Kolb sat at the head

of the table for the first and third of J.D. ' s procedures on

June 25, 2008. Numerous medical records of J.D. prepared at or

near the time of her procedures provide clear and convincing

evidence that the procedures were to be conducted under MAC. The

Anesthesia Record dated June 25, 2008, and signed at the bottom

by Dr. Rivera - Kolb indicates " MAC local. " A Pre - Anesthesia

Evaluation form dated June 25, 2008, indicates " MAC w/ GA b/u "

after the words " anesthetic plan. " The two different Anesthesia

Records prepared by Dr. Rodenberg indicate eith er " MAC " or " MAC

local. " The Operative Report prepared by Dr. Moya dated June 25,

2008, and describing the second and third procedures, identifies

Dr. Rodenberg as anesthesiologist and references " local MAC

anesthesia. " A Progress Notes form dated June 2 6, 2008 ,

indicates " Anesth Rivera MD (MAC). " An Anesthesia Charge Sheet

dated June 25, 2008, prepared for the discogram indicates the

procedure is to be conducted under " MAC " and is signed by

Dr. Rivera - Kolb as " Anesthesiologist 1. " The Anesthesia Charge

Sheet dated June 25, 2008, prepared for the discectomy and facet

radiofrequency lesioning indicates that the anesthesia is " MAC "

and shows an anesthesia start time of 12:01 p.m. and an

anesthesia end time of 13:24 p.m . A Florida Atlantic Orthopedics

form dated June 25, 2008 , and signed by Nurse Lerfald shows

" MAC, " indicates the anesthesiologists as Dr. Rodenberg and

Dr. Rivera - Kolb, and notes that anesthesia starts at 11:25 a.m.

and ends at 13:14 p.m.

28. Dr. Rivera - Kolb ' s argument that all of these ref erences

to MAC surgery should be ignored because the records might have

been altered by Dr. Rodenberg is rejected. If Dr. Rodenberg had

an opportunity to alter the records, it is not clear why he would

not have simply replaced the Anesthesia Record rather than write

a note to Dr. Noback. Even if Dr. Rodenberg did have an

opportunity to alter the records, however, there is no apparent

motive for him to systematically alter numerous documents

prepared by different individuals to indicate that the surgeries

were MAC if they were not, or any evidence that he did so.

Mr. Escobar ' s testimony in general and , on this point in

particular, was not credible.

29. The documents prepared at or near the time of J.D. ' s

procedures are credited over other documents prepar ed after the

procedures were completed, which were less consistent. A

Physician Office Incident Report , which appears to have been

stamped as received by the Department of Health on August 11,

2008, states that " [p]atient underwent lumbar discography,

per cutaneous discectomy, and facet ablation under local

anesthesia. " Dr. Rivera - Kolb ' s statement for the medical

investigator, dated March 2, 2010, states that " Dr. Rodenberg ,

the anesthesiologist, requested that I monitor the patient ' s

vital signs and post them in the anesthesia record sheet while he

performed minimally invasive procedures under local anesthesia

with Monitored Anesthesia Care. " Dr. Moya , in his August 21,

2014, deposition, testified, " Well, at that stage of the

procedure [the discography], which is done solely under local

anesthesia, the person assigned by the anesthesiologist would be

someone that looks at the graphs and makes sure that all is

within normal limits. " Dr. Moya went on to state that

Dr. Rodenberg was always the anesthesiologi st for all three

procedures.

Standards

30. Dr. Orlando G. Florete, Jr., holds active and valid

Florida Physician ' s License No. ME 0058430. He is a specialist

in anesthesiology with a subspecialty in pain management. He is

Board certified in anesthesiolo gy, is a Diplomate of the American

Board of Anesthesiology, and was recently elected as p resident of

the Florida Society of Interventional Pain Physicians. He

practices anesthesiology on a regular and routine basis at the

Jacksonville Surgery Center. He is also the medical director of

a pain management office at the Baptist Hospital in Jacksonville.

He has been engaged by the U.S. Department of Justice as a

consultant and is an expert medical advisor for the Florida

Department of Labor and Employment Sec urity and for the Florida

Department of Health. He served as c linical a ssistant p rofessor

in the Departments of Anesthesiology and Medicine at the

University of Florida , College of Medicine , from 1994 until 2000,

where he trained residents, fellows, and m edical students. He

has recently been engaged by the university to teach again in the

field of anesthesia and pain management.

31. Dr. Florete is an expert in anesthesiology and has

knowledge, skill, experience, training, and education in the

prevailing professional standard of care recognized as acceptable

and appropriate by reasonably prudent anesthesiologists in

Florida.

