16-003127PL Department Of Health, Board Of Medicine vs. Osakatukei O. Omulepu, M.D. Status: Closed Recommended Order on Friday, January 6, 2017.

Summary: Physician committed malpractice when puncturing internal organs of two patients while performing Brazilian Butt Lift procedure. Physician also committed four record-keeping violations. Recommend $14,000.00 fine and 2-year probabtion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH , BOARD OF

MEDICINE ,

Petitioner ,

vs. Case No. 16 - 3127PL

OSAKATUKEI O. OMULEPU , M.D. ,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice , a formal administrative hearing was

conducted before Administrative Law Judge Mary Li Creasy in Fort

Lauderdale , Florida , on October 26 and 27 , 2016.

APPEARANCES

For Petitioner: Kristen M. Summers , Esquire

John Wilson , Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee , Florida 32399

For Respondent: Monica Felder - Rodriguez , Esquire

Rodriguez & Perry , P.A.

Suite 107

7301 Wiles Road

Coral Springs , Florida 33067

STATEMENT OF THE ISSUE S

Whether Respondent , a licensed physician , committed record -

keeping violations and repeated medical malpractice by committing

three or more incidents of medical malpractice , as alleged in the

Second Amended Administrative Complaint ; and , if so , what is the

appropriate penalty?

PRELIMINARY STATEMENT

On June 8 , 2016 , Petitioner , Department of Heal th , filed an

Amended Administrative Complaint seeking disciplinary sanction of

the medical license of Respondent , Osakatukei Omulepu , M.D.

Respondent filed a request for formal hearing , and the matter was

referred to the Division of Administrative Hearing s (DOAH) on

June 8 , 2016. On the same day , DOAH assigned Administrative Law

Judge (ALJ) F. Scott Boyd to conduct the proceeding. This matter

was transferred to the undersigned on June 15 , 2016. The hearing

was initially set for July 27 , 28 , and 29 , 2016 , and then

rescheduled for October 26 , 27 , and 28 , 2016. On October 5 ,

2016 , Petitioner filed a Motion to Relinquish Jurisdiction for

leave to amend the Amended Administrative Complaint. The Motion

was denied ; however , the ALJ and Respondent waived the p rovisions

of section 120.569(2)(a) , Florida Statutes (2016) , allowing

Petitioner to convene a probable cause panel to add additional

counts for record - keeping violations . The Second Amended

Administrative Complaint was filed on October 26 , 2016.

The h earing was held as scheduled on October 26 and 27 ,

2016. At the hearing , Petitioner presented the testimony of

seven witnesses: Patient L.L.; Patient P.N.; Patient D.M.;

Patient N.F.; R.D. , Patient N.F. ' s mother; Lianys Blain; and

Dr. Scott Greenberg , M .D. , as an expert witness. Petitioner ' s

Exhibits 2 , 3 (pages 3 , 41 , 83 , and 133 only) , 5 , 6 (pages 13 ,

84 , and 85 only) , 9 , 10 (pages 307 , 308 , and 968 only) , 11 , 12

(page 25 only) , 13 , and 14 were admitted into evidence.

Respondent presented the testim ony of Michel Samson , M.D. ,

as an expert witness. Respondent ' s Exhibits 1 , 4 , 6 through 11 ,

14 , 20 , and 21 were admitted into evidence. Included in

Respondent ' s exhibits were the deposition transcripts for

Constantino Mendieta , M.D. , Linda Mondragon , and Cassandra

Salazar , which w ere provided in lieu of live testimony.

A two - volume Transcript of the proceeding was filed on

November 18 , 2016 , and November 28 , 2016. Both parties filed

timely proposed orders which were given due consideration in the

prepara tion of th is Recommended Order. Unless otherwise

indicated , citations to the Florida Statutes or rules of the

Florida Administrative Code refer to the versions in effect at

the time of the alleged violations.

FINDING S OF FACT

1. Petitioner is responsible for the investigation and

prosecution of complaints against medical doctors licensed in the

state of Florida , who are accused of violating chapters 456 and

458 of the Flo rida Statutes.

2. Respondent is licensed as a medical doctor in Florida ,

having be en issued license number ME 99126 on June 15 , 2007 .

3 . Respondent is not board - certified in any specialty

recognized by the Florida Board of Medicine.

4. Respondent has never had disciplinary action against his

license to practice medicine.

