99-003983 Department Of Health, Board Of Medicine vs. Rajesh Bhagvatipras Dave, M.D. Status: Closed Recommended Order on Tuesday, March 6, 2001.

Summary: Department of Health failed to prove by clear and convincing evidence that Respondent violated provisions in Chapter 458, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 99-3983

)

RAJESH BHAGVATIPRAS DAVE, M.D., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly-designated Administrative Law Judge,

William F. Pfieffer, conducted a formal hearing in the

above-styled case on December 6, 2000, in Tampa, Florida.

APPEARANCES

F or Petitioner : Eric Scott, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent : Christopher J. Schulte, Esquire

Burton, Schulte, Weekley, Hoeler,

Poe and Robbins, P.A.

100 West Kennedy Boulevard, Suite 800

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue presented in this case is whether Respondent

should be subjected to discipline for the violations of Chapter

458, Florida Statutes, alleged in the Administrative Complaint

issued by Petitioner on August 17, 1999.

PRELIMINARY STATEMENT

By Administrative Complaint dated August 17, 1997,

Petitioner, the Department of Health, Board of Medicine, alleged

that Respondent, Rajesh Bhagvatipras Dave, M.D., a licensed

physician, violated provisions of Chapter 458, Florida Statutes,

governing the practice of medicine in the State of Florida. The

two-count Administrative Complaint relates to the Respondent's

care of Patient C.C. from March 1995 through October 1995.

Petitioner alleges in Count I of the Complaint that

Respondent failed to practice medicine with the level of care,

skill, and treatment which is recognized by a reasonably prudent

similar physician as being acceptable under similar conditions

and circumstances, in violation of Subsection 458.331(1)(r),

Florida Statutes, by (1) failing to do a complete history and

physical examination on a new patient with significant risk

factors for cardiopulmonary disease; (2) by failing to order a

chest X-ray as part of a work-up on a new elderly patient with a

long history of smoking; (3) by failing to follow up on the

patient's abnormal chest X-ray; and (4) by failing to follow up

with the patient's test results that revealed an elevated

glucose level.

Petitioner alleges in Count II of the Complaint that

Respondent failed to keep written medical records justifying the

course of treatment for the patient, in violation of Subsection

458.331(1)(m), Florida Statutes, by failing to document a plan

or evaluation for the course of treatment of Patient C.C.'s

abnormal chest X-ray and elevated plasma glucose level.

Petitioner may seek permanent revocation or suspension of

Respondent's license, restriction of Respondent's practice,

imposition of an administrative fine, issuance of a reprimand,

placement of Respondent on probation, the assessment of costs

related to the investigation and prosecution of the case, and/or

any other relief that the Board deems appropriate.

Specifically, Petitioner seeks an order requiring Respondent to

pay a $5,000 administrative fine, complete the UF CARES Program,

comply with the evaluation, and receive a reprimand.

Respondent contested the allegations of the Complaint and

timely requested a formal administrative hearing. Petitioner

forwarded the Complaint to the Division of Administrative

Hearings on September 22, 1999, requesting the assignment of an

Administrative Law Judge to conduct a formal hearing pursuant to

Subsection 120.57(1), Florida Statutes. The matter was assigned

to David Maloney , an Administrative Law Judge of the Division of

Administrative Hearings, and the case was set for final hearing

on March 7-9, 2000. Four Joint Motions to Continue were granted

and the hearing was ultimately scheduled to be held

December 6, 2000.

Respondent filed a Motion to Dismiss Petitioner's

Administrative Complaint and Memorandum of Law in Support based

on Respondent's contention that the Probable Cause Panel was

improperly constituted, in violation of Rule 64B8-1.001, Florida

Administrative Code, which directs that determination of

probable cause shall be made by a panel consisting of three

members of the Board of Medicine. Respondent asserted that the

Probable Cause Panel was comprised of only two members of the

Board of Medicine. Respondent's Motion to Dismiss was denied.

At the final hearing, Petitioner presented the testimony of

J.C. (Patient C.C.'s daughter). By Joint Stipulation,

Petitioner also presented the testimony of Agency Expert H.

Curtis Benson, M.D., by post-hearing deposition taken on

January 5, 2001, and filed on January 29, 2001. Petitioner

offered five exhibits which were admitted into evidence.

Respondent testified on his own behalf. Respondent also

presented the expert testimony of Kent R. Corral, M.D.

Petitioner offered 14 exhibits into evidence. All were

accepted.