32. No evidence was presented that Dr. Florete has been

recently engaged in active clinical practice, consultation, the

instruction of students, or a clinical research program in the

general practice of medicine.

33. Dr. Florete conducted a complete review of records

provided to him by the Department pertaining to J.D. ' s medical

treatment on June 25, 2008, including records prepared b y

Dr. Rivera - Kolb, Dr. Rodenberg , Dr. Moya , Mr. Escobar, and Nurse

Lerfald. He also reviewed the depositions of Dr. Moya and

Dr. Rivera - Kolb and heard live testimony from Dr. Rivera - Kolb.

34. As Dr. Florete testified, under the American Society of

Anesth esiologist ' s physical status classification system, a

patient classified as " P2 " is a patient with systemic disease

with mild limitation. A classification of " P3 " means that the

patient has significant or severe systemic disease with definite

severe syste mic or physical dysfunction. As Dr. Florete

testified, the classification of a patient has an impact on the

procedure and type of anesthesia used ; so , an anesthesiologist

must know the physical status of the patient.

35. As Dr. Florete testified, midazol am is a generic name

for Versed, in the benzodiazepine class, that is a very potent

intravenous sedative that can produce amnesia and loss of

consciousness. Propofol, in a one percent emulsion, is a milky -

colored intravenous anesthetic that can promote ra pid loss of

consciousness. Dr. Florete testified, and it is found, that

Versed and propofol are the most commonly used combination under

monitored anesthesia care to produce that unique level of

sedation that allows the surgeon to perform surgery without the

patient being agitated, moving, or crying out.

36. As Dr. Florete explained, the acronym " MAC " stands for

" monitored anesthesia care. " Monitored anesthesia care is a type

of anesthesiology in which a qualified anesthesiologist monitors

the patient. MAC requires an anesthesiologist to monitor

physiological variances of the patient, such as rising blood

pressure, increase of heart rate, loss of airway, or agitation in

the patient. In MAC, the anesthesiologist must determine what

level of anesthesia is advisable and be prepared to administer

the medications to induce deep sedation as required. As

Dr. Florete testified, a nurse may " tabulate " a patient ' s oxygen

levels, breathing, circulation , and temperature in a case

involving only local anesthesia, bu t simple tabulation of these

vital signs by a nurse is not permitted in a MAC case because a

nurse is not qualified to make the required judgments. Only an

anesthesiologist is authorized to perform monitoring in a MAC

case or to fill out an Anesthesia Rec ord. As Dr. Florete

testified, a person who assumes the position at the head of the

table monitoring a patient in a case of monitored anesthesia care

assumes the responsibilities of an anesthesiologist.

37. As Dr. Florete testified, the prevailing profes sional

standard of care requires an anesthesiologist to perform a

physical examination of the patient and review the history of the

patient prior to MAC. An anesthesiologist must keep records that

document the pre - operative medical examination; indicate t he type

of anesthetic technique employed; indicate the start and end

times of anesthesia; record the patient ' s vital signs over time;

and indicate who provided anesthesia to the patient and when. An

anesthesiologist must stay with the patient after a proc edure

until the patient is safely delivered into the PACU.

38. Dr. Florete testified that in a MAC case, it would be a

violation of the prevailing professional standard of care for a

single person to both perform surgery and attempt to act as

anesthesiolo gist for that same procedure. In a local anesthesia

case, a single p erson could perform both roles.

39. Dr. Florete testified that because Dr. Rivera - Kolb was

not an anesthesiologist he " had no business " filling out an

Anesthesia Record. Dr. Florete cre dibly testified that in his

opinion , Dr. Rivera - Kolb ' s actions in monitoring P atient J.D.

during surgical procedures that he knew or should have known were

to be conducted under MAC and in preparing the Anesthesia Record

for a procedure constituted the acc eptance and performance of the

responsibilities of an anesthesiologist, which Dr. Rivera - Kolb

was not competent to perform.

Medical Records

40. As Dr. Florete testified, in assuming the

responsibility to perform the professional duties of an

anesthesiolog ist, it was incumbent upon Dr. Rivera - Kolb to keep

complete and accurate A nesthesia R ecords that documented a pre -

operative medical examination o f J.D.; indicated the type of

anesthetic technique that was employed; indicated the start and

end times of the anesthesia; recorded J.D. ' s vital signs over

time; and indicated who provided anesthesia to her and when.