5. In May 20 15 , Respondent performed cosmetic surgery

procedures , including liposuction and fat injection procedures

(commonly referred to as a " Brazilian Butt Lift " or " BBL " ) , at

Vanity Cosmetic Surgery (Vanity) , Encore Plastic Surgery

(Encore) , and Spectrum Aestheti cs (Spectrum).

6. Liposuction is an elective cosmetic procedure that

involves the removal of fat from a patient. Fat is removed with

a cannula , or a long , thin , metal rod , attached to a suctioning

device. The cannula is repeatedly passed through the pat ient ' s

subcutaneous layer until the desired amount of fat is removed.

Fact s Related to Patient L.L.

7. On May 2 , 2015 , Patient L.L. , a 29 - year - old female

patient , contacted Vanity to undergo liposuction.

8 . On May 2 , 2015 , prior to her procedure , Pa tient L.L.

underwent bloodwork that revealed she had a normal hematocrit

level , normal hemoglobin level , and a normal red blood cell

count .

9. Respondent determined that Patient L.L. was of

sufficiently good health to undergo liposuction.

10 . Respondent performed liposuction on Patient L.L. at

Vanity on May 14 , 2015 .

11 . Several hours after being discharged to a hotel ,

Patient L.L. experienced pain , weakness , elevated heart rate

(tachycardia) , and excessive bleeding. Patient L.L. presented to

Homestead Hospital , where she was admitted for three days of

post - operative care and monitoring. L.L. ' s recovery took several

months and resulted in her losing her job.

12 . Upon admission , Patient L.L. ' s hematology report

revealed a low hematocrit , low hemoglobin , and a low red blood

cell count , which signified severely diminished blood levels and

necessitated her to be transfused with two units of blood and

plasma.

Fact s Related to Patient D.M.

13 . On April 25 , 2015 , Patient D.M. , a 31 - year - old female

patient , contacted Spectrum to undergo liposuction with gluteal

fat transfer.

14 . On April 29 , 2015 , prior to her procedure , Patient D.M.

underwent bloodwork that revealed she had a normal hematocrit

level , norm al hemoglobin level , a nd a normal red blood cell

co unt .

15 . Also prior to her procedure , Patient D.M. indicated in

her medical questionnaire that she was pregnant approximately

five times.

16 . Because Patient D.M. disclosed her prior pregnancies to

Respondent , Respondent knew , or should have known , tha t Patient

D.M. had a potential ly weak or thin abdominal wall.

17. Respondent determined that Patient D.M. was of

sufficiently good health to be an appropriate candidate to

undergo liposuction with gluteal fat transfer.

18. Respondent performed liposuct ion with gluteal fat

transfer on Patient D.M. at Spectrum on May 15 , 201 5 .

19 . Following the surgery , Patient D.M. experienced extreme

pain , resulting in her admission to Westchester Hospital.

20. Upon admission , Patient D.M. ' s hematology report

r e vealed a low hematocrit and low hemoglobin , which signified

severely diminished blood levels and necessitated her to be

transfused with three units of blood.

21 . During an exploratory surgery , Patient D.M. was found

to have several holes in her liver and damage t o her chest and

abdominal wall.

Fact s Related to Patient N.F.

22 . On February 4 , 2015 , Patient N.F. , a 35 - year - old female

patient , contacted Spectrum to undergo liposuction with gluteal

fat transfer.

23 . On April 23 , 2015 , prior to the procedu re , Patient N.F.

underwent bloodwork that revealed she had a normal hematocrit

level , normal hemoglobin level , and a normal red blood cell

coun t .

24 . Also prior to her procedure , Patient N.F. indicated in

her medical questionnaire that she was pregnant a t least twice.

25 . Because Patient N.F. disclosed her prior pregnancies to

Respondent , Respondent knew , or should have known , that Patient

N.F. had a potentially weak or thin abdo minal wall.

26 . Respondent determined that Patient N.F. was of good

health and an appropriate candidate to undergo liposuction.

27. Respondent performed liposuction with gluteal fat

transfer on Patient N.F. at Spectrum on May 15 , 2015 .

28 . Following the surgery , Patient N.F. experienced

abdominal pain , weakness , and an inabilit y to walk , resulting in

her admission to Baptist Hospital.

29 . During an exploratory surgery , Patient N.F. was found

to have a hole in her small bowel (colon) , which was leaking

fluid into her abdominal cavity. 1/

Fact s Related to Patient P.N.

