15-002318PL Department Of Health, Board Of Medicine vs. John G. Bennett, M.D. Status: Closed Recommended Order on Wednesday, July 29, 2015.

Summary: DOH proved medical malpractice by prescribing eye medication without examining patient. Dismissal of telemedicine rule violation charge did not waive or estop medical malpractice charge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF MEDICINE,

Petitioner,

vs. Case No. 15 - 2318PL

JOHN G. BENNETT, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On June 30 , 2 015, a disputed - fact hearing was held in this

case in Sarasota , Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings

(DOAH) .

APPEARANCES

For Petitioner: Jack F. Wise, Esquire

Yolonda Y. Green, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Ronald Chapman, Esquire

Steven D. Brownlee, Esquire

Chapman Law Group

1834 Main Street

Sarasota, Flori da 34236 - 5912

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Medicine

should discipline the Respondent ' s license on charges that he

committed medical malpractice in violation of section

458.331(1)(t), Florida Statutes (2012) , in hi s treatment of

patient H.S. on December 1, 2012. (All statutory and rule

references are to those in effect on December 1, 2012.)

PRELIMINARY STATEMENT

The Petitioner, Department of Health (DOH), Board of

Medicine, filed a two - count Amended Administrativ e Complaint

against the Respondent, John G. Bennett, M.D., charging him in

Count I with committing medical malpractice in violation of

section 458.331(1)(t) and in Count II with violating Florida

Administrative Code Rule 64B8 - 9.014, the Board ' s rule on

Sta ndards for Telemedicine Prescribing Practice, in his treatment

of patient H.S. on December 1, 2012. The Respondent answered and

requested a disputed - fact hearing. The matter was referred to

DOAH.

Before the hearing, DOH dismissed Count II with prejudic e

and was given leave to file a Second Amended Administrative

Complaint charging only medical malpractice. The Respondent

moved to dismiss the Second Amended Administrative Complaint

based on the dismissal of the rule violation charge with

prejudice.

At the hearing on June 30, the motion to dismiss the Second

Amended Administrative Complaint was denied. The parties '

counter - motions to exclude the testimony of each other ' s expert

ophthalmologist were granted on the ground that they could not

testify on t he standard of care because the Respondent was a

general practitioner, not an ophthalmologist.

DOH called three witnesses, who were cross - examined by

counsel for the Respondent: the patient, H.S.; the Respondent;

and DOH ' s expert, Eugene Crouch, M.D. P etitioner ' s Exhibits 1

through 6 and 8 through 10 were received in evidence. The

Respondent had a copy of rule 64B8 - 9.014 admitted in evidence.

A Transcript of the fi nal hearing was filed on July 7, and

the parties filed proposed recommended orders (PRO s). The

Respondent filed a supplement to its PRO that included a motion

to strike the Petitioner ' s PRO as untimely. The Petitioner

responded in opposition to the motion to strike and counter - moved

to strike the Respondent ' s supplemental PRO. The Respond ent ' s

motion to strike has no merit and is denied. The Petitioner ' s

motion to strike has merit and is granted. The timely PROs filed

by the parties have been considered in the preparation of this

Recommended Order.

FINDING S OF FACT

1. The Respondent, Jo hn G. Bennett, M.D., is a licensed

physician in the State of Florida, having been issued license

ME 48950. His only prior discipline was in 1988 for violations

not charged in this case; it resulted in two years of probation.

2. In December 2012, the Re spondent was a general

practitioner working part - time for an entity called Doctors

Housecalls Limited (Doctors House calls ) , which provided concierge

medical care to visitors to the Miami area residing short - term in

area hotels and other rental properties. When requested by a

resident, the concierge would contact Doctors Housecalls by

telephone and relay pertinent contact information. Doctors

Housecalls would telephone a physician on its staff and relay the

contact information. The physician would telepho ne the patient

or visit the patient to initiate a doctor - patient relationship.

Usually, telephone contact would result in a subsequent in - person

visit with the patient. The patient would pay by cash, credit

card, or insurance. Medicare and Medicaid were not accepted.

3. The Respondent testified that on December 1, 2012, while

he was either driving to dinner or already at a local restaurant,

he received a call from Doctors Housecalls on his cell phone. He

was given contact information for H.S. The Re spondent used his

cell phone to call H.S. and establish a doctor - patient

relationship.

