15-004397PL Department Of Health, Board Of Medicine vs. Cesar Augusto Velilla, M.D. Status: Closed Recommended Order on Wednesday, June 8, 2016.

Summary: Petitioner failed to show by clear and convincing evidence that Respondent failed to keep legible medical records that justified the course of treatment of the patient.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF

MEDICINE,

Petitioner,

vs. Case No. 15 - 4397PL

CESAR AUGUSTO VELILLA, M.D.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On March 30, 2016, final hearing was held at video

teleconference locations in Lauderdale Lakes and Tallahassee,

Florida, before F. Scott Boyd, an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Zachary Be ll, Esquire

Yolonda Y. Green, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Bru ce Douglas Lamb, Esquire

Gunster, Yoakley and Stewart, P.A.

401 East Jackson Street, Suite 2500

Tampa, Florida 33602

STATEMENT OF THE ISSUE S

The issues in this case are whether Respondent violated

sectio n 458.331(1)(m), Florida Statutes, by failing to keep

legible medical records that justify the course of treatment of a

patient, as set forth in the Second Amended Administrative

Complaint, and, if so, what is the appropriate sanction.

PRELIMINARY STATEMEN T

On August 30, 2015, the Department of Health (Petitioner or

Department) referred an Amended Administrative Complaint against

Cesar Augusto Velilla, M.D. (Respondent or Dr. Velilla) , to the

Division of Administrative Hearings. Respondent disputed

allegat ions of fact in the complaint and requested a formal

hearing. A Second Amended Administrative Complaint was filed on

March 4, 2016, following an Order granting a motion to amend the

complaint.

Prior to hearing, Petitioner withdrew the allegations in

C ount I of the Second Amended Administrative Complaint. The

parties filed a Joint Pre - h earing Stipulation on March 21, 2016,

including stipulations of fact, which are incorporated below.

The final hearing took place on March 30, 2016. Official

recognitio n was given to three orders of the Board of Medicine.

In support of the allegations in Count II, Petitioner offered

the testimony of John J. Obi, M.D., and offered Exhibits P - 1

through P - 7, which were accepted into evidence. Exhibit P - 2, a

deposition of P atient C.A., was admitted with the caveat that it

was hearsay and could not alone support a finding of fact, but

could only be used to supplement or explain other evidence. The

parties substituted a redacted copy of Patient C.A. ' s deposition

as Exhibit P - 2, deleting irrelevant material, which was submitted

on April 11, 2016.

Respondent testified himself, and offered the testimony of

Pedro Soler, M.D., accepted as an expert in plastic surgery, and

that of Richard Sandler , M.D. , accepted as an expert in int ernal

medicine with a subspecialty in nephrology. Respondent also

offered seven exhibits, R - 1, R - 3, R - 4, R - 6, R - 8, R - 13, and R - 15,

all of which were admitted.

The Transcript was filed on May 13, 2016. Both parties

timely filed proposed recommended orde rs, which were considered

in preparation of this Recommended Order.

Except as otherwise indicated, citations to the Florida

Statutes or rules of the Florida Administrative Code refer to the

versions in effect in February 2011, the time the violations wer e

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 chapter 458, Florida Statutes (2015). The Board

of Medicine is charged with final a gency action with respect to

physicians licensed pursuant to c hapter 458.

2. Dr. Velilla is a licensed physician in the state of

Florida, havin g been issued license number ME 98818.

3. Dr. Velilla ' s address of record is 12709 Miramar Parkway

Miramar, Flo rida 33027. Dr. Velilla has been a medical director

at Evolution MD since the summer of 2010.

4. Dr. Velilla was licensed to practice medicine in the

state of Florida during all times relevant to Petitioner ' s Second

Amended Administrative Complaint.

5. Dr. Velilla is Board - c ertified in i nternal m edicine by

the American Board of Internal Medicine.

6. On or about December 29, 2010, Patient C.A. consulted

with Dr. Velilla regarding possible abdominal liposuction and fat

transfer to the gluteal area. These are cosmetic surgery

procedures, undertaken with the object of enhancing the patient ' s

appearance, and are purely elective.

