20-003062PL Department Of Health, Board Of Nursing vs. Alejandro Perez, A.P.R.N. Status: Closed Recommended Order on Monday, May 3, 2021.

Summary: APRN performed intravitreal injections into the eyes of three patients resulting in blindness. APRN had no written protocol for the procedure, was unsupervised, unqualified, and represented himself as a doctor. Recommend revocation of license.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

N URSING ,

Petitioner ,

vs. Case Nos. 20 - 3057PL

20 - 3062PL

A LEJANDRO P EREZ , A.P.R.N. , 20 - 3066PL

Respondent .

/

R ECOMMENDED O RDER

On October 28 and 29 , 2020, Robert E. Meale, Administrative Law Judge

of the Division of Administrative Hearings (DOAH), conducted the final

hearing by Zoom.

A PPEARANCES

For Petiti oner: Dirlie Anna McDonald, Esquire

Nicole M. DiBartolomeo, Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

For Respondent: Dwight Oneal Slater, Esquire

Cohn Slater, P.A.

3689 C oolidge Court, Unit 3

Tallahassee, Florida 32311

S TATEMENT OF T HE I SSUE S

The issues are whether, during 2015, Respondent held himself out as a

Ñ doctor of medicine, Ò even though he did not hold a license to practice

medicine in Florida, in violation of section 456.072(1)(m), Florida Statutes

(2014); whether, during 2015, Respondent exceeded the scope of his advanced

practice registered nursing (APRN) 1 license modifier by removing adipose

tissue from a patient Ô s abdomen, performing intravitreous injec tions of the

processed tissue into both eyes of a patient, and failing to have a protocol in

place for the removal of abdominal adipose tissue and the intravitreous

injection of any material into a living person, in violation of section

456.072(1)(o); and, if so, the penalty that should be imposed.

P RELIMINARY S TATEMENT

These three cases involve similar allegations concerning three patients.

The Administrative Complaint alleges that, at all material times, Respondent

was an APRN, holding license number APR N 9201869, and he was employed

by U.S. Stem Cell Clinic (the Clinic), which was an affiliate of Bioheart, Inc.

In DOAH Case 20 - 3057PL, the Administrative Complaint alleges that

E.K., an 88 - year - old female with macular degeneration, presented to the

Clinic for a Ñ stem cell Ò injection on May 15, 2015. Allegedly, E.K. had

previously been evaluated and approved for the procedure by Shareen

Greenbaum, an M.D. specializing in ophthalmology. On May 15, Respondent

allegedly represented himself to E.K. and her niec e, B.K. , as Ñ Dr. Perez Ò and

allegedly held himself out to the public as Ñ Alex Perez, D[octor of] M[edicine],

NP - C , Ò on the website of the Clinic, where he was referred to as Ñ Dr. Perez, Ò

even though Respondent did not hold a license to practice medicine.

On May 15, Respondent allegedly performed a procedure to remove

adipose, or fat, tissue from E.K. Ô s abdomen and intravitreously inject the

tissue, after processing, into both eyes of the patient. On May 15, E.K.

allegedly experienced complications, includi ng bilateral retinal detachment

and blindness, due to the intravitreal injections of the product created from

1 Until 2018, an APRN was known as an Ñ advanced registered nurse practitioner .Ò For ease

of reference, this recommended order will use only the current title.

the adipose tissue. Due to the injections, E.K. allegedly became legally blind

with no light perception in either eye.

In 2015, Respondent allege dly did not have an APRN protocol in place

covering the removal of abdominal fat tissue or injection of any material

intravitreously into a living person.

Count I of the Administrative Complaint alleges that section 456.072(1)(o)

provides that discipline may be imposed if a licensee practices or offers to

practice beyond the scope permitted by law or accepts or performs

professional responsibilities that the licensee knows, or has reason to know,

he is not competent to perform. Count I alleges that Respond ent exceeded the

scope of his APRN license by removing fat tissue from E.K. Ô s abdomen,

performing intravitreous injections into both of E.K. Ô s eyes, and failing to

have in place an APRN protocol covering the removal of abdominal fat tissue

or injection of any material intravitreously into living persons.

Count II of the Administrative Complaint alleges that section

456.072(1)(m) provides that discipline may be imposed if a licensee makes

deceptive, untrue, or fraudulent representations in or relation to th e practice

of a profession or employs a trick or scheme in , or relat ing or relat ed to , the

practice of a profession. Count II alleges that Respondent made deceptive,

untrue, or fraudulent representations related to the practice of his profession

by represe nting himself to E.K. and B.C. as Ñ Dr. Perez Ò and by holding

himself out to the public as Ñ Alex Perez, DM, NP - C ,Ò on the Clinic Ô s website,

which addressed him as Ñ Dr. Perez. Ò

The Administrative Complaint seeks the full range of penalties through

revocatio n.

