20-005447PL Department Of Health, Board Of Medicine vs. Stephanie Stover, M.D. Status: Closed Recommended Order on Friday, August 13, 2021.

Summary: Respondent committed medical malpractice in violation of section 458.331(1)(t) and (nn), but had mitigating circumstances resulting in a recommendation of one year probation, a $5,000 fine, and imposing the costs of investigation and prosecution.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D EPARTMENT OF H EALTH , B OARD OF

M EDICINE ,

Petitioner ,

vs. Case No. 20 - 5447PL

S TEPHANIE S TOVER , M.D. ,

Respondent .

/

R ECOMMENDED O RDER

On January 28, 2021, Robert E. Meale, Administrative Law Judge ( Ñ ALJ Ò )

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

hearing by Zoom tele conference. Due to Judge Meale Ô s unexpected (at the

time of hearing) ret irement , the undersigned ALJ was assigned to review the

record and issue this Recommended Order.

A PPEARANCES

For Petitioner: Kristen M. Summers, Esquire

Joseph William Mackey, Esquire

Florida Department of Health

Prosecution Services U nit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Sean Michael Ellsworth, Esquire

Ellsworth Law Firm, P.A.

1000 5th Street, Suite 223

Miami Beach, Florida 33139

Kenneth J. Metzger, Esquire

Metzger and Associates, LLC

1637 Metropolitan Boulevard, Suite C - 2

Tallahassee, Florida 323 08

S TATEMENT OF T HE I SSUE S

The issue s are whether Respondent injected fat into or below

G.R. Ô s gluteal muscles in violation of section 4 58.331(1)(t) and/or

458.331(1)(nn) , Florida Statutes (2020) ; and , if so, what penalty should be

imposed.

P RELIMINARY S TATEMENT

Petitioner, Department of Health , Board of Medicine ( Ñ Department Ò or

Ñ Petitioner Ò ) , filed a two - count Administrative Complaint ( Ñ AC Ò ) against

Respondent, Stephanie Stover, M.D. ( Ñ Dr. Stover Ò or Ñ Respondent Ò ), charging

her with violating Florida Administrative Code Rule 64B8 - 9.009(2)(f) Ñ in one

or more of the following ways Ò : (1) Ñ By inserting fat into Patient G.R. Ô s gluteal

muscles during her gluteal fat grafting procedure Ò ; (2) Ñ By inserting fat under

Patient G.R. Ô s gluteal muscles during her gluteal fat grafting procedure Ò ;

and/or (3) Ñ By crossing the gluteal fascia to inject fat during Patient G.R. Ô s

gluteal fat grafting procedur e. Ò The Department asserts that precisely the

same conduct and alleged violation of r ule 64B8 - 9.009(2)(f) constitutes a

violation both s ection 458.331(1)(t) (Count One) and s ection 458.331(1)(nn)

(Count Two).

Dr. Stover responded and requested a disputed - fact hearing. The matter

was referred to DOAH on December 18, 2020. The disputed - fact hearing was

held on January 28, 2021, via Zoom teleconference .

Prior to hearing, Dr. Stover filed a Motion t o Dismiss Count I o r Count II

o f t he Administrative Complaint a s Multiplicitous, a Violation o f the

Prohibition a gainst Double Jeopardy a nd Dr. Stover Ô s Right t o Due Process,

arguing that one of the counts must be dismissed because the two were based

on precisely the same conduct, and precisely the same alleged rule violation.

The Department filed a response to Dr. Stover Ô s motion to dismiss, and

conceded the Department Ñ charged Respondent with two statutory

violation [s] that arose from the same conduct. Ò To the extent necessary in

writing this Recommended Order, the undersigned will address the

arguments made in this regard.

At the hearing, Petitioner called Onelio Garcia, M.D., an expert in gluteal

fat transfers, and Amelia Nakanishi, M.D., a pathologist, and offered into

evidence Petitioner Ô s Exhibits 1 through 11 , without objection . Respondent

testified on her own behalf. Respondent Ô s Exhibit 1 was admitted into

evidence without objection, and Respondent Ô s Exhibits 2 and 3 were admitted

over objection.

A T ranscript of the final hearing was filed on February 8, 20 21, and the

parties each filed a P roposed R ecommended O rder ( Ñ PRO Ò ). The timely PROs

filed by the parties have been considered in the preparation of this

Recommended Order. C itations to the Florida Statutes or Florida

Administrative Code refer to the versi on s in effect during the time that the

violation was allegedly committed.

F INDINGS OF F ACT

1. The Department is the state agency charged with regulating the

practice of medicine in the s tate of Florida, pursuant to section 20.43 and

chapters 456 and 458 , Florida Statutes .

2. Dr. Stover is a licensed physician in the s tate of Florida, having been

issued license number ME82217. Dr. Stover has been licensed to practice in

the s tate of Florida since April 2001 and has never been disciplined in Florida

or elsew here. She has an impressive academic record. After earning her

d octor of m edicine degree from the University of Florida College of Medicine

in 1996, where she was on the President Ô s List (GPA greater than 3.9),

Dr. Stover completed her residency in general surgery at the Mount Sinai

Medical Center of Greater Miami, during which she served as Administrative

Chief Resident of Trauma and Vascular Surgery and as Administrative Chief

Resident of General Surgery .

3. After graduating from medical school and comple ting her five - year

general surgery residency, Dr. Stover spent five years completing additional

fellowships and residencies in plastic and reconstructive surgery. Dr. Stover

completed a one - year Reconstructive Craniofacial and Aesthetic Fellowship

at the U niversity of Mississippi Medical Center, a two - year Plastic and

Reconstructive Surgery Residency at the University of Mississippi Medical

Center, a one - year Breast Reconstruction and Microsurgery Fellowship at the

Memorial Sloan - Kettering Cancer Center in New York City, and a one - year

Breast and Aesthetic Surgery Fellowship with G. Patrick Maxwell, M.D., at

the Baptist Hospital in Nashville, Tennessee.

4. Over her career, Dr. Stover has regularly served as a speaker, panel

member, and teacher, sharing her k nowledge, insights, and experience with

other physicians, medical students, residents in surgical rotations, and the

community. Dr. Stover regularly engages in continuing medical education

and attends professional courses and meetings. She is a member of t he

International Society of Aesthetic Plastic Surgery, the American Society of

Plastic Surgeons, and the American College of Surgeons, among other

professional organizations and societies.

5 . Respondent is cert ified by the American Board of Plastic and

Rec onstructive Surgery, and has previously been certified by the American

Board of General Surgery.