7. On or about February 10, 2011, Dr. Velilla performed an

evaluation of Patient C.A. and ordered routine pre - operative

laboratory studies.

8. The laboratory report prepared by First Quality

Laboratory indicated readings within normal limits for blood urea

nitrogen (BUN) at 19.8 and creatinine serum at .7, but an

abnormally high BUN/creatinine ratio reading of 30.43. It showed

an a bnormally high globulin reading at 3.40, an abnormally low INR

reading of .79, an abnormally low MCH reading of 25.2, and an

abnormally low MCHC reading of 30.7.

9. On or about February 15, 2011, Dr. Velilla reviewed

Patient C.A. ' s pre - operative laborator y report results. He placed

a checkmark next to the high BUN/creatinine reading and the low

INR reading. He wrote " Rev. " with the date and signed his name on

each page.

10. Dr. Velilla testified that he performed a glomerular

filtration rate test, a c alculation used to check on the

functioning of the kidneys, and the result indicated normal renal

function. He testified that a BUN/creatinine ratio outside of the

normal range could be caused by several factors, and that after

his assessment, the reading was not of concern to him in

proceeding to surgery.

11. Dr. Velilla did not make any notation on Patient C.A. ' s

medical records to indicate how or why he concluded that the

abnormal BUN/creatinine ratio reading was not of concern.

12. On February 24, 2011, P atient C.A. filled out a " General

Consent " form. Patient C.A. agreed to disclose her medical

history, authorized the release of medical records for certain

purposes, agreed to use skin care products as directed, and

acknowledged possible side effe cts from the use of skin care

products. The form also stated, " I understand that Cesar Velilla,

M.D. P.A. services generally consist of a series of treatment

[ sic ] to achieve maximum benefit, and this consent shall apply to

all services rendered to me by Cesar Velilla, M.D., P.A.,

including ongoing or intermittent treatments. "

13. On February 24, 2011, P atient C.A. filled out a " Medical

History " form. Patient C.A. indic ated she was not under the care

of a dermatologist, did not have a history of erythema ab igne,

was not on any mood - altering or anti - depression medication, had

never used Accutane, had never had laser hair removal, had no

recent tanning or sun exposure, had no thick or raised scars from

cuts or burns, and had never had local anesthesia with lidocaine.

The form did not ask for information about any prior abdominal

procedures, previous liposuction trea tments, multiple pregnancies,

or abdominal hernias.

14. On February 24, 2011, P atient C.A. signed a " Consent for

Laser - Assi sted Lipolysis Proc edure SLIM LIPOSCULPT. " The form did

not include consent for fat transfer to the gluteal area or

describe r isks or possible complications of that procedure.

Patient C.A. also signed a " Consent for Local Aneshesia [ sic ] "

form.

15. As Dr. Obi testified, t he risks from a fat transfer

procedure are generally the same as those of the liposuction

procedure ; although with a fat transfer, you have additional

potential for fat embolism.

16. On or about February 24, 2011, Dr. Velilla performed

liposuction of the abdomen and thighs with fat transfer to the

gluteal area on Patient C.A. at Evolution MD.

17. Patient C.A. ' s liposuction was not the " Slim Liposculpt "

laser - assisted procedure. The testimony was clear that the " Slim

Liposculpt " procedure would use a las er to melt the fat before

liposuction, which could not be done on Patient C.A. because the

fat was to be transferred. There was testimony that a laser could

be used to improve skin retraction, however.

18. As Dr. Velilla testified, Patient C.A. had reque sted the

fat transfer in addition to the liposuction prior to the

procedure. Dr. Velilla discussed the risks of both the

liposuction and the fat transfer with Patient C.A. , and she

consented to have the procedure done. As Dr. Velilla testified,

this cons ent was later documented on the operative r eport prepared

sometime after the surgery and dated February 24, 2011, the date

of the surgery.

19. Dr. Velilla ' s testimony was supplemented by the

operative report, which stated in pertinent part:

The patient re quested liposuction with fat

transfer and understood and accepted risks

including but not exclusive to bleeding,

infection, anesthesia, scarring, pain, waves,

bumps, ripples, contour deformities, numbness,

skin staining, fluid collections, non -

retraction o f the skin, deep venous

thrombosis, fat embolism, pulmonary embolism,

death, necrotizing fasciitis, damage to

surrounding structures, need for revision

surgery, poor aesthetic result and other

unexpected occurrences. No guarantees were

given or implied an d the patient had no

further questions prior to the procedure.