Counts I and II of the Administrative Complaints in DOAH Case

Nos. 20 - 3062PL and 20 - 3066PL are identical to Counts I and II of the

Administrative Complaint in DOAH Case No. 20 - 3057PL, except for the facts

set forth immediate below.

In DOAH Case No. 20 - 3062PL, the Administrative Complaint alleges that

P.B., a 77 - year - old female with macular degeneration, presented to the Clinic

for a Ñ stem cell Ò injection into both eyes on June 16, 2015. Allegedly, P.B. had

previously been evaluated and approved for the procedure by William

Mestrezat, an M.D. specializing in the retina, and Dr. Greenbaum. On

June 16, Respondent allegedly represented himself to P.B. as Ñ Dr. Perez Ò and

held himself out to the public as Ñ Alex Perez, DM, NP - C , Ò on the website of

the Clinic, where he was referred to as Ñ Dr. Perez, Ò even though Respondent

did not hold a license to practice medicine.

On May 16, Respondent allegedly performed a procedure to remove fat

tissue from P.B. Ô s abdomen and intravitreously inject the tissue, after

proces sing, into both eyes of the patient. On May 15, P.B. allegedly

experienced complications, including bleeding from the eyes, due to the

intravitreous injections of the product created from the fat tissue. Due to the

injections, P.B. allegedly became legally blind with no light perception in

either eye.

In DOAH Case No. 20 - 3066PL, the Administrative Complaint alleges that

E.N., a 75 - year - old female with macular degeneration, presented to the Clinic

for a Ñ stem cell Ò injection into both eyes on June 16, 2015. Allegedly, E . N . had

previously been evaluated and approved for the procedure by Dr. Greenbaum.

On June 16, Respondent allegedly represented himself to E.N. as Ñ Dr. Perez Ò

and held himself out to the public as Ñ Alex Perez, DM, NP - C , Ò on the website

of the Clinic, where he was referred to as Ñ Dr. Perez, Ò even though

Respondent did not hold a license to practice medicine.

On June 16, Respondent allegedly performed a procedure to remove fat

tissue from E.N. Ô s abdomen and intravitreously inject the tissue, aft er

processing, into both eyes of the patient. On June 16, E.N. allegedly

experienced complications, including nausea, vomiting, and loss of

consciousness due to the intravitreous injections of the product created from

the fat tissue. Due to the injections, E . N . allegedly became legally blind with

no light perception in either eye.

For each of the three cases, Respondent requested a hearing involving

disputed issues of fact . On July 29, 2020, the administrative law judge issued

an O rder consolidating the th ree cases.

At the hearing, Petitioner called 11 witnesses and offered into evidence

nine exhibits: Petitioner Exhibits 1 through 4 and 6 through 10. Respondent

called one witness and offered two exhibits into e vidence: Respondent Ô s

Exhibits A and B. All e xhibits were admitted except for Respondent Ô s

Exhibit A. However, Respondent Ô s exhibits are in Spanish, and Respondent

has not provided an interpretation of either of them.

The two - volume Transcript was filed on November 13, 2020. Petitioner

timely filed its P roposed R ecommended O rder on January 11, 2021. On the

same date, Respondent Ô s counsel requested additional time within which to

file his P roposed R ecommended O rder due to a recent case of Covid - 19. On

January 12, 2021, the administrative law judge ext ended Respondent Ô s

deadline to January 14 , 2021 . Because Respondent would have the advantage

of having read Petitioner Ô s P roposed R ecommended O rder before filing

Respondent Ô s P roposed R ecommended O rder, the O rder allowed Petitioner an

opportunity to file a response to Respondent Ô s P roposed R ecommended O rder

by January 19 , 2021 . Petitioner filed a five - page response on January 19,

2021, which Respondent moved to strike as unauthorized under the law. The

administrative law judge denied the motion to strike by O rder entered

January 20 , 2021 .

The parties Ô proposed recommended orders were taken into consideration

in the drafting of this Recommended Order. On April 20, 2021, this case was

transferred to the undersigned due to the inability of Judge Meale to final ize

the Recommended Order. However, prior to the transfer, Judge Meale had

drafted a significant portion of this Recommended Order, including his

Findings of Fact and credibility determinations. The undersigned reviewed

the T ranscript and all exhibits prio r to editing and finalizing this

Recommended Order.