6 . During the course of her professional practice , Dr. Stover has

successfully completed thousands of plastic and reconstructive surgeries,

including between 800 and 1,000 gluteal fat transfer procedures, also known

as a Ñ Brazilian Butt Lift Ò ( Ñ BBL Ò ) .

7. Prior to this occasion, Dr. Stover never experienced anything other than

minor complication s in the 800 to 1,000 successful BBL procedures she

performed.

8. O f the 800 to 1,000 successful BBL procedures Dr. Stover has

performed in her career, between 100 and several hundred were performed

on genetic males, either males or transgender females.

9. While performing BBLs, Dr. Stover always follows a Ñ subcutaneous

o nly Ò approach, and employs all current recommendations and best practices

to avoid injecting into the muscle or below the fascia.

10. Based upon her testimony at hearing, Dr. Stover has had a

distinguished career as an effective and caring practitioner, wi th vast

experience in plastic and reconstructive surgery, in general, tremendous

experience in performing BBLs, in particular, and something of a specialty in

performing BBLs on genetic males. As noted, throughout her more than

20 years as a physician she has an unblemished record.

The Department Ô s Expert, Onelio Garcia, Jr., M.D.

11. The Department presented the testimony of Onelio Garcia, Jr. , M.D.

Dr. Garcia is a plastic surgeon in private practice in Miami - Dade County.

Dr. Garcia earned his medical deg ree at the Autonomous University of

Guadalajara, Mexico. Like Dr. Stover, Dr. Garcia is b oard certified in plastic

surgery. Unlike Dr. Stover, Dr. Garcia has never been b oard certified in

general surgery.

12. The B BL is among the procedures Dr. Garcia perf orms in Miami - Dade

County. It is found that Dr. Garcia is in economic competition with Dr. Stover

as a plastic surgeon performing the same types of procedures as she in close

geographic proximity.

13. Dr. Garcia has performed far fewer BBL procedures than Dr. Stover.

Dr. Garcia testified that he has performed Ñ an average of 60 [BBLs] a year Ò

for the past Ñ several years. Ò He testified he has performed fewer than

500 BBLs over his career and Ñ maybe Ò fewer than 400.

14. Dr. Garcia has Ñ never Ò performed a BBL o n a transgender individual,

and testified that he has performed Ñ very few Ò BBLs on anatomical males.

15. A dispute arose at hearing regarding the mortality rate for individuals

undergoing a BBL. First, a statistic suggesting that one out of 3,000 BBL

proce dures result in death came from testimony at a public hearing given by

Respondent in 2019 at which she said that number of deaths referred to those

occurring over all BBLs, not just subcutaneous procedures. She was in favor

at that time of recommending a b an on non - subcutaneous or intramuscular

procedures. However, one year later, in 2020, research data showed the

mortality rate to be only one in 18,000 for those undergoing subcutaneous

BBL procedures, a far more acceptable mortality rate for a plastic surg ery

procedure. These data were from the Aesthetic Surgery Education and

Research Foundation Ô s ( Ñ ASERF Ò ) T ask F orce to study the mortality rate

associated with BBLs. The undersigned finds that, based upon the entirety of

the testimony, the lower mortality r ate of one in 18,000 is credited for those

receiving subcutaneous - only BBLs.

16. In June 2019, in light of the findings from the studies, the Board

of Medicine enacted Emergency Florida Administrative Code Rule 64B8 -

ER19 - 1 ( Ñ Emergency Rule Ò ) , which states:

Standard of Care for Gluteal Fat Grafting. When

performing gluteal fat grafting procedures, fat may

only be injected into the subcutaneous space and

must never cross the gluteal fascia. Intramuscular

or submuscular fat injections are prohibited.

17. The Emergency Rule was codified in r ule 64B8 - 9.009(2)(f). This rule

define d the standard of care in Florida relating to gluteal fat grafting and

explicitly prohibit ed intra muscular and submuscular fat injections. The

Emergency Rule was superseded by rule 64B8 - 9.009(2)(f), effective March 2,

2020, which adopted the same standard of care.

The Procedure Generally

18. The Ñ BBL Ò involves harvesting fat from the patient, i.e., Ñ remov[ing]

fat from the different parts of the body, typically around the trunk. Ò Ñ The fa t

is processed in a sterile container and it is injected into the soft tissues of the

buttock area in order to enlarge it. Ò

19. In Ñ the most common method Ò of the procedure, the processed fat is

injected by hand from a syringe attached to a cannula, descri bed as Ñ a long

metal rod Ò with a blunt tip and a small hole near the tip . Ñ [I]t is a blind

procedure, Ò in that the injecting surgeon is unable to see the location of the

tip of the cannula.

20. The Ñ pertinent layers Ò of the gluteal area, proceeding from t he

outermost in, are : the skin, the outermost layer ; Ñ [t]hen the subcutaneous

layer, which is the fatty layer Ò ; then Ñ the fascia which is covering the muscle Ò ;

then Ñ the gluteal musculature. Ò Ñ [T]here is no anterior fascia, Ò meaning that

the gluteus muscle has no fascia underneath the muscle; Ñ the muscle layer

only has one covering on the outside. Ò If fat gets below the fascia, which Ñ is

relatively thin, Ò Ñ [i]t has nowhere to go but down. Ò

21. This is a serious problem because BBLs have been associated with

serious risk of pulmonary embolisms, often fatal, when injected fat enters the

bloodstream through the large blood vessels under the gluteal muscle and

ultimately impede blood flow to the lungs. The largest blood vessels,

including the gluteal veins are b eneath the gluteal muscle, and the vessels

get smaller and smaller as they progress toward, and penetrate the fascia.

22. The evidence presented at hearing establishes that BBLs have become

significantly more popular in the United States over the past five to ten

years. Ñ Gluteal fat grafting has historically been a relatively unpopular

procedure in the United States, with little awareness of serious side effects

until 2015 Ò is a statement from one of Dr. Stover Ô s exhibits.

23. Further, as both Dr. Stover an d Dr. Garcia testified, the medical

community, in general, and the plastic surgery community, in particular, are

aware of the dangers associated with BBLs and have made progress

identifying ameliorative techniques and instrumentation . Despite this,

researc h is still developing as to the precise mechanisms and causes of

pulmonary fat embolisms associated with BBLs.