Other options including not having surgery

were discussed and dismissed by the patient.

20. The operative report adequately documented Patient

C.A. ' s earlier oral informed consent for liposu ction with fat

transfer . Patient C.A. did not execute a written informed consent

for the fat transfer prior to the procedure.

21. Dr. Velilla also noted in the operative report that the

" patient physical examination and pre - operative blood work were

with in normal limits. " Neither the operative report nor any other

documentation indicated whether a complete physical examination or

a focused physical examination was given, or what that examination

consisted of.

22. Patient C.A. was scheduled for a secon d liposuction

procedure on her arms on February 26, 2011. It was decided to

defer the procedure on her arms to this later date in order to

keep the amount of lidocaine at a safe level during the initial

procedure.

23. On or about February 26, 2011, Patie nt C.A. presented to

Evolution MD with complaints of nausea and mild pain. Dr. Velilla

was not at the Evolution MD office.

24. Mild pain is to be expected on the second day after a

fat transfer procedure, and nausea can be anticipated in some

patients wh o are taking opiods, as had been prescribed for Patient

C.A. There was insufficient competent evidence in the record to

support a finding that Patient C.A. ' s symptoms were unusual or

that Dr. Velilla was ever informed of more serious symptoms in

Patient C .A. that day.

25. Dr. Velilla spoke by telephone with an Evolution MD

staff member about Patient C.A. ' s symptoms and instructed the

staff member to ask Patient C.A. to wait for his arrival at the

office.

26. A " Progress Note " signed on February 26, 2011, by

Ms. Amanda Santiago, of Dr. Velilla ' s office, indicated that

Patient C.A. said the pain and nausea were " due to the Vicodin. "

The note indicates that Dr. Velilla was called , that he stated he

might stop the Vicodin and start Patient C.A. on Advil or T ylenol

for pain , and that he asked that Patient C.A. be prepared for

surgery. The note does not indicate that Dr. Velilla directed

that Patient C.A . ' s vital signs be taken, or that they were taken.

The note states that P atient C.A. decided not to have th e

procedure on her arms done and that Dr. Velilla was again called.

The note indicates that he asked the staff to take pictures of

Patient C.A. and ask her to wait for him to arrive.

27. Dr. Velilla did not order Evolution MD staff to take

Patient C.A. ' s vital signs. Her vital signs were not recorded by

Evolution MD staff on February 26, 2011.

28. Contrary to Dr. Velilla ' s request, Patient C.A. left

Evolution MD on February 26, 201 1 , prior to Dr. Velilla ' s arrival

at the office, and Evolution MD staff were unable to contact her.

29. On or about February 27, 2011, Patient C.A. presented to

Coral Springs Medical Center where she was admitted with a

diagnosis of severe dehydration, intravascular volume depletion,

diarrhea, nausea , and vomiting. Subseque ntly, Patient C.A. was

admitted to the intensive care unit.

30. Patient C.A. remained hospitalized until March 31, 2011.

Standards and Ultimate Facts

31. Dr. Obi is a surgeon specializing in plastic surgery.

He does not conduct laser - assisted liposucti on, but performs what

is known as " wet " or " super wet " liposuction, as was performed by

Dr. Velilla in this case. He has been a Diplomate of the American

Board of Plastic Surgery since 1982.

32. Dr. Obi reviewed Patient C.A. ' s medical records from

Evolu tion MD, other related records, and the Second Amended

Administrative Complaint.

33. Taken as a whole, Dr. Obi ' s testimony with respect to

the medical history documented for Patient C.A. was not clear and

convincing. He testified that Patient C.A. was u ndergoing a

significant operative procedure and that it involved multiple

anatomic areas. He also noted that the history did not include

information as to whether Patient C.A. had prior abdominal

surgical procedures, earlier liposuction, multiple pregnanc ies, or

abdominal hernias. He testified that this information could

indicate increased risks of injury and that this relevant history

must be documented. Dr. Obi stated that in his opinion the

patient history did not meet the minimum standards of the med ical

records rule.