41. While Dr. Rivera - Kolb did prepare an Anesthesia Record

for the discogram, it failed to record any temperature readings,

breath sounds, or EKG rea dings. As Dr. Florete testified, this

Anesthesia Record was incomplete. As for the facet

radiofrequency lesioning procedure, it is clear that Dr. Rivera -

Kolb, contrary to his testimony, did not keep an Anesthesia

Record containing a complete and accurate report of J.D. ' s vital

signs or documenting who provided anesthesia and when.

42. As Dr. Rivera - Kolb admitted in his testimony, he was

the only physician present after the third procedure when J.D.

began to exhibit bradycardia and desaturation. Yet he d id not

document his evaluation of these events in J.D. ' s medical records

to justify his treatment of J.D. There was no evidence that

Dr. Rivera - Kolb conducted a complete physical examination at the

time of either the first cardiac arrest in the operating room , or

the second cardiac arrest in the PACU. Dr. Rivera - Kolb was

present and assisting in the medical treatment of J.D. through

two procedures and during two cardiac arrests ; yet , the only

medical records kept by Dr. Rivera - Kolb were those pertaining t o

the first procedure. While Dr. Rivera - Kolb maintained that he

completed an incident report, this testimony is rejected as not

credible. No such report is found in J.D. ' s medical records , and

Dr. Rivera - Kolb ' s suggestion that Dr. Rodenberg may have remo ved

it for some unknown reason is only unsupported speculation.

43. There is clear and convincing evidence that Dr. Rivera -

Kolb failed to keep legible medical records that justified the

course of treatment of P atient J.D., including A nesthesia R eports

and records of his evaluations.

44. Dr. Rivera - Kolb was charged with violating the standard

of care both in performing as an anesthesiologist during J.D. ' s

procedures and in assisting in treatment of her complications

afterwards . H e failed to keep medical r ecords reflecting his

participation in the treatment of J.D. for either of those times.

45. The Department did not show that in earlier discipline ,

Dr. Rivera - Kolb was found to have failed to keep medical records.

Medical Malpractice

46. Dr. Rivera - Kolb assumed the responsibility of

monitoring J.D. and preparing A nesthesia R ecords, thereby

practicing as an anesthesiologist when he was not competent to do

so.

47. As Dr. Florete testified, the prevailing professional

standard of care for a given health car e provider is that level

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

surrounding circumstances, is recognized as acceptable and

appropriate by reasonably prudent similar health care providers.

48. In assuming the responsibilities of an

a nesthesiologist, Dr. Rivera - Kolb is held to the standards

recognized by reasonably prudent anesthesiologists.

49. The Department proved that Dr. Rivera - Kolb did not

complete a residency, have adequate training, and did not have

board certification in anes thesia, all of which Dr. Rivera - Kolb

himself admitted. As Dr. Florete testified, a general

practitioner engaged in providing anesthesia care would not meet

the prevailing professional standard of care.

50. In evaluating Dr. Rivera - Kolb ' s actions after th e three

procedures that were performed on J.D., however it was not

clearly shown that Dr. Rivera - Kolb continued to act as an

anesthesiologist. To the contrary, it appears that Dr. Rivera -

Kolb performed as an anesthesiologist during the procedures

themselv es , in part , because he knew that the surgeon was an

anesthesiologist. After the procedures, Dr. River - Kolb resumed

the role of a general practitioner, deferring to Dr. Rodenberg

and Dr. Moya , and even acting at their direction.

51. The prevailing profes sional standards of care

applicable to the general practice of medicine with respect to

J.D. ' s post - operative complications were not established.

Dr. Florete did testify that, as an " intensivist " who used to

" run codes " for some hospitals in Jacksonville, he was familiar

with emergency and critical care procedures. He also testified

that " any medical doctor " should be able to diagnose pneumothorax

" within one minute , " because air trapped under the skin produces

bulges or swelling which when pressed produce s an unmistakable

" crackling " sound as the gas is pushed through the tissue. He

provided compelling testimony as to the proper diagnosis and

treatment of pneumothorax. However, it was not shown that

Dr. Florete was qualified to give expert testimony rega rding the

prevailing standards of care for a general practitioner. 6/

52. Moreover, even if these had been established as the

prevailing professional standards of care applicable to a general

practitioner, it is not clear that they were violated by

Dr. R ivera - Kolb in his treatment of P atient J.D. on June 25,

2008.

