19-004724PL Department Of Health, Board Of Osteopathic Medicine vs. John Joseph Im, D.O. Status: Closed Recommended Order on Monday, December 16, 2019.

Summary: Petitioner proved that Respondent committed medical malpractice by failing to counsel J.K. regarding taking Levaquin with Tikosyn.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH,

BOARD OF OSTEOPATHIC MEDICINE ,

Petitioner , Case No. 19 - 4724PL

vs.

JOHN JOSEPH IM, D.O. ,

Respondent .

/

RECOMMENDED ORDER

On November 7, 2019, Administrative Law Judge Yolonda Y.

Green of the Florida Division of Administrative Hearings

(“Division”), conducted a final hearing pursuant to section

120.57(1), Florida Statutes , in Lady Lake , Florida.

APPEARANCES

For Petitioner: Vir ginia Edwards, Esquire

William Edward Walker, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: John Joseph Im, D.O . , pro s e

Exceptional Urgent Care Center

13767 U. S. Highway 441

Lady Lake, F lorida 32159

STATEMENT OF THE ISSUE S

Whether Respondent failed to meet the prevailing

professional standard of care by failing to counsel J.K.

regarding the risks of, or altern atives to, taking Levaquin with

Tikosyn in violation of section 459.015(1)(x), Florida Statutes ,

as alleged in the Administrative Complaint ; and, if so, what

sanction is appropriate.

PRELIMINARY STATEMENT

On June 19, 2019 , Petitioner, the Department of Health ,

Board of Osteopathic Medicine ( “ Petitioner ” or the

“ Department ” ), filed an Administrative Complaint against

Respon dent, Dr. John Joseph Im , D.O. (“Respondent” or “Dr. Im”),

alleging that he violated sec tion 459.015(1)(x) . On July 24,

2019 , Respondent filed an Election of Rights seeking a final

hearing pursuant to section 120.57(1) , and on September 6, 2019 ,

the case was referred to the Division for assignment of an

administrative law judge.

The undersig ned issued a Notice of Hearing scheduling the

final hearing to take place on November 7, 2019, which commenced

on the scheduled date. At hearing, Petitioner presented the

testimony of patient J.K. (by depo sition), K.K. (Patient J.K.’s

wife), and Dr. Antho ny Davis (Petitioner’s expert).

Petitioner’s Exhibits 1 through 3, and 5 through 9 were

admitted. Petitioner proffered Exhibit 4. Respondent testified

on his own behalf. Respondent’s Exhibit 7 was admitted over

objection, and Exhibit 8 was admitted wit hout objection.

At the hearing , the undersigned considered Respondent’s

Motion for Sanction s as it related to his assertions regarding

the conduct of Petitioner’s counsel during the deposition of

K.K. After hearing argument from both parties, the under signed

denied Respondent’s request for sanctions. 1 /

The one - volume Transcript of the hearing was filed with the

Division on December 4, 2019. The Petitioner timely filed its

Proposed Recommended Order in this matter, which has been

carefully considered i n the preparation of this Recommended

Order. Respondent did not file a post - hearing submittal.

Unless otherwise indicated, all references to the Florida

Statutes are to the 2017 codification, and all references to the

Florida Administrative Code are to the 2016 version. 2/

FINDING S OF FACT

The following Findings of Fact are based upon the testimony

and documentary evidence presented at hearing, the demeanor and

credibility of the witnesses, and on the entire record of this

proceeding.

1. Petitioner is the state agency charged with regulating

the practice of osteopathic medicine pursuant to section 20.43,

and chapter s 456 and 459 , Florida Statutes .

2. At all times material to these proceedings , Respondent

was a licensed os teopathic physician within th e S tate of

Florida, having been issued license number OS 8729.

3. Respondent's addr ess of record at the time of filing

the Administrative C omplaint was 1195 0 County Road 101, Suites

101, 102, and 10 3, The Villages, Florida 32162. Respondent's

current ad dress of record is 13767 U.S. Highway 441, Lady Lake,

Florida 32159.

4. Respondent currently holds no board certification in

any specialty area, and did not complete any residency other

than in emergency medicine. Respondent attended Michigan State

Univ ersity , College of Osteopathic Medicine. In 2002, he began

full - time practice as an emergency room physician at Munroe

Regional Medical Center in Ocala, Florida. He worked as an

emergency room physician until he opened Exceptional Urgent Care

Center (“EU CC”) .

5. At all times material to this com plaint, Respondent

owned and operated EUCC .

Treatment Provided to Patient J.K.

6. O n March 15, 2018, J.K., along with his wife, pres ented

to EUCC with complaints of a sore throat and fever. This was the

first o f two visits to the clinic.