24. In 2017, the ASERF Task Force published a study indicating that

gluteal fat grafting carries a mortality risk of one out of 2,351 to one out

of 4,000, Ñ possibly 10 - 20 times greater than the average mortality rate for

aesthetic surgery procedures in AAAASF facilities È a nd it [the mortality

risk from BBLs] is possibly three to five times higher than the risk from

abdominoplasty, which until this paper [in 2016 - 17] was thought to have the

highest risk of any aesthetic procedure. Ò

25. The ASERF Task Force indicated that the risks associated with BBLs

may be unavoidable even using the proper instruments, Ñ constant vigilance, Ò

and the best practices and procedures, stating:

It is not known whether with proper positioning

and constant vigilance a specific plane can be

reliably maintained or whether there will

inevitably be a rate of unintended deeper passes of

the cannula into the deep muscle. It is al so not

understood whether superficial injection might

possibly cause distraction injuries to the larger and

deeper veins or whether superficially injected fat

can travel along a tissue plane towards that

disrupted vessel. There are many hundreds or even

th ousands of cannula passes during a typical case,

so even the very slightest rate of accidental deeper

passes could present a significant risk. It is

impossible to ascertain whether with ideal

instrumentation, positioning, and constant

vigilance unintended deeper injections can be

eliminated or whether they will always occur with

some finite frequency.

26. In May 2019, leading BBL surgeons published a study attempting to

explore Ñ the potential for fat placed in the subcutaneous space, Ò i.e., the fatty

tissu e under the skin and above the fascia and muscle, to migrate into the

deep submuscular space, Ò and whether Ñ fat could potentially enter and

migrate into the deep submuscular space Ò through Ñ perforations in the fascia Ò

caused by Ñ occasional unintended passe s into the muscle. Ò T he study

attempted to shed light on Ñ whether fat placed in the subcutaneous space

under a variety of pressures and fascial integrity scenarios can indeed

migrate into the deep submuscular space. Ò

27. Dr. Garcia and Dr. Stover both test ified that studies are continuing to

investigate the causes of complications and adverse outcomes associated with

BBLs and to provide guidance and recommendations for practitioners.

28. Despite all the uncertainties regarding BBL complications, and the

Ñ bl ind Ò nature of the procedure, the plastic surgery community has coalesced

around a set of recommendations and best practices to perform BBLs safely

and avoid serious complications. These include: (1) to Ñ use a stiff cannula, at

least four millimeters Ò ; (2) with only a single hole ; (3) to Ñ create angles Ò for

inserting the cannula ; (4) to angle the tip of the cannula up while injecting ;

(5) to palpate with the non - injecting hand to create three - dimensional

awareness of where the tip of the cannula is at all t imes ; (6) to keep the

cannula moving continuously ; (7) to inject only in retrograde, that is, while

withdrawing or moving the cannula away from the deeper tissue ; and (8) to

Ñ stay in the subcutaneous plane Ò with the cannula during injections.

29. The rule discussed above establish ing the standard of care for gluteal

fat grafting, 64B8 - 9.009(2)(f), was based upon concern from the plastic

surgery community, the Board of Medicine, and the public, that the recent

popularity of BBLs brings with it the recognitio n of serious side effects, chief

among them the potential for pulmonary fat embolism.

30. The pulmonary fat embolisms associated with BBLs are caused by

damage to the large vessels under the gluteal muscle, including the superior

and inferior gluteal vein s, that allow fat to enter the blood stream, and

eventually block blood flow to the lungs .

31. Damage to the large vessels can be caused either by a direct injury

from a cannula or by fat that has migrated deep into the muscle Ñ expanding

the submuscular sp ace Ò and stretching the Ñ rich and cavernous venous plexus

[that] may result in tears [in the vessels] that allow migrated fat to be

siphoned into the low - pressure venous system. Ò Dr. Garcia testified that

Ñ [t] he injury can be direct or it can be caused by simple stretching of the

vessel. Ò

The Procedure on Patient G.R.

32 . In September 2020, Respondent performed plastic surgery procedures

as an independent contractor at Xiluet Plastic Surgery in Miami, Florida. On

September 15, 2020, G.R., a 46 - year - old tra ns gender woman who was HIV

positive, presented to Xiluet to undergo several cosmetic procedures with

Respondent, including a BBL. G.R. was being treated with medication and

her HIV was under Ñ very good control Ò at the time of the surgery scheduled in

this case.

33. Prior to surgery, Dr. Stover conducted a pre - operative medical

clearance, during which Dr. Stover reviewed G.R. Ô s lab work, EKG, chest

x - ray, and surgical history . Dr. Stover also conducted a Ñ medical interview, Ò

performed a Ñ physical exam, Ò and had discussions with the patient prior to

the day of surgery .

34 . Dr. Stover advised G.R. of the risks of the BBL procedure prior to the

surgery on two occasions, first , as part of the pre - operative clearance and

consultation the day before the surgery, a nd , second , on the day of the

procedure. G.R. signed an informed consent form Ð Dr. Stover uses the forms

provided by the American Society of Plastic Surgery Ð indicating she was

aware of the surgical risks and consented to them.

35. G.R. had been dieting prio r to her surgeries, including the BBL

procedure, and had lost significant weight and, as a result , Ñ she was

extremely thin and especially [in] the layer of the subcutaneous tissue in the

area of the buttocks. Ò In some areas of G.R. Ô s gluteal region, the

su bcutaneous layer was Ñ even less than a centimeter. Ò

36. Because G.R. was born a n anatomical male, she had a Ñ very

[androgynous] shape, Ò and due to the Ñ inherent nature of [G.R. Ô s] tissues , Ò the

tissues were Ñ denser, Ò Ñ thicker, Ò Ñ more fibrous, Ò and , becaus e of her Ñ thin

subcutaneous plane, even less than a centimeter . Ò D uring the pre - injection

portion of the procedure Dr. Stover performed on G.R., Dr. Stover used a

4 mm cannula to Ñ go in gently, but bluntly, to separate those tissues. Ò The

one to two dozen Ñ passes with the cannula, Ò made by Dr. Stover during the

pre - injection , Ñ pre - tunneling , Ò or Ñ blunt dissection , Ò portion of the procedure

are the same kinds of cannula passes made during the injection portion, but

without any injection of fat. The pre - injec tion cannula passes are also Ñ a

tactile procedure, Ò made blind, and could cause Ñ some trauma È to those

tissues. Ò

37. Dr. Garcia acknowledged Ñ anatomical or genetic males and females

have È quantifiable differences in either the anatomy or the structural

anatomy of the gluteal area that is pertinent to BBL. Ò He testified: Ñ The male

pelvis is obviously narrower and the fatty layer is significantly thinner . È In

a male patient sometimes even running the cannula parallel to the skin will

have you within the m uscle, because the buttocks is a spare dome. It peaks at

the center and simply running your cannula parallel will not give you any

subcutaneous tissue. Ò He testified that Ñ obviously those patients, Ò anatomical

males, Ñ were more at risk because it is a blin d procedure. You have less of a

layer to work with. Ò

38. Dr. Garcia testified that during a Ñ model for the study of BBLs Ò he

worked on, Ñ we had to discard all male specimens and only use females of a

certain [body mass index] because the angles were comple tely different . È

We wanted to create a situation of reasonably large fatty layer to inject to. Ò

39. Dr. Garcia, who testified he has very little experience performing

BBLs on genetic males, provided no testimony regarding pre - tunneling or

blunt dissection . There was no evidence presented at hearing that Dr. Garcia

has ever performed pre - tunneling or blunt dissection to create space prior to

injecting during a BBL, or has any expertise or knowledge about this

technique.