53. Dr. Rivera - Kolb was charged with failing to fully

evaluate the cause of the bradycardia and the desaturation once

the first cardiac arrest occurred. The evidence showed that

Dr. Rivera - Kol b immediately put a mask over J.D. and began to

ventilate her. Dr. Rodenberg arrived within one minute and

assumed control over the situation. Dr. Florete credibly

testified that because of training and experience, an

anesthesiologist should take the lea d in such " code " situations,

followed by the surgeon, and finally a general practitioner. It

was therefore appropriate for Dr. Rivera - Kolb to defer to

Dr. Rodenberg when he arrived. The evidence did not show that

before Dr. Rodenberg arrived, there was s ufficient time for

Dr. Rivera - Kolb to have performed a complete physical examination

of J.D. or to auscultate J.D. ' s lungs, even if he had had a

stethoscope, which he testified that he did not. There is no

evidence that in this brief period of time , Dr. R ivera - Kolb

caused any significant delay in recognizing the evolving medical

emergency or in beginning treatment of J.D.

54. Dr. Rivera - Kolb was also charged with medical

malpractice in connection with the treatment of P atient J.D.

after she had been stabi lized following the first cardiac arrest

and moved to the PACU. The Department alleges that Dr. Rivera -

Kolb misdiagnosed J.D. ' s condition, failed to identify the

pneumothorax, and caused delay of treatment. One allegation of

misdiagnosis stems from the w ritten statement provided to the

Department ' s medical investigator, as quoted earlier:

The symptoms she displayed were consistent

with a vasovagal syndrome secondary to local

anesthetics injected in the cervical area

during the procedure, which is not an

u ncommon complication.

Dr. Florete did testify that vasovagal syndrome could be drug

induced. However, contrary to Dr. Rivera - Kolb ' s statement, it is

clear that no local anesthetic would have been administered

intravenously through J.D . ' s jugular for her procedures. The

statement therefore fails to provide an explanation of J.D. ' s

condition to that extent. In his deposition, Dr. Rivera - Kolb

admitted this, testifying that he became confused when writing

the statement " two years later. " He said that he wa s thinking

that perhaps the jugular IV had pulled away from the vein and was

" dripping all those chemicals " into her. Dr. Rodenberg did in

fact conclude that the left jugular IV was infiltrated, which is

why he inserted the second external jugular line in to J.D. ' s

right side. In any event, Dr. Rivera - Kolb ' s statement was

written some 20 months after the event. It is not clear that

Dr. Rivera - Kolb ' s statement was his diagnosis on June 25, 2008.

It may have been that the analysis in his statement was simp ly

Dr. Rivera - Kolb ' s recollection of Dr. Rodenberg ' s diagnosis or

simply his own opinion in looking back at the events of that day.

55. Another allegation of misdiagnosis is predicated on

Nurse Lerfald ' s identification of J.D. ' s facial swelling. Nurse

Le rfald went to get Dr. Rodenberg as soon as she noticed it.

Patient J.D. ' s face was " completely swollen " when they returned,

and Dr. Rodenberg immediately assumed control of her treatment.

However, there is scant evidence as to how much time passed

betwee n the time the swelling was first noticed and the time

Dr. Rodenberg arrived. Nurse Lerfald ' s statement doesn ' t discuss

it. Dr. Rodenberg ' s statement notes only that when he was called

back to the PACU " [a]bout ten minutes had elapsed since the

initial p eriod of instability, " with no mention of how long it

took him to respond after he received the summons. Dr. Rivera -

Kolb testified in his deposition that after the swelling was

noticed , he put the head of J.D. ' s bed down and pushed the

endotracheal tube d own, saying " [i]t took about less than a

minute " before Dr. Rodenberg arrived. While Dr. Florete also

testified that it should take " less than a minute " to diagnose

pneumothorax from observation of the swelling, it was not clearly

shown that Dr. Rivera - Ko lb had even that much time before

Dr. Rodenberg assumed control for the second time.

56. It is clear that once the pneumothorax was identified,

it should have been immediately treated by inserting a large - bore

needle into each side of the chest to allow t he air to escape

while waiting to place the chest tubes.

57. The failure of Dr. Rivera - Kolb to insert such needles

immediately after the diagnosis was also alleged to constitute

malpractice. But , it is undisputed that the pneumothorax was

identified by D r. Moya ; after which diagnosis , Dr. Moya

immediately began to insert the chest tubes. The diagnosis and

treatment occurred very close in time. It was not clear from the

evidence that there was any " wait " time after the diagnosis but

prior to Dr. Moya ' s i nsertion of the tubes in which Dr. Rivera -

Kolb could have acted, even assuming it was appropriate for him,

as a general practitioner, to take over treatment of the patient

from the orthopedic surgeon who had just made the diagnosis.

