91-002815 Board Of Medicine vs. Vladimir Rosenthal Status: Closed Recommended Order on Friday, October 2, 1992.

Summary: Evidence was insufficient to establish charges that physician had falsified records or had departed from acceptable standards of medical care.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-2815

)

VLADIMIR ROSENTHAL, M.D., )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on

September 4 and 5, 1991, at Miami, Florida, before Michael M. Parrish, a duly

designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Richard A. Grumberg, Esquire

Senior Attorney

Department of Professional Regulation

1940 N. Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Karen Coolman Amlong, Esquire

Amlong & Amlong, P.A.

Second Floor

101 Northeast Third Avenue

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

This is a license discipline case in which a medical doctor is charged by

administrative complaint with five counts of violations of paragraphs (h), (k),

(m), and (t) of Section 458.331(1), Florida Statutes (1988 Supp.).

PRELIMINARY STATEMENT

At the formal hearing the Petitioner presented the live testimony of the

following witnesses: B.F. (one of the Respondent's patients); Dr. Nahid

Mansoori (patient B.F.'s referring physician); Sandra Owens (an employee of the

H.R.S. Office of Licensure and Certification; Dr. Robert E. McCammon (expert

witness); Dr. Martin Goldstein (expert witness); and Dr. Herman Epstein (expert

witness). The Petitioner also offered six exhibits into evidence, all of which

were accepted. One of the Petitioner's exhibits was comprised of the deposition

testimony of Linda Sullivan (former employee of the H.R.S. Office of Licensure

and Certification).

The Respondent testified on his own behalf and also offered the live

testimony of Robert Heaton (an employee of Amlong & Amlong, P.A.) and Dr.

Benjamin Graber (expert witness). The Respondent also offered thirteen exhibits

into evidence. Respondent's Exhibits 5 and 12 were rejected; all of the

Respondent's other exhibits were accepted. Respondent's accepted exhibits

include deposition testimony of the following: Dr. Pierre J. Bouis, Jr. (expert

witness); Dr. Arnold Wechsler (expert witness); and Dr. Uzi Bodman (expert

witness).

At the conclusion of the formal hearing the Petitioner was allowed 60 days

from the close of the hearing within which to take and file a deposition of Dr.

McCammon, and all parties were allowed 90 days from the close of the hearing

within which to file their proposed recommended orders. The Respondent

ultimately elected not to take the deposition of Dr. McCammon and no post-

hearing deposition was filed. A transcript of the proceedings at the formal

hearing was filed with the Hearing Officer on October 8, 1991. At the request

of the Respondent, the deadline for submitting proposed recommended orders was

extended to December 11, 1991.

Both parties filed proposed recommended orders containing proposed findings

of fact and conclusions of law. Specific rulings on all proposed findings of

fact submitted by all parties are contained in the Appendix to this Recommended

Order.

FINDINGS OF FACT

Findings based on parties' stipulations

1. The Respondent, Vladimir Rosenthal, M.D., (hereinafter "Respondent" or

"Dr. Rosenthal") is, and at all material times was, a medical doctor, license

number ME 0045574, who practiced at 1320 South Dixie Highway, Coral Gables,

Florida.

2. Dr. Rosenthal at all material times owned the business operating as

Today's Women Medical Center located at 1320 South Dixie Highway, Suite 1070,

Coral Gables, Florida.

3. On or about November 3, 1988, Dr. Rosenthal performed an elective

abortion on patient B.F. under general anesthesia.

4. On or about November 3, 1988, Dr. Rosenthal ordered a pathology report

of the products of the procedure performed on patient B.F.

5. The pathology report regarding patient B.F. bears the date November 8,

1988. The pathology report revealed no chorionic villi and recommended a "close

follow-up" of the patient.

6. Missed abortion and continued pregnancy is a recognized risk of early

(first trimester) abortions.

7. Patient B.F. suffered no harm as a result of the November 3, 1988,

procedure.

8. On or about December 7, 1988, patient B.F. presented to Dr. Rosenthal.

On or about December 7, 1988, patient B.F.'s uterus was examined and found to be

enlarged. Subsequently, a repeat pregnancy test was performed on patient B.F.,

which revealed she was still pregnant.

9. On or about December 10, 1988, Dr. Rosenthal performed a second

abortion on patient B.F. with positive results. Patient B.F. suffered no harm

as a result of the December 10, 1988, procedure.

Findings based on evidence at hearing

10. The Respondent specializes in the area of gynecology, but does not

practice obstetrics. In the course of his medical practice he regularly

performs first trimester abortions. The Respondent is very experienced in the

performance of first trimester abortions. In recent years he has averaged five

thousand (5,000) such procedures per year.

11. Patient B.F. normally goes to Dr. Nahid Mansoori for routine treatment

of gynecological matters. Patient B.F. was seen by Dr. Mansoori on October 28,

1988, with a history of a missed menstrual period. Dr. Mansoori examined the

patient and observed that the patient had an enlarged uterus and appeared to be

5 or 6 weeks pregnant. The patient expressed an interest in having an abortion.

Because Dr. Mansoori does not perform abortions, she referred patient B.F. to

the Respondent. Dr. Mansoori also referred patient B.F. to Dr. Martin S.

Goldstein for an ultrasound examination.

12. Dr. Mansoori referred patients to the Respondent on a regular basis.

She did so for several reasons, including the facts that (a) patients she

referred to the Respondent uniformly reported back to her that they were pleased

or satisfied with the services they received from the Respondent, (b) none of

her patients had complained about their treatment by the Respondent, and (c)

none of the patients she had referred to the Respondent had experienced any

infection or problems.

13. On October 31, 1988, Dr. Martin S. Goldstein performed an ultrasound

examination of patient B.F. On the basis of that ultrasound examination, Dr.

Goldstein concluded and reported that the "gestational age" of patient B.F.'s

pregnancy was 6 weeks, 0 days. Dr. Goldstein also concluded and reported that

patient B.F. had an intrauterine pregnancy, thus ruling out an ectopic

pregnancy.

14. On November 3, 1988, patient B.F. went to the Respondent's clinic at

1320 South Dixie Highway for the purpose of having an abortion. The Respondent

remembers this particular patient because she was a medical professional and her

husband was an attorney. Because of their respective professions, the

Respondent was extra careful to explain everything involved in the process to

both B.F. and her husband. He especially explained to both of them the

importance of a post-abortion follow up examination at either the Respondent's

clinic or at the office of the patient's regular gynecologist. Patient B.F.

said that she would return to Dr. Mansoori, her regular gynecologist, for the

follow up examination.