30. On Ma y 16 , 2015 , Patient P.N. , a 35 - year - old female

patient , was scheduled to undergo liposuction with gluteal fat

transfer at Encore.

31. On May 4 , 2015 , prior to her procedure , Patient P.N.

underwent bloodwork that revealed sh e had a normal hematocrit

level , normal hemoglobin level , and a normal red blood cell

count .

32. Respondent determined that Patient P.N. was of

sufficiently good health and an appropriate ca ndidate to undergo

liposuction.

33. Respondent performed liposuction with gluteal fat

transfe r on Patient P.N. as scheduled.

3 4 . Following the surgery , Patient P.N. experienced extreme

pain and heavy bleeding , resulting in her admission to Memorial

Regional Hospital.

35 . Upon admission , Patient P.N. ' s hematology report

revealed a low hematocrit level , a nd low hemoglobin , which

signified severely diminished blood levels and necessitated a

blood transfusion.

Facts Related to Concentration of Tumescent Solution

36. Before harvesting Patients L.L. ' s , D.M. ' s , N.F. ' s , and

P.N. ' s fat , Respondent infiltrated tumescent solution into the

areas that were prepared to undergo liposuction.

37. Tumescent solution is a mixture of natural saline ,

epinephrine , and lidocaine and is used to decrease the risk of

excessive bleeding caused by large - volume l iposuction procedures.

38. Epinephrine , the active ingredient in tumescent

solution , constricts blood vessels and reduces blood loss.

39. The minimum concentration of epinephrine in tumescent

solution needed to achieve its intended purpose of r educing blood

loss is 1:1 , 000 , 000.

40. This concentration was first popularized by Dr. Jeffrey

Klein in 1965. After experimenting with several concentrations

of epinephrine , Dr. Klein concluded that a 1:1 , 000 , 000

concentration of epinephrine appropr iately balanced patient

safety with effectiveness. The most dilute concentration of

epinephrine Dr. Klein experimented with was 1:2 , 000 , 000.

41. Dr. Klein ' s concentration of epinephrine in tumescent

solution of 1:1 , 000 , 000 is the standard concentrat ion in the

state of Florida for BBL procedures .

42. The medical records reflect that d uring each of the

four procedures , Respondent used tumescent solution with an

epinephrine concentration of 1:4 , 000 , 000. This concentration is

too diluted to have t he intended effect of restricting blood

loss.

43. However , the tumescent solution wa s prepared by the

circulator s who assist ed during the surger ies . The circulators

credibly testified that when preparing the tumescent solution ,

they used enough epin ephrine to create at least a 1:1 , 000 , 000

concentration of epinephrine. The circulators prepared the

tumescent solution by adding lidocaine with 1:100 , 000 epinephrine

and one c ubic c entimeter (cc) of epinephrine to a one - liter (1000

cc) bag of normal salin e.

44. T he circulators explained that the additional

epinephrine that was used was n ot documented in the patients '

operating room records because there was no designated space on

the form for this information .

45. In light of the circulators ' c redible testimony , n o

evidence was presented to support the conclusion that Respondent

fell below the standard of care by using an inappropriate

concentration of epinephrine in the tumescent solution. Further ,

there was no causal connection demonstrated b etween the patients '

blood loss , a fairly common complication associated with BBL

procedures , a nd the concentration of epinephrine used.

Fact s Related to Damage to Internal Organs

46. During Patient N.F. ' s liposuction procedure , Respondent

used a can nula to remove 4 , 000 cc s of supernatant fat from

Patient N.F. ' s abdomen , waist , back , bra rolls , and flanks.

47. While manipulating the cannula , Respondent pushed the

cannula through Patient N.F. ' s abdominal wall and punctured her

small bowel.

4 8. Because Respondent perforated Patient N.F. ' s small

bowel , Patient N.F. ' s abdominal cavity was contaminated , and

10 to 15 centimeters of Patient N.F. ' s bowel later had to be

resected and removed.

49. After Patient N.F. ' s hospitalization , her moth er

confronted Respondent who admitted that he " messed up ," and

sug gested that his instrument " cuts through muscle and fat like

butter ," and may have contributed to the perforation.

50. During Patient D.M. ' s liposuction procedure , Respondent

used a ca nnula to remove 4 , 000 ccs of supernatant fat from

Patient D.M. ' s abdomen , waist , back , bra rolls , and flanks.