58. Even if there had been competent testimony as to the

prevailing professional standard of care for a general

practitioner, the evidence did not clearly show that Dr. Rivera -

Kolb failed to meet that standard or failed to use reasonable

care.

59. The Department established by clear and convincing

evidence that Dr. Rivera - Kolb committed medical malpractice when,

as a general practitioner, he engaged in providing anesthesia

care.

Scope of Practice

60. The Department presented evidence indicating that

propofol was in fact admini stered to J.D. on June 25, 2008.

First, there were pharmacy bills in J.D. ' s medical record

indicating propofol had been issued for her procedures on that

date. Second, there were written statements from Nurse Lerfald

and Dr. Rivera - Kolb himself that when the left chest tube was

placed, air bubbles and a white - colored fluid were discharged.

Dr. Florete indicated that the discharge of the whitish fluid

from the chest tube was evidence that propofol was given to J.D.,

because no other drugs administered in this case other than

propofol would have produced a white milky fluid. 7/

61. It was not necessary for the Department to show that

Dr. Rivera - Kolb himself administered propofol to J.D., that he

knew that Dr. Rodenberg had done so during J.D. ' s second

proce dure, or even that he " feared that that was the case " in

order to show that Dr. Rivera - Kolb accepted or performed

professional responsibilities which he knew he was not competent

to perform. The evidence is clear and convincing that

Dr. Rivera - Kolb knew, or should have known, that the procedures

were to be conducted under MAC. 8/ He signed more than one

paper indicating this, once in a block designated as

" Anesthesiologist 1. " He also knew, from his earlier treatment

of P atient J.D., that she had accelera ted hypertension and that

MAC procedures might be advisable. Despite his testimony to the

contrary, it is clear that Dr. Rivera - Kolb accepted the

responsibility to act as an anesthesiologist during two

procedures and to prepare the Anesthesia Record for a t least the

first of these, and then proceeded to do so. The fact that

Dr. Rivera - Kolb knew that Dr. Rodenberg was an anesthesiologist

and was in the room performing the surgeries does not excuse

Dr. Rivera - Kolb ' s actions or lessen his responsibility. If

Dr. Rivera - Kolb at the time of the facet radiofrequency lesioning

did not know specifically what sedatives were and were not

administered earlier by Dr. Rodenberg or some other person, that

fact would not be exculpatory, but incriminating.

62. Dr. Rivera - Kolb is not board certified in

anesthesiology. He has not completed a residency in

anesthesiology and has not had adequate training in

anesthesiology for him to perform the duties of an

anesthesiologist.

63. Dr. Rivera - Kolb knew that he was not competen t to

perform the professional responsibility of providing monitored

anesthesia care to P ati ent J.D. during her procedures.

64. There is clear and convincing evidence that Dr. Rivera -

Kolb accepted and performed the professional responsibilities of

an anest hesiologist, which he knew that he was not competent to

perform.

65. Dr. Rivera - Kolb ' s actions in knowingly accepting and

performing professional responsibilities which he knew that he

was not competent to perform exposed J.D. to potentially severe

injur y or death.

Prior Discipline

66. In December 2003, an Administrative Complaint was filed

against Dr. Rivera - Kolb in the Department ' s Case No. 2001 - 22573.

The complaint alleged that he failed to keep required medical

records, prescribed a legend drug othe r than in the course of his

professional practice, and committed medical malpractice in

violation of sections 458.331(1)(m), (1)(q), and (1)(t), Florida

Statutes (2001), respectively.

67. In December 2003, another Administrative Complaint

was filed again st Dr. Rivera - Kolb in Case No. 2002 - 13550.

The complaint alleged that he failed to keep required medical

records and committed medical malpractice in violation of

sections 458.331(1)(m) and (1)(t), Florida Statutes (2002),

respectively.

68. In February 20 06, Dr. Rivera - Kolb entered into a

Consent Agreement with the Department of Health in settlement of

these two complaints. In a Final Order incorporating the Consent

Agreement issued on April 19, 2006, the Department imposed a

reprimand, fine, and two - year period of probation against

Dr. Rivera - Kolb ' s license. The Consent Agreement contained no

provision finding that Dr. Rivera - Kolb had committed any of the

offenses alleged in the complaint.

69. Dr. Rivera - Kolb was not under any legal restraints on

June 2 5, 2008.

70. It was not shown that Dr. Rivera - Kolb received any

special pecuniary benefit or self - gain from his actions on

June 25, 2008.