15. When patient B.F. went to the Respondent's clinic on November 3, 1988,

she told the Respondent that she had had an ultrasound examination. The

Respondent called Dr. Mansoori and Dr. Mansoori told him that the results of the

ultrasound examination indicated a "gestational age" 1/ of six weeks and that

the ultrasound examination confirmed an intrauterine pregnancy. Dr. Mansoori

also mentioned that her clinical examination of patient B.F. indicated a

"gestational age" of five or six weeks. Upon manual examination of the patient,

the Respondent concluded, and noted in the patient's medical record, that

patient B.F.'s uterus was enlarged to a size consistent with a "gestational age"

of five weeks. Later that same day, the Respondent performed an abortion

procedure on patient B.F. Following the abortion procedure, patient B.F. took

antibiotic medication for several days, which medication had been prescribed

and/or dispensed by the Respondent.

16. The Respondent ordered a pathology report of the products of the

abortion procedure performed on patient B.F. on November 3, 1988. The

Respondent does not order pathology reports on all of his patients, but he did

so in this case because it was an early pregnancy, and also because he wanted to

take extra care in view of the professions of B.F. and her husband.

17. The pathology laboratory is supposed to call Dr.

Rosenthal on all "abnormal" reports. Sometimes the laboratory fails to call and

sometimes the laboratory fails to send a written report. The Respondent has

established office procedures for handling laboratory reports to try to prevent

any reports from going astray and to identify those that do go astray so that

follow up activity may be taken. Pursuant to the Respondent's established

office procedures, all laboratory reports received at the clinic must be seen

and signed by the Respondent before being placed in a patient chart. When a

patient returns for her follow up visit, the laboratory report is reviewed

during the course of that visit. If a laboratory examination has been ordered,

but there is no laboratory report in the chart at the time of the follow up

visit, the laboratory is called by telephone. The Respondent usually makes

these calls himself.

18. Pursuant to the Respondent's established office procedures, missing

laboratory reports for patients who do not return for follow up visits or who

return to their regular physicians for follow up visits are picked up when

monthly reports to the Department of Health and Rehabilitative Services are

compiled and submitted. In order to complete these monthly reports, a log is

kept of every patient who has an abortion procedure performed at the

Respondent's clinic. The information kept in the log and reported to DHRS

includes: the date of surgery, the estimated "gestational age" of the patient,

whether a pathology report was ordered, the results of the pathology report, and

the date the pathology report was received by the clinic. Such forms were in

use at the time B.F. was a patient at the Respondent's clinic. If any pathology

reports "fell through the cracks," they were picked up each month when the

reports were prepared. The reports are usually prepared on the ninth or tenth

of each month. The implementation of these office procedures for the purpose of

following up on laboratory reports is sufficient to comply with applicable

standards of medical care.

19. The pathology laboratory prepared a report regarding the material

removed from patient B.F. during the November 3, 1988, abortion procedure. The

written laboratory report was dated November 8, 1988. The most significant

finding noted on the laboratory report was "no chorionic villi." Because of

this finding, the laboratory report also stated: "close follow up of patient is

recommended." The significance of the notation of "no chorionic villi" is that

it indicates that the pathology laboratory examination did not reveal evidence

of any fetal tissue or other "products of conception." The need for close

follow up in this instance is because the absence of chorionic villi can be due

to a number of different things. 2/

20. On November 18, 1988, patient B.F. went to Dr. Mansoori's office for a

post-abortion follow up visit. At that time the patient was complaining of a

vaginal "yeast" infection, a not uncommon occurrence following a course of

antibiotic medication. Dr. Mansoori treated the patient's "yeast" infection with

a prescription for Monistat Vaginal Cream. Dr. Mansoori's medical records for

that day also include the following notations regarding the patient B.F.: "Had

abortion by Today's Woman. Post AB check up O.K." 3/ Dr. Mansoori told patient

B.F. to get back in touch with her if the patient missed her next menstrual

period.

21. On December 6, 1988, patient B.F. called Dr. Mansoori to report that

she had missed her menstrual period. Dr. Mansoori advised her to return to the

Respondent and patient B.F. agreed to do so. Dr. Mansoori called the Respondent

to advise him that patient B.F. would be returning because she had missed her

menstrual period. Dr. Mansoori also arranged for another ultrasound examination

to be performed on patient B.F. by Dr. Goldstein.

22. On December 7, 1988, patient B.F. returned to the Respondent's clinic

where she was seen and examined by the Respondent. Examination revealed that

the patient's uterus was mildly enlarged. A pregnancy test administered that

day indicated that the patient was still pregnant. On December 7, 1988, the

Respondent realized that he did not have a report from the pathology laboratory,

so he called the laboratory and was advised that the most significant finding of

the pathology report was "no chorionic villi." The substance of the telephone

conversation with the pathology laboratory was noted in the patient's medical

record. When he made the telephone call to the pathology laboratory on December

7, 1988, the Respondent had not received the laboratory's written report dated

November 8, 1988, 4/ nor had he been otherwise advised of the results of the

pathology study of the materials removed during the November 3, 1988, abortion

procedure.

23. On December 8, 1988, Dr. Martin S. Goldstein performed a second

ultrasound examination of patient B.F. On the basis of the second ultrasound

examination, Dr. Goldstein concluded and reported that the "gestational age" of

patient B.F.'s pregnancy was 11 weeks, 6 days. This second gestational age was

three days older than one would have predicted based on the October 31, 1988,

ultrasound examination. In both of the ultrasound examinations of patient B.F.,

Dr. Goldstein relied upon the "crown rump" measurement as the basis for his

estimate of "gestational age."

24. On December 10, 1988, when patient B.F. returned to the Respondent's

office for the second abortion procedure, the Respondent conducted a clinical

examination of the patient before commencing the procedure. On the basis of his

own clinical examination of the patient, the Respondent was of the opinion that

patient B.F.'s "gestational age" was 8 or 9 weeks. He reported this on the

"Physical Exam" portion of the patient's chart by writing "8-9" beside the entry

for uterus. After the patient was anesthetized and the Respondent could examine

her while she was more relaxed, the Respondent further examined the patient's

uterus and was of the opinion that its size corresponded to a "gestational age"

of 8 weeks. He noted this opinion in the "Operative Notes" portion of the

patient's chart. It was, and continues to be, the Respondent's opinion that his

December 10, 1988, estimates of the patient's "gestational age" were correct.

Although he was aware of Dr. Goldstein's ultrasound examination which reported a

somewhat older "gestational age," the Respondent had confidence in his own

clinical findings and relied on his own clinical findings, which he duly

recorded in the patient's medical chart.

25. Relying on his own estimate of "gestational age," the Respondent

performed the abortion procedure on December 10, 1988, on patient B.F. with a

number eight suction tip. The abortion procedure was accomplished successfully

and without any difficulty or complication. A report from a pathology

laboratory confirmed that the December 10, 1988, abortion procedure was

successful. 5/

26. The prevailing standards of acceptable care do not require a physician

to order a pathology examination of the material removed during the course of a

routine first trimester abortion procedure. In an abortion procedure involving

a very early pregnancy, a physician may wish to order such a pathology

examination in order to be more certain as to the results of the procedure, but

it is a matter of physician preference, rather than a requirement.