7. J.K. reported his medications as Amlodipine, Warfarin,

Tamsulosin, and Dofetilide ( unless otherwise indicated,

hereinafter referred to by its trade name "Tikosyn").

8. J.K. was prescribed these medications by his

cardiolo gist at the William S. Middleton Memorial Veterans

Hospital (“V.A. Hospital”) in Wisconsin , his home state .

9 . Relevant to this matter, Tikosyn helps patients

maintain a normal heartbeat rhythm. Tikosyn was prescribed to

keep J.K.'s heart in rhythm as he had atrial fibrillation.

10. J.K. was treated by a nurse practitioner, who ordered

a chest x - ray and a flu swab. The flu swab returned negative,

and the chest x - ray showed no focal pneumonia. J.K. was

prescribed Tamiflu and Naproxen. J.K. elected not to fill the

Tamiflu due to the “expensive cost.” Respond ent was not

involved in J.K.'s treatment on this date.

11. On March 16, 2018, J.K. and his wife K.K. returned to

EUCC as J.K.’s symptoms had not improved. On this visit, J.K.

saw Dr. Im. Dr. Im evaluated J .K. and ordered two tests.

Dr. Im ordered a Prothrombin Time International Normalized

Ration ("PT INR") test to determine J.K.'s coagulation and he

ordered a CT scan of the chest. The PT INR results were within

the therapeutic range. The C T scan showed shattered ground -

glass opacification in the posterior right lower lobe and the

medial left upper lobe. The CT scan findings were interpreted

as "non - specific, may represent hypoventilatory change or an

infectious inflammatory process (acute or chronic).”

12. Respondent advised J.K. and K.K. that the CT scan

appeared to show the start of pneumonia, and he was going to

prescribe three medications: Levaquin 750 mg, Prednisone 20 mg ,

and Zyrtec 10 mg .

13. K.K. testified that she asked Respon dent if the

Levaquin, Prednisone, or Zyrtec were contraindicated with any of

J.K.'s current prescriptions, specifically Tikosyn. K.K recalls

that Respondent replied that he was not familiar with Dofetilide

(Tikosyn), and advised them to check with the pha rmacist to see

if there were any contraindications.

14. Althoug h Respondent initially advised J.K. and K .K.

that he was not familiar with Tikosyn, Respondent testified that

he advised J.K. and K.K. of the possible interactions between

Levaquin and Tikosyn and told her that the interaction was very

rare. He testified that he advised J .K. and K.K. that the

pharmacist is a safety net, and the pharmacist would call him to

discuss the prescriptions if he missed anything.

15. K.K. credibly testified that Res po ndent did not

counsel J.K. or K.K. on any risks regarding the medications

Dr. Im prescribed or provide them with any alternatives during

the visit on March 16, 2018.

16. J.K. and K .K. left EUCC and went to Publix to fill the

prescriptions. K.K. asked th e pharmacist if any medications

woul d interfere with any of J.K.'s prescribed medications. Upon

advice of the pharmacist that Levaquin was contraindicated with

Tikosyn, K.K. declined to fill the prescription for Levaquin.

17. On behalf of J.K., K.K. the n called EUC C and asked for

a different antibiotic that would not interact with Tikosyn.

However, she was instructed to contact J.K.'s cardiologist.

18. K.K. then contacted the cardiology staff of the V.A.

Hospital in Wisconsin, who instructed K.K. to f ollow the advice

of the pharmacist and (tell J.K.) not to take the Levaquin.

19. K.K. called EUCC a second time to confirm whether J.K.

had an infection and she was told that J.K. did not have an

infection.

20. Respondent recalls that he had a persona l conversation

with K.K. during a courtesy telephone call placed the next day

(March 17, 2018). Respondent testified that during that call ,

he explained Levaquin was the drug of choice, other medications

would not cover J.K.'s pneumonia, the potential int eracti ons

were very rare, and J.K. needed to take the Levaquin. By his

own admission and his medical records, Respondent did not

provide J.K. or K.K. with any specific alternative antibi otics

and insisted that J.K. needed to take the Levaquin.

21. K.K. disputes that Dr. Im spoke with her or J.K. at

any point after the March 16, 2018 , visit. She clearly recalled

that she spoke with a woman each time she spoke with staff at

Dr. Im’s office. Overall, J.K. and K.K. clearly and

convincingly testified that Respondent never advised them of the

risks of using Levaquin with Tikosyn or provided any

alternatives to the Levaquin.