71. It was not shown that the incidents involved any trade

or sale of controlled substances.

CONCLUSIONS OF LAW

72. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

sections 120.569 and 120.57(1), Florida Statutes (2014).

73. A proceeding to suspend, revoke, or impose other

discipline upon a licen se is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm ' n , 281 So. 2d 487, 491 (Fla.

1973). Petitioner must therefore prove the charges against

Respondent by clear and convincing evidence. Fox v. Dep ' t of

Health , 994 So. 2d 416, 418 (Fla. 1 st DCA 2008)(citing Dep ' t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

74. The clear and convincing standard of proof has been

described by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence 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 i t 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994)(quoting Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4t h DCA 1983)).

75. Disciplinary statutes and rules " must always be

construed strictly in favor of the one against whom the penalty

would be imposed and are never to be extended by construction. "

Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d 929, 9 31

(Fla. 1st DCA 2011); Munch v. Dep ' t of Prof ' l Reg., Div. of Real

Estate , 592 So. 2d 1136 (Fla. 1st DCA 1992).

76. Petitioner charged Respondent under section 458.331,

Florida Statutes, which provided, in relevant part:

(1) The following acts constitut e grounds

for . . . disciplinary action . . . .

* * *

(m) Failing to keep legible, as defined by

department rule in consultation with the

board, medical records that identify the

licensed physician or the physician extender

and supervising physi cian 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, including, but not

limited to, patient histor ies; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

* * *

(t)1. Committing medical malpractice as

defined in s. 456.50. The board shall give

great w eight to the provisions of s. 766.102

when enforcing this paragraph. Medical

malpractice shall not be construed to require

more than one instance, event, or act.

* * *

(v) Practicing or offering to practice

beyond the scope permitted by law or

accepting and performing professional

responsibilities which the licensee knows or

has reason to know that he or she is not

competent to perform. The board may

establish by rule standards of practice and

standards of care for particular practice

settings, including, but not limited to,

education and training, equipment and

supplies, medications including anesthetics,

assistance of and delegation to other

personnel, transfer agreements,

sterilization, records, performance of

complex or multiple procedures, informed

consent, and policy and procedure manuals.

Section 458.331(1)(m)

77. Florida Administrative Code Rule 64B8 - 9.003(3)

provided:

The medical record shall contain sufficient

information to identify the patient, support

the diagnosis, justify the tre atment 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 administered; reports of

consultations and hospitalizations; an d

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 treatment of the

patient.

78. Petitioner showed by clear a nd convincing evidence

that Respondent failed to keep complete and accurate A nesthesia

R e cords regarding the treatment of J.D. which reflected

who provided anesthesia and when, in violation of

section 458.331(1)(m), as charged in the Administrative

Complai nt.

Section 458.331(1)(t)

79. Section 456.50(1)(g) defined " medical malpractice " in

relevant part as the failure to practice medicine in accordance

with the level of care, skill, and treatment recognized in

general law related to health care licensure.

80 . Section 766.102(1), Florida Statutes, provided in part:

The prevailing professional standard of care

for a given health care provider shall be

that level of care, skill, and treatment

which, in light of all relevant surrounding

circumstances, is recogni zed as acceptable

and appropriate by reasonably prudent similar

health care providers.

81. Section 766.102(8) provides that if a health care

provider is providing evaluation, treatment, or diagnosis for a

condition that is not within his specialty, a spe cialist trained

in the evaluation, treatment, or diagnosis for that condition

shall be considered a similar health care provider.

82. Petitioner established by clear and convincing evidence

that Respondent committed medical malpractice by practicing as an

anesthesiologist when he had no adequate training in anesthesia,

contrary to prevailing professional standards of care for an

anesthesiologist, in violation of section 458.331(1)(t)1., as

charged in the Administrative Complaint. 9/

83. Petitioner did not show that Respondent committed gross

medical malpractice or repeated medical malpractice.

84. Petitioner failed to establish the prevailing

professional standard of care for a general practitioner in the

circumstances surrounding P atient J.D. ' s post - opera tive

complications, as recognized as acceptable and appropriate by

reasonably prudent general practitioners, or prove that

Respondent ' s actions failed to meet that standard of care.

Section 458.331(1)(v)

85. Petitioner showed by clear and convincing evide nce that

Respondent knew that he was not competent to perform as an

anesthesiologist ; yet , he accepted and performed the

responsibilities of an anesthesiologist by monitoring a patient

during monitored anesthesia care and preparing the Anesthesia

Record . Petitioner established by clear and convincing evidence

that Respondent violated section 458.331(1)(v), as charged in the

Administrative Complaint.