27. A physician who orders a pathology examination of the material removed

during a first trimester abortion procedure has an affirmative duty to follow up

on the examination and find out the results of the examination within a

reasonable period of time. 6/ The Respondent's follow up on December 7, 1988,

on the results of the pathology examination of the material removed from patient

B.F. during the November 3, 1988, procedure was reasonable under the

circumstances. 7/ The Respondent's delay until December 7, 1988, before

following up on that pathology examination was not a departure from applicable

standards of medical care. 8/

28. The Respondent's medical records for patient B.F. justify the course

of treatment of the patient.

29. The use of ultrasound examination as a method of estimating

"gestational age" is not an exact science and cannot be relied upon to determine

an exact "gestational age." As a general rule, "gestational age" estimates

derived by means of ultrasound examination are accurate within a margin of error

of plus or minus two weeks. 9/

30. Clinical or manual examination of a patient as a method of estimating

"gestational age" is also not an exact science and cannot be relied upon to

determine an exact "gestational age." As a general rule, "gestational age"

estimates derived by means of clinical or manual examination of a patient are

accurate within a margin of error of plus or minus two weeks, if done by an

experienced physician. It is not a departure from applicable standards of

medical care for an estimate of "gestational age" to vary from the actual

"gestational age" by as much as plus or minus two weeks when the estimate is

based on the physician's clinical or manual examination of the patient.

31. A reasonably prudent physician who is experienced in clinical or

manual examination of patients for the purpose of estimating "gestational age"

should rely on his own findings, even if those findings appear to conflict with

findings based on ultrasound examination. Such a physician should also note his

own findings on the patient's medical records, regardless of what is reported by

the ultrasound.

32. There is no great discrepancy between the estimate of "gestational

age" reported in Dr. Goldstein's ultrasound report of December 8, 1988, and the

Respondent's estimate of "gestational age" on December 10, 1988. The

Respondent's notations in patient B.F.'s medical records on December 10, 1988,

to the effect that her pregnancy was of a "gestational age" of eight weeks was

an honest notation of the Respondent's clinical judgment and was not a statement

the Respondent knew to be false. 10/ Similarly, those notations were not

deceptive, untrue, or fraudulent representations.

33. On or about August 3, 1989, the Respondent's clinic, known as Today's

Woman Medical Center, located at Suite 1070, 1320 South Dixie Highway, Coral

Gables, Florida, was inspected by an employee of the Office of Licensure and

Certification of the Department of Health and Rehabilitative Services. 11/ At

the time of that inspection the Respondent was not present at the clinic, there

were no procedures being performed at the clinic, and there were no patients at

the clinic.

CONCLUSIONS OF LAW

34. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Sec. 120.57(1), Fla. Stat.

35. In a license discipline proceeding of this nature the Petitioner bears

the burden of proving its charges by clear and convincing evidence. See Ferris

v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing

evidence has been described as follows in Slomowitz v. Walker, 429 So.2d 797,

800 (Fla. 4th DCA 1983):

We therefore hold that 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 explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence must

be of such weight that it produces in the mind of the

trier of fact a firm belief or conviction, without

hesitancy, as to the truth of the allegations sought to

be established.

See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d

956 (Fla. 1st DCA 1988), which, at page 958, quotes with approval the

above Slomowitz. The Smith case also includes the

following at page 958:

"Clear and convincing evidence" is an intermediate

standard of proof, more than the "preponderance of the

evidence" standard used in most civil cases, and less

than the "beyond a reasonable doubt" standard used in

criminal cases. See State v. Graham, 240 So.2d 486

(Fla. 2d DCA 1970).

36. Section 485.331(2), Florida Statutes (1988 Supp.), reads as follows,

in pertinent part:

(2) When the board finds any person guilty of any

of the grounds set forth in subsection (1), it may

enter an order imposing one or more of the following

penalties:

(a) Refusal to certify, or certification with

restrictions, to the department an application for

licensure, certification, or registration.

(b) Revocation or suspension of a license.

(c) Restriction of practice.

(d) Imposition of an administrative fine not to

exceed $5,000 for each count or separate offense.

(e) Issuance of a reprimand.

(f) Placement of the physician on probation

for a period of time and subject to such conditions as

the board may specify, including, but not limited to,

requiring the physician to submit to treatment, to

attend continuing education courses, to submit to

reexamination, or to work under the supervision of

another physician

(g) Issuance of a letter of concern.

(h) Corrective action.

( i) Refund of fees billed to and collected from

the patient.

Discussion of Count One

37. Count One of the Administrative Complaint charges that the Respondent

violated Section 458.331(1)(t), Florida Statutes (1988 Supp.). The cited

statutory provision authorizes disciplinary action upon proof of the following:

(t) Gross or repeated malpractice or the 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. The board shall

give great weight to the provisions of s. 766.102 when

enforcing this paragraph. As used in this paragraph,

"repeated malpractice" includes, but is not limited to,

three or more claims for medical malpractice within the

previous 5-year period resulting in indemnities being

paid in excess of $10,000 each to the claimant in a

judgment or settlement and which incidents involved

negligent conduct by the physician. As used in this

paragraph, "gross malpractice" or "the 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," shall not be construed

so as to require more than one instance, event, or act.

Nothing in this paragraph shall be construed to require

that a physician be incompetent to practice medicine in

order to be disciplined pursuant to this paragraph.

38. The factual predicate for Count One is alleged in Paragraph 15 of the

Administrative Complaint to be ". . . that Respondent failed to follow up

Patient #1 [Patient B.F.], pursuant to a pathologist report, he falsely noted on

his medical records that Patient #1 was eight (8) weeks pregnant when she was

actually eleven (11) weeks pregnant." The evidence in this case is insufficient

to establish the allegations upon which Count One is based. In this regard it

is first noted that the greater weight of the evidence is to the effect that the

Respondent did not receive actual knowledge of the pathology report dated

November 8, 1988, until he contacted the laboratory by telephone on December 7,

1988. As soon as the Respondent had knowledge of the information contained in

the November 8, 1988, pathology report, he took appropriate action. Therefore,

there was no failure to follow up patient B.F. To the extent that Count One is

based upon the premise that the Respondent should have contacted the pathology

laboratory sooner and should have initiated the follow up of patient B.F.

sooner, it is sufficient to note that that premise is not asserted in the

Administrative Complaint 12/ and, in any event, the greater weight of the

evidence is to the effect that the Respondent's office procedures for following

up on laboratory reports were sufficient to meet applicable standards of care.

39. With regard to so much of Count One as is predicated upon the

assertion that the Respondent "falsely" noted in his records that patient B.F.

was eight (8) weeks pregnant, the evidence in this case is insufficient to

establish that the Respondent made any false notations in his records. The most

that can be said in this regard on the basis of the record in this case is that

the Respondent may have made an erroneous or incorrect notation in his records

with regard to the duration of patient B.F.'s pregnancy. 13/ He has not been

charged with making erroneous or incorrect notations in his records and, in any

event, the evidence in this case is insufficient to establish that an erroneous

or incorrect notation of the duration of a patient's pregnancy is a departure

from applicable standards of care. To the contrary, the evidence in this case

establishes that a margin of error of plus or minus two weeks in the estimation

of "gestational age" is within applicable standards of medical care. Such being

the case, even if it were to be proved that the Respondent's estimate was

incorrect by as much as two weeks, such proof would not constitute a basis for

any disciplinary action. Accordingly, Count One of the Administrative Complaint

should be dismissed.