40. Dr. Stover performed the pre - tunn eling or blunt dissection on G.R., as

she had hundreds of times in other procedures, because G.R. had a

Ñ significantly thinner fatty layer Ò with very little subcutaneous tissue.

41. Dr. Stover used a 4 mm, rigid , single - hole cannula with a blunt tip for

bo th the pre - injection dissection, where she separated the skin and

subcutaneous tissue from the underlying structure, and for injecting fat

during the injection portion of the procedure. The instruments Dr. Stover

used during this procedure comply with the recommendations of the ASERF

Task Force.

42. Dr. Stover had previously done pre - tunneling or blunt dissection

thousands of times during surgery and approximately 300 times during

gluteal fat transfer procedures, most often on genetic males.

43. Dr. Stover also performed the fat injection portion of the procedure on

G.R. in accordance with ASERF Task Force recommendations. She employed

a strategy to avoid injecting into the muscle. She positioned the patient on

her side and avoided the prone position. Dr. St over kept her cannula tip

Ñ angled up , Ò and she used her free hand to palpate Patient G.R. Ô s gluteal

region in order to stay aware Ñ from a 3D spa[t]ial dimension Ò where the tip of

her cannula was. Dr. Stover made sure that the paralytics (given as

anesthesi a to G.R.) had worn off so that she would be able to detect any

muscle twitches in the patient that might indicate the cannula was close to

entering the muscle. Dr. Stover avoided plunging the plunger on the syringe

Ð thus avoided injecting fat Ð while enteri ng the cannula, and instead only

injected Ñ in a [retrograde] fashion so you are going away from the structure, Ò

in other words , while the cannula was moving in an outward direction.

Dr. Stover only injected small amounts of fat at a time under steady

press ure, and always while her cannula was in motion, to avoid injecting Ñ a

bolus high amount at one time. Ò

44. The technique used by Dr. Stover is the surgical approach and

procedural practice she employs in all the gluteal fat transfers she performs ,

and is t he surgical technique she employed in the September 15, 2020 ,

gluteal transfer procedure she performed on G.R.

45. At the conclusion of the BBL procedure, within two to three minutes of

the final injection, G.R. began to show signs of distress. Dr. Stover

immediately followed advanced cardiac life support ( Ñ ACLS Ò ) protocols and

took all possible actions to save G.R. Ô s life, including initiating ACLS, which

comprises properly positioning the patient and confirming the tube is

properly placed to avoid blockin g the airway, then performing CPR,

immediately calling 911 , and going to Kendall Regional M edical Center with

G.R. to provide any information or assistance in life - saving efforts.

46. All life - saving efforts failed and G.R. died. Her body was transferred t o

the Miami - Dade Medical Examiner Ô s Office, where Amelia Nakanishi, M.D.,

performed an autopsy.

Post - Mortem Findings

47. During the autopsy, Dr. Nakanishi dissected G.R. Ô s lungs and opened

the veins returning to the lungs. Dr. Nakanishi observed numerous globules

of yellow fat inside the veins entering G.R. Ô s lungs.

48. Dr. Nakanishi certified that G.R. died from pulmonary embolism Ð an

obstruction of blood flow to the lungs.

49. Because emboli are not naturally occurring, Dr. Nakanishi continued

the autopsy to determine the source of the fat emboli .

50. Dr. Nakanishi dissected G.R. Ô s hips and buttocks. First, Dr. Nakanishi

removed the skin covering G.R. Ô s buttocks to expose the subcutaneous layer.

The subcutaneous layer was full of Ñ yellow grafted fat Ò and Ñ red - peach fat. Ò

51. Dr. Nakanishi then dissected the subcutaneous layer, exposing G.R. Ô s

muscles , followed by her dissecting G.R. Ô s gluteal muscles. The dissection

revealed gratuitous amounts of grafted fat in G.R. Ô s musculature, including

Ñ strands Ò of fa t clearly injected by a cannula into the muscle.

52. Dr. Nakanishi observed damaged vessels in G.R. Ô s gluteal muscles .

Based on her clinical observations, Dr. Nakanishi determined that the fat in

G.R. Ô s muscles was deposited, and she specifically observed a rope - like

structure of fatty tissue protruding between G.R. Ô s muscle fibers that

indicated it had been injected there.

53. Dr. Nakanishi determined that the gluteal fat transfer caused G.R. Ô s

pulmonary embolism. In the course of her examination, Dr. Naka nishi found

no disruption to the large vessels of G.R. Ô s gluteal muscle, but did find

evidence of disrupted small vessels . Dr. Stover explained this by testifying

that smaller vessels proceed up to and through the fascia into the

subcutaneous layer. She te stified: Ñ it is actually here where they [the smaller

vessels] pierce the fascia where the fascia has its weaknesses . Ò Dr. Garcia

acknowledged there is Ñ a tiny network [of vessels] that continues upward into

the subcutaneous tissue . Ò

54. The medical examin er, not an expert in BBLs, did not specifically

testify the Ñ deposited fat Ò found in G.R. was deposited into her muscle; she

testified only that she Ñ believed Ò the fat in G.R. Ô s gluteal muscle was

Ñ deposited fat, Ò as opposed to native fat . Dr. Nakanishi pr ovided no testimony

explain ing how the fat in G.R . Ô s muscle entered that muscle. Further, neither

the medical examiner nor Dr . Garcia, the Department Ô s expert in BBLs,

testified there was any damage to G.R. Ô s gluteal muscles or gluteal fascia.