34. On the other hand, Dr. Obi seemed to have only a partial

understanding of what the medical records rule required, and he

had no opinion on whether the patient history justified the course

of treatment of Patient C.A. -- the actual sta tutory standard that

Dr. Velilla was charged with violating in the Second Amended

Administrative Complaint:

Q. What does the rule say?

A: What does the rule say? The medical

record rule I believe requires Î I can ' t tell

you verbatim what it says. It re quires

adequate documentation so that in the event

that the care of a patient has to be

transferred to another healthcare professional

the documentation is adequate that the

patient, that the professional could

immediately step in and take over.

Q: Okay. You believe that ' s part of either

the statute or the rule enacted by the Board

of Medicine?

A: If the Board of Medicine is the group

responsible for the medical record rule, then

I would say yes.

Q: Okay. Have you reviewed what has been

alleged in t he amended administrative

complaint, or second amended administrative

complaint, as to the statutory provision for

medical record adequacy?

A: The statutory, I ' m not sure that I have.

* * *

Q: And do you believe that the records fail

to justif y the course of treatment of the

patient with those history findings?

A: That ' s not what I said. I didn ' t say it

failed to justify. What I said is it wasn ' t

complete.

Q: Okay, do you have an opinion as to whether

the records fail to justify the cours e of

treatment of the patient?

A: No.

Q: You don ' t have an opinion. Okay, thank

you.

35. In contrast, Dr. Soler testified that in his opinion the

patient history that was documented as part of Patient C.A. ' s

medical records did justify her course of treatment.

36. With respect to the physical examination, Dr. Obi noted

that there was only a single line in the operative record stating

that the physical examination was within normal limits. He noted

that the documentation did not indicate what had been examined and

did not record any specific findings or results of any examination

that was conducted. However, he never offered an opinion that the

record of the physical examination failed to justify the course of

treatment of Patient C.A.

37. Dr. S oler testified that in his opinion , the record of

the physical examination did justify the course of treatment of

the patient.

38. Petitioner did not show by clear and convincing evidence

that the documentation of Patient C.A. ' s medical history and

physic al examination failed to justify her course of treatment.

39. Dr. Obi testified that the medical records should have

contained more evaluation or explanation of the abnormal

laboratory report results:

Q: And so was the check mark, when coupled

with that note in the pre op, or in the

operative report, sufficient documentation of

Dr. Velilla ' s evaluation of the of the

patient ' s pre - operative lab results?

A: In my opinion, no.

Q: And what do you base that on?

A: If you have an abnormal result, I think it

is incumbent on you Î it Î depending on what

the abnormality is, and depending on what your

interpretation of that abnormality is, it ' s

incumbent to explain it. Sometimes you need

to repeat the tests. Sometimes it may be

perfectly within normal limits , but on the

laboratory sheet, if it says that it ' s high,

or out of the range of normal, I think other

than just check mark, I think you just

acknowledge what your thoughts are.

Q: And do you remember if there was anything

abnormal in Patient C.A. ' s pre - operative

laboratory results?

A: There was one area that I commented on.

That was the BUN - creatinine ratio.

Q: And what is the BUN - creatinine ratio?

A: It ' s just a ratio of some parameters

dealing with kidney function.

Q: Okay, and what does that lab result tell

you about a patient, if anything?

A: Well, you know, it can call your attention

to the area, I mean, it can tell you, you

know, that the patient has some renal issues.

It can tell you that the patient is, you know,

potentially dehydrated , it can tell you that

the patient, you know, is within normal. But

if the values are Î if one value is high and

the other one is low, it may give you a, a

high reading. And that ' s understandable, but

all you need to do is document that.

40. It was Dr. Obi ' s opinion that the medical records failed

to contain a sufficient evaluation or explanation of the abnormal

BUN/creatinine ratio laboratory result. He acknowledged that the

abnormal result was not necessarily indicative of a renal problem.

41. How ever, Dr. Obi also testified:

Q: Okay. Do you have an opinion as to

whether those records are adequate to justify

the course of treatment of the patient?