4. The patient testified that his eyes had become irritated

during a business trip to Miami Beach in December 2012. He

thought he might have gotten suntan lotion in his eyes while at

poolside. He called his optometrist in Pennsylvania and was

given a prescription over the phone, which he filled and started

taking. Although the patient could not recall the name of the

medication, the evidence was clear that it was To bramycin, an

antibiotic eye drop. His Pennsylvania optometrist told the

patient to go to an emergency room or get care from a local

doctor if his eyes got worse. When the patient ' s eye irritation

got worse, H.S. called the concierge where he was staying and

eventually talked to the Respondent on the telephone.

5. The patient testified that he reported the essentials of

his eye problem to the Respondent -- namely, that his were

irritated from the suntan lotion and from the Tobramycin

prescription. He tes tified that, in response, the Respondent

prescribed a different eye drop and told him to follow up with

his primary care doctor when he returned to Pennsylvania. The

eye drop the Respondent prescribed was Predforte (prednisolone

acetate), which is a stero id and a legend drug.

6. The brief interaction between the Respondent and the

patient was entirely by telephone. The Respondent did not see

the patient in person and did not see any patient medical records

or any photograph or other image of the patien t ' s eye.

7. The Respondent testified that initially he asked to see

the patient to examine him to get a clearer picture of the

patient ' s medical problem. He testified that the patient did not

want to be seen. He testified that he then told t he patient he

would have to go to an emergency room and that the patient

refused. He testified that he then asked some more questions and

decided he could prescribe Predforte without seeing the patient.

The patient denied that the Respondent asked for an in - person

examination, told him to go to an emergency room, or asked him

additional questions to ascertain if he could prescribe Predforte

without seeing the patient.

8. Specifically, the patient denied that the Respondent

asked him if he wore contact lenses. ( He normally wore them but

took them out when his eyes became irritated.) He denied that

the Respondent asked him if he had a history of cataracts, any

recent eye surgeries, or ocular herpes. The Respondent testified

that he asked these questions but did not notate the questions or

the patient ' s negative answers in his only medical records from

the encounter (which included a brief description of the

presenting problems and the treatment plan in his telephone

consultation form and descriptions of the diagn osis or nature of

illness or injury and of the procedures, services, or supplies

provided on his insurance claim form ) .

9. The Respondent's testimony on these points does not ring

true. While the emergency room would have taken time, the

Respondent tes tified that he was very close to where the patient

was staying when he placed the telephone call and could have

gotten there to see the patient very quickly. Also, the

Respondent ' s testimony on this point was inconsistent with the

position he was taking a t the hearing that the standard of care

did not require him to see the patient before prescribing the

Predforte.

10. Taken as a whole, the evidence was clear and convincing

that the Respondent did not insist on seeing patient H.S. and did

not ask those s pecific questions before prescribing Predforte.

At most, the Respondent may have asked a general question whether

the patient had any other eye problems and gotten a negative

answer.

11. The patient ' s eyes got better, and he did not seek any

further med ical attention in Florida. About a week after his

return to Pennsylvania, he followed up with his primary care

doctor. By then, his eyes were better. It is not clear from the

evidence why the patient ' s eyes got better.

12. DOH ' s expert, Dr. Eugene Cro uch, testified that the

Respondent ' s treatment of H.S. was below the standard of care.

He testified that it was necessary to physically examine the

patient ' s eye, front and back using an ophthalmoscope. He

testified that it also was necessary for the Res pondent to get a

complete medical history, including when the problem started, the

circumstances that might have caused it, if the patient was

taking medication that could have caused it, if there were vision

changes, if the patient smoked cigarettes, if t he patient was

seen for the problem by another treating physician, if there was

drainage coming from the eye, if the patient wore contact lenses,

or if the patient had cataracts, glaucoma, recent eye surgeries,

or ocular herpes. Although it is rare, rulin g out ocular herpes

is especially important because the steroid prescribed by the

Respondent " blunts the immune system, so the virus would take

over, which is potentially devastating [and] an absolute crisis

at that point. "

13. Dr. Crouch testified convi ncingly that the eye is

" tricky " for a general practitioner to diagnose and treat, and

the consequences of falling below the standard of care can be

serious. Contrary to the Respondent ' s suggestion, he did not

meet the standard of care by prescribing Pred forte and telling

the patient to seek further treatment if the problem got worse.

14. Dr. Crouch did not review the Board ' s rule 64B8 - 9.014

on the standards for telemedicine prescribing practice, or

determine whether the Respondent complied with it, befo re

reaching his opinion on the standard of care. Neither the rule

nor the Respondent ' s compliance with it affected Dr. Crouch ' s

opinion. Regardless of that and other efforts to impeach

Dr. Crouch ' s credibility, Dr. Crouch ' s opinion is accepted and

is cle ar and convincing evidence that the Respondent did not meet

the standard of care in his treatment of patient H.S.