The Departme nt presented no evidence of traumatized muscle fiber or muscle

damage. The Department presented no testimony or evidence of cannula

tracks in or through the muscle. The Department presented no direct proof,

either physical evidence or testimony, that G.R. Ô s gluteal fascia was damaged.

However, Dr. Garcia testified there was no reasonable explanation for the

deposited fat in G.R. Ô s gluteal muscles other than Dr. Stover having directly

injected it there. Dr. Garcia Ô s testimony is credited.

55. Despite acknowl edging the presence of grafted fat in and under G.R. Ô s

gluteal muscles, Dr. Stover denied performing intramuscular fat injections

and claimed to only inject fat subcutaneously.

How Did Fat E nter G.R. Ô s Gluteal Muscle?

56. As framed by Respondent in her PR O, t he central issue in this case is

whether the fat in and/or under the central region of G.R. Ô s gluteal muscle

was injected there directly by Dr. Stover, or got there some other way, such

as by migrating from another region, such as from the subcutaneous plane

after Ñ tissue trauma. Ò

57. As noted at hearing , this is a n issue that medical researchers are

trying to determine more generally. Medical and scientific research

introduced into evidence in this case sheds some light on the possibilities, but

fails to conclusively resolve the issue as a general matter, and , unfortunately,

provides no direct evidence with regard to the specific case of G .R.

58. In this case, the evidence indicates Ñ grafted fat Ò Ð that is , fat that was

Ñ harvested Ò from G.R. Ô s body Ð was found in and under G.R. Ô s muscle during

the postmortem examination. There is no dispute that some of that Ñ grafted

fat Ò ended up in G.R. Ô s lungs and caused a fatal pulmonary embolism.

59. In short, there is no serious dispute as to whether Ñ grafted fat Ò en ded

up in G.R. Ô s muscle. The determinative question here is : H ow did that fat g e t

there ? The evidence on this point is conflicting and contradictory. Two highly

qualified experts in the BBL procedure weighed in on the mystery.

60. Dr. Stover testified that , with respect to the subject BBL procedure,

she employed a strategy to avoid injecting into the muscle that included

(1) using a Ñ rigid four [millimeter] single hole blunt tipped cannula Ò ;

(2) positioning the patient laterally to allow her trajectory to b e Ñ in a more

superficial plane Ò and to avoid dilation of the vessels ; (3) palpating with her

free hand to maintain three - dimensional Ñ 3D special dimension Ò of the

location of the tip of her cannula ; (4) injecting only a small amount of fat at a

time under steady pressure ; (5) injecting only while the cannula was moving

toward the superficial layers ; and (6) by waiting for the paralytics to have

worn off , so she could watch for muscle twitch es .

61. Dr. Stover further testified that she did not Ñ insert fat in to patient

G.R. Ô s gluteal muscles, Ò she Ñ did not insert fat under patient G.R. Ô s muscles, Ò

and she did not Ñ cross the gluteal fascia to inject fat during patient G.R. Ô s

gluteal fat grafting procedure. Ò

62. Dr. Stover did acknowledge that it was possible th at she inadvertently

injected fat into the gluteal muscles due to the fact that the muscles in the

area she was working in were thin, and it was possible they did not twitch or

she did not see them twitch when she was injecting small amounts of fat in

the area.

63. Dr. Stover testified that, Ñ while anything is possible, Ò she did not

believe she accidentally or inadvertently injected fat into the gluteal muscle s

because her preparatory work had already created the space and pocket to

receive the fat without it being injected into the muscles.

64. The blood vessels in the subcutaneous layer of the gluteal muscle s are

very small , even as small as a Ñ couple of milliliters, Ò so a small puncture was

possible. She testified that, even if a puncture was made before the fat

injection, there was time for the puncture to have closed up before the fat was

introduced into the area. She was not able to quote specific language from

any medical studies nor could she provide direct evidence that this might be

the case here, b ut she believed it to be a possible explanation.

6 5 . Dr. Garcia , on the other hand, testified that while he Ñ believe[d] that

the operation here was designed to place this [fat] in the subcutaneous

tissue, Ò it was his opinion that Ñ fat was injected into the muscle. Ò He

concluded this from his review of the autopsy dissection materials and his

reliance on a 2019 published study.

The Del Vecchio Study

6 6 . Each doctor finds support for his or her conclusions in the work of

Dr. Daniel Del Vecchio, principally fr om an article titled, Ñ Subcutaneous

Migration: A Dynamic Anatomical Study of Gluteal Fat Grafting Ò (the

Ñ Article Ò ) , authored by Dr. Simeon Wall, Jr. , Dr. Del Vecchio , and others, and

published in the May 2019 issue of Plastic and Reconstructive Surgery

Jou rnal , received into evidence. The A rticle reports the results of a very

small study conducted prior to September 2018. The researchers injected

dyed applesauce into the subcutaneous space of Ñ four hemibuttocks from two

cadavers Ò under different conditions in an effort to determine how the fat

would migrate.

67. Dr. Stover also introduced into evidence a video featuring

Dr. Del Vecchio. The video establishes that vessels do penetrate the fascia

and create the weakest points in the fascia, confirming Dr. Stov er Ô s

testimony ( Ñ they pierce the fascia where the fascia has its weaknesses Ò ).

Dr. Del Vecchio Ô s video demonstrates that even when a cannula is kept

Ñ superficial, Ò Ñ not in the deep muscle Ò and Ñ not subjacent to the muscle, Ò

injected fat can track through t he muscle even when injected superficially.

68. T he undersigned recognizes th at while the Article represents the only

impartial medical evidence presented at hearing, since each of the BBL

experts have some degree of partiality to their particular side of the case, it

has certain inherent limitations noted by its authors, including that its

findings are based on injections of applesauce, not human fat, into cadavers,

not living humans, outside a clinical setting, and that only two cadavers were

used, such t hat the range of variance in human fascia strength , integrity, and

many other properties, was not represented. The Article notes that Ñ different

cadaver[s] Ò have Ñ different subcutaneous capacities and different tissue

tolerances Ò ( further noting that Ñ some limitations that deserve discussion, Ò

including that Ñ fascial perforations were made, followed by fat grafting, but

not simultaneously with fat grafting. This may have underrepresented the

amount of fat that could get beneath the fascia given an inadverte nt pass. Ò ) .

Dr. Garcia agreed, noting that Ñ applesauce ha[s] a different flow and

dispersion characteristics as opposed to human fat . Ò

69. Despite its obvious shortcomings from real life BBL surgery, the

Article does at least address some of the competing theories presented at

hearing. The A rticle discusses four gluteal injection scenarios (one on each

hemibuttocks used), of which scenarios 2 and 3 are most relevant here .

