99-002391 Department Of Health, Board Of Osteopathic Medicine vs. Vincent Sundry, D.O. Status: Closed Recommended Order on Friday, April 14, 2000.

Summary: Osteopathic physician practiced below the standard of care in three instances of misprescribing medications and in failing to maintain adequate medical records.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

OSTEOPATHIC MEDICINE, }

)

Petitioner, )

)

vs. ) Case No. 99-2391

)

VINCENT SUNDRY, D.O., )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on September 1, 1999, in Tarpon Springs, Florida, before

Lawrence P. Stevenson, a duly-designated Administrative Law Judge

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John E. Terrel, Esquire

Agency for Health Care Administration

Practitioner Regulation-Legal A

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Pamela A.M. Campbell, Esquire

535 Central Avenue, Suite 403

St. Petersburg, Florida 33701

Howard H. Whittington, Esquire

1100 Cleveland Street, Suite 900

Clearwater, Florida 33755

STATEMENT OF THE ISSUES

The issues for determination in this case are whether

Respondent's license to practice osteopathic medicine should be

revoked or otherwise disciplined for the reasons set forth in the

Administrative Complaint, specifically for: 1) Respondent's

failure to meet the acceptable standard of care for osteopathic

medicine in his treatment of Patients S.R., K.P., R.Y., V.E.,

C.K., and S.P.; and 2) Respondent's failure to keep adequate

medical records for the named patients.

PRELIMINARY STATEMENT

On October 24, 1996, Petitioner, Department of Health, filed

a fourteen-count Administrative Complaint alleging that

Respondent violated Section 459.015(1)(x), Florida Statutes, in

that he failed to practice osteopathic medicine with that level

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

prudent similar osteopathic physician as being acceptable under

similar conditions and circumstances, and violated Section

459.015(1)(o), Florida Statutes, in that he failed to keep

written medical records justifying the course of treatment of the

patient. The fourteen counts alleged separate violations of the

cited statutes as to seven different patients.

On November 19, 1996, Respondent executed an Election of

Rights form indicating that he requested an opportunity to

discuss a settlement agreement with the agency. The Election of

Rights form indicated that within sixty days of the date the

Administrative Complaint was served, the Respondent must either

submit a signed settlement agreement or choose an administrative

remedy, i.e., formal proceedings pursuant to Section 120.57(1),

Florida Statutes, informal proceedings pursuant to Section

120.57(2), Florida Statutes, or a waiver of the right to contest

the allegations of the Administrative Complaint.

Despite the sixty-day limitation set forth in the Election

of Rights form, the settlement discussions apparently continued

for more than two years. By letter dated May 28, 1999, counsel

for Petitioner informed counsel for Respondent that the

negotiations had reached an impasse and that the case would be

forwarded to the Division of Administrative Hearings. On the

same date, the matter was referred to the Division of

Administrative Hearings for assignment of an Administrative Law

Judge and the conduct of a formal administrative hearing pursuant

to Section 120.57(1), Florida Statutes. Pursuant to the

Prehearing Order, the parties filed a Prehearing Stipulation on

August 31, 1999. The formal hearing was conducted on September

1, 1999.

At the commencement of the final hearing, Petitioner

withdrew Counts Thirteen and Fourteen of the Administrative

Complaint relating to Patient W.G. The hearing proceeded on the

remaining twelve counts involving the six patients named above.

At hearing, Petitioner presented the testimony of James

Taylor, D.O., an expert in osteopathic general medicine, and the

deposition testimony of Tom A. Latus, D.O., also an expert in

osteopathic general medicine. Petitioner’s Exhibits 1-6 were

received in evidence. Respondent testified on his own behalf and

presented the testimony of C.K., one of Respondent’s patients

whose treatment was at issue. Respondent’s Exhibit 1, the

deposition testimony of Themistocles Diamandis, M.D., a medical

doctor and expert in the field of general family practice, was

received in evidence.

On September 17, 1999, the Transcript of the hearing was

filed. Pursuant to Petitioner’s Motion for Extension of Time,

filed October 20, 1999, the parties were granted without

objection additional time in which to file proposed recommended

orders. On October 29, 1999, Respondent filed a Proposed

Recommended Order. On November 1, 1999, Petitioner filed a

Proposed Recommended Order.

On November 9, 1999, Petitioner filed a Motion to Strike,

alleging that Respondent’s Proposed Recommended Order raised for

the first time the argument that Respondent will be penalized

twice if he is found guilty of the medical records violations in

this case. Respondent’s argument is that the Board of

Osteopathic Medicine has already addressed the medical records

issue in a Final Order issued on August 18, 1993, and that

Respondent should not be penalized twice for these violations.

