Bush Hails Speedy, Cheaper Discipline
Florida Government In Action
How health regulators operate on doctors.
Written by Duane Bradford. Last updated Tuesday January 10th, 2006
An Anatomy of Circular Justice In the Sunshine State
Florida Health Officials Accused Of “Bait and Switch” Tactics In Disciplining Physicians
TALLAHASSEE - Amid furious battles among lawyers and doctors, and political debates swirling over medical and insurance costs, state health officials are praising results of their newly invigorated prosecutions of Florida doctors they accuse of malpractice - a strategy that has propelled Florida to number one nationally for punishing doctors.
In a document found on a news Web site, the strategy was explained by Gov. Jeb Bush to newsmen earlier in his administration: "Florida Board of Medicine Disciplines Doctors Swiftly" read a headline of an article by Scott Talan of Capitol News Service .
The story displayed on the news service’s web site on July 10, 2001 said that the Board of Medicine had issued 295 disciplinary actions against doctors in the first half of 2001 compared to 163 the previous year. The report said that Florida "disciplines doctors more quickly and with tougher punishments." The report then quoted Bush as saying, “The Board of Medicine has changed its policy under our tenure to increase enforcement and use fines as a means of disciplining doctors instead of going through the lengthy process of disciplinary actions through against [SIC] the administrative procedures.”
Requests to the governor’s press office for an explanation of the comments yielded no response.
The news report cited cost savings as a motivation for the new strategy, explaining that issuing a citation costs state regulatory boards an average of $99 compared to $755 for taking a complaint through the entire disciplinary process where sworn testimony may be taken, witnesses subpoenaed and cross examined, and an impartial judge weighing the facts.
But wait.
While Florida officials are giddy over their new national ranking resulting from what they term “swift and efficient” disciplinary procedures, one 57-year old Florida family physician illuminates a darker side of the re-energized prosecution blitzkrieg.
“It’s bait and switch,” says Dr. Douglas E. Peterson about the state Board of Medicine’s prosecution tactics used against him.
“Agencies of the State of Florida should not be allowed to use ‘bait and switch’, tactics borrowed from unscrupulous used car dealers,” Dr. Peterson wrote to Governor Bush, “offering one thing, obtaining agreement and then upping the ante after deliberations appear to have come to mutual agreement.”
Dr. Peterson, who as a solo practitioner cared for 3,000 patients in the Inverness area, was accused by the son of one patient of failing to provide the proper “standard of care” for the son’s 75-year-old mother who died in 1999 after a five-day battle with new onset diabetes, suspected transient ischemic attacks (mini-strokes) and finally an internal bleeding episode of unknown cause. “Standard of care” is a statutory term used when board doctors believe an accused doctor fails to care for a patient as they believe the doctor should.
The accused physician is now facing loss of his otherwise unblemished Florida license and an end to 25 years of practicing medicine, largely because of his unbending refusal to pay a hidden $6,500 fee in the “switched” proposal that the board never revealed before he agreed to accept the revised settlement three years ago. Because he was never told of that significant omission, even after specifically asking for details, he views the agreement as fatally flawed. Historically, courts have ruled that the omission of significant elements of a contract by accident or design can cancel a contractual agreement. But an appeal by Dr. Peterson solely on that very point to the First District Court of Appeal in Tallahassee was dismissed without comment.
The state argued in something of a “gotcha” response that the physician had waived his appeal rights when he agreed to the final board settlement that contained the hidden $6,500 fee. Such waivers, said the state, have been viewed favorably by Florida courts “because they shorten litigation time and lower litigation costs.” That argument won.
A very brief history of Case # 1999-63015
In days preceding her hospitalization, Dr. Peterson’s patient had suffered several falls, including one in which she dislocated a hip. In a checkup on the hip relocation, her orthopedic physician noted conditions that he thought required more attention. Her speech was slightly slurred, and one side of her face showed a drooping configuration. Given this information, by the orthopedic physician, Dr. Peterson directed her to the Citrus County Hospital emergency room where she presented with that history, those symptoms plus a new onset diabetes. Insulin injection addressed a severe diabetes issue. After consulting with a neurologist, Dr. Peterson prescribed one 325mg Ecotrin tablet daily in an effort to reduce the threat of what the neurologist suspected the woman had experienced, Transient Ischemic Attacks (TIAs). She had no complaints to any of the doctors that would have pointed to any abdominal problems.
The patient was stabilized and on the fourth day was discharged from the hospital to a skilled nursing center. As she left the hospital, she refused medication prescribed to regulate her diabetes. But she was returned to the hospital emergency room that afternoon a few hours after vomiting blood at the rehabilitation center. Resuscitative efforts commenced in the Intensive Care Unit, and she was re-admitted to the hospital. She experienced cardiac-respiratory failure, and following unsuccessful resuscitative efforts, she died later that night.