70. In scenario 2, Ñ a random pattern of [15] cannula perforations was

m ade in the glut eus maximus fascia at its point of maximum projection

before fat insertion. Ò Under this scenario, Ñ the fascia permitted only a small

amount (1 cc) of proxy fat and dye to be noted beneath each perforation; no

proxy fat spread deeper into the muscle or bene ath it. È In this scenario,

despite suffering multiple perforations, fascial integrity remained robust and

maintained a barrier function under extremely high pressures. Ò With regard

to Ñ limitations that deserve discussion Ò regarding scenario 2, the authors

cautioned that Ñ fascial perforations were made, followed by fat grafting, but

not simultaneously with fat grafting, Ò as they would be in a real - life clinical

setting. Ñ This, Ò the authors observed, Ñ may have underrepresented the

amount of fat that could ge t beneath the fascia given an inadvertent pass. Ò

71. Consequently, the most the authors could conclude based on scenario 2

is that: Ñ During intended Ó subcutaneous only Ô Brazilian buttock lift,

inadvertent passes beneath the gluteus maximus fascia most cert ainly occur.

However, the volumes of fat placed during these passes are not likely to be of

significant enough volume to cause deep intramuscular migration into the

submuscular space. Ò The A rticle suggests that 25 ccs of injected fat could end

up in the gl uteal muscle under scenario 2, the ÑÓ inadvertent pass Ô scenario, Ò

but concludes, Ñ it is unlikely Ò this amount of fat Ñ would be significant enough

to cause vascular or sciatic nerve injury in the deep muscular space, by

means of deep intramuscular migration . Ò

72. Ñ In scenario 3, 15 random defects in the gluteus maximus fascia were

created with a 6 - mm Baker punch biopsy knife. Ò After fat insertion in this

scenario, the researchers observed that :

the submuscular space contained a significant

amount of proxy fa t. Applesauce and dye were

noted within the muscle, but the largest quantity of

fat could be seen to emanate from underneath the

most inferolateral portion of the muscle which, in

the prone position, is the most dependent space . È

The 6 - mm fascial fenestra tions in scenario

3 allowed the proxy fat to flow freely beneath the

muscle in exactly the same pattern as did

subfascial injections in the deep intramuscular

migration article.

73. In sum, the Article suggests fascial perforations (scenario 2) allow fat

to flow beneath the fascia, but that the amount of fat th at enters the gluteal

muscle is Ñ unlikely Ò to cause the type of vascular injury that would lead to a

pulmonary fat embolism. Further, the Del Vecchio article suggests that 6 mm

holes in the fascia wo uld allow fat injected properly into the subcutaneous

layer to flow freely into the muscle, potentially leading to severe vascular

and/or nerve injury that could cause a pulmonary fat embolism.

Dr. Stover Ô s Conclusions

74. Dr. Stover testified that , based on Dr. Del Vecchio Ô s presentations and

her experience, she believes fat she injected into the subcutaneous space

migrated through the fascia and into the muscle. She believes this was

potentially caused by inadvertent punctures she may have made in G.R. Ô s

fascia during the pre - tunneling or blunt dissection portion of the procedure .

Dr. Stover further testified that punctures to the fascia were more likely to

have been made during the blunt dissection portion of the procedure than

during the injection porti on, because by the time she started making

injections , she had already Ñ created Ò the Ñ space and pocket Ò during the blunt

dissection . While doing this, she testified to the fact that she followed all the

recommendations and best practices to avoid crossing the fascia during the

injection portion.

75. Dr. Stover acknowledged that she may have damaged the fascia,

punctured the fascia, or passed into the muscle near vessels (perhaps

repeatedly) during the Ñ pre - tunneling Ò or Ñ blunt dissection Ò portion of the

pro cedure, during which time no fat syringe was attached to the cannula and

She was not injecting fat. During this portion of the procedure , Dr. Stover

made between one dozen and two dozen cannula passes and immediately

proceeded to the injection portion of t he procedure.

76. Dr. Stover explained further that the punctures she may have made

during the blunt dissection portion of the procedure , would most resemble the

Ñ six millimeter punch out of the fascia Ò described in scenario 3 of the Article

because , when Ñ you keep sliding [a four - millimeter cannula] forward it could

drive enough to make a six - millimeter defect, Ò or tear in the fascia. She

likened this to a tear in a pair of pantyhose that were pulled by the edge of

metal probe. Dr. Garcia was not recalled to rebut or refute this testimony

concerning Dr. Stover Ô s theory , but nonetheless, it stands as an admission by

Dr. Stover that punctures to the gluteal muscles could have resulted from the

6 mm tear in the fascia .

77. To the extent scenario 2 from the Art icle is analogous to what occurred

during G.R. Ô s procedure, Dr. Stover highlighted the differences between the

conditions present in the static, cadaver study and the dynamic, clinical

setting in which Dr. Stover was operating. In the study, Dr. Stover not ed they

made a perforation with the cannula, a one - time poke, and it is afterwards

that they injected. So even th e A rticle itself mentioned how this may not

really show what happens during a live surgery, because , in the Article, they

did one poke only, wh ich is different from passing the cannula repeatedly ,

resulting in the amount of fat ending up under the fascia , which Ñ could be

more in a real - life situation. Ò

78. In this context, Dr. Stover presented credible, uncontradicted

testimony (by any other witn ess who was present at G.R. Ô s surgery) that ,

during the injection portion of the BBL procedure , she always injects, and did

in the case of G.R., in a retrograde fashion, meaning she inserts the cannula

to its deepest point and injects as she withdraws the cannula. As such, it is

possible , though not likely , based upon the totality of the evidence, that even

if Dr. Stover damaged the fascia or passed into the muscle after the blunt

dissection, she may have only inject ed fat after she had withdrawn from the

m uscle.

Dr. Garcia Ô s Conclusions

79. In support of his opinion that Ñ fat was injected into the muscle Ò here,

Dr. Garcia testified there was Ñ loose injected fat Ò in the muscle. This,

however, only restates the significant question identified above: How did that

loose injected fat get there?

80. On direct examination, in response to the question, Ñ Is it possible for

the fat that we are describing in these photos to have migrated from the

subcutaneous layer into these muscles? Ò Dr. Garcia testified: Ñ To the be st of

my knowledge that would never happen. Ò Dr. Garcia Ô s answer, albeit direct

and based upon his broad experience, assumes that the fascia has not been

damaged and he is considering only whether fat injected into the

subcutaneous area with an intact, und amaged fascia will not migrate into the

muscle.