The Motion to Strike is denied. However, Respondent’s

argument is rejected. Respondent offers no support for the

assertion that a 1993 penalty for failure to keep proper medical

records should insulate him from being penalized for a subsequent

failure to keep proper medical records. This argument is without

merit.

FINDINGS OF FACT

1. Petitioner, Department of Health, is the state agency

vested with the statutory authority to enforce the disciplinary

standards for the practice of osteopathic medicine under Chapters

455 and 459, Florida Statutes.

2. Respondent, Vincent Sundry, D.O., is and at all material

times was, a licensed osteopathic physician in Florida, having

been issued license number OS 001383.

3. Central to the standard of care issues in this case is

Respondent’s use of vitamin B-12 injections. Respondent

testified that it is his practice to give patients 2 cc

injections of B-12 "to get rid of lethargy and malaise."

Respondent testified that he does not use B-12 to treat medical

conditions. Respondent believes that B-12 improves the flow of

oxygen in the blood and provides a boost of energy.

4. It is also Respondent’s practice to mix ½ cc of B-12

with other medications to ease the sting of injections.

Respondent testified that he learned this technique from a

supervising physician at his osteopathic college in the 1950’s.

In those days, medications such as penicillin were delivered in a

heavy, syrup-like suspension, and the needles were of a larger

gauge than is now common. Respondent’s supervising osteopathic

physician believed that thinning the medicine with B-12 resulted

in a less painful shot. Respondent adopted the practice and has

maintained it throughout his career.

5. Petitioner’s expert witness, Dr. Taylor, testified that

B-12 shots are indicated only for pernicious anemia or an

inability to absorb B-12 naturally. He testified that the only

way to test for anemia or a B-12 loss is to draw a complete blood

count (" CBC") and test the values of the hemoglobin.

6. Dr. Taylor testified that giving B-12 injections to

patients can be misleading, suggesting that it will make them

feel better or have more energy when in fact it has no more

effect than a placebo. Dr. Taylor stated that under some

circumstances a placebo may be useful, but only as a last resort

when conventional medications have failed. Dr. Taylor was also

concerned that use of B-12 for such imprecise complaints as

"lethargy" or "malaise" could lead to a delay in the correct

diagnosis and treatment of the patient’s condition.

7. Dr. Taylor conceded that B-12 is harmless, and that he

has never seen a toxic or allergic reaction to B-12.

8. Petitioner’s other expert, Dr. Latus, agreed that the

accepted conditions for B-12 injections are pernicious anemia or

a B-12 deficiency proven by blood tests. Dr. Latus also agreed

that he was aware of no contraindications for B-12, and that the

amounts of B-12 administered by Respondent were appropriate and

not dangerous.

9. Dr. Latus testified that some patients respond to

placebos, but had no opinion on whether administering placebos

constituted malpractice by an osteopathic physician.

10. Respondent’s expert witness, Dr. Diamandis, also served

as Respondent’s monitor during the 1992-1997 probation imposed on

Respondent by an earlier order of the Board of Osteopathic

Medicine. Dr. Diamandis testified that he has given B-12

injections to patients at their request, when the patients

believed it would help them and after he had examined them.

11. Dr. Diamandis summarized his view of B-12 as follows:

It’s a funny thing, you can’t draw lines on

B-12 and limit B-12, the use. You also

cannot draw any lines and say you’re treating

something when you give B-12, because it’s

only a treatment for pernicious anemia, and

it might also be a treatment for something

else these days. Who knows.

We’ve been drinking wine for a long time.

Now they say it’s good for platelets to thin

the blood a little bit . . . So I don’t

think you can draw the line and say you

shouldn’t use B-12. You can draw a line that

says it’s only good for this that we know of.

But a lot of people feel good when they get

the shots. Maybe someone can come along and

tell you why they feel good. Maybe a

psychiatrist could do it.

12. Dr. Diamandis did not accept Respondent’s use of ½ cc

of B-12 to take the sting out of an injection as a method he

would use in his own practice. However, he also declined to

opine that Respondent’s method would constitute a deviation from

the standard of care. Dr. Latus could not recall having been

taught this method in his osteopathic training.

13. As to several of the patients discussed in detail

below, Petitioner pursued a theory that Respondent was using B-12

to treat conditions such as contact dermatitis, viral sinusitis,

and ear infections, because the B-12 injections coincided with

Respondent’s efforts to address those conditions. As stated

above, Respondent denied that he ever used B-12 to treat any

medical condition other than complaints of "lethargy" and

"malaise." Respondent’s testimony on this point is credited.

Petitioner failed to demonstrate that Respondent’s unorthodox use

of B-12 constitutes a deviation from the standard of care.