After her death, the patient’s son filed an administrative complaint with the Florida Department of Health that his mother’s physician had provided inadequate medical care. A medical expert hired by the department, Bruce H. Berman, M.D., of Tequesta, examined the circumstances and concluded that the physician caused the woman’s death by prescribing aspirin, which he blamed for the gastrointestinal bleeding episode. What the expert did not reveal was the fact that the woman had concealed earlier bleeding symptoms from doctors.
Lawyers and investigators for the Agency for Health Care Administration (AHCA), using the complainant’s unsworn letter as a basic guide, scanned available records and concluded in an administrative complaint that Dr. Peterson violated Florida law “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.” The complaint said that Dr. Peterson:
· made only two visits with his patient in her four days of hospitalization. The doctor says he made three visit rounds and talked to her on the phone on another.
· didn’t take proper action in response to the patient’s complaints about abdominal distress when she was first admitted on Oct. 18, 1999, as well as a groin rash and urinary tract infection. Hospital emergency room doctors and nurses say no such abdominal complaints were made then, and no records there or by the ward nurse show such complaints when the patient was first admitted. An emergency room physician responded to the urinary issue and ordered lab tests that confirmed a need for treatment. The test results were not provided to Dr. Peterson until after the woman was discharged from the hospital on Oct. 22. The state medical expert acknowledges, though, that while treatment should have begun earlier, this issue was not directly connected with the patient’s death.
· failed to execute the correct diabetes treatment plan for the patient. This “standard of care” issue drew sharp criticism by board member Dr. Rafael Miguel, whose specialty is anesthesiology. Dr. Berman, the state’s own medical expert, said under oath that he believed the diabetes treatment “was adequate throughout the hospitalization.” Dr. Peterson quoted text standards supporting his management plan in an apparently unsuccessful effort to refute Dr. Miguel’s allegation.
Over the course of several settlements proposed by the state but rejected as excessive by Dr. Peterson, a stalemate evolved over terms and fairness of the state’s disciplinary plan, and the physician’s license to practice medicine in Florida was suspended.
Both Florida Department of Health Secretary Dr. John O. Agwunobi and pharmaceutical company GlaxoSmith-Kline Chief Executive Officer Jean-Pierre Garnier have refused repeated written requests to discuss issues raised by Dr. Peterson. Garnier’s company produces Ecotrin, the coated aspirin prescribed here and often recommended as standard therapy for cardio-vascular related issues. An American Heart Association committee has recommended aspirin as “the standard medical therapy used for prevention in patients at risk for stroke.”
In an earlier department news release, however, Agwunobi gave effusive credit for what he termed “swift and efficient” prosecution of physicians to priorities set by Florida Governor Bush. Agwunobi said Bush “has made improvements in the physician disciplinary process a top priority of his administration, and this national ranking reflects those efforts.” He praised the work of the Board of Medicine. The 15-member board is appointed by the governor and approved by the Legislature. Board Chair Lisa Tucker, M.D., said last year that the number one ranking reflected the “...commitment and quality of the investigators, attorneys and other staff within the Department of Health.”
While Agwunobi has not responded to requests to discuss these issues now, he earlier said he was “thrilled” by the 25 per cent increase in Florida physician disciplinary cases. The Federation of State Medical Boards of the United States set the ranking of state prosecution efforts.
Wings S. Benton, deputy general counsel for the Department of Health, in apparent response to the request to interview Secretary Agwunobi, wrote that Dr. Peterson “was subject to standard procedures throughout the initial complaint, investigative, and legal aspects of the case.” She said the physician “was afforded full due process of law, and the action of the board has been reviewed and upheld on appeal.”
Dr. Peterson, a former senior medical advisor with the U.S. Department of State, and Medical Examiner for the California Board of Medical Quality Assurance, says Florida Department of Health and Board of Medicine members, seemed more intent on “winning” than learning the truth. He said they appeared anxious to avoid a formal hearing where (1) witnesses could be cross-examined under oath, (2) documents could be ordered to be produced and (3) facts and legal conclusions could be decided by a neutral administrative law judge not connected with the Department of Health. They offered several proposed settlements that Dr. Peterson rejected as unfair and excessive.
The one proposed settlement agreed upon by board attorneys and Dr. Peterson’s lawyer was later thrown out by the board. In that proposed settlement, the physician had hand-written language into the agreement declaring that had the patient and a nurse provided information about significant symptoms experienced by the patient, he would have taken a different course of action. The patient had been experiencing internal bleeding, but later admitted to her son in the presence of another physician that she did not tell any of her doctors what she had witnessed relating to that event. The nurse noted in a nurse’s report her detection of such evidence, but she did not tell doctors either.