Discussion of Count Two

40. Count Two of the Administrative Complaint charges that the Respondent

violated Section 458.331(1)(h), Florida Statutes (1988 Supp.). The cited

statutory provision authorizes disciplinary action upon proof of the following:

(h) Making or filing a report which the licensee

knows to be false, intentionally or negligently failing

to file a report or record required by state or federal

law, willfully impeding or obstructing such filing or

inducing another person to do so. Such reports or

records shall include only those which are signed in

the capacity as a licensed physician.

41. The factual predicate for Count Two is alleged in

Paragraph 18 of the Administrative Complaint to be that "Respondent made or

filed a report which the licensee knew to be false in that he noted on Patient

#1's [Patient B.F.'s] medical records that she was eight (8) weeks pregnant when

Respondent had an ultrasound stating that Patient #1 was eleven (11) weeks

pregnant." As discussed above regarding Count One, the evidence in this case is

insufficient to establish that the Respondent made any false notations in his

medical records. The evidence being insufficient to establish that there was a

false notation in the medical records, it follows inescapably that the evidence

is insufficient to establish that the Respondent "knew" he was making a false

report. Because the evidence is insufficient to establish that the Respondent

made a false report, Count Two of the Administrative Complaint should be

dismissed.

Discussion of Count Three

42. Count Three of the Administrative Complaint charges that the

Respondent violated Section 458.331(1)(k), Florida Statutes (1988 Supp.). The

cited statutory provision authorizes disciplinary action upon proof of the

following:

(k) Making deceptive, untrue, or fraudulent

representations in the practice of medicine or

employing a trick or scheme in the practice of

medicine.

43. The factual predicate for Count Three is alleged in Paragraph 21 of

the Administrative Complaint to be that "Respondent made a deceptive, untrue or

fraudulent misrepresentation when he noted on Patient #1's [Patient B.F.'s]

medical records that she was eight (8) weeks pregnant when Respondent had an

ultrasound stating that Patient #1 was eleven (11) weeks pregnant." As noted in

the foregoing discussions of Counts One and Two, the evidence in this case is

insufficient to show more than that the Respondent may have made an erroneous or

incorrect notation in his records with regard to the duration of Patient B.F.'s

pregnancy. An erroneous or incorrect notation in the records is insufficient to

establish a violation of Section 458. 331(1)(k), Florida Statutes (1988 Supp.).

In discussing the application of a similar statute, in Dept. of Professional

Regulation, Bd. of Medicine v. Pamela Sue Morgan, DOAH Case No. 92-0014

(Recommended Order issued April 20, 1992), Hearing Officer Lerner included the

following discussion in his conclusions of law:

5. Section 468.365(1)(a), Florida Statutes,

authorizes the Board to discipline a Florida- licensed

respiratory care practitioner for " renewing a

certificate or registration as provided by this part .

. . by fraudulent misrepresentation." To establish

that a licensee committed such a violation, the

Department must show not only that the licensee

provided false or misleading information on her renewal

application, but that she knowingly did so with the

intent to deceive or mislead the Board. Cf. First

Interstate Development Corp. v. Ablandeo, 511 So.2d

536, 539 (Fla. 1987)("intentional misconduct is a

necessary element of fraud. Indeed, to prove fraud, a

plaintiff must establish that the defendant made a

deliberate and knowing misrepresentation designed to

cause, and actually causing detrimental reliance by the

plaintiff."); Charter Air Center, Inc. v. Miller, 348

So.2d 614, 616 (Fla. 2d DCA 1977), cert. denied, 354

So.2d 983 (Fla. 1977)("[t]he elements of fraudulent

representation are: a false statement pertaining to

a material fact, knowledge that it is false, intent to

induce another to act on it, and injury by acting on

the statement."); Gentry v. Department of Professional

and Occupational Regulations, 293 So.2d 95, 97 (Fla.

1st DCA 1974)(statutory provision prohibiting licensed

physicians from "[m] aking misleading, deceptive and

untrue representations in the practice of medicine"

held not to apply to "representations which are

honestly made but happen to be untrue ; ""[t]o

constitute a violation . . . the legislature intended

that the misleading and and untrue representations must

be made willfully (intentionally)"; Naekel v.

Department of Transportation, 782 F.2d 975, 978 (Fed.

Cir. 1986)("a charge of falsification of a government

document [in this case an employment application]

requires proof not only that an answer is wrong, but

also that the wrong answer was given with intent to

deceive or mislead the agency;" "[a] system of real

people pragmatic in their expectations would not easily

tolerate a rule under which the slightest deviation

from the truth [on an employment application] would

sever one's tenuous link to employment"; Nyren v. HRS,

5 FCSR para. 126 (Fla. PERC 1990)("[a] mere mistaken

entry on a travel voucher does not necessarily reflect

that an employee has committed fraud or has intended to

deceive the agency;" a showing that the employee

intended to defraud or deceive the agency "is essential

to sustain a charge of falsification of records").

44. The above-quoted conclusions by Hearing Officer Lerner are equally

applicable here and compel a conclusion that Count Three of the Administrative

Complaint must be dismissed. In this regard it should be noted that the

statutory language applicable in this case is substantially identical in effect

to the statutory language interpreted by the court in Gentry v. Dept. of

Professional and Occupational Regulations, 293 So.2d 95 (Fla. 1st DCA 1974). 14/

Discussion of Count Four

45. Count Four of the Administrative Complaint charges that

the Respondent violated Section 458.331(1)(m), Florida Statutes (1988 Supp.).

The cited statutory provision authorizes disciplinary action upon proof of the

following:

Failing to keep written medical records justifying

the course of treatment of the patient, including, but

not limited to, patient histories; examination results;

test results; records of drugs prescribed, dispensed,

or administered; and reports of consultations and

hospitalizations.

46. The factual predicate for Count Four is alleged in Paragraph 24 of the

Administrative Complaint to be that "Respondent failed to keep written medical

records that justified the course of treatment in that Respondent's medical

records on Patient #1 [Patient B.F.] failed to reflect Respondent's follow up

treatment of Patient #1 pursuant to the pathology report dated November 8,

1988." Again, the evidence in this case is insufficient to establish the

factual predicate for this Count. To the contrary, the greater weight of the

evidence is to the effect that the Respondent's medical records of the treatment

of patient B.F. are sufficient to justify the course of treatment. As noted in

the discussion above regarding Count One, the greater weight of the evidence is

to the effect that the Respondent did not receive actual knowledge of the

pathology report dated November 8, 1988, until he contacted the laboratory by

telephone on December 7, 1988. The information he received by telephone from the

laboratory on December 7, 1988, is noted in his medical records regarding

patient B.F., and that information, plus other information received that day and

noted in the medical records, justified the course of treatment. Accordingly,

Count Four of the Administrative Complaint should be dismissed.