Patient S.R.

14. Patient S.R., a 26-year-old female, first visited

Respondent’s office on February 3, 1994, complaining of headaches

caused by stress and tension. On March 2, 1994, Respondent

treated S.R. for two abscesses in the upper right leg.

15. Respondent cleaned the area of the abscesses, did a

xylocaine block, incised and drained the abscesses, and bandaged

the area. He gave S.R. injections of 1 cc of dexamethasone, a

corticosteroid; 1 cc of lincomycin, an antibiotic; and ½ cc of

B-12. Respondent testified that these injections did not go into

the muscle tissue, but were done surficially around the

abscesses.

16. Respondent prescribed tetracycline, an antibiotic, and

Librax to ease "the stress and strain going on in her nerves."

17. Dr. Taylor testified that the dexamethasone was

contraindicated, because injections of cortisone or steroids

given at the time of an infection tend to blunt the immune system

and slow the healing process. Dr. Taylor found this especially

significant because S.R.’s infection was so serious that it had

to be incised and drained. Dr. Taylor also found problematic

Respondent’s failure to schedule a follow-up visit a few days

later to assess the healing process.

18. Dr. Taylor testified that lincomycin has a side effect

profile so bad that the Food and Drug Administration removed oral

lincomycin off the market. He testified that in 1994 there were

other injectable antibiotics with fewer potential side effects

that could have been given to S.R.

19. Dr. Taylor testified that Respondent’s progress notes

for S.R. simply set out a diagnosis and plan of treatment,

without recording the size and duration of the abscesses, or the

patient’s temperature, vital signs, or blood pressure.

20. Dr. Latus testified that dexamethasone is not normally

given in the case of an abscess or infection because it would

have no effect. He agreed with Dr. Taylor that dexamethasone is

a steroid that blunts the natural immune system, and thus should

not have been used to treat S.R.’s abscesses. He also agreed

that Respondent’s records did not sufficiently explain the

situation or the reasons for the course of treatment Respondent

pursued.

21. Dr. Diamandis testified that he would not criticize the

use of dexamethasone or some other anti-inflammatory in certain

situations involving infections. However, the situations he

described involved relatively extreme situations such as a

patient with her throat so swollen there is concern that

breathing will become obstructed, or a patient who is running a

fever in the range of 104 degrees. These situations are not

analogous to Respondent’s use of dexamethasone to treat S.R.

22. Respondent testified that he administered the

dexamethasone to take down the inflammation of the abscesses, in

conjunction with the lincomycin to take down the infection.

23. The evidence establishes that Respondent did not meet

the applicable standard of care by administering dexamethasone

for the treatment of Patient S.R.’s abscesses, and by failing to

monitor the patient’s progress after the initial treatment.

Respondent’s other actions in treating S.R., though subject to

differences of opinion, met the standard of care.

24. The evidence establishes that Respondent’s medical

records failed to justify the course and scope of treatment

concerning the use of dexamethasone. Respondent’s records failed

to record such basic information as the patient’s vital signs,

and recorded no specific observations concerning the abscesses.

Patient K.P.

25. On February 1, 1994, Patient K.P., a 56-year-old

female, first presented to Respondent with a severe gastric

upset. Respondent diagnosed gastritis and esophagitis.

26. On March 4, 1994, Patient K.P. again visited

Respondent. No complaint is noted for K.P. in Respondent’s

notes. The notes indicate that K.P.’s weight was 193 pounds, her

blood pressure was 130/82, and her heart tones and lungs were

normal.

27. Respondent decided to place K.P. on a weight regimen.

He placed K.P. on thyroids; Lasix, a diuretic; and human

chorionic gondatropin (HCG), a hormone produced during pregnancy.

28. During a subsequent visit for the weight regimen on

April 5, 1994, Respondent also prescribed Zestoretic, an

antihypertensive combined with a diuretic. Respondent noted

K.P.’s weight at 192 pounds during this visit.

29. On April 26, 1994, K.P. visited Respondent complaining

of bouts of vertigo. Respondent noted that her blood pressure

had dropped to 114/78, and her weight was 188 pounds. Respondent

also noted that K.P. was leaving for Canada, and he continued all

the prescribed medications in larger quantities.

30. Dr. Taylor testified that the use of HCG for obesity is

inappropriate, because HGC is no more effective than a placebo

for weight loss. Respondent testified that the HCG was not

prescribed for weight loss but to treat menopausal syndrome in

K.P., to "quiet her nerves" and help her lose weight. Respondent

denied ever using HCG for diet patients. However, Dr. Diamandis,

the probation monitor, recalled that Respondent had used HCG is

the past for weight loss.