Enter a Hostile Witness
At a 2002 meeting in Tampa where the board was scheduled to formally approve the settlement proposal that its staff and Dr. Peterson had negotiated, the board suddenly permitted an unannounced witness to appear and emotionally argue for a tougher penalty. It was the son of Dr. Peterson’s patient, who had filed the complaint against the physician. He had blamed Dr. Peterson for his mother’s death and wanted the board to prohibit the doctor from ever practicing medicine in Florida again. The hearing transcript reveals no oaths being administered. There was no cross-examination of the witness. Dr. Peterson’s insurance company lawyer, James Miller of Orlando, sat mute, whispering to his increasingly anxious client that the son was merely having his day in court.
“When the son showed up, things turned substantive,” says Dr. Peterson. “At that point both my attorney and the person who was chairing the meeting should have stopped the process and scheduled a true hearing.” In fact, the law requires a discipline case to be transferred to the neutral Division of Administrative Hearings whenever a dispute over material facts emerges. This transfer did not happen.
A member of the board termed the complainant’s speech “a very scathing set of comments” and said he would like to hear Dr. Peterson’s response. Dr. Peterson, who had never been notified of the son’s planned appearance, was unprepared for the meeting of substance that had suddenly erupted. He disputed some of the son’s material assertions that had formed the basis for charges against him. But, repeatedly interrupted by some members with acerbic questions or assertions, he failed to make his point.
“That Is Terrible”
One of the board members, Dr. Rafael Miguel of Tampa, questioned Dr. Peterson about the physician’s plan of treatment for the patient’s diabetes. Dr. Miguel is an anesthesiologist who teaches at the University of South Florida. He is not a family medicine specialist and does not practice medicine himself except under teaching circumstances. Dr. Miguel thought Dr. Peterson’s diabetes therapy plan for the patient was incorrect and that the patient was under treated. The transcript segment below reflects his judgment:
DR. MIGUEL: So now we are seeing that just a singular ten unit of regular insulin injection for nine hundred fifty blood sugar is going to treat the (inaudible)?
DR. PETERSON: With fluids, yes.
DR. MIGUEL: With fluids. That and fluids alone?
DR. PETERSON: No. We followed her throughout the afternoon. Other measures were taken.
DR. MIGUEL: That is terrible.
Dr. Peterson tried to rebut the anesthesiologist’s diabetes therapy criticism with information about how excessive insulin treatment can result in a dangerous hypoglycemia - a condition of low blood sugar. Hypoglycemia can generate many symptoms and effects but the biggest problems arise from an inadequate supply of glucose as fuel to the brain, resulting in impairment of function. In the elderly, hypoglycemia can produce focal stroke-like effects or a hard-to-define malaise.
But that and other rebuttal information appeared to have little effect. The board soon voted to throw out the previously agreed settlement proposal, increase the fine from $3,500 to $10,000, charge him investigation costs of $2,562, order him to undergo an evaluation in a program identified as UF CARES, order 10 hours of community service, and direct a letter of reprimand to the physician.
Department of Health rules permit the board to “modify” a recommended settlement negotiated by its staff. While the rules do not define the word “modify”, the word is defined as “change” in law dictionaries, but making something less extreme - moderate - in general dictionaries. The action by the board in this instance tripled the financial penalty against the physician. “My attorney did tell me that terms of the settlement might be ‘modified’ by the Board,” Dr. Peterson says, “but I do not think most would view their actions as a ‘modification’."
Of the revised proposal, Dr. Peterson was told he could take it or leave it; accept the counter-offer of the board or reject it and go to a formal hearing before an administrative law judge. While this forum is what he had originally requested, the doctor was now uncertain of what course to take. His attorney urged settlement.
As if in support of attorney Miller’s quiet urgings to Dr. Peterson, a board member injected a thought to nudge a decision from the doctor. One of the penalties voted on that day in Tampa concerned the requirement that Dr. Peterson submit to the physician assessment course administered by the University of Florida known as “UF CARES”. The doctor told the board he had not heard of the program and wanted time to consider whether or not he should accept the board’s new settlement offer. There was no mention by the board, or in a three-page explanation of the program, of any fee attached to UF CARES.
If he successfully completed the CARES course and was found to be a competent physician, the doctor wondered aloud to the board, would this change anything about the allegations brought against him?
“There is nothing that is going to change,” said Gustavo Leon, M.D., vice chairman of the board.
Dr. Peterson was told he could take a week to decide. When he then seemed hesitant, board member Dr. Rafael Miguel of Tampa offered a persuasive thought.
“But, doctor,” interjected Dr. Miguel, who appeared to sense that Dr. Peterson may be deciding to reject the board’s proposed settlement and request a formal hearing, “for example the board would probably prepare [sic] today to impose probation, suspension, direct supervision of your practice, etcetera.” Quickly diagnosing Dr. Miguel’s suggestion of even greater penalties, Dr. Peterson reluctantly agreed to accept the revised settlement.