Expert Testimony

22. Petitioner offered the testimony of Dr. Anthony Davis ,

who testified as an expert. Dr. Davis has been licensed as an

osteopathic physician in Florida since 1995. Dr. Davis attended

Kirksville College of Osteopathic Medicine and completed an

internship in family practice. He has been board certified in

family medicine by the American Board of Osteopathic Family

Phys icians since 2001, and board certified in emergency medicine

by the American Association of Physician Specialists since

July 2003. He is also affiliated with professional

organizations including the American College of Family P ractice

and Florida Osteopat hic Medical Association.

23. Dr. Davis was accepted as an expert in emergency and

family medicine.

24. Dr. Davis relied upon his work experience, his

training , and his review of the medical records for J.K. to

render his opinion regarding the standard of care related to

treating J.K.

25. The standard of care requires an osteopathic physician

treating a patient similar to J.K. to: (1) provide and document

their justification for why Levaquin was the appropriate drug of

choice; (2) note the patient’s ackn owledgment that there are

interactions with Tikosyn; (3) ensure the patient understands

the risks and benefits of comb ining Tikosyn and Levaquin;

(4) explain to the patient that there are limited alternatives

to Levaquin ; and (5) provide the reason for pre scribing a

potentially dangerous drug.

26. Levaquin is a medication that comes with a black box

warning that requires physicians to counsel patients on the

risks associated.

27. When a drug is designated as contraindicated and h as a

category X for inte raction, the standard of care requires that

the physician clearly explain s to the patient wh y they are using

the drug and defend how it is going to be safe. Tr., p. 70.

28. Dr. Davis opined there were multiple treatme nt options

available for J.K., such a s supportive care or an antibiotic

with a lower risk of interaction with J.K.'s existing

medication. Moreover, Dr. Davis testified that there were safer

alternatives to Levaquin that would effectively treat pneumonia,

such as doxycycline, if J.K. actually had pneumonia and an

antibiotic was necessary.

29. Respondent provided literature from the Infectious

Diseases Society of America related to community - acquired

pneumonia in an attempt to prove that X - Ray or other imaging

techniques are required for the diagnosis of pneumonia and to

support his claim that Levaquin was the drug of choice for J.K.

However, Dr. Davis credibly pointed out that the article,

published in 2007 , is no longer accurate.

CONCLUSIONS OF LAW

30. The Division has jurisdiction of the subject matter

and the parties to this action pursuant to sections 120.569 and

120.57(1) , Florida Statutes (2019) .

31 . This is a proceeding in which the Department seeks to

revoke Respondent’s license to practice medicine. The

Department has the burden to prove the allegations in the

Administrative Complaint by clear and convincing evidence.

Dep't of Banking & Fin. v. Osborne Stern and Co. , 670 So. 2d 932

(Fla. 1996); Ferris v. Turlington , 595 So. 2d 292 (Fla. 1987).

As stated by the Supreme Court of Florida,

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 at issue. The

e vidence must be of such a 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 Henson , 913 So. 2d 579, 590 (Fla. 2005) (quoting Slomowi tz

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

burden of proof may be met where the evidence is in conflict;

however, “it seems to preclude evidence that is ambiguous.”

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988

(Fla. 1st DCA 1991).

32 . 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 Conser . 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).

33 . Petitioner charged Respondent under section

459.015(1)(x), which provides in pertinent part:

“ Notwithstanding s. 456.072 (2) but as specifie d in s. 456.50 (2):

1. Committing medical malpractice as defined in s. 456.50 . The

board shall give gr eat weight to the provisions of s. 766.102

when enforcing this paragraph. Medical malpractice shall not be

construed to require more than one instance, event, or act.”

34 . The Administrative Complaint alleged that Respondent

committed medical malpractice. Section 456.50(1)(g), Florida

Statutes, defined "medical malpractice , " in relevant part , as

the failure to practice medicine in accordance with the level of

care, skill, a nd treatment recognized in general law related to

health care licensure.

35 . Section 766.102(1), Florida Statutes, provided in

part , that the prevailing professional standard of care for a

given health care provider shall be t hat level of care, skill,

an d treatment which, in light of all relevant surrounding

circumstances, is recognized as acceptable and appropriate by

re asonably prudent similar health care providers.

36. Petitioner alleged that Respondent committed medical

malpr actice by failing to advis e J.K. of the contraindication of

Levaquin and Tikosyn. Dr. Davis testified that the applicable

standard of care requ ired that an osteopathic physician advise a

patient of the interactions between Levaquin and Tikosyn and

provide any alternatives to takin g Levaquin. Dr. Davis’ expert

testimony was credited. Petitioner proved this allegation.