51. While manipulating the cannula , Respondent pushed the

cannula through Patient D.M. ' s abdominal wall , damaging her chest

wall , and Respon dent punctured her liver at least five times.

52. Respondent was responsible for ensuring that the

cannula used during liposuction procedures was manipulated with

precision and extreme care to avoid contact with the patients '

internal organs.

53 . In order for the cannula to come into contact with an

internal organ (with the exception of the heart and lungs) ,

Respondent pushed the cannula at an inappropriate angle through a

thick layer of muscle called the abdominal wall. The tough

abdominal wal l has a noticeably different consistency than the

soft layers of subcutaneous fat. A surgeon is required to

operate with a level of skill and care to be able to discern

between subcutaneous fat and muscle tissue while passing the

cannula through the patie nt.

54. The standard of care in Florida requires surgeons to

use extreme care to ensure that the abdominal wall is not

breeched. This is especially true when the patient ' s medical

history suggests the possibility of a thin abdominal wall.

55. According to both Petitioner ' s and Respondent ' s experts

t he perforation of an internal organ during a liposuction

procedure , even once , is an extremely rare incident.

56 . In fact , Respondent ' s world - reno w ned BBL expert ,

Dr. Mendieta explained , " I ' m constantly thinking bowel , bowel ,

bowel perforation or I ' m constantly thinking trying to avoid , so

it is constan t ly on my mind in terms of what I am trying to

avoid , so I ' m always angling my cannula and making sure that I ' m

on the right plane. " 2/

5 7 . Dr. M endieta admitted that although perforating an

internal organ is a " known complication " related to liposuction ,

it can result from medical negligence.

58 . Respondent argues he is absolved of any responsibility

for the puncture of internal orga ns because Patients D.M. and

N.F. signed consent form s that included the risk of " damage to

deeper structures , including nerves , blood vessels , muscles , and

lungs. "

59 . Significantly , t he informed consent forms for

liposuction signed by the patients did not include damage to the

liver , small bowel , or other intra - abdominal organs.

60 . Petitioner ' s expert , Dr. Greenberg , explained that the

language in the consent form does not contemplate damage to

internal organs shielded by the abdominal wall , and a lay person

would be unlikely to make such an inference.

61 . Dr. Greenberg credibly testified that it is a violation

of the standard of care to damage a patient ' s internal organ s

during a liposuction procedure , regardless of whether it is a

kno wn complication.

62 . Dr. Mendieta countered that the only way for a surgeon

to violate the standard of care would be to either intentionally

stab the patient , or to perform the surgery in such a reckless

and careless manner , improperly angl ing the ca nnula , that damage

to the surrounding structures is either inevita ble or purposeful.

6 3 . As noted by all three experts , absent being present

during the procedure , having it well - documented in th e

Respondent ' s notes , or talking with Respondent , it i s not

possible to tell with certainty what transpired. Respondent

refused to testify on his own behalf. Respondent asserted his

Fifth Amendment Privilege against self - incrimination , instead of

clarifying any of the disputed issues.

64 . Based on the forgoing , Petit i oner demonstrated by clear

and convincing evidence that the puncture of the patients '

internal organs was the result of Respondent ' s violat ion of the

standard of care and improper angling of the cannula during the

procedures.

Fact s Related to the Alleged Medical Records Violation

65 . The circulators at Vanity , Encore , and Spectrum

Aesthetics testified that they prepared the tumescent solution

that Respondent used during his liposuction procedures at

Respondent ' s direction .

66 . T he circulators testified that when preparing the

tumescent solution , they used enough epinephrine to create at

least a 1:1 , 000 , 000 concentration of epinephrine. However , the

additional epinephrine that was purportedly used was never

documented in the pati ents ' operating room records.

67 . Respondent argues that it was the responsibility of the

circulators who prepared the solutions or the facilities at which

he operated that maintain the records , which bear responsibility

for the accuracy of t he recor ds.

68 . Respondent is the surgeon who performed the surgery on

each patient. The operative records for each surgery bear the

same signature in every signature block for " Surgeon Signature ,"

" Physician Signature ," " Osakatukei O. Omulepu , M.D. ," and " Osak

Omulepu , MD. " In most instances , the signature is clearly

legible as O.O. Omulepu.