A: The failure to document the thought

process on this ratio would, in and of itself,

not prevent or preclude the operative

procedure from being done, if that ' s your

question.

At best, Dr. Obi ' s testimony was thus ambiguous as to whether or

not failure to include an explanation of the abnormal laboratory

result failed to justify the course of treatmen t of Patient C.A.

42. Dr. Soler testified that no other documentation or chart

entry was required to address the lab report value in order to

justify proceeding with the surgery. Dr. Sandler testified that

the BUN/creatinine ratio was a renal - related te st, but does not

itself indicate kidney malfunction. Dr. Sandler also testified

that in his opinion , no other documentation was needed prior to

proceeding with the surgical procedure.

43. The Department did not clearly and convincingly show

that the docu mentation in the medical records relating to abnormal

laboratory results failed to justify the course of treatment of

Patient C.A.

44. Dr. Obi testified that Dr. Velilla had a duty to order

the taking of Patient C.A. ' s vital signs since he was not yet in

the office when she returned on February 26, 2011, the date the

second liposuction had been scheduled. He testified that if the

medical records rule " requires doing what ' s appropriate at each

visit , " then Patient C.A. ' s records did not meet the requiremen ts

of that rule. He testified that if Patient C.A. was an " outlier "

in that her symptoms were uncommon, the standard of care required

that Patient C.A. ' s vital signs be taken. Dr. Obi admitted that

there was no documentation in the medical records to sug gest that

Dr. Velilla had ordered the staff at Evolution MD to take Patient

C.A. ' s vital signs, but he testified that the order should have

been given and that it should have been documented.

45. Dr. Obi testified that there was no written

documentation o f an informed consent for the fat transfer and that

the consent for the " Slim Liposculpt " procedure was consent for a

procedure that was not done. Again , Dr. Obi seemed unfamiliar

with the specific requirements of the medical records rule:

Q: And is, is the Î is a written documentation

of the fat transfer required by the medical

record rule in this case?

A: In terms of the actual requirement, it

would be my opinion that it should be

required. Now, I can ' t say if it says that

for every procedure, every s urgical procedure,

every invasive procedure, that a written

consent must be documented; because obviously,

you now, the patient consented. It ' s implied

that the patient consented because she showed

up for the procedure.

Dr. Obi testified that he was awar e that the operative report

contained statements that Patient C.A. had been informed of the

risks of the fat transfer procedure and that she had specifically

consented. He admitted he was unsure as to " which board, or

organization, or outfit " requires a w ritten informed consent.

Aggravating and Mitigating Factors

46. No evidence was introduced to show that Dr. Velilla has

had any prior discipline imposed.

47. There was no evidence that Dr. Velilla was under any

legal restraints in February 2011.

48. It was not shown that Dr. Velilla received any special

pecuniary benefit or self - gain from his actions in February 2011.

49. It was not shown that the actions of Dr. Velilla in this

case involved any trade or sale of controlled substances.

50. On May 17, 2014, Dr. Velilla received a certificate

showing completion of an FMA educational activity conducted in

Jacksonville, Florida, entitled " Quality Medical Record Keeping

for Health Care Professionals. "

CONCLUSIONS OF LAW

51. The Division of Administrative Hearings has jurisdiction

pursuant to sections 120.569 and 120.57(1), Florida Statutes

(2015).

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

discipline upon a license is penal in nature. State ex rel.

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

1973). Petitioner must prove the charges against Respondent by

clear and convincing evidence. Fox v. Dep't of Health , 994 So. 2d

416, 418 (Fla. 1st DCA 2008)(citing Dep't of Banking & Fin. v.

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

53. 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 remember ed; 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,

a s to the truth of the allegations sought to

be establish ed.

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

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

clear and convincing standard of proof may be met where evidence

is in conflict, it seems to preclude evidence that is ambiguous.

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

988 (Fla. 1st DCA 1991).

54. Disciplinary statutes and rules "must always be

construed strictly in favor of the one against w hom the penalty

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

Griffis v. Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931

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

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

55. Petitioner did not charge Respondent with violation of

any Board of Medici n e rule. Respondent was charged with violation

of section 458.331(1), which provided, in relevant part:

(1) The following acts constitute 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 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, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and hospitalizations.