Discussion of Count Five

47. Count Five of the Administrative Complaint charges the Respondent with

another violation of Section 458.331(1)(t), Florida Statutes (1988 Supp.). The

cited statutory provision is quoted above in the discussion of Count One. The

factual predicate for Count Five is alleged in Paragraph 27 of the

Administrative Complaint to be that the Respondent "maintained a clinic in

unsafe conditions based on the findings pursuant to an inspection by the

Department of Health and Rehabilitative Services." Again, the evidence in this

case is insufficient to establish the factual predicate for the violation

alleged in this Count. This is primarily because, as discussed in the notes to

the Findings of Fact and in the Appendix, I have given but little credit to the

testimony of the witness Linda Sullivan and have concluded that her testimony

and the written report she prepared do not constitute clear and convincing

evidence and are, for the most part, an insufficient basis for fact-finding.

Absent clear and convincing evidence of the condition of the clinic at the time

alleged in the Administrative Complaint, Count Five of the Administrative

Complaint must be dismissed.

48. Even if Linda Sullivan's testimony had been credited and used as a

basis for finding that the Respondent's clinic was in the condition described in

Ms. Sullivan's testimony and report, such findings of fact would still be

insufficient to establish the violation Charged in Count Five because there is

neither allegation nor proof in this case that the Respondent treated patients

in the clinic while it was in the condition described by Ms. Sullivan, or, if

the clinic was in the condition described by Ms. Sullivan, that the Respondent

knew it was in such condition. Absent proof that the Respondent knew of the

alleged condition of the clinic, the Respondent cannot be disciplined because of

any such condition. See, generally, Bach v. Florida State Board of Dentistry,

378 So.2d 34 (Fla. 1st DCA 1979). Absent proof that the Respondent treated

patients in the clinic at a time when it was in the condition alleged by Ms.

Sullivan, it cannot be concluded that he was practicing medicine, and if he was

not practicing medicine, he cannot be found to be in violation of Section

458.331(1)(t), Florida Statutes (1988 Supp.). See, generally, Elmariah v. Dept.

of Professional Regulation, Bd. of Medicine, 574 So.2d 164 (Fla. 1st DCA 1990).

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that a Final Order

be entered in this case DISMISSING all charges against the Respondent, Vladimir

Rosenthal, M.D.

DONE AND ENTERED this 2nd day of October, 1992, at Tallahassee, Leon

County, Florida.

___________________________________

MICHAEL M. PARRISH, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

904/488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of October, 1992.

ENDNOTES

1/ The meaning of the term "gestational age" is addressed at length in the

Appendix in conjunction with the ruling on Paragraph 10 of the Petitioner's

proposed findings of fact.

2/ The absence of chorionic villi in a pathology laboratory report regarding

materials removed during an abortion procedure can be due to any of the

following: (a) the fact that the patient was not actually pregnant, (b) the

fact that the abortion procedure was unsuccessful and failed to remove any fetal

parts or other "products of conception," (c) the fact that the pregnancy is

ectopic (elsewhere than in the uterus), or (d) the fact that in very early

pregnancies, due to the small size of the materials involved, it is sometimes

difficult for the pathologist to locate and identify chorionic villi.

3/ Although neither of the parties has directed attention to the matter, and

although the record evidence as to what transpired during patient B.F.'s

November 18, 1988, visit to Dr. Mansoori is too skimpy to provide a basis for

reaching any firm conclusions, one cannot help but wonder whether some important

diagnostic information was overlooked during that visit. When Dr. Mansoori

examined the patient on October 28, 1988, the doctor's manual examination

detected an enlarged uterus, which the doctor estimated to be consistent with a

"gestation age" of five to six weeks. In view of the fact that the November 3,

1988, abortion procedure was unsuccessful, in the normal course of events, a

similar examination of the same patient should have revealed an enlarged uterus

that was slightly larger than it had been on October 28, 1988. Dr. Mansoori's

medical records for November 18, 1988, contain no notation regarding uterus

size.

4/ There is no clear explanation in the record of this case as to why the

Respondent did not receive the written laboratory report. Perhaps it was

misaddressed; throughout the record in this case the Respondent's clinic is

identified as being in "Suite 1070," but the subject laboratory report indicates

that it was sent to "Suite 1051." According to several of the expert witnesses

who testified in this case, it is not uncommon for laboratory reports to go

astray. That is why it is important to have follow up procedures to determine

the fate of laboratory studies.

5/ The pathology report regarding the December 10, 1988, procedure stated:

"The specimen consists of multiple fragments of tan-brown to dark brown friable

bloody mucoid tissue totaling 36 grams fetal parts. Representative sections.

Sections demonstrate portions of placenta with trophoblasts, chorionic villi and

decidua."

6/ All of the expert witnesses who testified on this issue agree that there is

such an affirmative duty. However, the testimony in this case reflects a great

deal of difference of opinion as to how soon the follow up must be done. There

is no persuasive evidence in the record of this case of any specific minimum

time period within which a physician must initiate follow up of laboratory

reports. The greater weight of the evidence is to the effect that the

Respondent's follow up on December 7, 1988, was not so tardy as to constitute a

departure from applicable standards of medical care.

7/ The relevant circumstances include the fact that the Respondent had an

office procedure in place that would at least once a month bring to his

attention any missing laboratory reports. Further, patient B.F., by her own

choice, went to Dr. Mansoori for her post- abortion check up on November 18,

1988. If patient B.F. had returned to the Respondent for the post-abortion

check up, he would have discovered at that time that he did not have the

laboratory report, and could have obtained the results somewhat sooner.

Further, if in the course of the November 18, 1988, post-abortion check up, Dr.

Mansoori had discovered that patient B.F. had an enlarged uterus (as she almost

certainly did), that discovery would most likely have resulted in the patient's

prompt return to the Respondent and in earlier follow up on the laboratory

report.

8/ In this regard it is important to note that the Respondent did not have any

information about the results of the subject pathology examination until he

called the laboratory on December 7, 1988. As soon as he became aware of the

laboratory results, he took prompt appropriate action. The witnesses who found

fault with the Respondent's follow up of the laboratory results appear to have

assumed that the Respondent became aware of the laboratory results on the date

of the laboratory report (November 8, 1988) and then waited almost a month

before doing anything about it. The greater weight of the evidence is

otherwise. One of the witnesses who initially criticized the Respondent's

follow up agreed that if the Respondent did not receive knowledge of the

laboratory results until December 7, 1988, then there was, in the witness's

opinion, no departure from the applicable standard of care. (See testimony of

Dr. Herman M. Epstein at transcript pages 283-284, 291-292.)