69 . The record supports by clear and convincing evidence

that Respondent signed or approved these records and bears

responsibility for their accuracy. However , Respondent reviewed

and signed the medical records , all of which omitted the

additional ampule of epinephrine that was purportedly added ,

without correcting the apparent discrepancy.

CONCLUSIONS OF LAW

70 . The Division of Administrative Hearings has pe rsonal

and subject matter jurisdiction in this proceeding pursuant to

sections 120.569 and 120.57(1) , Florida Statutes (2016 ).

71 . 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 therefore 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. Osbor ne Stern & Co. , 670 So. 2d 932 (Fla.

1996)).

72 . 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 wit nesses testify must

be distinctly remembered; the testimony must

be precise and explicit and the witnesses

must be lacking in confusion as to the facts

in issue. The evidence must be of such

weight that it produces in the mind of the

trier of fact a firm belief or conviction ,

without hesitancy , as to the truth of the

allegations sought to be established.

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

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

73 . 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 , 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).

74 . The grounds proving Petitioner ' s assertion that

Respondent ' s license should be disciplined must be those

specifically alleged in the Second Amended Administrative

Complaint. See e.g. , Trevisani v. Dep ' t of Health , 908 So. 2d

1108 (Fla. 1st DCA 2005); Kinney v. Dep ' t of State , 501 So. 2d

129 (Fla. 5th DCA 1987); and Hunter v. Dep ' t of Prof ' l Reg. , 458

So. 2d 842 (Fla. 2d DCA 1984).

Counts I through IV - Standard of Care Violations

75 . Section 458.331(1)(t) , Florida Statutes , provides that

it is a violation for a medical doctor to commit medical

malpractice , as defined in section 456.50 , Florida Statutes. The

statute goes on to state that " the Board shall give great weight

to the provisions of s. 766.102 when enforcing this paragraph. "

76 . Section 456.50(1)(g) defines " medical malpractice " as

the failure to practice medicine in accordance with the level of

care , skill , and treatment recognized in general law related to

he alth care licensure.

77 . The " level of care , skill , and treatment recognized in

general law related to health care licensure " means the standard

of care specified in s ection 766.102 , Florida Statutes.

78 . Subsections (1) , (2) , and (3)(b) of s ec tion 766.102

state (in relevant part):

(1) In any action for recovery of damages

based on the death or personal injury of any

person in which it is alleged that such death

or injury resulted from the negligence of a

health care provider as defined in

s. 766.202(4) , the claimant shall have the

burden of proving by the greater weight of

evidence that the alleged actions of the

health care provider represented a breach of

the prevailing professional standard of care

for that health care provider. The

prevai ling 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

healt h care providers.

(2)(a) If the injury is claimed to have

resulted from the negligent affirmative

medical intervention of the health care

provider , the claimant must , in order to

prove a breach of the prevailing professional

standard of care , show that t he injury was

not within the necessary or reasonably

foreseeable results of the surgical ,

medicinal , or diagnostic procedure

constituting the medical intervention , if the

intervention from which the injury is alleged

to have resulted was carried out in

acc ordance with the prevailing professional

standard of care by a reasonably pruden t

similar health care provider.

(b) The provisions of this subsection shall

apply only when the medical intervention was

undertaken with the informed consent of the

patient i n compliance with the provisions of

s. 766.103.

(3)(b) The existence of a medical injury

does not create any inference or presumption

of negligence against a health care provider ,

and the claimant must maintain the burden of

proving that an injury was pr oximately caused

by a breach of the prevailing professional

standard of care by the health care provider.

79 . The Second Amended Administrative Complaint alleges the

following violations of the standard of care:

1. Failing to use the proper concent ration of

epinephrine in the tumescent solution used

during surgery. (D.M. , N.F. , L.L. and P.N.)

2. Failing to inject the proper amount of

fatty tissue. (D.M.)

3. I njecting fat into the sciatic nerve.

(N.F.)

4. Puncturing or perforating internal organs.

(D.M. and N.F.)

80 . For all four patients , the Second Amended Admi nistrative

Complaint alleges Respondent used tumescent solution with a

concentration of one part per 4 million units. At the hearing ,

evidence and testimony was provided fro m all of the circulators

involved in these cases. The evidence and testimony was clear

that the tumescent solution used by Respondent wa s always prepared

the same way - - one cc of epinephrine was added to each liter of

saline , creating a tumescent solution with a concentration of at

least one part per million of epinephrine . This is the

concentration Petitioner alleges should have been used , and

Respondent did not fall below the standard of care with respect to

the amount of tumescent solution used in these procedures.