Penalty

86. Petitioner imposes penalties upon licensees consistent

with disciplinary guidelines prescribed by rule. See Parrot

Heads, Inc. v. Dep ' t of Bus. & Prof ' l Reg. , 741 So. 2d 1231,

1233 - 34 (Fla. 5th DCA 1999).

87. Penalties in a licensure discipline case may not exceed

those in effect at the time the violations were committed.

Willner v. Dep ' t of Pro f. Reg., Bd. of Med . , 563 So. 2d 805, 806

(Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295 (Fla. 1991). At

the time of the incidents, Florida Administrative Code Rule 64B8 -

8.001(2)(m) provided that for a first - time offender failing to

keep required medica l records, as described in section

458.331(1)(m), the prescribed penalty range was " [f]rom a

reprimand to denial or two (2) years suspension followed by

probation and an administrative fine from $1,000.00 to

$10,000.00. "

88. Rule 64B8 - 8.001(2)(t) provided that for a first - time

offender committing medical malpractice, as described in

section 458.331(1)(t), the prescribed penalty range was " [f]rom

one (1) year probation to revocation or denial, and an

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

89. R ule 64B8 - 8.001(2)(v) provided that for a first - time

offender practicing or offering to practice beyond the scope

permitted by law or accepting and performing professional

responsibilities which he knew or had reason to know that he was

not competent to per form, as described in section 458.331(1)(v),

the prescribed penalty range was " [f]rom two (2) years suspension

to revocation or denial and an administrative fine from $1,000.00

to $10,000.00. "

90. It is not appropriate to apply penalties for the second

or third offense. Although the 2003 a dministrative c omplaints

also alleged that Respondent committed medical malpractice and

failed to keep required medical records, those charges were never

proven; the Final Order and Consent Agreement specifically

avoided such a determination.

91. In addition, the only charge of medical malpractice in

the Administrative Complaint that was proven was based upon

Respondent ' s actions in practicing as an anesthesiologist when he

had no adequate training to do so. The Florid a Statutes

expressly provide that such conduct is a distinct offense under

section 458.331(1)(v), under which Respondent was also charged,

as discussed earlier. Where the elements of two charged offenses

are exactly the same, there is but one disciplinabl e offense for

purposes of imposition of penalty.

92. Rule 64B8 - 8.001(3) provided that, in applying the

penalty guidelines, the following aggravating and mitigating

circumstances should also be taken into account:

(3) Aggravating and Mitigating

Circumstan ces. Based upon 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 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 i nuring

to the applicant or licensee;

(g) The involvement in any violation of

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

controlled substances for trade, barter or

sale, by a licensee. In such cases, the

Board will deviate from the penalties

recommended above and impose suspension or

revocation of licensure.

(h) Where a licensee has been charged with

violating the standard of care pursuant to

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

licensee, who is also the records owner

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

to keep and/or produce the medical records.

(i) Any other relevant mitigating factors.

93. Respondent ' s actions in knowingly accepting and

performing professional responsibilities of an anesthesiologist,

which he knew that he was not competent to perform, exposed J.D.

to potentially severe injury or death, and may be considered an

aggravating factor under paragraph (a) of the rule.

94. Respondent ' s proven violation of three counts involved

more than one offense, an aggravating factor.

95. In considering the 2003 a dministrative c omplaints under

rule paragraphs (d) and (e) above, it is important to note that

there was no finding of a statutory violation. In Kaplan v.

Department of Health, Board of Osteopathic Medicine , 8 So. 3d 391

(Fla. 5th D CA 2009), the court permitted the consideration of

prior discipline imposed although there had been no finding of a

violation. However, the Kaplan case appears to be predicated

upon the particular wording of the mitigation and aggravation

rule of the Boar d of Osteopathic Medicine, which directed

consideration of the number of times the licensee had been

previously disciplined. In the Board of Medicine rule applicable

here, paragraph (d) directs consideration of the number of times

the same offense or offe nses have previously been committed. As

noted earlier, the 2003 Consent Order and Final Order do not

contain the requisite findings, and paragraph (d) provides no

basis for aggravation. On the other hand, it is appropriate

under Kaplan to consider the fa ct of prior discipline under the

more general wording of paragraph (e), even in the absence of a

specific finding of statutory violation.