56. Petitioner charged in Count II that Respondent failed to

keep legible medical records justifying the course of treatment of

Patient C.A. Pet itioner first alleges that Respondent failed to

document a detailed and complete medical history and physical

examination for Patient C.A. prior to her surgical procedure.

57. It was clearly shown that Patient C.A.'s medical records

did not include any h istory of prior abdominal surgical

procedures, earlier liposuction, multiple pregnancies, or

abdominal hernias. All of this was important and relevant

information. It was similarly shown that the only medical record

of a physical examination was a single sentence contained in the

operative report that the examination was within normal limits.

However, there was no testimony that the records failed to justify

the course of treatment of Patient C.A. Dr. Obi offered no such

opinion, and Respondent's expert witnesses testified to the

contrary.

58. Petitioner did not show by clear and convincing evidence

that the minimal documentation of Patient C.A.'s history and the

records of her physical examination failed to justify her course

of treatment.

59. The com plaint next alleges that Respondent failed to

document his evaluation of the abnormal laboratory findings from

February 10, 2011.

60. Respondent's notation in the operative report that

Patient C.A.'s pre - operative blood work was "within normal limits"

is strikingly brief. It was in fact undisputed that a few of

those laboratory results were not within normal limits. 1/

Respondent placed a checkmark next to the abnormally high

BUN/creatinine ratio, indicating that he was aware of that

abnormal result. Res pondent testified that he conducted further

calculations to determine that the abnormal reading did not

indicate a renal condition. He admitted that he did not make any

note of this or otherwise document why or how he had concluded

that the abnormal readi ng did not preclude the procedure.

61. Dr. Obi testified that Respondent should have annotated

the medical records with his thoughts about the BUN/creatinine

ratio, or ensured that they reflected his evaluation or

explanation of that result, rather than s imply checking the high

reading. He went on to testify, however, that in his opinion ,

Respondent's failure to document the thought process as to the lab

result would not prevent or preclude the course of treatment.

62. Petitioner did not show by clear an d convincing evidence

that Respondent's medical records of laboratory tests failed to

justify Patient C.A.'s course of treatment.

63. The complaint next alleges that Respondent failed to

document ordering Evolution MD staff to take Patient C.A.'s vital

si gns on February 26, 2011.

64. As found above, Respondent did not order that Patient

C.A.'s vital signs be taken on February 26, 2011, when she

returned to Evolution MD. Dr. Obi testified that "good quality

medical care" dictated that Respondent take her vital signs, or,

since Respondent was not present, order an Evolution MD employee

to do so. He testified that this was required because her

symptoms were unusual, but there was no competent evidence of that

in the record. While he noted it also would be necessary to take

vital signs before the follow - up surgery, Patient C.A. decided not

to have the surgery. Almost all of Dr. Obi's testimony was

directed to this point: that in failing to direct that Patient

C.A.'s vital signs be taken, Respondent violate d a standard of

care.

65. In Breesmen v. Dep artment of Prof essional Reg ulation ,

B oar d of Med icine , 567 So. 2d 469, 471 (Fla. 1st DCA 1990), the

court held that without evidence that Dr. Breesmen had failed to

properly record the medical treatment that had actually been

administered, or that entries made were false or inaccurate, a

charge of failure to keep sufficient medical records that

concerned other treatment that had never been prescribed could not

be supported. The court stated that , while the evide nce may have

shown that Dr. Breesmen's actions were not those of a reasonably

prudent physician, "section 458.331(1)(m) does not purport to

encompass such standards." The circumstances here are similar.

While it is not clear that the taking of vital sign s itself

necessarily constitutes a course of treatment, 2/ charging a

violation of record - keeping requirements as an indirect method of

addressing a possible underlying standard of care violation is

convoluted and inappropriate.

66. It was not proven by cl ear and convincing evidence that

Respondent failed to keep legible medical records justifying the

course of treatment of Patient C.A. by failing to document an

order that had never been given to Evolution MD staff to take

Patient C.A.'s vital signs.

67. F inally, the complaint charged that Respondent failed to

document Patient C.A.'s consent for a fat transfer to the gluteal

area.