37. Even had Levaquin not been contraindicated with

Tikosyn, the standard of care requ ired that Respondent advise

J.K. of the additional risks , including death, in volved in

taking the two drugs together . The mo re compelling evidence

demonstrates that Respondent did not advise J.K. of these risks ,

and Respondent’s testimony to the contrary is rejected as not

credible.

38 . Petitioner established by clear and convinc ing

evidence that Respondent committed medical malpractice in

viol ation of section 459.015(1)(x), as charged in the

Administrative Complaint.

Penalty

39 . Petitioner imposes penalties upon licensees consistent

with disciplinar y guidelines prescribed by Fl orida

Administrative Code Rule 64B15 - 19.002. See Parrot Heads, Inc.

v. Dep't of Bus. & Prof'l Reg. , 741 So. 2d 1231, 1233 - 34

(Fla. 5th DCA 1999).

40 . Penalties in a licensure discipline case may not

exceed those in e ffect at the time the violation was c ommitted.

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

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

41. At the time of the incidents, r ule 64B15 - 19.002(28)

provided that for a first - time offender , committing medical

malpractice, as de scribed in section 459.015(1)(x), the

prescribed penalty range was “letter of concern, up to one (1)

yea r probation and $1,000 fine to d enial or revocation and

$10,000 fine.”

42 . Rule 64B15 - 19.003 provided that, in applying t he

penalty guidelines, Petitioner may deviate from the penalties

r ecommended above when there is evidence of aggravating and

m itigating factors present in the individual case. Petitioner

shall consider aggravating or mitigating factors as fol lows :

(1) The danger t o the public;

(2) The length of time since the

violations;

(3) The number of times the licensee has

been previously disciplined by the

Board;

(4) The length of time the licensee has

practiced;

(5) The actual damage, physical or

otherwise, caused by the violation;

(6) The deterrent effect of the penalty

imposed;

(7) The effect of penalty upon the

licensee’s livelihood;

(8) Any effort of rehabilitation by the

licensee;

(9) The actual knowledge of the licensee

pertaining to the violation;

(10) Attempts by the licensee to correct

or stop violations or refusal by

licensee to correct or stop

violations;

(11) Related violations against licensee

in another state, including findings

of gu ilt or innocence, penalties

imposed and penalties served;

(12) The actual negligence of the licensee

pertaining to any violations;

(13) The penalties imposed for related

offenses; and

(14) The pecuniary gain to the licensee;

(15) Any other rele vant mitigating or

aggravating factors under the

circumstances. Any penalties omposed

by the board may not exceed the

maximum penalties set forth in Section

459.015(2), F.S.

43 . A significant aggravating factor was that Respondent's

actio ns exposed J.K . to potential serious injury or death .

While there was potential for harm, J.K. did not suffer harm as

he did not fill the prescription or take the Levaquin.

44 . On the other hand, Respondent was not under any legal

restraints at the time of the incide nt. There was no evidence

of any prior disciplinary history in any jurisdiction over a

15 - year successful career. Respondent received no special

pecuniary benefit or self - gain from his actions. While these

factors do not serve as a legal defense to the proven charges,

they are relevant in determining an appropriate penalty.

45 . Taken as a whole, the evidence presented does not

warrant deviation in penalty from the disciplinary guidelines

co ntained within the rule .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Os teopathic Medicine

enter a Final O rder as follows:

a) F inding that John Joseph Im, D.O. , violated section

459.015(1)(x), by committing medical malpractice, as defined in

secti on 456.50, as alleged in the Administrative Complaint ;

b) Issue a letter of concern against Respondent’s license

to practice osteopathic medicine ;

c) Requiring completion of a prescribing practices course;

and

d) Imposing a n administrative fine of $2 ,5 00.

DONE AND ENTERED this 16th day of December , 2019 , in

Tallahassee, Leon County, Florida.

YOLONDA Y. GREEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkw ay

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 16th day of December , 2019 .

ENDNOTE S

1/ K.K. was not The deposition in lieu of live testimony of

admitted into evidence as Respondent successfully argued there

were questions he desired to ask the witness that he was unable

to ask during the deposition.

2/ eferences to the statutory Unless otherwise noted, r

codification or rules are to those in effect at the time the

alleged violation occurred.

COPIES FURNISHED:

Virginia Edwards, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

William Edward Walker, Esquir e

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

John Joseph Im, D.O.

Exceptional Urgent Care Center

13767 U. S. Highway 441

Lady Lake, Florida 32159

(eServed)

Kama Monroe, Executive Director

Board of Osteopath ic Medicine

Department of Health

Bin C06

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3257

(eServed)

Louise Wilhite - St. Laurent, General Counsel

Department of Health

Bin C65

4052 Bald Cypress Way

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGH T 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.