15. The Respondent takes the position that DOH is estopped

from charging him with medical malpractice under section

458.331(1)(t) because it waived that charge by agreeing to

dismiss, with prejudice, the count charging a violation of rule

64B8 - 9.014. To the contrary, it is clear that DOH had no

intention of waiving the medical malpractice charge.

CONCLUSIONS OF LAW

16. Section 458.331(1)(t) 1., Florida Statutes (2012), made

the following a ground for license discipline:

Committing medical malpractice as defined in

s. 456.50. The board shall give great weight

to the provisions of s. 766.102 when

enforcing this paragraph. Medical

malpractic e shall not be construed to require

more than one instance, eve nt, or act.

17. Section 456.50(1)(g) defined " medical malpractice " as

" the failure to practice medicine in accordance with the level of

care, skill, and treatment recognized in general law r elated to

health car e licensure. " Paragraph (e) of that statute stated:

"' Level of care, skill, and treatment recognized in general law

related to health ca re licensure ' means the standard of care

specified in s. 766.102. "

18. Section 766.102 (1) stated : " 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 recognized as

acceptable and appropriate by reasonably prudent similar health

care providers. " There is no merit to the Respondent ' s argument

that section 766.102(1) did not apply because it (also) applied

to actions to recover damages.

19. The Respondent takes the position that rule 64B8 - 9.014,

the Standards for Telemedicine Prescribing Practice, established

the exclusive definition of the standard of care that applies in

this case because it was promulgated by the Board under the

authority of section 458.331(1)(v). That statute authorized the

Board to " 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, transf er agreements, sterilization, records,

performance of complex or multiple procedures, informed consent,

and policy and procedure manuals . "

20. Rule 64B8 - 9.014 (5) stated that " telemedicine " included

prescribing legend drugs to patients through telephonic

communication. Contrary to the Respondent ' s contention, it did

not supersede the standard of care set out in sections

458.331(1)(t), 456.50(1)(g), and 766.102(1).

21. Section (1) of rule 64B8 - 9.014 stated that prescribing

medications based solely on an electronic medical questionnaire

was below the standard of care. That section (which is the only

section in the rule that mentions standard of care) was

inapplicable, as no electronic medical questionnaire was used by

the Respondent. Even if it were appl icable, it did not state

that prescribing medications on anything more than an electronic

medical questionnaire automatically meets the standard of care.

22. Section (2) of the rule prohibited a physician from

providing treatment recommendations, includi ng issuing

prescriptions using electronic or other means, unless: (a) there

was a " documented patient evaluation, including history and

physical examination to establish the diagnosis for which any

legend drug was prescribed " ; (b) the physician discussed

treatment options and the risks and benefits of treatment; and

(c) contemporaneous, adequate medical records were maintained.

It did not state that any treatment recommendation or

prescription automatically meets the standard of care if

subsections (a), ( b), and (c) are met.

23. In support of his contention that the rule superseded

the statutes on the standard of care, the Respondent cites Adams

v. Culver , 111 So. 2d 665 ( Fla. 1959). That decision (and many

others) held that a special statute covering a particular subject

matter controls over a general statutory provision covering the

same and other subjects in general terms. That case law is

inapplicable in this case, where the Respondent seeks to have a

rule control over statutes and the statutes cove r the particular

subject matter -- namely, the standard of care.

24. As further support of his contention that the rule

superseded the statutes on the standard of care, the Respondent

cites Ortiz v. Department of Health, Board of Medicine ,

882 So. 2d 402 ( Fla. 4th DCA 2004). Ortiz held that the Board

exceeded its authority by adopting a rule requiring that

anesthesia used in certain surgeries performed in an office

setting be administered only under the direct supervision of an

anesthesiologist, when there was a statute specifically

prohibiting the use of rulemaking authority for that purpose.

Id. at 406. The Ortiz ruling also has no application to the

facts of this case.

25. The Respondent ' s contention that the rule superseded

the statutes on the stand ard of care has no merit and is

rejected. It would make no sense to say that medical malpractice

is a violation that can be disciplined if committed in person,

but not if done over the telephone.

26. DOH must prove its charge of medical malpractice by

c lear and convincing evidence. See Dep ' t of Banking & Fin. v.

Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987). The Supreme Court has

stated :

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 lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

tri er of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegati ons sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowitz

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

27. The evide nce was clear and convincing that the

Respondent committed medical malpractice, as defined by the

pertinent statutes, in his treatment of patient H.S. on

December 1, 2012.