Unless otherwise indicated, all statutory references are to the versions in

effect at the time of the alleged violations.

F INDINGS OF F ACT

The Parties

1. Petitioner is the state agency charged with regula ting the practice of

nursing pursuant to section 20.43, and chapter s 456 and 464 , Florida

Statutes .

2. Respondent was born and raised in Cuba, where he obtained a licensed

practical nurse degree and, in 1995, Respondent earned a Doctor of Medicine

degree and moved to Florida. On two occasions, Respondent failed to pass

the examinations in Florida for licensure as a medical doctor.

3. Respondent obtained a Florida license as a registered nurse in 2005

and, in March 2015, a license modifier as an APRN. Respondent Ô s highest

relevant education in the United States is a Master of Science degree in

nursing awarded in December 2014 from the south Florida campus of the

University of Turabo. A couple of months later, the American Academy of

Nurse Practitioners certified R espondent as a Family Nurse Practitioner.

4. The transfer of processed fat tissue into the eye is thought, by some, to

treat conditions of the eye, such as dry macular degeneration, to be part of

regenerative medicine. This so - called Ñ stem cell injection proc edure Ò

( Ñ procedure Ò ) comprises three steps: ( 1) removing the fat tissue, usually from

the abdomen; ( 2) processing the fat tissue to prepare it for injection; and ( 3)

injecting the processed fat tissue into the vitreous cavity at the back of the

eye.

5. Follo wing the completion of his medical education in Cuba, Respondent

obtained varying degrees of training and experience in the each of the three

steps of the procedure. Respondent testified that he trained with a

Ñ specialist, Ò possibly an ophthalmologist, in intravitreal injections. This

covered such topics as the choice of syringe, the preparation of the patient,

maintaining an open eye, the choice of a substance to stabilize the inside and

outside eye, and the angle of the needle to the surface of the eye at the point

of injection. Respondent also obtained training in intranasal and

intraarterial injections, the latter of which is the more complicated.

Respondent obtained a certificate in Mexico for completing the training in

the removal of tissue from bone m arrow. Respondent did not detail his

training or experience in processing removed fat tissue.

6. Through much of Latin America, Respondent has injected processed fat

tissue, at the rate of about ten patients over one week , and has trained other

healthcare pro viders to perform these procedures. Respondent also testified

that he had performed a dozen intravitreal injections of processed fat tissue

in Mexico and Chile prior to the three injections at issue in this case, so it

seems that most of his experience did not involve intravitreal injections.

7. Respondent Ô s only evidence of purported Ñ stem cell Ò experience was

assisting in bone marrow aspiration, not surgical adipose tissue removal or

intravitreal injections.

8. Respondent admitted that he had never performed i ntravitreal

injections under the supervision of an ophthalmologist, a medical doctor of

any type, or in a supervised training program prior to performing

intravitreal injections on Patients E.K., E.N., and P.B. in May and June of

2015 . Respondent failed to provide any evidence that he was educated or

supervised by a licensed physician in the performance of these procedures

prior to performing them on Patients E.K., E.N., and P.B.

Performance of the Procedure by Respondent at the Clinic

9. Respondent Ô s first i ntravitreal injection of fat tissue at the Clinic took

place in April 2015, about one month after he had completed the educational

requirement for this APRN license modifier. Having retained Respondent as

an independent contractor, the Clinic called him a few days before an

upcoming intravitreal stem cell injection to confirm his availability. The

Clinic paid Respondent $500 per procedure, for which it charged each

patient $5000. Although the Clinic operated this program as an FDA -

registered clinical trial, all procedures were Ñ patient funded treatment, Ò and

the Clinic was not affiliated with any educational or research institution

investigating stem - cell treatment of eye diseases or disorders.

10. The three patients involved in this case are , or were , E.K., P.B ., and

E.N. E.K. Ô s procedure took place on May 15, 2015, and P.B. and E.N. Ô s

procedures took place on June 16, 2015. Each patient suffered from dry

macular degeneration. Each patient was sighted at the time of the

procedure, at the end of which, each patie nt was substantially blind. At the

time of each patient Ô s procedure, E.K., who died five years after her

procedure, was 89 years old and resided in Oklahoma. P.B. was 77 years old

and resided in southwest Florida, and E.N. was 72 years old and resided in

M issouri, where she had taught research methods to graduate students at

the University of Missouri.