31. Dr. Taylor disagreed with the use of Lasix for weight

loss. He testified that Lasix artificially induces dehydration,

giving the false appearance of weight loss. When the medication

is stopped, the volume of fluids returns.

32. Dr. Taylor testified that thyroids could induce a

hypometabolic state, and has an adverse effect on the patient’s

thyroid gland itself by discouraging the natural production of

thyroid hormone. The thyroid gland can begin to dysfunction or

decrease the amount of thyroid hormone it would make. Dr. Taylor

stated that giving a patient thyroid for a period of weeks or

months could induce hypothyroidism.

33. Dr. Taylor also questioned the use of Zestoretic,

noting that nothing in Respondent’s records for K.P. indicates

hypertension. Dr. Taylor pointed out that this prescription,

coupled with Lasix, meant that K.P. was now taking two diuretics,

which would result in low blood pressure and a lower level of

potassium and other salts in the bloodstream. Dr. Taylor

testified that he was not surprised that K.P.’s chief complaints

on April 26, 1994 were bouts of vertigo and decreasing blood

pressure, as these symptoms were to be expected with the

medications Respondent prescribed.

34. Dr. Taylor concluded that Respondent’s treatment

constituted a major safety issue for K.P. Respondent continued

the prescriptions for K.P. when she went to Canada, without

taking any steps to monitor her condition. Respondent’s records

indicated no monitoring of the patient’s electrolytes, no chronic

medication list, no chronic problem list, and no discussion of

diet for K.P., despite the fact that she was seeing Respondent

for weight loss.

35. The evidence establishes that Respondent did not meet

the applicable standard of care by administering thyroid, Lasix,

HCG, and Zestoretic for the treatment of Patient K.P.’s weight

problem.

36. The evidence establishes that Respondent’s medical

records failed to justify the course and scope of treatment

concerning the use of thyroid, Lasix, HCG, and Zestoretic.

Patient R.Y.

37. Respondent’s records indicate that Patient R.Y. visited

Respondent 39 times over the period from early March 1993 through

September 26, 1994. Twenty-one of those visits, from March 1993

through February 1994, involved persistent contact dermatitis, a

skin rash resulting from exposure to a primary irritant or to a

sensitizing antigen.

38. Upon his initial diagnosis of contact dermatitis,

Respondent gave R.Y. injections of dexamethasone and Vistaril, a

tranquilizer, as well as B-12. Respondent also prescribed an

oral antihistamine. On nine subsequent visits, Respondent gave

B-12 injections to R.Y.

39. Dr. Latus testified that nothing in the medical record

or his experience indicated that B-12 injections were appropriate

treatment for contact dermatitis. As found above, Respondent

denied that he used B-12 as a treatment for any condition other

than lethargy and malaise, and that denial was credited. Aside

from the use of B-12, Dr. Latus found nothing inappropriate in

Respondent’s treatment of R.Y.

40. Dr. Taylor joined Dr. Latus’ objection to the B-12

injections, and also criticized Respondent for seeing the patient

21 times over an 11-month period for contact dermatitis. Dr.

Taylor opined that such a large number of visits without

resolving the problem should have caused Respondent to refer R.Y.

to a dermatologist.

41. Respondent testified that he tried to refer R.Y. to a

dermatologist, but that he refused to go because of the expense.

Respondent stated that R.Y.’s condition was responsive to the

treatment he was giving, but that the condition was caused by

R.Y.’s working with concrete and stucco, and that R.Y. refused to

find another line of work. Respondent concluded that until R.Y.

was willing to quit working with the materials that were causing

his problem, a specialist could not achieve any better result

than Respondent.

42. The evidence failed to establish that Respondent did

not meet the applicable standard of care as to his treatment of

Patient R.Y.’s contact dermatitis. Respondent’s medical records,

while lacking descriptive detail of the color and quality of the

rash, adequately justify the course and scope of treatment of

Patient R.Y.

Patient V.E.

43. On March 15, 1994, Patient V.E., a 38-year-old female,

presented to Respondent with a complaint of pain in the lateral

left foot. Respondent’s records attribute the pain to a cheap

pair of shoes that V.E. had worn for four or five days.

Respondent diagnosed a severe ligamentous sprain, and possible

falling arch. Respondent gave V.E. a one cc injection of

prednisone, a steroid, and eight 375 milligram tablets of

Naprosyn, an anti-inflammatory.

44. On March 31, 1994, V.E. returned to Respondent, again

indicating pain in her left foot, in the third and fourth

metatarsal area, accompanied by edema. Respondent injected the

area with xylocaine, a pain killer, then with dexamethasone. He

prescribed Lasix to reduce the swelling.