By stipulation, the parties agreed to file their proposed

recommended orders by January 30, 2001. The Transcript was

filed on January 2, 2001. Petitioner and Respondent filed their

Proposed Recommended Orders on January 30, 2001, which were duly

considered.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of medicine, pursuant to Section 20.43, Florida

Statutes, Chapter 455, Florida Statutes, and Chapter 458,

Florida Statutes. Pursuant to the provisions of Section 20.43,

Florida Statutes, Petitioner has contracted with the Agency for

Health Care Administration to provide consumer complaint,

investigative, and prosecutorial services required by the

Division of Medical Quality Assurance, councils, or boards.

2. Respondent is a licensed physician in the State of

Florida , having been issued license number ME 0063067.

Respondent is board-certified in internal medicine.

3. On March 10, 1995, Patient C.C., a 68-year-old woman

with a history of cigarette smoking first presented to

Respondent as a new patient with a complaint of nocturia

(frequent urination at night).

4. Patient C.C. completed a medical history form for

Respondent indicating her past medical history and any medical

complaints that she had at that time. Patient C.C.'s history

was negative, with the exception of treatment for a skin

disorder and arthritis of the fingers. Patient C.C. reported no

history of cardiorespiratory problems and had no complaints of

cardiorespiratory problems.

5. Patient C.C. had undergone laboratory testing on

March 8, 1995, that revealed an elevated glucose level of 167.

While the blood glucose level was elevated, Patient C.C. did not

meet the specific diagnosis criteria, as it existed in 1995, to

be diagnosed as a diabetic.

6. Respondent conducted a physical examination of

Patient C.C., noting his findings in Patient C.C.'s chart. Due

to the elevated glucose level, Respondent directed Patient C.C.

to begin a 1500 calorie diet and follow an exercise regimen.

Respondent advised Patient C.C. of his evaluation, assessment,

and proposed plan of treatment.

7. While in his care, Respondent regularly ordered

laboratory testing to monitor Patient C.C.'s glucose levels. A

report dated May 13, 1995, revealed that Patient C.C.'s glucose

level had decreased to 136. A report dated September 7, 1995,

revealed Patient C.C.'s glucose level to be 128. Laboratory

testing performed at Community Hospital of New Port Richey on

October 17 and 18, 1995, revealed glucose levels of 135 and 133,

respectively. Upon receipt of the laboratory findings and

pertinent diagnostic testing, Respondent advised Patient C.C. of

the results, discussed his recommended course of treatment, and

noted the discussion in her medical record.

8. On October 16, 1995, Patient C.C. presented to

Respondent suffering from uncontrolled hypertension, anxiety,

stress, and non-specific chest discomfort. Respondent

immediately admitted Patient C.C. into Community Hospital of New

Port Richey.

9. Patient C.C. underwent a chest X-ray during her

hospitalization. The X-ray revealed a right upper lobe

consolidation and the radiologist's report urged follow-up.

Respondent received the radiologist's report and discussed the

findings with Patient C.C.

10. On October 24, 1995, Respondent advised Patient C.C.

by certified letter that he would no longer provide medical care

for Patient C.C., that her condition required medical attention,

and that she should seek the care of another physician without

delay. Patient C.C. received the certified letter on

October 27, 1995.

11. Respondent never had the opportunity to provide

follow-up or additional care to Patent C.C. as related to the

abnormal chest X-ray or elevated glucose level.

12. The evidence at the hearing established that the care

provided to Patient C.C. by Respondent was within the standard

of care. The evidence at hearing also established that the

Respondent's medical records for Patient C.C. documented and

justified the course and scope of his treatment of Patient C.C.

13. Respondent's expert testified that the standard of

care did not require Respondent to obtain a chest X-ray when he

initially saw Patient C.C. in March 1995. Petitioner's expert

offered no testimony and presented no evidence on this issue.

Practice guidelines did not require and, in fact, recommended

against obtaining routine chest X-rays to screen for lung

cancer, even for patients at risk, such as smokers.

14. Respondent and the Respondent's expert, Dr. Corral,

both testified that Patient C.C. was not a diabetic, and

therefore, did not require treatment for a condition from which

she did not suffer. Petitioner's expert, Dr. Benson, testified

that Patient C.C. was a diabetic and required definitive

treatment for that specific condition. Dr. Benson's testimony

is less credible on this issue, and the testimony of Respondent

and Dr. Corral is found to be more persuasive and credible.

Patient C.C. did not meet the 1995 criteria to be diagnosed as a

diabetic. The clear and unambiguous criteria required elevation

of plasma glucose greater than 200 mg/dl, or a feasting plasma

glucose greater than 140 mg/dl on two consecutive occasions.