He later learned why he had earlier sensed a need to ask for more information about the “UF CARES” program. Several days later, he learned he must pay a fee of $6,500 to submit to the examination. It was at this point, Dr. Peterson said, that he decided to call a halt to trying to negotiate with the state. Had anyone told him about that hidden fee during the meeting, Dr. Peterson says he would have rejected the state’s offer. So he sent his check for $6,062.43 to Agwunobi on June 20, 2003 to cover the fine of $3,500 and costs for the only disciplinary proposal to which he and state lawyers had agreed and signed - before the board threw it out. The state accepted and cashed his check.
In his letter to Governor Bush (that was not answered by the governor but by Larry McPherson, the executive director of the Department of Health), Dr. Peterson ended with a dire thought about his experiences with Florida’s newly energized Board of Medicine.
“Winning, rather than determining the truth and increasing the percentage of findings against physicians rather than establishing the merits of complaints brought before it, seem to have become the goals for some members of the Florida Board of Medicine,” the physician concluded.
Issues At A Glance
Can a Group of Doctors Acting As Judges and Jury Properly Serve The Best Interests of Justice?
Dr. Peterson resists what he terms is a flawed and unfair disciplinary process, noting that he had concerns early in the case when a settlement was being suggested by the state even before depositions were taken.
Here is a recap of some of the concerns about Florida’s physician disciplinary process as expressed by Dr. Peterson.
· The patient withheld significant information about serious symptoms of internal bleeding she had experienced. In The Florida Patient’s Bill of Rights and Responsibilities, Florida law declares that a patient “is responsible for providing to the health care provider, to the best of his or her knowledge, accurate and complete information about present complaints, past illnesses, hospitalizations, medications, and other matters relating to his or her health.”
· The patient refused her diabetes medication. The rights and responsibilities law says a patient “is responsible for following the treatment plan recommended by the health provider” and is responsible for her actions if “she refuses treatment or does not follow the health care provider’s instructions.”
· The patient’s nurse failed to tell doctors about evidence she had detected, late in the patient’s hospitalization, of a potentially serious gastrointestinal problem.
· The complainant’s original statement was not taken under oath.
· A state investigator who formed a basis for the prosecution visited the patient’s son but never conducted a face-to-face interview of Dr. Peterson.
· The original administrative complaint against Dr. Peterson contained false material allegations about the patient complaining of gastrointestinal problems when she was first admitted to the hospital on Oct. 18, 1999. Nowhere by emergency room doctors, nurses or admitting nurses is any such abdominal complaint documented. Yet it figured as a key factor in the prosecution’s judgment.
· Medical expert Dr. Bruce Berman, hired by the state to develop medical information essential to the prosecution of Dr. Peterson, declared his belief that the patient died because of the single, daily, coated aspirin prescribed during her four-day hospitalization. No post mortem examination was conducted to establish a cause of death.
· The medical expert swore, as crucial and factual, information that he later changed or explained he had not independently corroborated, but which he had based on unsworn allegations of the patient’s son.
· Dr. Peterson was not provided information developed by the department in an investigation of Citrus County Hospital where Peterson’s patient died from internal bleeding of an undetermined cause. Some of the information in that investigation supported the physician’s claims.
· At a meeting called to officially approve the settlement agreement negotiated by attorneys for the Agency for Health Care Administration and Dr. Peterson, the board, without prior notification to the accused, permitted the patient’s son who had filed the complaint to appear and make an impassioned, hostile speech. It contained factual error, said Dr. Peterson. There was no cross-examination.
· After the son’s presentation, the board interrogated Dr. Peterson. Quickly, after some hostile questions by some board members, the previously negotiated settlement offer was scrapped and replaced with significantly escalated penalties written and approved on the spot by the board’s voice vote.
· When significant material disputes arose concerning facts in the case, the matter was not transferred to the neutral Division of Administrative Hearings as the law appears to require.
| Date | Fine | Costs of Investigation | Letter of concern | Letter of reprimand | Community Service | Continuing Medical Education | UF CARES |
| 4/20/01 | $10,000 | Yes | X | 10 hrs | |||
| 6/29/01 | $15,000 | Yes | X | 10 hrs | |||
| 7/17/01 | $15,000 | $1,135.05 | X | 10 hrs | |||
| 4/19/02 [1] | $3,500 | $2,562.43 | X | 10 hrs | 10 hrs | ||
| 6/8/02 | $10,000 | $2,562.43 | X | 10 hrs | $6,500 |
THIS TABLE shows the evolution of offers made by the Agency for Health Care Administration to Dr. Peterson to settle administrative charges that he had not provided an acceptable standard of care for a 75-year-old stroke and diabetic patient who died following an internal hemorrhage of undetermined cause.
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[1] April 19 agreement accepted May 8, 2002; set for formal board approval but discarded on June 8, 2002