81. Dr. Garcia focused on the Article Ô s conclu sion that Ñ the gluteus

maximus fascia, even with multiple cannula perforations, prevented

subcutaneous injections to cross into the muscle, even under very high

i njection pressures. Ò

82. Dr. Garcia opined that , based on the results of th e Article, and his

extensive experience in studying the risks associated with gluteal fat

grafting, there is no other explanation for the deposited fat found in G.R. Ô s

muscles than Respondent Ô s having directly inject ed it into the muscle. His

position in this regard is credited.

83. Further, Dr. Garcia opined that the fat present in G.R. Ô s muscles was

not the result of one inadvertent pass through G.R. Ô s fascia, but several

hundred. While this number may be somewhat exaggerated, since there is no

way to accurately determine the exact number, there were a large number of

passes through G.R. Ô s fascia, not just one or two.

84. Dr. Garcia testified that Dr. Stover took preventative measu res to

avoid intramuscular injections during G.R. Ô s surgery. For example, she stated

that oftentimes muscles will twitch if a medical instrument comes into

contact with the muscle during a procedure and she observes for muscle

twitches while injecting fat. However, as noted previously, Dr. Stover

acknowledged that , because the muscles in the area that she was working

were thin, it was possible that the muscles either did not twitch or that she

did not notice them twitch. Without the twitch warning from the muscles, it

became even more likely Dr. Stover could have inadvertently perforated the

gluteal muscles during the multiple passes and mistakenly injected some

undetermined amount of fat.

85. Dr. Stover further acknowledged that because BBLs are a blind

pro cedure, it was possible that her cannula could have passed through the

gluteal fascia at any point during the procedure.

86. Dr. Stover also testified that she primarily injected fat on G.R. Ô s

lateral hips and away from the Ñ danger zone Ò where the fat was found in the

autopsy photographs.

87. However, the Article revealed that no matter where in the gluteal

anatomy fat is injected intramuscularly (under the fascia), it will migrate

into the deeper planes of the muscles.

88. Dr. Garcia confirmed that , even i f Dr. Stover had limited her

intramuscular injections to the lateral hip area, the fat could follow a

pressure gradient to the deeper planes and structures, as observed in the

autopsy photographs.

89. Ultimately, Dr. Stover Ô s claim that she did not violate the standard of

care is refuted by the results of G.R. Ô s autopsy. The clinical observations of

injected fat in G.R. Ô s gluteal muscles show that Respondent repeatedly

perforated G.R. Ô s gluteal fascia and injected fat intramuscularly, resulting in

G.R. Ô s su dden and tragic demise.

C ONCLUSIONS OF L AW

90. DOAH has jurisdiction over the subject matter of this proceeding and

over the parties hereto pursuant to sections 120.569, 120.57(1), and

456.073(5) , Florida Statutes.

91. This is a proceeding whereby Petitio ner seeks to revoke Respondent Ô s

license to practice medicine. Petitioner has the burden to prove the

allegations in its A C by clear and convincing evidence. Reich v. Dep Ô t of

Health , Bd. o f Med. , 973 So. 2d 1233, 1235 (Fla. 4th DCA 2008) (citing Dep Ô t

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996)); and

Ferris v. Turlington , 510 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

evidence must be of such a weight that it produces

in the mind of the trier of fact a firm belief or

co nviction, without hesitancy, as to the truth of the

allegations sought to be established.

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

429 So. 2d 797, 800 (Fla. 4th DCA 1983)). This burden of proof may be met

where the evide nce is in conflict; however, Ñ it seems to preclude evidence that

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

988 (Fla. 1st DCA 1991).

92. Because the Medical Practice Act, section 458.331 , authorizes

suspension or revocat ion of a professional license, it is penal in nature and

must be strictly construed in favor of the licensed physician. Breesmen v.

Dep Ô t of Prof Ô l Reg., Bd. of Med. , 567 So. 2d 469, 471 (Fla. 1st DCA 1990).

93. A hearing involving disputed issues of mater ial fact under

section 120.57(1) is a de novo hearing, and Petitioner Ô s initial action carries

no presumption of correctness. § 120.57(1)(k), Fla. Stat.; Moore v. Dep Ô t of

HRS , 596 So. 2d 759 (Fla. 1st DCA 1992).

94. The grounds proving the Department Ô s as sertion that Dr. Stover Ô s

license should be disciplined must be those specifically alleged in the AC. See,

e.g. , Trevisani v. Dep Ô t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Kinney

v. Dep Ô t of State , 501 So. 2d 129 (Fla. 5th DCA 1987); and Hunter v. Dep Ô t of

Prof Ô l Reg . , 458 So. 2d 842 (Fla. 2d DCA 1984).

95. Due process prohibits the Department from taking disciplinary action

against a licensee based on matters not specifically alleged in the charging

instrument, unless those matters have been tried by consent. See Shore Vill.

Prop. Owners Ô Ass Ô n, Inc. v. Dep Ô t of Envtl. Prot. , 824 So. 2d 208, 210 (Fla. 4th

DCA 2002); and Delk v. Dep Ô t of Prof Ô l Reg . , 595 So. 2d 966, 967 (Fla. 5th

DCA 1992).

96. Petitioner Ô s A C charges Respondent with violating sectio n

458.331(1)(t) , which prohibits medical doctors from committing medical

malpractice as defined in section 456.50 . It further provides that medical

malpractice shall not be construed to require more than one instance, event,

or act. § 458.331(1)(t)1. , Fla. Stat.

97. Florida law recognizes that physicians owe their patients a duty to

Ñ use the ordinary skills, means, and methods that are recognized as

necessary and which are customarily followed in the particular type of case

according to the standards of tho se who are qualified by training and

experience to perform similar services in the community or in a similar

community. Ò Brooks v. Serrano , 209 So. 2d 279, 280 (Fla. 4th DCA 1968). The

Board may discipline a physician for Ñ failure to practice medicine with that

level of care, skill, and treatment which is recognized by a reasonably

prudent similar physician as being acceptable under similar conditions and

circumstances. Ò §§ 458.331(1)(t) and 456.072(2), Fla. Stat.; See also Fox v.

Dep Ô t of Health , 994 So. 2 d 416, 418 (Fla. 1st DCA 2008). Section 458.331(1)(t)

further provides, Ñ The board shall give great weight to the provisions of

s.766.102 when enforcing this paragraph. Ò Section 766.102(3), Florida

Statutes, provides, Ñ [t]he existence of a medical injury s hall 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

proximately caused by a breach of the prevailing professional standard of

care by the health care provider. Ò

98. There is no dispute that injecting fat intramuscularly or sub -

muscularly during gluteal fat grafting procedures falls below the level of care,

skill, and treatment recognized in Florida for this procedure.