45. The only item in the treatment of V.E. that either Dr.

Taylor or Dr. Latus found to be objectionable was an unrecorded

injection of ½ cc of B-12. Both doctors opined that B-12 is not

indicated for a foot sprain.

46. Respondent testified that the B-12 was not administered

to remedy the foot sprain, but to ease the sting of the

dexamethasone injection. Respondent testified that he did not

chart the B-12 because it was not used to treat anything, and it

was only 1/2 cc to thin out the medicine.

47. Respondent did record the 1/2 cc of B-12 in the shot

records he was required to submit to the Board of Osteopathic

Medicine as part of his probation. Dr. Taylor opined that the

failure to include the 1/2 cc B-12 injection in the patient

record constituted improper documentation. However, Dr. Latus

expressly declined to opine on the question whether the failure

to include the B-12 injection constituted improper documentation.

48. The evidence failed to establish that Respondent did

not meet the applicable standard of care as to his treatment of

Patient V.E.’s ligamentous sprain. Despite their failure to

include the 1/2 cc injection of B-12, Respondent’s medical

records adequately justify the course and scope of treatment of

Patient V.E.

Patient C.K.

49. Patient C.K.’s first visit to Respondent was on

September 10, 1982, when he completed a medical history

questionnaire indicating he was diabetic and took a "diabetes

pill." The visits at issue in this case occurred in 1993 and

1994, when C.K. was in his early eighties.

50. On March 9, 1993, Respondent diagnosed C.K. with back

spasms and a pelvic tilt. Respondent applied osteopathic

manipulative therapy, gave an injection of dexamethasone and ½ cc

of B-12, and prescribed an anti-inflammatory medication.

51. On April 1, 1994, C.K. visited Respondent with a

complaint of pain in his left hip over the sciatic notch.

Respondent repeated the injection of dexamethasone and B-12, and

gave C.K. a refill of the anti-inflammatory medication.

52. On April 2, 1994, Respondent recorded that C.K.’s hip

pain had curtailed most of his activities, and a "probable need

for radiological evaluation." Respondent recorded that C.K. was

responsive to the osteopathic manipulative therapy, which

restored some ability to bend, stoop, and move without pain.

Respondent’s records do not indicate follow-up regarding the

radiological examination, and do not indicate that X-rays were

ever taken of C.K.

53. Patient C.K. testified that he used to go to Respondent

for his neck and back, but that Respondent never treated his

diabetes. He recalled the manipulative therapy, and recalled

requesting and receiving a B-12 shot from Respondent. He could

recall receiving no X-rays. C.K. testified that he now works-out

at the gym five or six days a week and suffers no back problems,

but would return to Respondent if he did.

54. Dr. Latus concluded that, aside from the B-12

injection, Respondent provided satisfactory and adequate care to

Patient C.K.

55. Dr. Taylor expressed concern about the B-12 and, more

significantly, about Respondent’s administering corticosteroids

to a diabetic patient, particularly where there is no record of

what medication C.K. was taking for his diabetes. Dr. Taylor

testified that corticosteroids elevate blood glucose, and should

be avoided for diabetic patients unless they are in severe pain

or unless corticosteroids are mandated for the patient’s

condition. Dr. Taylor also criticized the lack of follow-up on

the probable need for radiological examination.

56. The evidence establishes that Respondent did not meet

the applicable standard of care by administering dexamethasone

for the treatment of Patient C.K.’s hip pain, given that C.K. was

a diabetic. Because C.K. appeared to respond positively to the

osteopathic treatments, Respondent’s failure to refer C.K. to a

radiologist was within the standard of care.

57. The evidence establishes that Respondent’s medical

records failed to justify the course and scope of treatment

concerning the use of dexamethasone. The records do not indicate

the type of diabetes medication that C.K. was taking, or even an

acknowledgment by Respondent that he took C.K.’s diabetes into

account before administering dexamethasone.

Patient S.P.

58. Patient S.P., a 61-year-old female, visited Respondent

only once, on April 1, 1994. She complained of vertigo, lethargy

and malaise. She also indicated that, two to three weeks

previously, she had a severe ear infection that was never

treated. Respondent characterized S.P. as displaying overall

myalgia, aching in her joints, hardly able to move. Her throat

was swollen and inflamed.

59. Respondent manipulated her back for the aches and

pains, and manipulated her sinuses. Respondent diagnosed S.P. as

having viral sinusitis, though he took no cultures to

definitively diagnose the viral origin. He gave S.P. an

injection of dexamethasone with ½ cc of B-12, and prescribed a

ten-day course of vibramycin, a tetracycline antibiotic.

60. Respondent testified that S.P. was on her way home to

Michigan, but felt too sick to fly. His goal was to make her

feel well enough to get home, at which point she would visit her

own physician.