Patient C.C. never met the criteria. Respondent adhered to the

standard of care in diagnosing, evaluating, monitoring, and

treating Patient C.C.'s elevated glucose levels.

15. In summary, Petitioner failed to establish by clear

and convincing evidence that Respondent failed to meet the

standard of care with regard to his alleged failure to (1)

perform a complete history and physical examination on a new

patient with significant risk factors for cardiopulmonary

disease; (2) to order a chest X-ray as part of a work-up on a

new elderly patient with a long history of smoking; (3) follow

up on the patient's abnormal chest X-ray; and (4) follow up with

the patient's test results that revealed an elevated glucose

level.

16. Additionally, Petitioner failed to establish by clear

and convincing evidence that Respondent did not keep written

medical records justifying the course of treatment of the

patient by failing to document a plan or evaluation for the

course of treatment of Patient C.C.'s abnormal chest X-ray and

elevated plasma glucose level.

CONCLUSIONS OF LAW

17. Based on the findings of fact made above, the

following conclusions of law are reached.

18. 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.

19. License revocation and discipline proceedings are

penal in nature. Because Petitioner sought permanent revocation

or suspension of Respondent's license to practice medicine, the

burden of proof on Petitioner in this proceeding was to

demonstrate the truthfulness of the allegations in the Complaint

by clear and convincing evidence. Subsection 458.331(3),

Florida Statutes ; Department of Banking and Finance v. Osborne

Stern and Company , 670 So. 2d 932 (Fla. 1996) ; Ferris v.

Turlington , 510 So. 2d 292 (Fla. 1987).

20. The "clear and convincing" standard requires:

[T ]hat 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 standard set

forth in Osborne Stern , Ferris , and Slomowitz .

21. Subsection 458.331(2), Florida Statutes, authorizes

the Board of Medicine to revoke, suspend, or otherwise

discipline the license of a physician for violating the

following relevant provision of Section 458.331, Florida

Statutes:

(1)(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. . . . 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.

22. The Complaint alleged that the Respondent practiced

medicine below the standard of care by failing to do a complete

history and physical examination on a new patient with

significant risk factors for cardiopulmonary disease; by failing

to order a chest X-ray as part of a work-up on a new elderly

patient with a long history of smoking; by failing to follow

upon on the patient's abnormal chest X-ray; and by failing to

follow up with the patient's test results that revealed an

elevated glucose level.

23. Petitioner failed to establish by clear and convincing

evidence the charge of failing to do a complete history and

physical examination on a new patient with significant risk

factors for cardiopulmonary disease. The evidence established

that the Respondent took an appropriate history from

Patient C.C., adequately examined Patient C.C. based on her sole

presenting complaint of frequent urination at night, and

recommended the appropriate treatment. The weight of the expert

testimony established that Patient C.C. had no complaints that

were cardiopulmonary in nature and that, in fact, Patient C.C.

was asymptomatic of any cardiopulmonary problems. Under the

circumstances, the Respondent's records adequately note the

taking of a history, the performance of physical examination, an

assessment of Patient C.C.'s condition, and a plan for Patient

C.C.'s treatment.

24. Petitioner failed to establish by clear and convincing

evidence the charge of failing to order a chest X-ray as part of

a work-up on a new elderly patient with a long history of

smoking. Petitioner failed to present any expert testimony or

any other evidence critical of Respondent on this issue. In

fact, the only evidence presented on this issue was the

testimony of Respondent and Respondent's expert, Dr. Corral.

Both Respondent and Dr. Corral testified that the standard of

care did not require a physician to obtain a chest X-ray on an

asymptomatic patient presenting for the first time to the

physician's practice. Their testimony was corroborated by the

clinical practice guidelines and recommendations of the United

States Department of Health and Human Services, the American

Cancer Society, and the National Cancer Institute. These

clinical practice guidelines, in fact, recommend against the use

of chest X-rays for routine screening for lung cancer in the

general public or even in people at increased risk for lung

cancer, such as smokers.

25. Petitioner failed to establish by clear and convincing

evidence the charge of failing to follow up on Patient C.C.'s

abnormal chest X-ray. The evidence presented established that

Respondent discussed the chest X-ray findings with Patient C.C.

and recommended follow-up, as noted in the hospital discharge

summary. Appropriate follow-up could have consisted of simple

observation or a repeat X-ray, but the standard of care did not

require follow-up on the chest X-ray while Patient C.C. was

hospitalized. Rather, Respondent could have begun follow-up on

the chest X-ray findings within the month following Patient

C.C.'s discharge from the hospital. Respondent did schedule

Patient C.C. for a return visit. Respondent, however, was not

given the opportunity to follow up and to monitor completely on

the chest X-ray because Patient C.C. was discharged from

Respondent's practice.