99. The Department proved by c lear and convincing evidence that

Dr. Stover injected fat into G.R. Ô s gluteal muscles during a gluteal fat

grafting procedure or BBL , which constitutes both medical malpractic e, as

defined in section 456.50 , and a violation of rule 64B8 - 9.009(2)(f). This

c onclusion does not mean that Dr. Stover performed the BBL on G.R.

resulting in misplaced fat injections either intentionally, recklessly, or

without regard for G.R. Ô s safety , nor did the Department present any

evidence to support such a finding. Moreover, Dr. Stover was not charged

with failing to utilize the best practices, procedures, and instrumentation in

performing the BBL on G.R., nor did the Department present any evidence to

support such a finding. Finally, Dr. Stover was not charged with medical

ma lpractice regard ing the Ñ pre - tunneling Ò or blunt dissection portion of G.R. Ô s

BBL procedure, nor did the Department present any evidence to support such

a finding.

100. Despite Dr. Stover Ô s best intentions and considerable experience and

skill, maybe more than any physician in Florida performing BBLs on males

and transgender women, the evidence here is clear and convincing that fat

was found in the gluteal muscles , with some of that fat migrat ing to G.R. Ô s

lungs to creat e a fatal embolism. This is evident from the autopsy performed

on G.R., from the uncontroverted evidence that the fat appeared in the

gluteal muscles, and from the expert testimony from Dr. Garcia that he was

certain the fat was injected, whether intentionally (not proven), negligently,

or i nadvertently. The fact is, with all the passes preparing the subcutaneous

area to receive fat injections , Dr. Stover used her best practices to only inject

fat when withdrawing the cannula from the patient, rather than when

inserting the syringe into the p atient . N o clear and convincing evidence was

presented by either party that the fat somehow migrated from the

subcutaneous area into the gluteal muscles.

101. Dr. Stover Ô s superior experience in performing BBLs on men and

transgender women made her keenly aware of the unique problems facing a

surgeon due to sometimes thinner patients who require special care and

expertise on the surgeon Ô s part to prepare the subcutaneous area to receive

the fat injections. Despite all her experience and training, the clear and

convincing evidence here points to Dr. Stover ma king errors that resulted in

fat being injected, albeit not intentionally or recklessly, into G.R. Ô s gluteal

muscles. This action violated rule 64B8 - 9.009(2)(f) , and, pursuant to

section 458.331(1)(t), c onstitutes medical malpractice. What remains to be

determined is what penalty should apply.

The Penalty

102. Penalties in a licensure discipline case may not exceed those in effect

at the time a violation was committed. Willner v. Dep Ô t of Prof Ô l Reg . , Bd . of

Med. , 563 So. 2d 805, 806 (Fla. 1st DCA 1990), rev. denied , 576 So. 2d 295

(Fla. 1991).

103. Section 456.079 requires the Board of Medicine to adopt disciplinary

guidelines for specific offenses. Penalties imposed must be consistent with

any discipli nary guidelines prescribed by rule. See Parrot Heads, Inc. v. Dep Ô t

of Bus . & Prof Ô l Reg . , 741 So. 2d 1231, 1233 - 34 (Fla. 5th DCA 1999).

104. Section 456.072(4) provides that in addition to any other discipline

imposed for violation of a practice act, the board shall assess costs related to

the investigation and prosecution of the case.

105. Rule 64B8 - 8.001(2)(t) provides that the recommended range of

penalty for a first - time violation of section 458.331(1)(t) is from one - year of

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

$10,000.00.

106. Rule 64B8 - 8.001(2)(nn) provides that the recommended range of

penalty for a first - time violation of section 458.331(1)(nn) is from one year

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

$10,000.00.

107. In mitigation of the penalty to be imposed, Dr. Stover offers ( 1) her

long and unblemished career and her substantial experience of thousands of

surgeries without any serious complications ; ( 2) the clear and unequivocal

testimo ny both she and Dr. Garcia, the Department Ô s expert, offered that she

intended to use a subcutaneous - only strategy and to avoid subfascial,

intramuscular, or submuscular fat injections in G.R. Ô s BBL procedure ; and

( 3) Dr. Stover Ô s credible and uncontrover ted testimony that she followed all

prevailing safety recommendations , best practices , and employed

instruments in performance of G.R. Ô s BBL procedure. Despite all these

precautions and her clean professional record, Dr. Stover perforated the

gluteal muscl es, which led to fat repeatedly being injected into those muscles,

resulting in the worst possible result, the death of her patient due to her

negligence.

108. The undersigned finds , however, that despite the tragic result in

G.R. Ô s case, these factors gra vitate toward mitigation of the penalty to be

imposed on Dr. Stover. Accordingly, she should receive penalties resulting

from her actions in the lower - to mid - range of the penalty matrix.

R ECOMMENDATION

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

R ECOMMENDED that the Board of Medicine enter a final order finding

Respondent violated section 458.331(1)(t) and /or 458.331(1)(nn) ; imposing a

one - year probation upon Respondent Ô s license to practice medicine , together

with a $5,000 fine ; and imposing costs of investigation and prosecution.

D ONE A ND E NTERED this 1 3 th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

R OBERT S. C OHEN

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 1 3 th day of August , 2021 .

C OPIES F URNISHED :

Kristen M. Summers, Esquire Louise St. Laurent, Gen eral Counsel

Joseph William Mackey, Esquire Office of the General Counsel

Florida Department of Health Florida Department of Health

Prosecution Services Unit 4052 Bald Cypress Way, Bin C - 65

4052 Bald Cypress Way , Bin C - 65 Tallahassee, Florida 32399 - 3265

Tallahassee, Florida 32399

Sean Michael Ellsworth, Esquire Kenneth J. Metzger, Esqu ire

Ellsworth Law Firm, P.A. Metzger and Associates, LLC

1000 5th Street , Suite 223 1637 Metropolitan Boulevard, Suite C - 2

Miami Beach, Florida 33139 Tallahassee, Florida 32308

Paul A. Vazquez, J . D . , Exec utive Director

Board of M edicine

Florida Department of Hea lth

4052 Bald Cypress Way, Bin C - 03

Tallahassee, Florida 32399 - 325 3

N OTICE OF R IGHT 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 e xceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.