11. At the time of the subject procedures, the Clinic was affiliated with

Bioheart, Inc., a publicly traded corporation. Key employees of the Clinic

included Kr istin Comella, who served as the chief scientist of the Clinic and

chief scientific officer of Bioheart and holds bachelor Ô s and master Ô s degrees

in chemical engineering, and Dr. Antonio Blanco, who is an internist in

Hollywood, Florida , with 26 years of p ractice and the medical director of the

Clinic and holds a medical degree from Georgetown University. The Clinic Ô s

website adds that Ms. Comella is in the top 50 of global stem - cell

influencers.

12. E.K. and E.N. testified that they learned about or confirmed their

interest in the Clinic by an online search of clinical trials of stem - cell

treatment for dry macular degeneration. Neither patient differentiated

between patient - funded clinical trials, such as these, and clinical trials

whose treatment costs were su bsidized by research centers, universities,

hospitals, and pharmaceutical manufacturers.

13. E.K. Ô s medical records do not include any representations as to

Respondent Ô s status as a healthcare provider. E.K. and her niece, who

accompanied her, arrived in Fort Lauderdale in sufficient time for E.K. Ô s

pre - operative appointment with Dr. Greenbaum, an ophthalmologist

employed with the Hollywood Eye Clinic. Until she spoke with

Dr. Greenbaum, E.K. believed that Dr. Greenbaum would perform the

procedure, based on wha t she had been told by Clinic staff.

14. At the pre - operative exam conducted by Dr. Greenbaum, E.K. and her

niece learned that Dr. Greenbaum would not be performing the procedure on

the following day. Dr. Greenbaum mentioned Respondent Ô s name, so the

niece ha d her husband research Respondent that night, but his research

revealed nothing.

15. The next day, E . K. and her niece were introduced to Respondent by a

Clinic employee, likely Ms. Comella. The niece does not recall if the

employee referred to Respondent as a physician, but she assumed that he

was. She recalled only that the clinic employee introduced him by saying

that he was very experienced and had performed lots of stem cell injections

of this type. The niece recalled distinctly that Respondent introduced h imself

as a Ñ medical doctor. Ò Respondent denies doing so. The niece Ô s testimony is

credited based on the totality of the evidence.

16. P.B. Ô s medical records do not include any representations as to

Respondent Ô s status as a healthcare provider except for the operative report,

which bears Respondent Ô s signature above Ñ Physician Signature. Ò Well prior

to the date of the procedure, P.B. called the Clinic, spoke with

Dr. Greenbaum and Ms. Comella, who informed her that Dr. Greenbaum

would perform the procedure. P. B. later arrived in Fort Lauderdale in time

for her pre - operative exam by Dr. Greenbaum, whose office told P.B. that

Dr. Greenbaum was no longer performing the procedure. P.B. assumed that

another ophthalmologist would perform the procedure.

17. The next day, P.B. and a friend or family member, who had

accompanied her on the trip, met Ms. Comella and Respondent, whom

Ms. Comella introduced as Ñ Doctor Perez, Ò and he did not correct her. P.B.

asked him if he was an ophthalmologist, and Respondent replied, Ñ no, bu t

I Ô m well - trained in this procedure. Ò He never mentioned that, in terms of

Florida licensing, he was only a registered nurse or APRN and was not a

physician.

18. E.N. Ô s medical records include the most references to Respondent Ô s

status as a healthcare provide r. These records include a page from the

Clinic Ô s website that was initialed and dated by E.N. , and prominently

identifies Respondent as a Ñ DM, NP - C, Ò meaning Ñ doctor of medicine Ò and

Ñ nurse practitioner -- certified. Ò The accompanying text discloses that

Ñ D r. Alejandro Perez Ò graduated from the University of Havana Medical

School in 1993 as a Ñ Doctor in Medicine Ò ; since 2007, he has conducted

innovative research on regenerative medicine with a focus on adult stem

cells from bone marrow and adipose tissue; Ñ D r. Perez Ò has worked on adult

stem cells to treat multiple chronic diseases; Ñ Dr. Perez Ò trains national and

foreign Ñ Medical Doctors Ò on the use of adult stem cells; and that Ñ[h] e

currently holds a National Board Certification as a Family Nurse

Practitio ner. Ò In three out of five references, the document refers to

Respondent as a Ñ doctor, Ò never disclosing that he was not a licensed

physician in Florida. This website page may have come into existence after

Respondent Ô s first patient encounter in this case in May 2015.