9/ Most of the expert witnesses who testified on this subject were of the

opinion that estimates of "gestational age" derived from ultrasound examinations

should be treated as having a potential margin of error of plus or minus two

weeks. Other witnesses were of the opinion that the margin of error was

somewhat smaller. Dr. Herman M. Epstein was of the opinion that such estimates

of "gestational age" should be treated as having a margin of error of plus or

minus one week. The greater weight of the evidence is to the effect that the

margin of error is plus or minus two weeks.

10/ Quite to the contrary, the Respondent believed the statement to be true and

accurate. Whether the statement was accurate is irrelevant, because the

Respondent has not been charged with making an inaccurate or erroneous

statement.

11/ I have not made any findings of fact regarding the condition of the clinic

at the time of the inspection on August 3, 1989, because the record in this case

does not contain clear and convincing evidence of the condition of the clinic at

that time. The insufficiencies of the evidence in this regard are addressed in

the Appendix. (See Appendix, discussion of Paragraphs 12 and 31 of the

Petitioner's proposed findings of fact.)

12/ It is well settled in this state that it is a denial of due process to find

a licensee guilty of an offense not specifically charged in the Administrative

Complaint. See Wray v. Dept. of Professional Regulation, Bd. of Medical

Examiners, 435 So.2d 312 (Fla. 1st DCA 1983); Sternberg v. Dept. of Professional

Regulation, Bd. of Medical Examiners, 465 So.2d 1324 (Fla. 1st DCA 1985).

13/ The evidence in this case is insufficient to establish that the Respondent

did, in fact, make an erroneous or incorrect notation in the medical records

concerning patient B.F. It is sufficient only to show that such might have been

the case. The evidence in this case is equally consistent with the possibility

that the physician who performed the two ultrasound procedures on patient B.F.

may have reached and reported erroneous or incorrect conclusions regarding the

duration of patient B.F.'s pregnancy. It is also possible that the differences

between the ultasound estimates and the Respondent's estimates are due in part

to differences in what the respective physicians meant when they used the term

"gestational age." The records reveals that Dr. Goldstein's use of that term

results in an estimate that is approximately two weeks longer than the date of

conception. The record does not indicate whether the Respondent's estimates of

"gestational age" use a beginning point of onset of last menstrual cycle or a

beginning point of conception.

14/ The physician in the Gentry case was charged with a violation of a statute

that authorized disciplinary action for "[m] aking misleading, deceptive and

untrue representations in the practice of medicine."

APPENDIX TO RECOMMEDED ORDER

IN CASE NUMBER 91-2815

The following are my specific rulings on all proposed findings of fact

submitted by all parties.

Proposed findings submitted by the Petitioner:

Paragraphs 1 through 6: Accepted.

Paragraph 7: Accepted in substance, but with many subordinate details

omitted.

Paragraphs 8 and 9: Accepted.

Paragraph 10: Accepted in substance with some additional clarifying

details. Throughout this Recommended Order I have placed the term "gestational

age" in quotation marks because it appears to, in some instances, be a term of

art which has a meaning different from the meaning one would derive from a

dictionary. The American Heritage Dictionary of the English Language (1973

Ed.), at page 554, states that the word gestation means: "The period of carrying

developing offspring in the uterus after conception; pregnancy." Webster's

Third New International Dictionary (Unabridged 1976 Ed.), at page 952, gives the

following meaning: "[T]he carrying of young usu. in the uterus from conception

to delivery: pregnancy." From the quoted definitions it is clear that the

dictionary definition of the term "gestational age" contemplates a period of

time the beginning point of which is conception. But, as explained, by Dr.

Martin Goldstein at pages 183-84 of the transcript, that is not what physicians

always mean when they use the term "gestational age:"

A. Okay. When we talk about a gestational age of

six weeks or seven weeks, we're really talking about

the time that has elapsed since the first day of the

lady's last period before she became pregnant. Now, a

little bit of physiology will tell you that she really

hasn't been pregnant at that time, because you only get

pregnant from two weeks later when she ovulated and

conceived.

However, so in very strict terms, when we're

giving menstruation gestational age, it's off by two

weeks. However, the standard of nomenclature is to use

that and automa- tically add those two weeks on to the

pregnancy, because most women will know the first day

of their last period far better than they know the day

they actually conceived. So, when we talk about a

pregnancy of 12

weeks, 16 weeks, 40 weeks, we are using that

convention.

***

A. That's menstrual gestational age. Which is,

that phrase, just been shortened to be gestational age.

That is the standard that everybody uses.

But apparently that convention is not used by everybody. Dr. Mansoori did not

use that convention. (See transcript page 63, line 4; page 64, lines 4-6; page

65, lines 4-7; page 66, lines 3- 8.) Dr. Arnold Wechsler does not use that

convention, because he recognizes a difference between "menstrual age" and

"gestational age" and believes that when radiologists use the term "gestational

age" in ultrasound reports they are estimating the time that has elapsed since

conception. (See pages 40-41 of Wechsler deposition transcript.) Dr. Herman M.

Epstein agrees with Dr. Goldstein's use of the term "gestational age." (See

transcript page 270, lines 16- 20.) The record in this case is not clear with

regard to the meaning attributed to the term "gestational age" by the other

experts who testified in this case.

Paragraph 11: Accepted.

Paragraph 12: Accepted in substance with some additional clarifying

details.

Paragraph 13: First sentence is accepted. The remainder of this paragraph

is rejected as not proved by clear and convincing evidence. The only evidence

of the findings proposed in this paragraph consists of the written report and

deposition testimony of Linda Sullivan (Petitioner's Exhibits 3 and 4). The

findings proposed in this paragraph are a fair summary of information reported

by and testified to by Ms. Sullivan, but I am simply not persuaded that the

evidence offered through Ms. Sullivan is worthy of belief. First, it is simply

very unlikely that conditions were as described by Ms. Sullivan. Second, Ms.

Sullivan's testimony and report are uncorroborated. Third, Ms. Sullivan's

testimony was somewhat vague in some areas and she had a number of failures of

recollection. This evidence does not meet the standards for "clear and

convincing evidence" described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla.

4th DCA 1983).

Paragraph 14: First two sentences are rejected as subordinate and

unnecessary details. (These are all details considered by the Hearing Officer in

deciding which competing version of the facts to accept or which competing

expert opinion to accept, but they are not facts relevant to the issues raised

by the pleadings in this case and they are not matters that serve any useful

purpose in the findings of fact, which will be quite long enough without them.)

The opinion implicit in the third sentence of this paragraph is rejected as

being broader than what is supported by the greater weight of the evidence. The

opinion implicit in the fourth sentence of this paragraph is rejected as

contrary to the greater weight of the evidence. The three reasons set forth in

the last sentence of this paragraph are accepted as the reasons for which a

pathology report would be ordered following a first semester abortion, but the

"mandatory" aspect of the proposed finding is rejected as contrary to the

greater weight of the evidence.