26. Pet itioner failed to establish by clear and convincing

evidence the charge of failing to follow up with Patient C.C.'s

test results that revealed an elevated glucose level. The

evidence established that Patient C.C. presented to Respondent's

practice with a elevated glucose level of 167 and that

Respondent directed that Patient C.C. exercise and be placed on

a 1500-calorie A.D.A. diet to control her blood sugar. On this

issue, the testimony presented by Petitioner's expert ,

Dr. Benson, is less credible than the testimony presented by

Respondent's expert, Dr. Corral. Dr. Benson adamantly, but

incorrectly, believes that Patient C.C. was a diabetic and

required treatment for that condition. Dr. Benson's opinions

are directly in conflict with published diagnostic criteria

clearly establishing that Patient C.C. was not a diabetic as

defined by the diagnostic criteria as it existed in 1995.

Patient C.C. never had an unequivocal elevation of plasma

glucose greater than 200 mg/dl. Patient C.C. never recorded a

fasting plasma glucose level greater than 140 mg/dl on two

consecutive occasions. Respondent appropriately and regularly

ordered and obtained laboratory studies to monitor Patient

C.C.'s blood sugar. Patient C.C.'s blood sugar was

appropriately controlled by diet and exercise.

27. Respondent did not violate Subsection 458.331(1)(t ),

Florida Statutes, by failing 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.

28. Subsection 458.331(2), Flo rida Statutes, authorizes

the Board of Medicine to revoke, suspend, or otherwise

discipline the license of a physician for violating the

following relevant provision of Section 458.331, Florida

Statutes:

(1)(m ) Failing to keep . . . 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.

29. The Complaint alleged that Respondent failed to keep

written medical records justifying the course of treatment of

the patient by failing to document a plan or evaluation for the

course of treatment of Patient C.C.'s abnormal chest X-ray and

elevated plasma glucose level.

30. Petitioner failed to establish by clear and convincing

evidence the charge of failing to keep written medical records

justifying the course of treatment of the patient by failing to

document a plan or evaluation for the course of treatment of

Patient C.C.'s abnormal chest X-ray. The evidence presented

established that Respondent could have documented a plan or an

evaluation within the month after Patient C.C.'s discharge from

the hospital. Respondent did schedule Patient C.C. for a return

visit, which does document continued follow-up of the patient.

Respondent, however, could not have followed up completely on

the chest X-ray because Patient C.C. was discharged from the

Respondent's practice. The more credible evidence also

established that Respondent did discuss the chest X-ray findings

with Patient C.C. and recommended follow-up, as noted and

documented in the hospital discharge summary, which is a part of

Respondent's medical records for Patient C.C.

31. Petitioner failed to establ ish by clear and convincing

evidence the charge of failing to keep written medical records

justifying the course of treatment of the patient by failing to

document a plan or evaluation for the course of treatment of

Patient C.C.'s elevated blood sugar. The evidence presented

established that Respondent's medical records include routine

and regular laboratory reports concerning serial testing and

monitoring of Patient C.C.'s blood sugar. Respondent's medical

records also document Respondent's plan to place Patient C.C. on

a 1500-calorie diet and to begin her on a regimen of exercise.

The elevated glucose readings in the hospital were not

indicative of any specific problem and could have been addressed

following the hospitalization. Respondent, however, was not

given the opportunity to follow up and to monitor because

Patient C.C. was discharged from Respondent's practice.

32. Respondent did not violate Subsection 458.331(1)(m),

Florida Statutes, by failing to keep written medical records

justifying the course of treatment of the patient.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is recommended that the Department of Health, Board

of Medicine, enter a final order dismissing the August 17, 1999,

Administrative Complaint against Respondent, Rajesh Bhagvatipras

Dave, M.D.

DONE AND ENTERED this 6th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM R. PFEIFFER

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 6th day of March, 2001.

COPIES FURNISHED :

Christopher J. Schulte, Esquire

Burton, Schulte, Weekley, Hoeler,

Poe & Robbins, P.A.

100 West Kennedy Boulevard

Suite 800

Tampa, Florida 33602

Eric Scott, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Tanya Williams, Executive Director

Board of Medicine

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way, 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.