81 . The Second Amended Administrative Complaint alleges that

Respondent injected 1250 ccs of fat into Patient D.M. ' s buttocks

bilaterally , and that the standard amount of fatty tissue injected

is approximately 500 ccs. No evidence was p resented to support

this allegation. To the contrary , the evidence in this case

establishes that it is within the standard of care for surgeons

who routinely do this procedure to inject 1500 ccs or more of fat

into each side of the buttocks. The Responde nt did not fall below

the standard of care by injecting 1250 ccs of fat into Patient

D.M.

82 . The Second Amended Administrative Complaint states that

the Respondent injected fatty tissue into Patient N.F. ' s sciatic

nerve , and that this was below the standard of care. The evidence

did not establish that fatty tissue was injected into the

patient ' s sciatic nerve , and thus there is no evidence to support

this allegation.

83 . Finally , the Second Amended Administrative Complaint

alleges that Respond ent fell below the standard of care by

puncturing or perforating internal organs ( Patients D.M. and

N.F.) . Respondent asserts that these minimal allegations are

insufficient to put him on notice of the nature of the alleged

violation. Respondent correctl y p o i nts out that nothing in the

administrative complaint specifically alleges that Respondent

improperly angled the cannula.

84 . Howeve r , the allegations certainly put the Respondent on

notice that his admitted multiple punctures to internal organs in

these two patients was a basis upon which the Petit i oner s ought to

discipline his license. Respondent could have used

interrogatories or the deposition of the Petitioner ' s expert to

discern detailed ultimate facts regarding how Petitioner believed

the negligence to have occurred.

85 . T he clear and convincing testi mony of the experts wa s

that organ punctures during liposu c tion are exceedingly rare

complications which do not occur in the absence of recklessness in

the placement of the cannula , and i nsufficient attention to the

feel of the procedure itself as the cannula passes through fat ,

tissues , muscles and the abdominal wall.

86 . An organ puncture during liposuction is not a per se act

of medical negligence. Nevertheless , i n this case , Res pondent

admitted to P atient N.F ' s mother that he " messed up " and sliced

through Patient N.F. ' s small bowel with his cannula like it was

" butter. " This exceedingly rare complication occurred in not one ,

but two , of Respondent ' s p rocedure s , on the same day.

87 . Respondent ' s assertion of his Fifth Amendment Privilege

against self - incrimination permits the fact - finder to draw

adverse inferences from his silence. Baxter v. Palmigiano , 425

U.S. 308 (1976).

88 . The only inference that can be drawn is that Respondent

violated the standard of care and committed malpractice by the

reckless and improper angling of the cannula for these two

procedures , resulting in the perforation of internal organs.

89 . Petitioner proved by clear and convincing evid ence that

Respondent violated section 458.331(1)(t) by puncturing Patient

D.M. ' s liver multiple times and Patient N.F. ' s small bowel.

Count V - Repeated Medical Malpractice

90 . As discussed herein , Petitioner failed to demonstrate

by clear and convin cing evidence that Respondent committed

repeated medical malpractice by committing three or more

incidents of medical malpractice on Patients D.M. , N.F. , L.L. ,

and/or P.N. Accordin gl y , Respondent did not violate

s ection 458.331(1)(t) , Florida Statutes (2 014) , by committing

repeated medical malpractice.

Counts VI - IX Î Medical Records Violations

9 1 . Section 458.331(1)(m) provides that it is a violation

for a physician to fail to keep legible , as defined by Department

rule in consultation with the Boar d , 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 procedur e 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.

92 . Petitioner proved by clear and convincing evidence that

Respondent failed to create or keep medical records that

accurately reflected the amount of epinephrine administered to

Patients L.L. , D.M. , N.F. , and P.N.

93 . As a result , Petitioner prov ed by clear and convincing

evidence that Respondent violated section 458.331(1)(m).

Penalty Assessment

94 . Respondent has no prior discipl ine against his medical

license.

95 . Petitioner imposes penalties upon licensees consistent

with disciplin ary 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).

96 . Penalties in a licensure discipline case may not exceed

those in effect at the time the violations were commit ted.

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

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

I d .