19. Ms. Comella introduced Respondent to E.N. and her sister, who had

accompanied her on the trip, as Ñ Dr. Alex Perez. Ò Without stating his

specialization, Respondent told E.N. that he was a Ñ medical doctor Ò and was

proud of his Ñ profession, Ò whi ch, in context, meant the practice of medicine,

not nursing. Respondent wore a white jacket with a printed name tag, Ñ Alex

Perez, M.D. Ò At no time did Respondent reveal that his Florida licensure

was as a registered nurse or APRN and not a physician.

Lack of a Written Protocol

20. As a licensed APRN, Respondent was required by section 464.012 and

Florida Administrative Code R ule 64B9 - 4.002 to practice under an APRN

protocol filed with the Board of Nursing . At all times material, the scope of

practice of a cert ified family nurse practitioner licensed in Florida as an

APRN did not include performing any invasive procedures, including

surgical removal of adipose tissue or intravitreal injections, without an

APRN Protocol on file that ensured physician supervision.

21. By letter dated March 12, 2015, the Board of Nursing notified

Respondent that he was required to have an approved APRN protocol on file

with the Department Ñ within 30 days of employment. Ò Respondent was

employed in March 2015 at the time of receipt of the above - referenced letter.

22. In May and June 2015, Respondent was aware of the protocol

requirement and the scope of practice as an APRN. He admitted that he

received the March 12, 2015, letter and failed to provide a protocol as

instructed.

23. At no time did Re spondent ever obtain or file with the Board of

Nursing a written protocol between him and a supervising licensed

physician authorizing Respondent to perform the subject procedure.

Respondent claimed, alternatively, that Drs. Greenbaum and Blanco served

as his supervising physicians , but admitted that they served remotely and

without a signed written protocol.

Harm to the Patients

24. The impact on the three patients of this unauthorized procedure

performed by Respondent was blindness and its incumbent, incalcu lable

damages, including, but not limited to, loss of independence, loss of mobility,

and loss of enjoyment of life . Respondent admitted that , if not for the

procedure, the three patients would likely not have been blind. 2

C ONCLUSIONS OF L AW

25. DOAH has juri sdiction. §§ 120.569 and 120.57(1) , Fla. Stat. (2015).

26. The Administrative C omplaints seek to suspend, revoke, or impose

other discipline upon a license. This proceeding is penal in nature. State ex

rel. Vining v. Fla. Real Estate Comm Ô n , 281 So. 2d 487, 4 91 (Fla. 1973).

Petitioner must prove the material allegations by clear and convincing

evidence. § 120.57(1)(j) , Fla. Stat. ; Dep Ô t of Banking & Fin. v. Osborne Stern

& Co. , 670 So. 2d 932 (Fla. 1996). Clear and convincing evidence is evidence

that is ÑÓ pre cise, explicit, lacking in confusion, and of such weight that it

2 Respondent contends that it was not the injection which he performed, but rather the

separation a nd preparation of the stem cells from the fat tissue by other Clinic staff prior to

the injection that somehow caused the patients Ô blindness. No credible evidence regarding

this argument was presented.

produces a firm belief or conviction, without hesitation, about the matter in

issue. ÔÑ Robles - Martinez v. Diaz, Reus & Targ, LLP , 88 So. 3d 177, 179 n.3

(Fla. 3d DCA 2011)(citing Fla. Std. Ju ry Instr. (Civ.) 405.4).

Deceptive, Untrue, and Fraudulent Representations by Respondent

27. Section 456.072(1)(m) prohibits Ñ [m]aking deceptive, untrue, or

fraudulent representations in or related to the practice of a profession or

employing a trick or schem e in or related to the practice of a profession. Ò

28. Respondent Ô s actions at issue in this case involved patient evaluation

and treatment in or related to his practice as an APRN, Respondent Ô s

representation of himself in a clinical setting as a medical doct or, and

whether his performance of procedures that were within the scope of the

practice of medicine constituted making deceptive, untrue , or fraudulent

representations in or related to the practice of a profession. See Dep Ô t of

Health v. Zamek , Case No. 1 1 - 0546PL (DOAH July 28, 2011; DOH

Dec. 1 4 , 2011)(disciplining a physician after finding that the physician made

deceptive and untrue representations regarding his identity to patient by

failing to advise her that, although he was a Florida - licensed M.D., he was

not the physician that the patient believed to be treating her, Ñ due to lack of

an introduction and any form of identification on the lab coat -- if he was a

doctor or a physician Ô s assistant. Ò )

29. Respondent Ô s conduct in introducing himself in a clinica l setting as

Ñ Dr. Perez, Ò allowing Clinic staff to introduce him to patients in his presence

as Ñ Dr. Perez, Ò allowing the Clinic to represent in his biography, which he

provided, that he was Ñ Dr. Perez, Ò and allowing the Clinic to fail to include

in that b iography that he was licensed in Florida as an ARNP, not as a

medical doctor, constitute s deceptive, untrue , or fraudulent representations

related to the practice of his profession.

