Download a PDF of the Current Issue 2015 Volume 12 Number 3 July- September

DOH: Prevalent Disciplinary Actions for Allopathic and Osteopathic Physicians.

Gregory A. Chaires, Esq. & JoAnn M. Guerrero, Esq., Chaires, Brooderson & Guerrero, P.L.
8-3-1 It is always interesting to consider trends in medicine, not only as they relate to the advancements made in medical technology, but also as they also pertain to the unfortunate continuing struggles faced by medical professionals.  As health care attorneys, we feel it is certainly well advised to have practitioners consider the nature of the actions giving rise to Florida Department of Health (“DOH”) investigations. It is our hope that through this article, a practitioner may glean a better understanding of the more frequently observed DOH investigations and use this information to evaluate one’s own practice and perhaps avoid such an investigation or disciplinary action.   The Division of Medical Quality Assurance of the DOH (the “MQA”) indicated in its 2009-2010 fiscal year report that the number of licensees regulated by MQA was 1,002,920, an 8% and 13% increase over the two prior years, respectively. To address frequently seen issues of risk among the masses of licensees in varied professions, new laws have progressively been implemented. Compounding this effort in the medical field is the increased vigilance of hospitals, ambulatory surgery centers and practitioners who routinely implement enhanced policies and procedures to decrease risk. As the disciplinary actions we observe in our practice are varied from physicians to dentists to physician assistants and nurses, we feel it necessary to provide this information in article installments.* Thus, we first consider the disciplinary actions affecting allopathic and osteopathic physicians. The categories below are the types of disciplinary actions we represent providers in most often, in no particular order of frequency.   Standard of Care   One of the most frequently observed violation in our practice is that of Section 458.331(1) (t), Fla. Stat. (allopathic)/Section 459.015(1) (x), Fla. Stat. (osteopathic), which concerns the commission of medical malpractice through the provision of substandard care. A multitude of offenses can fall under these statutes, which is why it is so commonly seen. Additionally, under Florida law, all closed medical malpractice claims where a settlement was paid must be reported to the Florida Department of Financial Services Office of Insurance Regulation. These cases are then referred to the DOH, at which time an investigation will be initiated and often an allegation of substandard care or medical malpractice will be cited. Furthermore, all civil complaints for medical malpractice must be filed with the DOH, at which time an investigation can be initiated. Examples of complaints falling under substandard care include anything from allegations of misdiagnosis, improper treatment and poor outcomes to personal disagreements with a practitioner or his or her staff.   Many times, the defense of an alleged standard of care violation requires a very fact-specific examination of patient care.  For this reason, appropriate and detailed documentation is critical. Whether the matter investigated involves medical care or a mere discussion with a patient concerning payment of a bill, a prescription refill or the like, we implore each practitioner to ensure that they and their staff maintain timely and detailed documentation.   Recordkeeping   We routinely remind our clients that for all practical purposes under this law, “if it is not in the record, it did not happen.” Failure to maintain appropriate documentation that justifies the course of treatment of a patient is a commonly seen basis for a DOH investigation. Such documentation issues can stem from failing to properly document patient histories, examination results, test results, records of drugs prescribed, dispensed or administered and reports of consultations and hospitalizations. See Section 458.331(1) (m), Fla. Stat. (allopathic)/Section 459.015(1) (o), Fla. Stat. (osteopathic) for the disciplinary violations for failure to keep appropriate medical records. We would also suggest a review of Section 456.057, Fla. Stat., and the respective rules by the Board of Medicine and the Board of Osteopathic Medicine that set out the requirements for maintaining patient records that justify the course of treatment of patients.   It is important to note that a recordkeeping violation not only pertains to the absence of information in a patient record but also if such information is illegible or insufficient to support actions taken by the provider.  We commonly see violations where a patient claims he or she was not informed of a test result, was not given appropriate informed consent relative to a surgical procedure or was not informed of a medication side-effect, as well as cases where a test or procedure was delayed or never ordered. When effective recordkeeping is employed, the defense of such allegations is much less challenging as the record will support a given event occurred.   We urge practitioners to take the time to create a more detailed medical record, as it not only enhances the continuity of patient care, but also better serves physicians in the event that their care or billing practices are called into question. To facilitate this effort, many practitioners employ Electronic Medical Recordkeeping (“EMR”) systems.  When used appropriately, these systems can be quite beneficial. However, where such systems are used lazily or casually, it is not uncommon to see how EMRs may actually decrease the use of beneficial and specific recordkeeping practices and present a significant setback. An overreliance on “check boxes” and “radio buttons” can certainly be detrimental, particularly concerning matters where a narrative detail is more appropriate. Practitioners must use their best efforts to ensure appropriate documentation of the informed consent process for any procedure, detailed documentation of test orders, prescription orders and refills and thorough communicative logs concerning any interactions between any member of the office staff and the patient concerning any subject.   Inappropriate Prescribing   A more recent trend of investigations have concerned issues involving the inappropriate prescribing of medications.  The MQA and the Florida Legislature continue to very clearly indicate that addressing this crisis is one of its highest priorities. For fiscal year 2009-2010, 281 pain management-related complaints were filed, 8 were emergency actions concerning clinics and 16 were emergency actions relating to pain management-related practitioners.   Under Section 458.331(1)(q), Fla. Stat. (allopathic)/459.015(1)(t), Fla. Stat. (osteopathic), inappropriate prescribing relates to the dispensing, administering, mixing or otherwise preparing