96. A final aggravating factor, under paragraph (h), is

that Respondent here was charged with violating the standard of

care both in performing as an anesthesiologist during J.D. ' s

procedures and in assisting in treating her complications

afterwards, and he failed to keep adequate medical records for

either of those times. 10/

97. On the other hand, Respondent was not un der any legal

restraints on June 25, 2008. It was not shown that Respondent

received any special pecuniary benefit or self - gain from his

actions. The incidents did not involve any trade or sale of

controlled substances.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

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

Department of Health, Board of Medicine, finding that Dr. Rivera -

Kolb violated sections 458.331(1)(m), (t), and (v), Florida

Statutes, as charged in the Adm inistrative Complaint, and

imposing an administrative fine of $20,000.00 and a four - year

suspension of his license to practice medicine.

DONE AND ENTERED this 19th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 19th day of December , 2014 .

ENDNOTE S

1/ While Dr. Rivera - Kolb ' s testimony about documents that

appeared to contain his signature was a bit inconsistent , he

clearly testified in his deposition that he wrote the numbers o n

the Anesthesia Record and went on to say, " That ' s why I signed

it. "

2/ Dr. Rivera - Kolb also admitted in his deposition that he signed

the Anesthesia Charge Sheet, but claimed, " I didn ' t know what it

was. " At hearing, he would not even expressly admit that he had

signed it, stating only that " It looks like my signature. " The

contention that Dr. Rivera - Kolb did not knowingly sign his name

in the block next to " Anesthesiologist 1 " on the form is rejected

as not credible.

3/ Dr. Florete testified that p erforming such " double duty " would

not meet the prevailing standard of care for the practice of

anesthesiology, though the actions of Dr. Rodenberg are not the

subject of this proceeding.

4/ References here to " first form " and " second form " are not

inten ded to indicate which was prepared first, for there is no

evidence on that point, but only to distinguish them.

5/ This hearing testimony conflicts with Dr. Rivera - Kolb ' s own

deposition testimony, in which he indicated that it was the

A nesthesia R ecord f or the second procedure he participated in --

the facet radiofrequency lesioning -- that was missing from J.D. ' s

records: " I know I wrote in two records, during the first

procedure and during the second procedure. I can ' t find the

records for the second proc edure anywhere. "

6/ Dr. Florete was not offered or accepted as an expert in the

general practice of medicine. See §§ 458.331(1)(t)1. &

766.102(5)(b), Fla. Stat. Respondent ' s objection to testimony of

Dr. Florete regarding the prevailing professional s tandard of

care applicable to a general practitioner was sustained at

hearing.

7/ In making this finding, no weight was given to Dr. Rivera -

Kolb ' s testimony that two years after the incident, he was told

that J.D. had been given propofol by Ms. Kathleen McCutcheon, the

scrub nurse for the procedures. He testified in his deposition:

I called her to see if she could, you know,

if she could help me in the case later on and

she told me, did you know that Dr. Rodenberg

gave this patient propofol? And I said

absolutely not, but do you know what, I

feared that that was the case.

Nurse McCutcheon was not called as a witness. The basis for her

belief that propofol had in fact been administered was not in

evidence , and her statement itself was hearsay.

8/ Dr. Rivera - Kolb ' s testimony that Dr. Rodenberg provided him

with reasonable assurance that the procedures were not MAC is

rejected as not credible under all of the circumstances.

9/ Dr. Florete also testified that Respondent violated the

standard of care wh en he provided MAC to J.D. without knowing

what medications she had received, in failing to record her

breathing and temperatures, in failing to take steps to address

her hypertension, and in failing to stay with her after the

procedures until she was plac ed in the PACU. However, Respondent

was not charged with committing malpractice with respect to these

acts or omissions occurring during J.D. ' s procedures.

10/ Compare Pub lic Health Trust of Dade C ou nty v. Valcin , 507

So. 2d 596 (Fla. 1987), in which th e Florida Supreme Court held

that the unavailability of medical records due to an adverse

party ' s negligence may create a shifting of the burden of proof

in a civil medical malpractice case.

COPIES FURNISHED:

Diane K. Kiesling, Esquire

Arielle E. Davis, Esquire

Francis A. Carbone, II, Esquire

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399

(eServed)

Christopher O ' Toole, Esquire

O ' Toole Law Firm

1132 Southeast Third Avenue

Fort Lauderdale, Florida 33316

(eServed)

Ga ry S. Ostrow, Esquire

Law Office of Gary Ostrow

3000 Northeast 30th Place , Suite 302

Fort Lauderdale, Florida 33306

(eServed)

Allison M. Dudley, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1 701

(eServed)

Jennifer A. Tschetter, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

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.