28. The Respondent takes the position that DOH is estopped

from charging him with medical malpractice under section

458.331(1)(t), because it waived that charge by agreeing to

dismiss, with prejudice, the count charging a violation of the

Board ' s rule 64B8 - 9.014.

29. It is not clear why DOH dismissed the rule violation

charge with pre judice, notwithstanding the clear evidence that

neither the Respondent nor any other physician physically

examined patient H.S. Regardless, it is clear that DOH had no

intention to waive the medical malpractice charge.

30. The Respondent contends that t he dismissal of the rule

violation charge, with prejudice, operated to estop DOH from

proceeding with the medical malpractice charge. In support of

that argument, he cites three cases: Lomelo v. American Oil

Company , 256 So. 2d 9 (Fla. 4th DCA 1971); Lev ine v. Gonzalez ,

901 So. 2d 969, 974 (Fla. 4th DCA 2005); and State v. Clifton ,

905 So. 2d 172 (Fla. 5th DCA 2005). None of those decisions is

on point.

31. In Lomelo , a judgment of dismissal rendered upon a

stipulation of the parties was held to be bin ding on the parties

and to operate as a bar to another action on the same cause. No

stipulation or judgment of dismissal ha s been entered in this

case.

32. I n Levine , a plaintiff had dismissed a charging lien,

with prejudice, and later moved to foreclos e the lien. The court

held that the lower court erred by granting the motion to

foreclose the lien after it had been dismissed with prejudice.

In this case, DOH continuously maintained its charge of medical

malpractice.

33. In State v. Clifton , the sta te amended a four - count

criminal information after the expiration of the speedy trial

rule by re - alleging the original four counts and adding a fifth

count. All counts arose out of the same criminal conduct or

episode. The trial court granted the defenda nt ' s motion to

discharge the amended information under the speedy trial rule.

On appeal, the court affirmed as to the fifth count and reversed

as to the four original counts. Id. at 178 - 9. This holding has

no application to the facts of this case.

34. Rule 64B8 - 8.001 contains the penalty guidelines for

violations. The range of discipline for a violation of section

458.331(1)(t)1. is from one year of probation to revocation or

denial of licensure and an administrative fine from $1,000 to

$10,000. Sect ion (3) of the rule authorizes the Board to deviate

from the routine range of penalties upon consideration of

aggravating and mitigating factors listed (a) through ( i ).

Factor (a), the extent of exposure of a patient or the public to

injury or potential i njury, physical or otherwise, is applicable

and somewhat aggravating. Factor (b), the Respondent ' s legal

status (no restraints), is neutral or slightly mitigating.

Factor (c), the number of counts or separate offenses (one), is

neutral or slightly mitiga ting. Factor (d), number of previous

identical offenses (none), is neutral or slightly mitigating.

Factor (d), the Respondent ' s disciplinary history (one offense in

1988 punished by two years of probation), is neutral or slightly

aggravating. Factor (f) , pecuniary benefit or self - gain inuring

to the Respondent (minimal), is neutral or slightly aggravating.

Factor (g), involvement of controlled substances (none), is

neutral or slightly mitigating. Factor (h), failure to keep

and/or produce the medical r ecords in a standard of care

violation case (records minimal , but kept and produced), is

neutral or slightly aggravating. Factor (i), any other relevant

mitigating factors (many years of practice without discipline),

is slightly mitigating. Taking all th ese factors into

consideration, the Board should not deviate from the routine

range of discipline for the proven violation.

35. Section 456.072(4) provided that the Board shall assess

costs related to an investigation and prosecution, in addition to

othe r discipline imposed for violating a practice act.

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 the Respondent guilty of one count of medical

malpr actice in violation of section 458.331(1)(t), fining him

$5,000, placing him on one year of indirect supervision probation

with appropriate terms and conditions, and assessing costs of

investigation and prosecution.

DONE AND ENTERED this 29th day of July , 2015 , in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of July , 2015 .

COPIES FURNISHED:

Andre Ourso, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way , Bin C - 03

Tallahassee, Florida 32399 - 3253

(eServed)

Daniel Hernandez, Interim General Counsel

Department of Health

4052 Bald Cypress Way , Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Ronald Chapman, Esquire

Chapman Law Group

1834 Main Street

Sarasota, Florida 34236 - 5912

Steven D. Brownlee, Esquire

Chapman Law Group

1834 Main Street

Sarasota, Florida 34236 - 5912

(eServed)

Jack F. Wise, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3 265

(eServed)

Yolonda Y. Green, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written excepti ons 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.