Paragraph 15: Rejected as argument or as subordinate and unnecessary

details. (Also see discussion above of findings proposed at paragraph 14.)

Paragraph 16: Rejected as subordinate and unnecessary details.

Paragraph 17: The opinion implicit in this paragraph is rejected as

contrary to the greater weight of the evidence.

Paragraph 18: The reasons set forth in this paragraph are accepted as the

reasons for which a pathology report would be ordered following a first semester

abortion, but the "mandatory" aspect of the proposed finding is rejected as

contrary to the greater weight of the evidence.

Paragraph 19: Rejected as irrelevant anecdotal details that are stated in

such broad terms as to be of no useful application in the resolution of the

issues in this case. (In retrospect, the relevancy objections addressed to this

subject matter should have been sustained.)

Paragraph 20: Rejected for the several reasons which follow. This is an

example of unnecessary and unhelpful summarization of testimony. The only fact

that can be drawn from the testimony quoted in the first sentence of this

paragraph is that Dr. McCammon does not know how a certain thing might happen; a

fact totally irrelevant to anything that needs to be decided here. If counsel

wish to support their proposed findings by directing the attention of Hearing

Officers to portions of the evidence, they should do so by parenthetical

reference to the underlying evidence, by footnote reference to the underlying

evidence, or by separate brief containing argument about and/or quotations from

the underlying evidence. But they should not add to the Hearing Officers' task

by cluttering up proposed findings of fact with arguments and with summaries or

fragments of testimony. The opinion implicit in the last sentence of Paragraph

20 of the Petitioner's proposed findings is rejected as contrary to the greater

weight of the evidence.

Paragraph 21: Rejected as consisting primarily of commentary and argument

about the testimony, rather than as proposed findings of fact. And in any

event, "being consistent with" is not the same thing as "being evidence of," and

is, therefore, irrelevant.

Paragraph 22: Rejected as subordinate and unnecessary details.

Paragraph 23: First two sentences are accepted in substance. The third

sentence is rejected as too broad or vague, and as contrary to the greater

weight of the evidence. The fourth sentence is rejected as subordinate and

unnecessary details. The fifth and sixth sentences are rejected as contrary to

the greater weight of the evidence. (The record in this case contains a great

deal of conflicting evidence regarding the accuracy of ultrasound estimates of

gestational age. In resolving those conflicts I have found that ultrasound

estimates of gestational age during the first trimester should be treated as

being accurate to within plus or minus two weeks.)

Paragraph 24: The first sentence is rejected as subordinate and

unnecessary details in view of my findings regarding the accuracy of ultrasound

estimates of gestational age. The second sentence is rejected as contrary to

the greater weight of the evidence. Last sentence rejected as an anecdotal

detail that fails to shed any light on anything relevant to the issues in this

case.

Paragraph 25: Rejected as subordinate and unnecessary details.

Paragraph 26: Rejected as argument about the credibility of witnesses,

rather than proposed findings of fact. (As noted elsewhere, the argument has

been resolved otherwise.)

Paragraph 27: Rejected as unnecessary commentary about the status of the

evidentiary record, rather than proposed findings of fact.

Paragraphs 28 through 30: Rejected as subordinate and unnecessary details.

Paragraph 31: The fact that Ms. Sullivan wrote a report is a subordinate

and unnecessary detail. The remainder of the details proposed in this paragraph

are rejected as not being established by clear and convincing evidence. (For

further details see the explication above regarding Paragraph 13 of the

Petitioner's proposed findings.)

Paragraph 32: The opening sentence of this paragraph is rejected as

inaccurate by being a broader statement than can be supported by the evidence.

Also rejected as irrelevant in view of the lack of clear and convincing evidence

of the condition of the clinic on August 3, 1989.

Paragraph 32(A): Rejected for the following reasons. First, it is

irrelevant in view of the lack of clear and convincing evidence of the condition

of the clinic on August 3, 1989. Second, implicit in Dr. McCammon's opinion

that the condition of the clinic fell below the standard of care is an

assumption that was neither charged nor proved; the assumption that the

Respondent was treating patients in a clinic in that condition.

Paragraph 32(B): Rejected for the following reasons. First, it is

irrelevant in view of the lack of clear and convincing evidence of the condition

of the clinic on August 3, 1989. Second, explicit in Dr. Epstein's opinion that

the condition of the clinic fell below the standard of care is an assumption

that was neither charged nor proved; the assumption that the Respondent was

treating patients in a clinic in that condition. Third, any reliance one might

have placed on Dr. Epstein's opinion in this regard was undermined by his

unsolicited comment: "It's not appetizing, certainly, but I can't say that this

would necessarily jeopardize anybody." (Transcript page 273)

Paragraph 32(C): Rejected for the following reasons. First, it is

irrelevant in view of the lack of clear and convincing evidence of the condition

of the clinic on August 3, 1989. Second, explicit in Dr. Graber's opinion that

the condition of the clinic fell below the standard of care is an assumption

that was neither charged nor proved; the assumption that the Respondent was

treating patients in a clinic in that condition. Third, Dr. Graber explained:

"As long as the facility is cleaned up and ready when patients come in, that's

acceptable standard of care." (Transcript page 372)

Paragraph 32(D) [including its three subparts]: Rejected for the following

reasons. First, it is irrelevant in view of the lack of clear and convincing

evidence of the condition of the clinic on August 3, 1989. Second, explicit in

Dr. Bodman's opinion that the condition of the clinic fell below the standard of

care is an assumption that was neither charged nor proved; the assumption that

the Respondent was treating patients in a clinic in that condition. Third, Dr.

Bodman expressed some inconsistent opinions on this subject. (Compare lines 14

- 17 of page 64 with lines 18 - 24 of page 64. Also see lines 19 - 25 at page

68.)

Paragraph 32(E): Rejected for the following reasons. First, it is

irrelevant in view of the lack of clear and convincing evidence of the condition

of the clinic on August 3, 1989. Second, explicit in Dr. Wechsler's opinion

that the condition of the clinic fell below the standard of care is an

assumption that was neither charged nor proved; the assumption that the

Respondent was treating patients in a clinic in that condition.

Paragraph 33: First sentence is rejected as not supported by competent

substantial evidence; Dr. Rosenthal's admission was qualified by reference to

performing surgery in such a facility. Second sentence is rejected as irrelevant

because it incorporates matters that were neither charged nor proved;

specifically, the matter of performing surgery on patients in a clinic in that

condition.

Paragraph 34: Rejected as constituting argument, rather than proposed

findings of fact.

Paragraphs 35 and 36: Rejected as subordinate and unnecessary details.

Paragraph 37: Rejected as constituting legal arguments or conclusions of

law, rather than proposed findings of fact.

Paragraph 38: Rejected as irrelevant in view of lack of clear and

convincing evidence regarding the condition of the clinic.

Paragraphs 39 through 42: Rejected as constituting legal arguments or

conclusions of law, rather than proposed findings of fact.