61. Dr. Latus testified that, except for the B-12, the

treatment of Patient S.P. was appropriate.

61. Dr. Taylor testified that, aside from the B-12,

Respondent misprescribed antibiotics to treat what he had

diagnosed as a viral illness. Viral illnesses are not treated

with antibiotics.

62. However, Respondent could not definitively diagnose

whether the infection was viral or bacterial without taking

cultures. Under the rushed circumstances, Respondent prudently

prescribed an antibiotic. At worst, the antibiotic would be

ineffective; if the sinusitis was in fact a bacterial infection,

the antibiotic would have a salutary impact.

63. The evidence failed to establish that Respondent did

not meet the applicable standard of care as to his treatment of

Patient S.P.’s symptoms. Respondent’s medical records adequately

justify the course and scope of treatment of Patient S.P.

Conclusion

64. In summary, the weight of the expert testimony and

other evidence establishes that Respondent did not practice with

an acceptable level of care, skill, and treatment which is

recognized by a reasonably prudent similar osteopathic physician

as being acceptable under similar conditions and circumstances as

to Patients S.R., K.P., and C.K.

65. The weight of the expert testimony and other evidence

establishes that Respondent did practice with an acceptable level

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

prudent similar osteopathic physician as being acceptable under

similar conditions and circumstances as to Patients R.Y., V.E.,

and S.P.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.569, 120.57(1), and 455.225, Florida

Statutes.

67. License revocation and discipline proceedings are penal

in nature. The burden of proof on Petitioner in this proceeding

was to demonstrate the truthfulness of the allegations in the

Administrative Complaint by clear and convincing evidence.

Section 458.331(3), Florida Statutes; Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); Dept. of Banking and Finance v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 1996).

68. The "clear and convincing" standard 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.

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

The findings in this case were made based on the Ferris standard.

69. Pursuant to Section 459.015(2), Florida Statutes, the

Board of Osteopathic Medicine is authorized to revoke, suspend or

otherwise discipline the license of a physician for violating the

following relevant provisions of Section 459.015, Florida

Statutes:

(1)(o) Failing to keep legible . . . medical

records . . . that justify the course of

treatment of the patient, including, but not

limited to, patient histories; examination

results; test results; records of drugs

prescribed, dispensed, or administered; and

reports of consultations and

hospitalizations.

(x) Gross or repeated malpractice or the

failure to practice osteopathic medicine with

that level of care, skill, and treatment

which is recognized by a reasonably prudent

similar osteopathic physician as being

acceptable under similar conditions and

circumstances . . . . 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

osteopathic 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 an osteopathic physician be incompetent

to practice osteopathic medicine in order to

be disciplined pursuant to this paragraph

. .

70 . The Administrative Complaint, as amended at the final

hearing, alleged that Respondent violated both of the quoted

statutory provisions as to each of six patients: Patient S.R.

(Counts One and Two); Patient K.P. (Counts Three and Four);

Patient R.Y. (Counts Five and Six); Patient V.E. (Counts Seven

and Eight); Patient C.K. (Counts Nine and Ten); and Patient S.P.

(Counts Eleven and Twelve).

Patient S.R.

71. Count One of the Administrative Complaint alleged that

Respondent violated Section 459.015(1)(x), Florida Statutes, by

administering injections that were not indicated, and by failing

to perform a culture and sensitivity although the patient’s

abscesses were draining. The evidence established that the

dexamethasone administered by Respondent was contraindicated, and

that the lincomycin administered by Respondent had a poor side

effect profile compared to alternative injectable antibiotics.

The evidence also established that Respondent failed to monitor

the patient’s progress after the initial treatment. Petitioner

has established by clear and convincing evidence that Respondent

failed to practice osteopathic medicine with that level of care,

skill, and treatment which is recognized by a reasonably prudent

similar osteopathic physician as being acceptable under similar

conditions and circumstances, in violation of Section

459.015(1)(x), Florida Statutes.

72. Count Two of the Administrative Complaint alleged that

Respondent failed to keep adequate written medical records

justifying the course of treatment of Patient S.R. The evidence

established that Respondent failed to record basic information

such as the patient’s vital signs, failed to record specific

observations concerning the patient’s abscesses, and failed to

justify the use of a corticosteroid to treat an infection.

Petitioner has established by clear and convincing evidence that

Respondent violated Section 459.015(1)(o), Florida Statutes.

Patient K.P.