30. The fact that Respondent was licensed as a medical doctor in Cuba

did not exempt him from the requirements of being licensed as a medical

doctor in Florida prior to performing medical evaluation s , designating plans

of treatment, and treating patients including Patients E.K., E.N., and P.B.

in Florida.

31. Petitioner proved by clear and convincing evidence that Respondent is

guilty of three counts of making deceptive, untrue, or fraudulent

representations related to the practice of medicine.

Respondent Ô s Practice Beyond the Scope Permitted by Law

32. Section 456.072(1)(o) prohibits Ñ [p] r acticing or offering to practice

beyond the scope permitted by law. Ò Section 464.012(3) authorizes an APRN

to provide certain Ñ advanced - level nursing acts, Ò normally associated with a

medical, dental, or osteopathic licensee, if the APRN proceeds under a

Ñ written protocol, Ò which, among other things, specifies Ñ the medical acts to

be performed and the conditions for their performance. Ò § 464.003(2) , Fla.

Stat . The protocol must be in writing, signed by both parties, filed with

Petitioner, and specify what t he APRN may do in providing medical

treatment and what the supervising physician must do.

33. Similarly, r ule 64B9 - 4.010, Standards for Protocols, provides that an

APRN Ñ shall only perform medical acts of diagnosis, treatment and

operation pursuant to a proto col between the APRN and a Florida - licensed

medical doctor, osteopathic physician or dentist. Ò It further provides that

Ñ the degree and method of supervision, determined by the APRN and the

physician È shall be specifically identified in the written protoc ol and shall

be appropriate for prudent healthcare providers under similar

circumstancesÈ . Ò

34. Based upon section 464.012(3) and r ule 64B9 - 4.010, Respondent could

not practice in May and June of 2015 as an APRN at all, let alone perform

the procedures he perf ormed on Patients E.K., E.N. , and P.B., without filing

an acceptable protocol with the Board of Nursing that demonstrated a

collaborative practice agreement with a supervising physician. Respondent

should have had a protocol on file with Petitioner demonst rating

collaborative practice with a supervising physician that included performing

surgical removal of adipose tissue by any method or injecting any material

by intravitreal injection before performing any such procedures.

35. Without meeting the requirements mandated in section 464.012(3)

and r ule 64B9 - 4.010 , Respondent was bound by the scope of his licensure as

a registered nurse.

36. Furthermore, even if Respondent had properly filed an acceptable

protocol and practiced within a written collaborative agreement with a

physician or dentist when he treated Patients E.K., E.N., and P.B., the

procedures Respondent performed on these patients were Ñ under the scope of

the practice of medicine Ò and not advanced nursing practice, according to the

materials from Responden t and the C linic.

37. Even if Respondent was operating under a proper protocol, and these

procedures were included in the scope of his licensure, the record does not

establish that he possessed the required competency to perform intravitreal

injections.

38. Petiti oner proved by clear and convincing evidence that Respondent is

guilty of three counts of practicing or offering to practice beyond the scope

permitted by law or accepting and performing professional responsibilities

the licensee knows, or has reason to kn ow, the licensee is not competent to

perform.

Penalty Assessment

39. Pursuant to section 464.018(5), the Board of Nursing is charged with

issuing rules to provide guidelines for the disposition of disciplinary cases

involving nursing licensees. Rule 64B9 - 8.00 6 sets forth the disciplinary

guidelines, range of penalties, and aggravating and mitigating factors to

Ñ assure protection of the public from nurses who do not meet minimum

requirements for safe practice or who pose a danger to the public. Ò

40. Rule 64B9 - 8.006 (3)(l) provides that a first offense violation of

section 456.072(1)(m) merits discipline ranging from a reprimand and a

$250 fine to a $10,000 fine and suspension; a second offense merits a range

of a $500 fine and suspension to a $10,000 fine and revocat ion. There is no

provision for additional penalties for more than two violations of section

456.072(1)(m). This consolidated case demonstrates three violations of

section 456.072(1)(m).