Proposed findings submitted by the Respondent:

Paragraph 1: Rejected as constituting a conclusion of law, rather than a

proposed finding of fact.

Paragraphs 2 and 3: Accepted.

Paragraph 4: Most of the details in this paragraph have been rejected as,

at most, subordinate and unnecessary details; some of these details are also

simply irrelevant to the issues in this case. A few of the details are

necessary for context.

Paragraphs 5 through 18: Accepted in substance with some subordinate and

unnecessary details omitted.

Paragraph 19: The first sentence is accepted in substance. The second

sentence and subparagraphs (a) through (f) are rejected as constituting

primarily an unnecessary summary of all of the testimony on the matter at hand,

rather than a specific proposed finding of fact the Respondent wishes to have

made. In my findings on this subject I have found that the Respondent's actions

regarding the pathology report did not depart from the appropriate standard of

care.

Paragraph 20: The first four sentences are accepted in substance. The

last sentence of this paragraph is rejected as argument.

Paragraph 21: Accepted in substance, but with some additional details.

Paragraphs 22 through 25: Accepted in substance.

Paragraph 26: Rejected as being too narrow or restricted a statement, and

thus inaccurate. There are other possible explanations.

Paragraph 27: Accepted in substance.

Paragraph 28: This paragraph and its subparagraphs (a) through (f) are

rejected as constituting summaries of the testimony, rather than a specific

proposed finding of fact the Respondent wishes to have made. On this subject I

have resolved the conflicts in the evidence in favor of a finding that

ultrasound estimates of fetal age are accurate within plus or minus two weeks.

Paragraphs 29 through 32: Rejected as subordinate and unnecessary details.

Paragraph 33: Rejected as constituting primarily argument, rather than

proposed findings of fact. (The argument is essentially correct, but is

argument nevertheless.)

Paragraphs 34 and 35: These paragraphs are more mixed statements of fact

and law and come closer to being ultimate conclusions to be reached after

applying the law to the facts, rather than pure findings of fact. Therefore,

while I have included conclusions similar to these in my conclusions of law, I

have not included these statements in my findings of fact.

Paragraphs 36 through 38: Accepted in substance, but with many details

omitted as subordinate and unnecessary.

Paragraph 39: Rejected as a combination of argument and statement of

position, rather than proposed findings of fact.

Paragraph 40: Accepted in substance.

Paragraph 41: The first paragraph numbered 41 is rejected as irrelevant.

Paragraph 41: The second paragraph numbered 41 is accepted in substance.

Paragraph 42: The first paragraph numbered 42 is rejected as irrelevant.

Paragraph 43: The first paragraph numbered 43 is rejected as irrelevant

because Ms. Sullivan's account of conditions at the clinic has been found not to

constitute clear and convincing evidence.

Paragraph 42: The second paragraph numbered 42 is rejected as subordinate

and unnecessary details.

Paragraph 43: The second paragraph numbered 43 is rejected as subordinate

and unnecessary details.

Paragraphs 44 through 47: Rejected as subordinate and unnecessary details.

Paragraph 48: Rejected as irrelevant because Ms. Sullivan's account of

conditions at the clinic has been found not to constitute clear and convincing

evidence.

Paragraph 49: Accepted in substance.

Paragraph 50: Rejected as irrelevant because Ms. Sullivan's account of

conditions at the clinic has been found not to constitute clear and convincing

evidence.

Paragraph 51: Rejected as constituting argument, rather than proposed

findings of fact.

Paragraph 52: Rejected as argument, as irrelevant, and as, at best,

subordinate and unnecessary details.

COPIES FURNISHED:

Dorothy Faircloth, Executive Director

Board of Medicine

Department of Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Jack McRay, General Counsel

Department of Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Richard A. Grumberg, Esquire

Senior Attorney

Department of Professional Regulation

1940 N. Monroe Street

Tallahassee, Florida 32399-0792

Karen Coolman Amlong, Esquire

Amlong & Amlong, P.A.

Second Floor

101 Northeast Third Avenue

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF MEDICINE

DEPARTMENT OF PROFESSIONAL

REGULATION,

Petitioner,

DPR CASE NO. 89-10153

v. DOAH CASE NO. 91-2815

LICENSE NO. ME 0045574

VLADIMIR ROSENTHAL, M.D.,

Respondent.

____________________________/

FINAL ORDER

This cause came before the Board of Medicine (Board) pursuant to Section

120.57(1)(b)10, Florida Statutes, on December 4, 1992, in Orlando, Florida for

the purpose of considering the Hearing Officer's Recommended Order (a copy of

which is attached hereto as Exhibit A) in the above-styled cause. Petitioner,

Department of Professional Regulation, was represented by Larry G. McPherson,

Jr., Attorney at Law. Respondent was present and was represented by Rafael A.

Centurion, Attorney at Law.

Upon review of the Recommended Order, the argument of the parties, and

after a review of the complete record in this case, the Board makes the

following findings and conclusions.

FINDINGS OF FACT

1. Finding of fact set forth in the Recommended Order are approved and

adopted and incorporated herein.

2. There is competent substantial evidence to support the findings of

fact.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of this matter pursuant to Section

120.57(1), Florida Statutes, and Chapter 458, Florida Statutes.

2. The last sentence of Paragraph 38 is amended to delete everything after

footnote 12 on the basis that the issue of appropriateness of the care, under

the circumstances, need not be resolved. In all other respects, the conclusions

of law set forth in the Recommended Order are approved and adopted and

incorporated herein.

3. There is competent substantial evidence to support the conclusions of

law.

DISPOSITION Upon a complete review of the record in this case, the Board

determines that the disposition recommended by the Hearing Officer be ACCEPTED

AND ADOPTED. WHEREFORE,

IT IS HEREBY ORDERED AND ADJUDGED that the charges against Respondent are

DISMISSED.

This Final Order takes effect upon filing with the Clerk of the Department

of Professional Regulation.

DONE AND ORDERED this 21st day of December, 1992.

BOARD OF MEDICINE

___________________

JAMES BURT, M.D.

VICE CHAIRMAN

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL

REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE

GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DEPARTMENT OF PROFESSIONAL REGULATION AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN THIRTY (30) DAYS OF

RENDITION OF THE ORDER TO BE REVIEWED.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Order has

been provided by certified mail to Vladimir Rosenthal, M.D., 1320 South Dixie

Highway, Suite 1070, Coral Gables, Florida 33146, Karen Coolman Amlong, Esquire,

Amlong & Amlong, P.A., Second Floor, 101 Northeast Third Avenue, Fort

Lauderdale, Florida 33301, Michael Parrish, Hearing Officer, Division of

Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway,

Tallahassee, Florida 32399-1550, and by interoffice delivery to Larry G.

McPherson, Jr., Chief Medical Attorney, 1940 North Monroe Street Tallahassee,

Florida 32399-0750 at or before 5:00 P.M., this 29th day of December, 1992.

_____________________

Dorothy J. Faircloth

Executive Director

Board of Medicine