73. Count Three of the Administrative Complaint alleged

that Respondent failed adequately to treat Patient K.P. by

administering an injection of HCG that was not indicated in the

patient’s treatment for weight loss. The evidence established

that Respondent improperly administered HCG, thyroid, and two

diuretics for a weight loss regimen. The evidence did not firmly

establish that Respondent’s treatment caused vertigo and

decreasing blood pressure in K.P., but did establish that those

symptoms were entirely consistent with a reaction to the

prescribed medications. Petitioner has established by clear and

convincing evidence that Respondent failed to practice

osteopathic medicine with that level of care, skill, and

treatment which is recognized by a reasonably prudent similar

osteopathic physician as being acceptable under similar

conditions and circumstances, in violation of Section

459.015(1)(x), Florida Statutes.

74. Count Four of the Administrative Complaint alleged that

Respondent failed to keep adequate written medical records

justifying the course of treatment of Patient K.P. The evidence

established that Respondent’s written records did not justify the

course of treatment he pursued for this patient’s weight regimen.

Petitioner has established by clear and convincing evidence that

Respondent violated Section 459.015(1)(o), Florida Statutes.

Patient R.Y.

75. Count Five of the Administrative Complaint alleged that

Respondent failed adequately to treat Patient R.Y. by

administering B-12 injections that were not indicated in the

patient’s treatment for contact dermatitis. The evidence

established that the B-12 injections were unrelated to the

treatment for contact dermatitis. Respondent’s treatment of

Patient R.Y. was otherwise reasonable under the circumstances,

i.e., Patient R.Y. refused to cease working with the materials

that were causing his skin rash, and declined Respondent’s

efforts to refer him to a specialist. Petitioner has failed to

establish by clear and convincing evidence that Respondent failed

to practice osteopathic medicine with that level of care, skill,

and treatment which is recognized by a reasonably prudent similar

osteopathic physician as being acceptable under similar

conditions and circumstances, in violation of Section

459.015(1)(x), Florida Statutes.

76. Count Six of the Administrative Complaint alleged t hat

Respondent failed to keep adequate written medical records

justifying the course of treatment of Patient R.Y. The evidence

established that Respondent’s written records adequately

justified the course of treatment he pursued for this patient’s

contact dermatitis. Petitioner has failed to establish by clear

and convincing evidence that Respondent violated Section

459.015(1)(o), Florida Statutes.

Patient V.E.

77. Count Seven of the Administrative Complaint alleged

that Respondent failed adequately to treat Patient R.Y. by

administering B-12 injections that were not indicated in the

patient’s treatment for a ligamentous sprain of the foot. The

evidence established that the B-12 injections were unrelated to

the treatment for the sprain. Respondent’s treatment of Patient

V.E. was otherwise reasonable under the circumstances.

Petitioner has failed to establish by clear and convincing

evidence that Respondent failed to practice osteopathic medicine

with that level of care, skill, and treatment which is recognized

by a reasonably prudent similar osteopathic physician as being

acceptable under similar conditions and circumstances, in

violation of Section 459.015(1)(x), Florida Statutes.

78. Count Eight of the Administrative Complaint alleged

that Respondent failed to keep adequate written medical records

justifying the course of treatment of Patient V.E. The evidence

established that Respondent’s written records adequately

justified the course of treatment he pursued for this patient’s

ligamentous sprain. Respondent adequately explained his failure

to include the ½ cc injection of B-12 on the patient record, and

he did include it as required on his probationary shot record.

Petitioner’s experts were divided as to whether failure to

include the B-12 injections in the patient record constituted

improper documentation. Petitioner has failed to establish by

clear and convincing evidence that Respondent violated Section

459.015(1)(o), Florida Statutes.

Patient C.K.

79. Count Nine of the Administrative Comp laint alleges that

Respondent failed adequately to treat Patient C.K. by

administering injections that were not indicated in the patient’s

treatment for back and hip pain. The evidence established that

C.K. was a diabetic, that Respondent apparently made no inquiry

as to C.K.’s medications for diabetes, that Respondent

administered a corticosteroid to C.K., and that corticosteroids

elevate blood glucose, a problematic effect for a diabetic

patient. C.K.’s testimony on behalf of Respondent was an

admirable show of confidence and loyalty, but has no bearing on

an assessment of the quality of Respondent’s treatment.

Petitioner has established by clear and convincing evidence that

Respondent failed to practice osteopathic medicine with that

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

reasonably prudent similar osteopathic physician as being

acceptable under similar conditions and circumstances, in

violation of Section 459.015(1)(x), Florida Statutes.

80. Count Ten of the Administrative Compla int alleged that

Respondent failed to keep adequate written medical records

justifying the course of treatment of Patient C.K. The evidence

established that Respondent’s written records did not justify the

course of treatment he pursued for this patient’s back and hip

pain. Respondent’s medical records do not indicate the type of

diabetes medication that C.K. was taking, or any indication that

Respondent took C.K.’s diabetes into account before administering

a corticosteroid. Petitioner has established by clear and

convincing evidence that Respondent violated Section

459.015(1)(o), Florida Statutes.