97 . At the time of the incidents , Florida Administrative

Code Rule 64B8 - 8.001(2)(t) provided that for a first - ti me

offender committing medical malpractice , as described in section

458.331(1)(t) , the prescribed penalty range was from one year

probation to revocation or denial and an administrative fine from

$1 , 000.00 to $10 , 000.00. The recommended penalty for a seco nd

violation of section 458.331 (1)(t) ranged from two years of

probation to revocation and an administrative fine from $5 , 000 .00

to $10 , 000 .00 .

98 . Rule 64B8 - 8.001(2)(m) provided that for a first - time

offender failing to keep required medical records , as described

in section 458.331(1)(m) , the prescribed penalty range was from a

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

probation , and an administrative fine from $1 , 000.00 to

$10 , 000.00. The recommended penalty for a second violat ion of

section 458.331(1)(m) ranged from probation to suspension

followed by probation or denial and an administrative fine from

$5 , 000 .00 to $10 , 000. 00.

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

penalty guidelines , the following aggravat ing and mitigating

circumstances should also be taken into account:

(3) Aggravating and Mitigating

Circumstances. Based upon consideration of

aggravating and mitigating factors present in

an individual case , the Board may deviate

from the penalties recom mended 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 of fense:

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 o f the

applicant or licensee in any jurisdiction and

the length of practice;

(f) Pecuniary benefit or self - gain inuring

to the applicant or licensee;

(g) The involvement in any violation of

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

controlled substan ces 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 pursuan t 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.

1 00 . A significant aggravating fa ctor is that Respondent ' s

actions exposed Patients D.M. and N.F. to severe injury or

death. 3/ Aggravating factor (c) applies because Petitioner

established six separate offenses committed by Respondent.

Additionally , under paragraph (h) , Respondent was ch arged with

violating the standard of care and it was found that he failed to

keep adequate medical records. This is mitigated by Petitioner ' s

prior nine years of discipline - free history.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclus ions of

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

order finding that Respondent violated sections 458.331(1)(t) and

458.331(1)(m) , Florida Statutes , as charged in Petitioner ' s

Second Amended Administrative Complain t; imposing a fine of

$14 , 000.00 4/ ; i ssuing a reprimand against Peti t i oner for the

record - keeping violations; placing Respondent on probation for a

period of two years ; and imposing costs of the investigation and

prosecution of this case.

DONE AND ENTERED this 6th day of J anuary , 2017 , in

Tallahassee , Leon County , Florida.

S

MARY LI CREASY

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 6th day of January , 2017 .

ENDNOTE S

1/ Petit i oner ' s tendered expert , Dr. Scott Greenberg , was

qualified to provide an opinion with regar d to liposuction.

However , the undersigned found that Dr. Greenberg was not an

expert on the gluteal fat transfer procedure portion of the BBL.

It is this portion of the procedure during which Petit i oner

alleges Respondent injured P atient N.F. ' s sciatic nerve.

Accordingly , Dr. Greenberg was prohibited from offering testimony

on the gluteal fat transfer and there was no evidence presented

upon which to make findings of fact regarding Patient N.F. 's

nerve damage . Petitioner made a proffer of this testimon y for

the record.

2/ Respondent ' s Ex. 1 , Deposition transcript of Dr. Mendieta

47/15 - 20.

3/ Respondent ' s suggestion , that Patient D.M. ' s liver puncture

and injury to her abdomen and chest wall were minor because there

was no treatment provided , is reje cted. D.M. endured significant

pain. Just because repair was not possible does not render the

injury less than serious.

4/ The penalty includes $5,000.00 each ($10,000.00 total) for the

malpractice committed against Patients D.M. and N.F., plus

$1, 000. 00 each for the four record - keeping violations. Although

the recommended penalty for the second through fourth re cord -

keeping violations ran ge from $5,000.00 to $10,000.00, t he

undersigned does not believe assessing the higher penalty serves

a deterrent e ffect because these four violations all occurred

within a 48 - hour period. Additionally, it should be noted that

the Second Amended Complaint, which included the record - keeping

counts for the first time, was not filed until the morning of the

final hearing .

COPIES FURNISHED:

Kristen M. Summers , Esquire

John Wilson , Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee , Florida 32399

(eServed)

Monica Felder - Rodriguez , Esquire

Rodriguez & Perry , P.A.

Suite 107

7301 Wiles Road

Coral Springs , Florida 33067

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

Claudia Kemp, JD, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin C03

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.