68. As noted above, Respondent testified that Patient C.A.

requested the fat transfer procedure in addition to the

liposuctio n, that he discussed the risks of both the liposuction

procedure and the fat transfer procedure with Patient C.A., and

that she consented to have these procedures done. This consent

was documented as a part of the operative report, dated

February 24, 2011 , the date of the surgery.

69. While the written informed consent signed by Patient

C.A. prior to surgery was for a laser - assisted lipolysis procedure

termed "Slim Liposculpt," and not the "wet" procedure with fat

transfer that was actually conducted, thi s fact alone does not

necessarily show a failure to document informed consent.

70. Section 766.103(4)(a), Florida Statutes, does indicate

that a written informed consent raises a rebuttable presumption of

valid consent, but in doing so, the statute nec essarily also

allows for oral informed consent. Respondent's testimony at

hearing, bolstered and documented by the operative report, was

that Patient C.A. was advised of the risks of the fat transfer and

that she consented before the surgery. That eviden ce was not

controverted by competent evidence in the record. While it is

clear that informed consent must be given prior to surgery, it was

not established that section 458.331(1)(m) precludes documentation

of consent after the procedure, though of course this is almost

never done as a practical matter. 3/

71. Petitioner did not prove by clear and convincing

evidence that Respondent failed to document Patient C.A.'s consent

for the fat transfer procedure. 4/

72. Petitioner did not show by clear and convi ncing evidence

that Respondent failed to keep legible medical records that

justified the course of treatment of Patient C.A., in violation of

section 458.331(1)(m), as charged in Count II of the Second

Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Medicine , enter a final order dismissing the Second Amended

Administrative Complaint against the professional license of

Dr. Cesar Augusto Velilla.

DONE AND ENTERED this 8th day of June , 2016 , in Tallahassee,

Leon County, Florida.

S

F. SCOTT BOYD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahass ee, 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 8th day of June , 2016 .

ENDNOTE S

1/ If the statement that the blood work was "within normal

limit s" is interpreted to apply to each and every test result on

the report, it was clearly incorrect. However, there was

testimony that the statement could reasonably be taken to apply

to the laboratory results as a whole, given the minor nature of

the abnorm alities. In any event, Petitioner did not charge or

argue that the statement in the operative report was inaccurate.

2/ Florida Administrative Code R ule 64B8 - 9.003 was amended after

Breesmen to require a licensed physician to maintain medical

records wi th sufficient detail to clearly demonstrate why "an

apparently indicated course of treatment" was not undertaken.

However, this language was subsequently removed on September 11,

2006, apparently in reaction to the case of Colbert v. Dep artment

of Health , 890 So. 2d 1165, 1166 n.2 (Fla. 1st DCA 2004).

Colbert had indicated the inapplicability of that rule language

to the facts and noted that the rule language should be strictly

construed.

3/ Testimony that a written informed consent is customary is not

alone sufficient to establish the applicable standard. See

Doctors Mem'l Hosp., Inc. v. Evans , 543 So. 2d 809, 812 (Fla. 1st

DCA 1989).

4/ Even had Petitioner proven that consent was not documented, it

is not clear that this type of record - keeping failu re would

necessarily fall within the statutory criteria. The Board of

Medicine has held that, "logic dictates that while a physician's

failure to explain the procedure to be performed or to obtain the

patient's informed consent might warrant discipline, s uch a

default would not prevent him from keeping impeccable medical

records that justify the course of the patient's treatment in

compliance with section 458.331(1)(m)." Dep ' t of Health, Bd . of

Med . v. Scheinberg , Case No. 10 - 10047 (Fla. DOAH June 20, 201 1;

DOH Aug . 29, 2011).

COPIES FURNISHED:

Bruce Douglas Lamb, Esquire

Gunster, Yoakley and Stewart, P.A.

401 East Jackson Street , Suite 2500

Tampa, Florida 33602

(eServed)

Zachary Bell, Esquire

Yolonda Y. Green, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A - 02

Tallahassee, Florida 32399 - 1701

(eServed)

Claudia Kemp, J.D. , Executive D irector

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 3253

(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.