41. Rule 64B9 - 8.006(3)(k) provides that a first offense violation of secti on

456.072(1)(o) merits discipline ranging from a reprimand, a $250 fine, and

continuing education to revocation. There is no provision for additional

penalties for more than one violation of section 456.072(1)(o). This

consolidated case demonstrates three violations of section 456.072(1)(o).

Aggravating Factors

42. Rule 64B 9 - 8.006(5) provides that the Board of Nursing is permitted to

deviate from its disciplinary guidelines for penalties, if certain factors are

present , including, but not limited to:

1. the d anger to the public;

2. refusal by the licensee to correct or stop violations;

3. the actual damage (physical or otherwise) caused by the violation;

4. the deterrent effect of the penalty imposed; and

5. cost of treatment.

Danger to the Public

43. An individu al who performs services for the public without the

required licensure, or practices beyond the scope of his licensure as in this

case, is a danger to the public because he is acting without board or

departmental oversight and without any kind of verificat ion that the person

is trained and able to perform the services of a licensed practitioner safely.

44. The procedures at issue here are beyond the scope of the type of

license obtained by Respondent and have been identified as procedures

considered within the scope of the practice of medicine. It is clear from the

record that Respondent was not qualified to perform these procedures.

Respondent has admitted that these procedures were beyond the scope of his

license as an APRN and that he should not have performe d them at all.

Refusal to Correct or Stop Violations

45. Patient s P.B. and E.N. were introduced to Respondent as Ñ Doctor Ò by

one of his colleagues or Respondent himself. For the introductions via one of

his colleagues, Respondent did not correct the reasonabl e assumption that

he was a licensed medical doctor in the United States. Further, when the

patients and their companions asked Respondent if he was an

ophthalmologist or other specialty physician, Respondent did not advise

them that he was not a licensed d octor at all.

46. Respondent misstated to all the patients that he was certified to

perform the procedure and had received extensive training. Further, Patient

E.N. was required to sign a form for the procedure which referred to

Respondent as Ñ Dr. Perez. Ò

47. Furt her, there were numerous instances during Respondent Ô s

performance of the procedures where Respondent could have notified

physicians to supervise or complete the procedure. Respondent stated that

he had an informal verbal agreement with Dr. Blanco and Dr. Greenbaum,

in which the physicians agreed to be available to Respondent for questions

or emergencies and to supervise the procedures if needed. However,

Respondent performed the procedures without the supervision of either

physician. There is no evidence t hat Respondent requested either physician

be present for the procedure. There is also no evidence that Respondent

sought either physicians Ô counsel at any time once it became apparent that

patients had begun to experience adverse effects from the procedure .

48. At some point after Patient E.K. Ô s procedure on May 15, 2015, and

before Patients E.N. and P.B. Ô s procedures on June 16, 2015, Respondent

learned that Patient E.K. was blind due to the procedure he performed . Y e t,

he continued to perform at least two mor e of the same procedure, in the

same manner, without supervision and without physician guidance.

Actual Damage Caused by the Violations

49. After Respondent performed the intravitreal injections on these three

patients, they rapidly became blind. Evidence con firmed that if not for the

procedure being performed, these patients would likely not have been blind

today (or in the case of Patient E.K., until the time of her death in April

2020). Respondent admitted that if not for the procedure, the women would

like ly not have been blind. 3

50. Patient E.K. experienced emotional damage in addition to blindness.

Patient E.K. developed an extreme fear of falling due to her inability to

maneuver properly without sight. Towards the end of her life, Patient E.K.

experienced su ch pain due to her blindness that she would often call out to

God that she wanted to die.

51. To this day, Patient P.B. still experiences daily eye pain and requires

numerous medications and drops to alleviate the pain. Patient P.B. has

undergone at least two subsequent surgeries in an attempt to repair her

eyes. Because of Respondent Ô s decision to ignore his scope of practice,

Patient P.B. stated that Ñ [her] whole life is down the tubes, to be honest with

you. Ò

52. Patient E.N. testified that the lack of ability t o engage in most of her

normal activities has led to a more isolated existence. Many of her former

activities involved frequent and relationship - building interactions with other

3 While it is true, as Respondent argues, that all th ree patients signed informed consents

prior to the procedure acknowledging loss of vison was a potential side effect, none

authorized Respondent to practice beyond the scope permitted by law or to perform

procedures he knew or had reason to know he was not competent to perform .

individuals. After Respondent performed these procedures, Patient E.N. can

no longer participate in such activities. Further, Patient E.N. noted that

social services and programs are extremely limited for blind individuals.