Patient S.P.

81. Count Eleven of the Administrative Complaint alleged

that Respondent failed adequately to treat Patient S.P. by

administering injections that were not indicated in the patient’s

treatment for viral sinusitis. The evidence established that

Respondent’s diagnosis of a viral illness was premature, and that

the antibiotics he prescribed could have had a salutary effect on

bacterial sinusitis, and would have no deleterious effect even if

the condition were viral. Respondent was dealing with a patient

who was attempting to travel home to Michigan, and his goal was

to get her well enough to fly home to visit her own physician.

Under all the circumstances, Respondent’s treatment of Patient

S.P. was prudent. Petitioner has failed to establish by clear

and convincing evidence that Respondent failed to practice

osteopathic medicine with that level of care, skill, and

treatment which is recognized by a reasonably prudent similar

osteopathic physician as being acceptable under similar

conditions and circumstances, in violation of Section

459.015(1)(x), Florida Statutes.

82. Count Twelve of the Administrative Complaint alleged

that Respondent failed to keep adequate written medical records

documenting his treatment of Patient S.P. This patient visited

Respondent only once, and Respondent adequately charted the

record of this visit and justified his treatment. Petitioner has

failed to establish by clear and convincing evidence that

Respondent violated Section 459.015(1)(o), Florida Statutes.

83. Rule 64B15-19.003, Florida Administrative Code,

provides aggravating or mitigating factors to be considered in

imposing a penalty upon a licensee. A mitigating factor relevant

to this proceeding is the lack of pecuniary gain to the licensee,

and the general observation that Respondent is a small-town

osteopathic physician attempting to provide convenient,

affordable service to a patient base without much money to spare

for minor medical problems. Aggravating factors are: the number

of repetitions of offenses; the number of times the licensee has

been previously disciplined by the Board; and the negligence of

the licensee in committing the violations. Thus, aggravating

factors outweigh the mitigating factor.

84. Another potential aggravating factor is the "actual

knowledge of the licensee pertaining to the violation." A

disturbing element of these proceedings was Respondent’s apparent

lack of knowledge of the contraindications for corticosteroids in

treating infections and treating patients with diabetes, and of

prescribing multiple diuretics as part of a weight loss regimen.

Respondent demonstrated a pattern of administering these

contraindicated medications, then failing to monitor the progress

of the patients. It was simply fortuitous that the worst result

was Patient K.P.’s bouts of vertigo and decreasing blood

pressure.

85. Another concern is the disciplinary history of

Respondent, who has twice been subject to discipline by the

Board. In 1984, the Board’s Final Order revoked Respondent’s

license, but stayed the revocation in lieu of a five-year

probation. Later that year, Respondent’s licensed was revoked

for violation of the probation. In 1993, Respondent was again

placed on probation pursuant to a consent agreement.

86. The range of penalties for violation of Section

459.015(1)(o), Florida Statutes, are probation with suspension up

to a maximum six-month suspension, and an administrative fine

from $1,500.00 to $5,000.00. Rule 64B15-19.002(16), Florida

Administrative Code. The range of penalties for violation of

Section 459.015(1)(x), Florida Statutes, is from reprimand and

probation conditioned on continuing education, to suspension

followed by probation, to revocation, and an administrative fine

up to $5,000.00.

87. Based upon the totality of the circumstances, it is

concluded that the appropriate penalty is revocation of

Respondent’s license to practice osteopathic medicine in the

State of Florida.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law,

it is recommended that the Department of Health, Board of

Osteopathic Medicine enter a final order determining that Vincent

Sundry has committed three violations of Section 459.015(1)(o),

Florida Statutes, three violations of Section 459.015(1)(x),

Florida Statutes, and revoking his license to practice

osteopathic medicine in the State of Florida.

DONE AND ENTERED this 14th day of April, 2000, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of April, 2000.

COPIES FURNISHED:

John E. Terrel, Esquire

Agency for Health Care Administration

Practitioner Regulation-Legal A

Post Office Box 14229

Tallahassee, Florida 32317-4229

Pamela A.M. Campbell, Esquire

535 Central Avenue, Suite 403

St. Petersburg, Florida 33701

Howard H. Whittington, Esquire

1100 Cleveland Street, Suite 900

Clearwater, Florida 33755

Bill Bukhalt, Executive Director

Board of Osteopathic Medicine

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0750

Angela T. Hall, Agency Clerk

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

William Large, General Counsel

Department of Health

2020 Capital Circle, Southeast

Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.