53. The patients relied, to their significant detriment, on the assurances

made by Respondent that he was properly qualified to perform these

procedures. The unfortunate reality is that Respondent admittedly was

n either authorized nor qualified to perform these procedures.

The Deterrent Effect of Revocation

54. Respondent testified numerous times that because he was a do ctor in

Cuba, he believed he was different from other advanced practice nurses in

Florida with the same licensure and practitioner credentials. Respondent

believed he could perform services beyond the scope of his APRN license

because he felt his backgroun d made him superior to his professional nurse

peers. When Patient E.N. spoke to Respondent about his being a physician,

Respondent said Ñ he was a medical doctor, and he was proud of his

profession È he spoke very clearly and proudly of his profession. Ò

55. Whe n Respondent found out that Patient E.K. experienced blindness

and eye damage after her procedure, he continued to perform the procedure,

which led to his blinding of two more patients.

56. Respondent ignored the statutory requirements for supervision of his

p ractice as an APRN and Respondent continually failed to seek and/or follow

the guidance of available physicians in his treatment of these patients. The

Board of Nursing sent numerous letters during Respondent Ô s first years of

licensure as an APRN notifying him of his failure to submit appropriate

protocols.

57. Based on Respondent Ô s attitude that he was superior to his peers, his

willingness to negligently or intentionally provide misleading information to

patients as to his license status in Florida, and his previous disregard for the

Board of Nursing Ô s statutory requirements, rules, and procedures,

Respondent will likely continue to disregard the statutory requirements,

rules, and procedures if he continues to hold his nursing license.

58. By imposing the most se vere punishment allowed under the Board Ô s

disciplinary guideline s , Petitioner will send a message to its licensees that

performing procedures that exceed the scope and training of their license,

especially the complicated and dangerous procedures that were performed

here, will not be tolerated

The Costs of Treatment

59. The Department has proven by clear and convincing evidence that the

costs of the treatment, both during and after the procedures, for Patients

E.K., E.N. , and P.B., and their families and careg ivers were extensive.

60. Patients E.K., E.N., and P.B. incurred numerous medical and other

expenses post - procedures as a result of Respondent Ô s actions. All three

patients required emergent ophthalmologic intervention after their

procedures.

61. Patient P.B. unde rwent at least two surgeries on her eyes since the

procedure and is required to treat her eyes with multiple medicated drops

daily, incurring prescription costs. She had to hire individuals to help her

with household cleaning. Patient P.B. Ô s daughter susta ined economic and

emotional costs associated with assuming the care of her mother, quitting

her job, and relocating her own family to Florida.

62. After the procedure, Patient E.K. moved into an assisted living

facility because she needed assistance performing activities of daily living

due to her loss of sight.

63. Patient E.N. also had to hire someone to assist with routine

household tasks, such as laundry and cooking, as she cannot see. Patient

E.N. is no longer able to practice her profession as a researcher an d

professor in an academic setting due to her loss of vision post - procedure.

64. Respondent demonstrated a complete disregard for the laws

governing the practice of nursing in Florida and severely injured multiple

patients in the process. Based on the aggravat ing factors discussed above,

revocation of Respondent Ô s license is the only penalty that will adequately

protect the residents of this state.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Board o f Nursing enter a final order finding that

Respondent has violated sections 456.072(1)(o) and 456.072(1)(m) and

revoking Respondent Ô s license to practice as an advanced practice registered

nurse.

D ONE A ND E NTERED this 3 rd day of May , 2021 , in Tallahassee, Leon

County, Florida.

S

M ARY L I C REASY

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of May , 2021 .

C OP IES F URNISHED :

Dirlie Anna McDonald, Esquire Dwight Oneal Slater, Esquire

Department of Health Cohn Slater, P.A.

4052 Bald Cypress Way, Bin C - 65 3689 Coolidge C ourt, Unit 3

Tallahassee, Florida 32399 Tallahassee, Florida 32311

Nicole M. DiBartolomeo, Esquire Joe Baker, Jr., Exe cutive Director

Department of Health Board of Nursing

Office of the General Counsel Department of Health

4052 Bald Cypress Way , Bin C - 65 4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399 Tallahassee, Florida 32399

Louise St. Laurent, General Counsel Deborah McKeen, BS, CD - LPN

Department of Health Board of Nursing

4052 Bald Cypress Way, Bin C - 65 Department of Health

Tallahassee, Florida 32399 4052 Bald Cypress Way, Bin D - 02

Tallahassee, Florida 32399

N OTICE OF R IGH T T O S UBMIT E XCEPTIONS

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.